Transcript: David Rivkin on The Laura Ingraham Show, June 20, 2011
Laura Ingraham: “Obama went on to say that it was going to be a matter of days not weeks that we would be engaged there before we “handed things off to NATO”? Handed things off? None of this is right. The fact that this President seems to not care about the requirement that he get congressional approval within 60 days of this military operation just shows you once again that he either doesn’t understand the basics of law or he doesn’t care about abiding by it.
Joining us now a man who knows a little bit about this, David Rivkin, of course his long history of writing about these issues, studying them, partner at Baker Hostetler, he was an expert member on the UN subcommission on the protection and promotion of human rights for a number of years. And now he is the lead counsel in Florida v. Sebelius, the big ObamaCare case. And he joins us now.
David, good to talk to you again.”
David Rivkin: Good to be with you, Laura.
Ingraham: Let’s talk about this Libyan situation. Now we have Lindsay Graham and John McCain over the weekend calling Republicans “isolationists” who are questioning both the decade long war in Afghanistan and Libya. What’s the take?
Rivkin: Well, as a policy matter, there certainly can be reasonable disagreements about the merits of Libyan operation, its been done extremely poorly. I would not be surprised at this rate if Gaddafi will survive. Which of course would be an incredibly bad situation for NATO and bad situation for the United States. Leading from behind is not a winning strategy.
On the other hand, I’m troubled by the fact that so many Republicans are now expressing fidelity, if you will, to the War Powers Resolution which is of course, an unconstitutional piece of legislation, and has been held as such by every president since Richard Nixon tried to veto in 1973.
Ingraham: Well, it’s a matter of law though, isn’t it?
Rivkin: Well, this is what George Will said in The Washington Post a couple times. His position is that if there is a statute out there that compels the president to do something, unless and until the court overturns it, you have to comply with it.
With respect, it’s not true. The president has not only a right, but a duty, not to comply with unconstitutional statutes. That has been the longstanding tradition of the office of legal counsel under presidents of both parties. In fact, it was articulated most robustly by a fellow by the name of Walter Dellinger, who was Bill Clinton’s head of policy.
As for adjudication, you cannot really have an article free court pass on the constitutionality of War Powers resolution. It’s a political question. In a sense that the court would lag judiciously . . . as most matters are delegated to the two political branches. Most of the separation of powers disputes are non-justiciable.
Again, I’m with you. It’s a badly executed war. The president has failed to provide any compelling justification to American people or Congress. But from a constitutional perspective, he does not have to comply with the War Powers Resolution.
Ingraham: Well, the interesting thing in my view is the President came out so forthrightly to say this engagement would last days not weeks. . . Now of course, it’s been a matter of months. And America is still doing the heavy lifting in Libya. There seems to be a lack of focus and a lack of candor with what’s really going on. Our goal is not to unseat Gaddafi, then we hope he goes. It’s all incredibly muddled.
Rivkin: You’re absolutely right. We have a lack of strategic focus as far as military is concerned and a lack of forthright explanation. I’m totally with you on that. I would also add that, in addition to not predicting how long it would take, he’s been playing semantic games . . . what I told you about War Powers is not this administration’s view . . . This administration’s view is that the War Powers Resolution does not apply because what’s happening in Libya is not “hostilities.” That’s absurd. It’s funny. We lawyers are supposed to know how to parse language. This is an embarrassing twisting of language. Interestingly enough, both DOJ and the general council of DOD do not agree with the White House on this issue. So here Laurie, you have a president, who even when’s he doing the right thing, as far as the constitutional realities are concerned, cannot bring himself to articulate it in a forthright manner and resorts to semantic games.
Ingraham: Yeah (laughs) Harold Coe told the president these hostilities in Libya fall short of those which would be covered under the War Powers. Assuming you believe War Powers is constitutional, the fact that Harold Coe is the person the president agrees with is hilarious. Tell us why.
Rivkin: It is hilarious. He is a noted internationalist and an expert in international law. What’s ironic if you look at the body of his academic writings, he subscribes to a notion that there is a very low threshold you need to cross before you are in a state of armed conflict.
Let me add one thing that may sound arcane, but its actually quite apropos. As a matter of international law, does anybody believe what is happening in Libya now is not armed conflict? If someone, for example, would send a ship loaded with weapons to Gaddafi that NATO would not stop it? One of the essences of being in state conflict is you can use force not only against a belligerent, but you have a right vis-a-vis against neutral powers.
