Category Archives: current affairs

‘You’re Fired,’ Trump Should Tell Richard Cordray

Under a dubious statute, the CFPB head can be dismissed only for cause—but there’s plenty of it.

By David B. Rivkin Jr. and Andrew M. Grossman

April 13, 2017, in the Wall Street Journal

The greatest mystery in Washington involves not Russian spies or wiretaps but Richard Cordray’s continued employment as director of the Consumer Financial Protection Bureau. In the face of President Trump’s mandate for change, Mr. Cordray continues the Obama administration’s regulatory crusade against lenders, blocking access to the credit that supports so many small businesses and so much consumer spending.

Why would a president who made a TV show out of firing underlings now suffer a subordinate who refuses to get with the pro-growth agenda he campaigned on? If reports from the West Wing are to be believed, Mr. Trump’s unusual timidity is the result of overcautious legal and political advice.

Mr. Cordray is insulated from presidential control by a New Deal-era innovation: a statutory clause that allows the president to fire an independent agency head only “for cause,” meaning “inefficiency, neglect of duty, or malfeasance in office.” In October a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down that restriction an infringement of the president’s constitutional authority to “take care that the laws be faithfully executed.”

When Congress created the CFPB by passing the Dodd-Frank Act of 2010, Judge Brett Kavanaugh explained, it broke with decades of historical practice. Generally the power of independent agencies is diffused among multiple commissioners or directors so as to reduce the risk of abuse. Unless he can be fired, Mr. Cordray, as the sole director of the CFPB, wields more unilateral power than any government official save the president.

The panel’s decision, however, was set aside in February when the full 11-judge court voted to rehear the case. White House lawyers are reportedly waiting to see how the litigation unfolds—a process that could go well past the end of Mr. Cordray’s term in mid-2018.

But it is a mistake to regard the twists and turns of that appeal as a reason to give Mr. Cordray a reprieve. Whatever the D.C. Circuit ultimately decides, no one disputes that the president may dismiss the CFPB director for cause. And the evidence is ample to support firing Mr. Cordray, on all three grounds permitted under law:

Inefficiency. Regulation, the Supreme Court has recognized, should seek to maximize economic efficiency through cost-benefit analysis. Yet the CFPB has pursued an agenda at odds with any clear-eyed view of economic growth and efficiency.

Its rules have made community banks and credit unions more reluctant to issue mortgages, particularly in rural areas, and accelerated consolidation of the industry, reducing competition. Its regulations have limited access to checking accounts, credit cards and other financial products, driving vulnerable Americans to depend on riskier sources of financial services and credit. The agency has even worse policies in the works, such as limits on consumer arbitration and payday lending.

Taken as a whole, the CFPB’s heavy-handed approach to regulation and enforcement has driven up the cost of borrowing, to the detriment of consumers and small businesses.

More prosaically, Mr. Cordray’s CFPB has botched basic administrative procedures meant to ensure efficiency in regulation. About a third of its rules were finalized before being published in the agency’s Unified Agenda, depriving the public of valuable notice and frustrating the regulatory review process. That haste has also led to serious errors: About a quarter of the CFPB’s rules have required correction after being finalized. Further, Mr. Cordray has specifically embraced “regulation through enforcement,” which forgoes orderly rule making entirely in favor of imposing penalties for newly contrived “violations.” This is no way to run a financial watchdog.

• Neglect of duty. Mr. Cordray allowed tens of millions of dollars in cost overruns to pile up for a lavish renovation of the CFPB’s Washington headquarters.

The agency also missed the major consumer-finance scandal of the past decade. It ignored years of complaints about an epidemic of unauthorized customer accounts at Wells Fargo . The CFPB galloped in to exact a penalty only after an investigation by California officials and other regulators was complete.

Malfeasance. What was the CFPB doing all that time? The bureau, it turns out, had spread its resources too thin, focusing on alleged discrimination in auto-dealer lending—an area that Congress specifically excluded from its purview. Not only did the agency run roughshod over that limitation, but its statistical analysis relied on dubious methods such as guessing borrowers’ race based on their surnames.

No such guesswork was required for the Merit Systems Protection Board and Government Accountability Office to find that the CFPB itself had become a hotbed of race and sex discrimination. As early as 2013, a report by Deloitte Consulting revealed that the agency’s internal performance reviews were biased against minority employees, many of whom also reported discrimination at the agency. Years later, claims of discrimination persist, particularly among black employees. Mr. Cordray failed to resolve these issues even years after initial reports.

