Category Archives: law

The Justices Lay Down the Law

By David B. Rivkin Jr. and Lee A. Casey

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity.

That, the court specifically cautioned, is not an invitation for evasion by immigration advocates: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

That exception, Justice Thomas noted for the dissenters, was a “compromise”—most likely the product of Chief Justice John Roberts’s effort to achieve a unanimous decision. Given the circumstances, this was a good outcome. It lends the imprimatur of the full court to the rebuke of the lower courts, and avoids the kind of partisan split that prevailed in both the Fourth and Ninth Circuit Courts of Appeals. All nine justices are also now on record supporting the proposition that the vast majority of foreign nationals cannot claim a constitutional right to enter the United States.

When the court reviews the merits of the case in the fall, however, such considerations will be out of place. While courts can adjudicate cases involving immigration and other foreign affairs issues, judicial engagement in this space is fundamentally different than in domestic affairs. In an area of decision-making that involves both institutional knowledge of international affairs and continuous access to classified information, great deference is in order from the courts. If the courts wade into this area, they would undermine both national security and respect for the judiciary. The perception that judging is swayed by political or ideological considerations would be particularly calamitous in this area. Better a 5-4 decision articulating this view clearly than a unanimous but equivocal one.

The odds of a clear outcome are good. As Justice Thomas pointed out, his colleagues’ “implicit conclusion” is that the administration is likely to prevail on the merits. The high court’s own precedent in this area is clear. Nonresident aliens have no constitutional right to enter the U.S. When denying entry, the president need only provide a “facially legitimate and bona fide” justification. As the court held in Kleindienst v. Mandel (1972), once that justification is established, there is no further inquiry or balancing for the courts to make.

Any other decision would be both inconsistent with the court’s precedent and injurious to the Constitution’s separation of powers. It would also compromise the president’s ability to defend the nation at home and abroad and cause grave harm to the judicial branch in maintaining its own critical constitutional role.

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

Source: https://www.wsj.com/articles/the-justices-lay-down-the-law-1498604382

In Texas, judges waive bail for the indigent, distorting the Constitution

by DAVID B. RIVKIN JR. & LEE A. CASEY

May 31, 2017, in the National Review

The Constitution protects arrestees against “excessive bail.” This guarantee, however, has never been understood to provide indigents the right to a zero-dollar bail simply because they cannot afford more. That, however, is the clear import of in ODonnell v. Harris County, a recent decision by a federal district court in Houston. Unless reversed on appeal, such a rule would require the release of any arrestee, irrespective of the seriousness of the charges being brought, who claims that he or she cannot afford bail — even if the arrestee has a history of failing to appear for trial. This would have wide-ranging implications for how the balance is struck between the rights of criminal defendants and society at large. And policy consequences aside, another judge-engineered right would enter the Constitution’s firmament.

The ODonnell case is part of a recent wave of lawsuits asking unelected federal judges to require the release of arrestees without any bail if they cannot afford it, regardless of what the Constitution says or what such a sweeping abolition of money-bail requirements might portend. Indeed, for many individuals who are accused of a crime, facing months or years in jail, the temptation is great to skip court and avoid justice, and money bail can be a powerful incentive to check this temptation.

When judges set bail, they may obviously consider an arrestee’s ability to pay. But the Constitution does not require this to be the only factor. In fact, Texas law requires judges to consider not only an arrestee’s ability to pay but also their flight risk, criminal history, and danger to the community. Indigent arrestees who present little flight risk are frequently released without posting money bail. But public safety is not served by releasing, with no financial constraint, arrestees with long rap sheets and rich histories of failing to appear in court — which is what the Houston court’s decision arguably now requires.

Certainly the Constitution does not require the indiscriminate release of any arrestee, even for comparatively minor charges, on his or her own terms. The Eighth Amendment expressly protects arrestees from “excessive bail,” but federal courts have repeatedly and squarely held, in the words of the U.S. Court of Appeals for the Fifth Circuit — which has jurisdiction over the federal courts in Texas — that bail “is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.”

Because they cannot prevail under the Eighth Amendment’s specific protection against excessive bail, the plaintiffs in ODonnell attempted to find a right to affordable bail in the Fourteenth Amendment’s more general “equal protection” and “due process” guarantees. But the Supreme Court has held that courts cannot sidestep an enumerated constitutional limitation on government power (here, the Eighth Amendment’s protection against “excessive bail”) by discovering an even more robust limitation on that power in the vaguer language of the Fourteenth Amendment. Otherwise, litigants could do just what the plaintiffs seek to do in the bail cases: Replace the Constitution’s standard for excessive bail with their own preferred standard.