This is a risible argument. It pains me to defend this situation, I’m doing this because of my respect for the Constitution. It’s very difficult to defend this administration. These arguments, that its not hostilities, that our goal is to not unseat Gaddafi, are just absurd.
Ingraham: David is also is the lead counsel in the 26 states challenging ObamaCare. Can you tell us where that is at right now?
Rivkin: Three cases have been fully briefed in argued at the court of appeals level in the Fourth Circuit, Sixth Circuit, and our case, the 11th Circuit.
I’m very optimistic about where we are. Let me tell you briefly why: Well over a year into it, you would expect the government’s arguments to be sharpened, that they would improve, that you would see some opportunities for life down the road–because this case is of course going to end up before the Supreme Court. Nothing like that has happened . . . The key thing that they try to argue is that there is a limiting principle that applies to the interpretation of the Commerce Clause. The reason you need a limiting principle of course is because the federal government exercises limited and enumerated powers, states exercise general police powers.
They’ve come up with no viable limiting principle. Every single judge, even the ones that are sympathetic to them for whatever reason, has tried to press them on this–this is true in all three circuit court arguments. Their basic argument by now seems to be what I call the ‘time travel’ argument . . . that we can regulate people not when they actually buy healthcare, which everyone agrees you can, but the people are not doing that, they’re inactive . . . The government’s argument is: Because we know for sure that you’ll be active in the future, we can regulate you now. I call it the ‘time travel theory’ of the Commerce Clause. It does not work like this. In fact, under this argument, instead of being limiting, this is an unlimiting principle.
Ingraham: Yeah you can do anything! What else could you not regulate?
Rivkin: Oh absolutely. I could take the position that you might buy any service in the future and why not regulate how you buy it by requiring you to buy it here and now?
Do you remember the Soviet Union? You had central planning, you had commissars telling many factories what to produce, and of course, the shelves were filled with unwanted goods. Even the Soviet apparatchiks did not dare tell the people what to buy.
We have an administration that has far departed from any recognizable meaning of the Constitution.
Ingraham: A couple of friends of mine are very concerned about the way [Justice] Anthony Kennedy would vote on this case? [Justice] Elena Kagan would be recused, right?
Rivkin: No, she has indicated she would not recuse herself. But there will be fire for an argument.
Very briefly about Kennedy, I’m very optimistic and have been for a long time that he would vote the right way. He just wrote a majority opinion in a case that emphasizes his strong conviction that the dual sovereignty system and the proposition that the federal government exercise limited and enumerated powers, is the essence of our constitutional architecture. Actually, Laura, this is one area where Kennedy speaks with a very distinctive and very powerful voice and he has done so for decades.
Ingraham: The administration is now not granting all these waivers on ObamaCare. They’re saying that the public support they predicted was going to grow for this is actually waning. The public isn’t supporting this ObamaCare implementation and they didn’t support it being passed as it was passed.
Rivkin: That is absolutely true, Laura. Another example aside from public opinion polls, is the position of the American Medical Association, Which the administration highly touted as a key source of support during the legislative phase. As you probably heard, there is a serious move afoot to specifically remove the endorsement of the individual mandate. If you’re convinced that ObamaCare is such a wonderful, regulatory regime, why are you giving out thousands of waivers? So their public posture is eroding, their legal posture is proven to be completely wanting. I’m enormously optimistic by June of next year, the statue either in its entirety or its most objectionable provisions, will be taken down by the Supreme Court in a 5-4 decision. I wish it was better than 5-4 but I will take it.
Ingraham: David, are you going to do the oral arguments before the Supreme Court?
Rivkin: It remains to be seen (laughs).
Ingraham: OK . . . That’s a pretty big first argument before the Supremes if you do this argument. You gotta slow down the presentation or Scalia will cut you right off.
Rivkin: Laura, this case would argue itself. I really believe that there is no way the government can prevail.
Ingraham: Hey David, right now, I’m agreeing to help moot court you if you’re gonna do the argument. I’ll play Scalia (laughs).
Rivkin: It’s a deal.
Ingraham: We really appreciate the work you do on this. This has been a long road for you, you write such great stuff. We have to win this in the courts for the people and our economy and for our health care system which we can reform properly, and with commonsense and with clarity. That can all be done. But we have to get rid of the statute first.
RIvkin: And for our Constitution. This is incredibly important. This is beyond health care. This is really about what kind of country we live in.