Any of these things would be sufficient to dismiss Mr. Cordray for cause. All of them together make it necessary to do so.

If Mr. Cordray were to challenge his firing, we have little doubt the courts would support Mr. Trump. Assuming the courts even agreed that they have the power to review a presidential finding of cause for dismissal—which is far from established—they would still grant it substantial deference. The president would prevail, so long as he has documented his findings, explained his reasoning, and satisfied any due-process concerns by affording Mr. Cordray an opportunity to respond.

As far as Mr. Cordray is concerned, no further caution is required. What the president needs is resolve, and his famous TV catchphrase.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/youre-fired-trump-should-tell-richard-cordray-1492124207

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

Five Ways to Restore the Separation of Powers

The worst legacy of the Obama administration may be disdain for the Constitution’s separation of powers. President Obama’s actions have created dangerous stress fractures in our constitutional architecture, making it imperative that the Trump administration and Republican Congress commence immediate repairs.

The Constitution separates power in two ways: among the three branches of the federal government and between the federal government and states. As James Madison wrote in the Federalist Papers, separation creates “a double security” for liberty because “different governments will control each other, at the same time that each will be controlled by itself.”

The Obama administration has spurned this core constitutional principle, aggrandizing executive power at the expense of Congress and states. It has rewritten laws, disregarding its constitutional duty to faithfully execute them.

ObamaCare’s implementation provides multiple examples: delaying statutory deadlines, extending tax credits to groups Congress never included, exempting unions from fees, expanding hardship waivers beyond recognition and granting “transition relief” for preferred employers.

Mr. Obama even usurped Congress’s power of the purse, spending billions for “cost-sharing subsidies” that pay ObamaCare insurers for subsidizing deductibles and copays. Congress never appropriated money for these subsidies, so the administration shifted money appropriated for other purposes. The House sued to defend its constitutional prerogative, and in May a federal court ruled against the administration, which has appealed.

Mr. Obama also exempted five million illegal immigrants from deportation, though Congress had unambiguously declared them deportable. He waived the mandatory work requirement of the 1996 welfare reform. He redefined sexual discrimination under Title IX, forcing schools to allow transgender students to use bathrooms of their non-biological gender, and threatening to withdraw funds if colleges refuse to reduce due process protections for individuals accused of sexual assault.

The president has exhibited particular antipathy toward the Senate’s advice-and-consent duty. In Noel Canning v. NLRB (2014), the Supreme Court unanimously ruled that the administration violated separation of powers by making unilateral appointments to the National Labor Relations Board while the Senate was in session. And the president unilaterally committed the nation to an unpopular nuclear deal with Iran, bypassing the Senate’s treaty ratification power.

Mr. Obama’s actions have also shattered federalism. The administration rewrote the 1970 Clean Air Act, commanding states to revamp their electricity generation and distribution infrastructure. It rewrote the 1972 Clean Water Act, claiming vast new power to regulate ditches and streams under the risible notion that they are “navigable waters.” It has refused to enforce existing federal drug laws, emboldening states to legalize marijuana.

The media and academy enabled the administration’s unconstitutional behavior because they support its policy agenda. But the Framers expected members of Congress to jealously defend congressional power against executive encroachment—even from a president of the same political party. As Madison observed, “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

This principle disappeared during the past eight years. In his 2014 State of the Union address, the president vowed to implement his agenda “wherever and whenever I can” without congressional involvement—to thunderous applause by Democrats. In November 2014, Democratic Senators urged the president to vastly expand his unilateral amnesty for illegal immigrants.

The Trump administration and GOP Congress should resist the temptation to follow this Constitution-be-damned playbook. The greatest gift Republicans could give Americans is a restored separation of powers. But this cannot be accomplished by merely rescinding the Obama administration’s unconstitutional executive orders. While this is a necessary step, Congress should enact additional reforms.

First, Congress can amend the 1996 Congressional Review Act to require affirmative approval of major executive-branch regulations. The law now allows regulations to go into effect automatically if Congress does not disapprove them. The act has been used only once to overturn a regulation because it requires passage of a joint resolution of disapproval—which must be signed by the president. This requirement should be inverted: If Congress does not affirmatively approve a regulation, it never goes into effect.