This is not the only problem with the plaintiffs’ argument. Their claim boils down to the idea that facially neutral bail systems have a disparate impact on indigents, but the Supreme Court held in Washington v. Davis (1976) that disparate-impact claims are not cognizable under the Fourteenth Amendment, as opposed to certain federal statutes that allow for such claims. Indeed, every law, at some level, has a disparate impact. In fact, in attempting to eliminate an alleged disparate impact on the indigent, the Houston court’s order creates express discrimination: Those who claim they are indigent may be released without providing any sureties, while those who are not indigent may be required to provide secured money bail or sit in jail. The Supreme Court has rejected such invidious reverse discrimination. And in ordering Houston to release prisoners, the district court also ignored the Supreme Court’s admonition that federal courts cannot use civil-rights lawsuits to order the release of arrestees.

The plaintiffs’ case rests largely on the policy argument, set forth by a few academics, that arrestees who are held in jail because they cannot make bail are more likely to plead guilty or commit crimes than those who are released on bail. But a recent study in Dallas found that failure-to-appear rates are, indeed, lower among misdemeanor arrestees released on secured bail those of arrestees released without a secured money requirement. This study confirms the elementary notion, obvious to anyone who has taken out a secured loan, that people are more likely to make good on a promise if they commit to forfeit something of value in the event that they renege.

More important, if opponents of money bail object to the time-tested bail system on policy grounds, or because of the latest academic study, they are free to try to convince their neighbors to abandon money bail by democratic choice, at the ballot box. The courts simply are not the correct forum to effect such changes.

— David B. Rivkin Jr. and Lee A. Casey practice constitutional and appellate law in Washington, D.C.

Source: http://www.nationalreview.com/article/448115/odonnell-v-harris-county-excessive-bail-constitution-distorted

The Fourth Circuit Joins the ‘Resistance’

Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.

In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”

Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”

 The high court has repeatedly reaffirmed and followed Mandel. Fiallo v. Bell (1977) rejected a challenge to immigration preferences that openly favored legitimate over illegitimate children and female U.S. nationals over male—distinctions that almost certainly would have been found unconstitutional in a domestic-policy context. In Kerry v. Din (2015), the justices upheld visa denial for the complainant’s husband, who had been a member of the Taliban. When the executive branch makes a decision “on the basis of a facially legitimate and bona fide reason,” Justice Anthony Kennedy wrote, quoting Mandel, the judiciary can “ ‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of the citizens the visa denial might implicate.”

In holding that Mr. Trump acted in bad faith, the Fourth Circuit fundamentally misconstrued Justice Kennedy’s opinion in Din,which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.

Any other standard would constitute an invitation to the judiciary to direct the nation’s foreign and defense policies. Having misapplied Din, the Fourth Circuit went on to apply a standard domestic case-law analysis, under which the existence of a discriminatory purpose essentially dooms the exercise of governmental authority irrespective of other justifications. Under that approach, the government would have lost in Mandel, Fiallo and Din.

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.

Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr. Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No. 78.

The government is likely to seek an emergency Supreme Court stay of the Fourth Circuit’s decision. That may be difficult, because it requires a showing of “irreparable harm.” But even without a stay, there is little doubt the Supreme Court will remain faithful to its precedents and reverse the Fourth Circuit’s wrongheaded decision.

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

Source: https://www.wsj.com/articles/the-fourth-circuit-joins-the-resistance-1496071859

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

What Kind of a Judge Is Neil Gorsuch?

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

The Wall Street Journal, Jan. 31, 2017 

Judge Neil Gorsuch, President Trump ’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

These are not stylistic flourishes, but central to how Judge Gorsuch views the judicial role. “In our legal order,” he has written, “judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be.” When a judge understands that he has no authority to legislate from the bench, cases that might otherwise be hard become straightforward exercises in applying law to facts.

Thus, Judge Gorsuch could recognize the “tragic circumstances” of a family whose daughter had died in a rafting accident, while still holding that the liability release she had signed was legally binding. That Colorado allows people to assume such risks, he explained, was a choice for the state’s General Assembly, not the court.

In a similar dissent, Judge Gorsuch argued for allowing a seventh-grader who was arrested for horseplay in gym class to sue the police officers, reasoning that no New Mexico statute authorized the arrest. And he has vigorously enforced rights of religious exercise under statutes like the Religious Freedom Restoration Act, deferring to Congress’s decision to vindicate, as he put it, “this nation’s long-held aspiration to serve as a refuge of religious tolerance.”

Judge Gorsuch is among the judiciary’s most consistent and adept practitioners of textualism, the approach Scalia championed. In a memorial lecture last year, Judge Gorsuch said that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” Textualism, he added, serves to “confine the range of possible outcomes and provide a remarkably stable and predictable set of rules people are able to follow.” On the other hand, attempting to divine legislative intent, as he wrote in one opinion, is a “notoriously doubtful business.” Another opinion decried the judicial “conjuring” that substitutes the court’s view of optimal policy for Congress’s.