Second, Congress could prohibit “Chevron deference,” in which federal courts defer to executive branch interpretations of ambiguous statutes. Chevron deference is a judge-made doctrine that has aggrandized executive power, ostensibly to implement Congress’s intent. If Congress denounces such deference, it can simultaneously reduce executive power and encourage itself to legislate with greater specificity.

Third, Congress can augment its institutional authority by expanding its contempt power. The criminal contempt statute should require the U.S. attorney to convene a grand jury upon referral by the House or Senate without exercising prosecutorial discretion. Congress should also extend the civil contempt statute to the House, not merely the Senate, and enact a new law specifying a process for using Congress’s longstanding (but rarely invoked) inherent contempt authority.

Fourth, Congress can require that all major international commitments be ratified by treaty. A statute defining the proper dividing line between treaties and executive agreements would reassert the Senate’s constitutional role, provide clarification to the judiciary, and encourage communication and negotiation between Congress and the president.

Fifth, Congress can enact a law further restricting its ability to coerce states into adopting federal policies or commanding state officials to carry them out. While the courts have ultimate say on the contours of these federalism doctrines, a law could force greater consensus and debate, provide guidelines on Congress’s use of its powers, and signal to the judiciary a reinvigorated commitment to federalism.

Restoring separation of powers is necessary and possible. It should be the highest priority of the Trump administration and Congress.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington, D.C. Ms. Foley is also a professor of constitutional law at Florida International University College of Law.

Source: http://www.wsj.com/articles/five-ways-to-restore-the-separation-of-powers-1482192048

Can Trump cut off funds for sanctuary cities? The Constitution says yes.

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

But whatever one thinks about Trump’s strategy, it almost certainly would pass muster at the Supreme Court.Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.  

Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone. 

This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.

It follows that, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally.

It’s true that cities such as Los Angeles instruct city employees not to ask about immigration status, but they may still have access to that information. Under California law, for example, driver’s licenses issued to immigrants in the country illegally contain prominent distinguishing language stating, “federal limits apply.” Indeed, Congress could specify that licenses issued to immigrants in the country illegally must include a distinguishing feature, or they won’t be accepted for federal purposes, such as TSA airport security. Congress already has enacted the Real ID Act, which mandates that driver’s licenses display certain details.

A separate constitutional doctrine, the anti-coercion doctrine, likewise won’t shield sanctuaries. This doctrine holds that while Congress may impose conditions on receipt of federal funds, it cannot coerce states into accepting those conditions.

In the 1980s, Congress passed a law withholding 5% of highway funds from any state that refused to adopt a minimum drinking age of 21. The Supreme Court, in South Dakota v. Dole (1987), upheld it. Because highway funds are expended — in part — to ensure safe travel, the court reasoned that raising the drinking age was “relevant to the federal interest in the project and the overall objectives thereof.” More significantly, withholding 5% of federal funds wasn’t coercive because while it represented a loss of $615 million dollars, it was only 0.19% of states’ total budgets.

By contrast, in NFIB v. Sebelius (2012), the Supreme Court found that Congress violated the anti-coercion doctrine. Specifically, in the Affordable Care Act, Congress withheld 100% of states’ Medicaid funding if they didn’t expand those programs. A court plurality characterized this as a coercive “gun to the head” because it involved a loss of over $233 billion dollars — more than 20% of states’ budgets.

The South Dakota and NFIB cases teach that Congress can cut off funds if the conditions imposed are relevant “to the federal interest in the project” and the threatened loss of money doesn’t amount to a “gun to the head,” defined by a substantial percentage — approaching approximately 20% — of states’ budgets.

Congress certainly could meet these standards. Many federal programs provide billions to universities and state and local law enforcement. Provided the percentage withheld didn’t approach the 20% threshold, it should be constitutional. As with the highway funds in South Dakota, these programs are designed in part to improve safety of campuses and communities. This goal would be furthered by withholding funds from cities and universities that provide sanctuary for criminals present in the country illegally. Such individuals, by definition, not only are unvetted by the federal government, but have committed crimes while here.

Whatever one’s view of the best immigration policy, it should be uniform. Some, including the Washington Post’s editorial board, have suggested that Congress should give sanctuary cities flexibility to report only those who’ve committed the most serious violent offenses. But precisely which criminals should be subject to deportation requires resolution by Congress, not each city or university.

Sanctuary policies create Balkanization on an issue with important foreign policy implications and corresponding potential for diplomatic embarrassment. As the Supreme Court affirmed in Arizona v. United States (2012), “the removal process is entrusted to the discretion of the Federal Government” because it “touch[es] on foreign relations and must be made with one voice.”

The Constitution is clear that power to determine deportation policies belongs to Congress, not states, municipalities or universities.

David Rivkin and Elizabeth Price Foley practice appellate and constitutional law in Washington, D.C. Rivkin served at the Department of Justice and the White House Counsel’s office during the Reagan and George H.W. Bush administrations. Foley is also a professor of constitutional law at Florida International University College of Law.

Source: http://www.latimes.com/opinion/op-ed/la-oe-rivkin-foley-sanctuary-city-20161207-story.html

Legislators go back to court for contempt ruling against McAuliffe

By David B. Rivkin Jr. and Andrew M. Grossman

September 11, 2016, in the Richmond Times-Dispatch

This past July, the cronyist government of Venezuelan President Nicolas Maduro threw out more than half of the signatures on a petition for a recall to remove him from office, citing “unclear handwriting.”

That is not a problem shared by Virginia Governor Terry McAuliffe, whose autopen machine traces a perfectly legible facsimile of his signature every time. Following the autocratic example of Venezuela and other rule-of-law pariahs, McAuliffe has his autopen working overtime to transform Virginia into a banana republic, one signature at a time.

The signatures — a mere 206,000 or so of them — are the centerpiece of McAuliffe’s scheme to circumvent the Virginia Supreme Court’s July ruling striking down his executive order that suspended the Virginia Constitution’s general rule stripping felons’ voting rights. The court agreed with legislative leaders who had challenged the order that it was not a legitimate exercise of the governor’s power to grant clemency in particular cases. It was, instead, an unlawful attempt to suspend the operation of a law simply because the governor disagrees with it.

Does he ever. The same day that the decision issued, McAuliffe told the press that he “cannot accept” it. A few days later, citing the venerable maxim that “you’ve got to do what you got to do,” he vowed that “all 206,000 (felons) will have their rights back” in a matter of weeks.

Thus, the autopen. Rather than a single bulk order suspending an entire felon-voting bar, McAuliffe would achieve the same result by issuing an individual order for each felon in Virginia who has completed his or her incarceration and supervised release. On Aug. 22, the governor announced that he had issued 13,000 orders restoring voting rights for the felons who had registered to vote under the order struck down by the Supreme Court and promised (many) more to come.

In response, the same legislators who defeated McAuliffe’s first order have asked the Virginia Supreme Court to hold the governor in contempt and act to enforce its prior judgment.

As their motion exhaustively describes, McAuliffe’s new orders amount to outright defiance of the court’s earlier decision. That decision did not turn on the fact that McAuliffe had issued a blanket order, but instead focused on the “practical effect” of that order as nullifying the law. The new orders have the same effect as the old one, unilaterally suspending the operation of the constitution’s felon-voting bar in precisely the same way, with respect to precisely the same persons. As the legislators’ contempt motion observes, the “Court did not reduce the suspension clause of the Constitution to a printing requirement.”

Indeed, seeking to foreclose further legalistic scheming, the court took pains to state that a Virginia governor cannot “suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone” subject to it. And it made clear that proper exercise of the pardon power requires a “specific request by individuals seeking such relief” and consideration of their “individual circumstances.”

So, whether the Virginia Supreme Court’s decision got the law right or wrong, there is no disputing that McAuliffe’s current actions clash with what it ruled. And that is reason enough for the court to hold the governor in contempt and invalidate his flurry of orders.

But the stakes are far higher than in the last round. McAuliffe’s disrespect for the law and for a co-equal branch of government threatens the freedom and political rights of all Virginians. It is worth recalling President John Kennedy’s admonition, offered in response to defiance of the court-ordered desegregation of the University of Mississippi, that “observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny.” As Americans, we are free “to disagree with the law but not to disobey it.”

That principle applies with special force to those whom we entrust with the power and responsibility to carry out the law. Nicolas Maduro may be above the law, but Terry McAuliffe and his autopen are not.

David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law in Washington, D.C. 

Source: http://www.richmond.com/opinion/their-opinion/guest-columnists/article_758b5af8-7db4-5c23-b45b-91f8fa015a9c.html

This Latest Labor Gambit Is a Piece of Work

July 5, 2016

The general counsel of the National Labor Relations Board, Richard F. Griffin Jr., recently launched another salvo in the board’s continuing assault on the rights of employers and employees. He aims to alter labor law by punishing employers who—following the publicly expressed wishes of their employees—withdraw recognition from unions.

Currently, employers can refuse to recognize or bargain with incumbent unions if most of their employees wish to free themselves from the union’s grasp. For example, if a majority of employees send signed petitions to an employer’s human-resources department, or voluntarily tell management that they want the union gone, the company can, and should, decline to bargain or acknowledge the legitimacy of the union.

Under the proposed new National Labor Relations Board policy, employers will be precluded from walking away from a union, and will be sanctioned by the NLRB, unless employees first vote to leave in an NLRB-conducted secret-ballot election.

Such elections tend to be costly and protracted affairs, which may be part of their appeal to the NLRB now. Unions have also long disfavored secret-ballot elections. Secret balloting reduces the chance of employees being intimidated. Such elections also subject union-organizing activities to government oversight.

Instead, with the NLRB’s blessing, unions have been trying mightily to get Congress to enact a new statute which would require “card check,” a procedure under which unions are recognized upon a public attestation by the majority of workers. Pursuant to the existing labor law, the NLRB has blessed card-check use, but its availability currently depends on employer acceptance, which is usually not forthcoming. Congress has resisted mandating card check, which could leave employees open to intimidation by fellow workers and union organizers.

 

The irony in this latest proposal is that it’s coming from a government agency that enthusiastically supports card check for unionization votes, but opposes it as a mechanism for deunionization votes. What Mr. Griffin is proposing is the Hotel California version of unionization: You can check into a union but you can’t check out, at least not easily.

Given its pro-union makeup, the NLRB is likely to approve this proposal. But alongside its policy flaws—making it harder for an employer and its employees to remove a union they no longer want—the proposal is also unlawful. Under settled law, executive-branch agencies must implement statutes giving full effect to congressional intent, as reflected in the statute as a whole.

As the Supreme Court explained in an early case, United States v. Boisdore’s Heirs (1850), “[i]n expounding a statute, we must not be guided by a single sentence, or member of a sentence but look to the provisions of the whole law, and to its object and policy.”

The two key congressional goals featured in the National Labor Relations Act are: (1) facilitating employers’ and employees’ acceptance of unions to avoid industrial strife causing damage to the economy and (2) allowing employees to exercise full freedom of association, self-organization, and designation of representatives of their own choosing. In construing the Act, the board must advance both of these goals. It cannot write either one out of existence.

If the will of a majority of workers is good enough to create union representation without an NLRB-overseen election, then it must be sufficiently fair and expedient to end it, especially since card check operates the same in both scenarios. Mr. Griffin concluded, however, that the card-check approach is sufficiently conducive to facilitating the acceptance of labor unions by employers and employees to justify its use. But he also held that, when the ejection of a union is at issue, card check cannot be used—even though it also is perfectly conducive to the employee’s right to exercise full freedom of self-organization. This approach undermines this right and entirely ignores the congressional goal of facilitating it.

Mr. Griffin’s initiative, even before it is formally blessed by the NLRB, will have an immediate adverse impact on employers and employees. Unions will read this policy announcement as an invitation to file unfair-labor-practice charges on this issue, knowing they will receive favorable consideration from the agency. Overzealous NLRB regional directors are sure to investigate charges with partiality.

This initiative is yet another example of an unconstitutional overreach by the NLRB. Fortunately, it can be successfully challenged, especially since the courts are unlikely to defer to Mr. Griffin’s implausible parsing of the National Labor Relations Act. In a series of recent Supreme Court cases, including National Assn. of Home Builders v. Defenders of Wildlife (2007) and UARG v. EPA (2014), the Supreme Court slammed agencies for rewriting “unambiguous statutory terms” to advance “bureaucratic policy goals,” calling such actions “a severe blow to the Constitution’s separation of powers.”

Clearly, the judiciary has had enough of statutory rewriting masquerading as statutory interpretation.

Source: http://www.wsj.com/articles/this-latest-labor-gambit-is-a-piece-of-work-1467760467

Mr. Rivkin is a constitutional litigator who served in the Justice Department and the White House Counsel’s Office under Presidents Reagan and George H.W. Bush. Mr. Krupin is a labor lawyer who has testified before Congress on labor-law reforms.

Gun control proposals in the wake of Orlando could endanger constitutional rights

By David B. Rivkin Jr. and Andrew M. Grossman in the Washington Post,  June 21, 2016

In the aftermath of horrific terrorist massacres such as the Orlando nightclub shooting, the natural impulse of the American people is to ask what the government can do to prevent such tragedies. Securing public safety is indeed the government’s most important job; keeping guns away from terrorists has obvious value. But this must be done in a way that complies with the Constitution.

This admonition has animated much of the recent debate about the rules governing National Security Agency surveillance of suspected terrorists. Regrettably, it has not been embraced in the gun control debate unfolding in the aftermath of Orlando.

Yet the Constitution’s due process protections are the vital safeguard of individual liberty and mitigate against arbitrary government action by setting the procedures the government must observe when it seeks to deprive an individual of a given substantive right.

Constitutionally “appropriate” procedure varies based on the importance of the right at issue and the risk of an erroneous deprivation of that right, and the government’s interest. For example, while government officials may commit a person who is dangerous to himself or others on an emergency basis, a judicial determination of the validity of the commitment must follow. Law enforcement officers may arrest a person they believe to be guilty of a crime, but the person who has been arrested is entitled to appear before a judge.

Our legal traditions spell out the process that is due for the categories of people currently denied the right to keep and bear arms. Those include felons and those charged with felonies, people adjudged “mentally defective” and those dishonorably discharged from the military. The unifying factor is that people subject to these bars have all received their day in court.

But that’s not the case with the new gun control proposals. One proposal is to block gun sales to those named on the terrorist watch list maintained by the FBI’s Terrorist Screening Center. The list, however, is entirely unsuited to that task.

According to National Counterterrorism Center guidance, agencies can add someone to the list based on a “reasonable suspicion” or “articulable evidence” that the person is a “known or suspected terrorist.” Listings can be based on anything from civilian tips and social-media postings to actual government investigations. The guidance makes clear that “irrefutable evidence or concrete facts are not necessary.”

The predictable result is a very long list, with entries of varying quality. As of July 2014, the main list contained about 800,000 names. More than 40 percent are designated as having “no recognized terrorist group affiliation.” This kind of list may be valuable for prioritizing counterterrorism activities, supporting investigations and determining where additional scrutiny may be warranted, such as with visa applications.

However, the watch list was never intended to be used to punish listed individuals by depriving them of their constitutionally protected rights. And, legally, it is unsuitable for that task. While there is an administrative redress process to remove a name from the list, there is no judicial review, no hearing and not even notification of whether a request was granted or denied, much less the grounds of the decision.

The no-fly list, which contained about 47,000 names in 2013, is subject to the same shortcomings. Individuals are never informed why they’ve been listed and have no opportunity for a hearing before a neutral judge to clear their names. In court filings, the government has explained that the list represents officials’ “predictive judgments” about who may pose a threat. Whatever the merits of that approach as applied to the eligibility for air travel, it falls far short of the kind of concrete proof and procedure necessary to deprive a person of a constitutionally protected right.

Even narrower approaches being bandied about raise similar concerns. For example, an amendment by Sen. Dianne Feinstein (D-Calif.) would authorize the attorney general to block a firearms sale if the attorney general determined that the buyer was engaged in conduct relating to terrorism. The amendment does provide that a frustrated buyer may bring a lawsuit in federal court to challenge a denial. But its text suggests that this is just window dressing: The attorney general may withhold the evidence underlying the denial from the plaintiff, placing the burden on the plaintiff to prove his innocence by rebutting evidence that he’s never seen.

Those agitating for firearms restrictions now should understand that the precedent they set is a dangerous one that extends far beyond the realm of the Second Amendment. If the government’s say-so is sufficient to block a gun sale — thereby abridging a right enumerated in the Constitution, with little or no ability for redress — what right wouldn’t be at risk of arbitrary deprivation, particularly among the powerless?

David B. Rivkin Jr. served in the White House counsel’s office and the Justice Department in the Reagan and George H.W. Bush administrations. Andrew M. Grossman is an adjunct scholar at the Cato Institute. They practice appellate and constitutional law in Washington.

Source: https://www.washingtonpost.com/opinions/gun-control-proposals-in-the-wake-of-orlando-may-endanger-constitutional-rights/2016/06/21/9c79dc88-37d8-11e6-a254-2b336e293a3c_story.html