In an influential 2015 decision, Judge Gorsuch excavated the meaning of a law increasing penalties on anyone who “uses” a gun “during and in relation to” a drug offense. He carefully employed “plain old grade school grammar”—including a sentence diagram.

Judge Gorsuch’s textualism extends to the Constitution, quite emphatically: “That document,” he wrote, “isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.” Looking to the “original public meaning” of the Fourth Amendment, for example, Judge Gorsuch has rejected the government’s view that a search warrant could be applied across jurisdictional lines. He also disputed its claim that police officers may ignore “No Trespassing” signs to invade a homeowner’s property without a warrant.

What about the Constitution’s separation of powers, intended to safeguard liberty? Judge Gorsuch has been at the vanguard of applying originalism to the questions raised by today’s Leviathan state, which is increasingly controlled by unaccountable executive agencies. These questions loom large after the rash of executive actions by President Obama, and now the whiplash reversals by the Trump administration.

The deference that judges now must give to agencies’ interpretations of the law, he wrote in an opinion last year, permits the executive “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

Judge Gorsuch added: “Maybe the time has come to face the behemoth.” His addition to the Supreme Court would give the justices a better chance than ever to do precisely that.

Messrs. Rivkin and Grossman practice appellate and constitutional law with Baker & Hostetler in Washington.

Source: https://www.wsj.com/articles/what-kind-of-a-judge-is-neil-gorsuch-1485912681

Justice Scalia kept constitutional originalism in the conversation — no small legacy

by David B. Rivkin Jr. & Lee A. Casey, in the Los Angeles Times

“I’m Scalia.” That’s how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.

By turns combative, argumentative and thoughtful, Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench. He was also charming, witty and cordial, able to maintain a close friendship with Justice Ruth Bader Ginsburg, perhaps his leading intellectual rival on the Supreme Court’s left wing.

Appointed to the federal appeals court in Washington, D.C., by President Reagan in 1982, Scalia was elevated by Reagan to the Supreme Court in 1986. Scalia was, first and foremost, an “Originalist” — the title of a popular play about the justice that premiered last year in the capital. Scalia was not the first to argue that the Constitution must be applied based on the original meaning of its words — that is, the general, public meaning those words had when that document was drafted, rather than any assumed or secret intent of its framers. He did, however, supply much of the intellectual power behind the movement to reestablish the primacy of the Constitution’s actual text in judging.

With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory, which many had previously dismissed as hopelessly simplistic.

If there was one predominant thread running through Scalia’s cases it was a determination, consistent with his originalism, to limit the unelected judiciary’s power to the exercise of “merely judgment,” as characterized by Alexander Hamilton in a Federalist Papers passage that Scalia loved to quote. His view of the proper judicial role was driven by his belief that the Constitution assigned judges a modest part to play, both as to the types of issues they could resolve and the instances in which they could overturn choices made by elected officials.

Although the Constitution took disposition of some issues off the political table, Scalia understood that it nevertheless established a republic where on most matters the majority would rule. Individual liberty, he believed, was protected not only by specific guarantees in the Bill of Rights, but also by the system of checks and balances—limitations on the authority vested in government and the structural separation of powers among the three federal branches, as well as between the federal government and the states.

Indeed, Justice Scalia did as much or more to limit the scope of judicial power than any of his predecessors, particularly with respect to “standing” (who might have a sufficient case or controversy to litigate in federal courts), and his insistence that judges could enforce the law only as written, which could never be trumped by personal policy preferences.

It should come as no surprise that Scalia was not a great coalition builder or deal maker, joining only those majority opinions consistent with his guiding principles and dissenting in all other instances. For him, politicking and judging were simply incompatible.

He bristled at the idea that judges were the custodians of a “living Constitution” whose meaning they could change in accordance with “evolving standards.” As Scalia wrote dissenting from the court’s 2005 death penalty decision in Roper vs. Simmons: “On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?”

Few justices could turn a phrase like Scalia, a talented writer. In one famous example, dissenting from a 1988 opinion upholding the now-defunct Independent Counsel Act, Scalia defended presidential power to control executive branch appointees by noting that “frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing…. But this wolf comes as a wolf.”

His pen could also be sharp. Recently, for example, in response to the majority opinion upholding a constitutional right to same-sex marriage, Scalia excoriated his colleagues: “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.” Love him or hate him, agree or disagree, no one can say that Scalia ever pulled a punch.

Scalia’s ultimate impact on American law will continue to unfold for decades to come, but one thing is certain. Before he joined the Supreme Court, judicial opinions could resolve constitutional issues with little discussion of that document’s original meaning. Today, jurists must at least confront it, even if they then resolve the issues based on the Constitution’s supposed living character. That is Scalia’s achievement, and it is no small thing.

David B. Rivkin Jr. and Lee A. Casey are constitutional lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Source: http://www.latimes.com/opinion/op-ed/la-oe-0216-rivkin-casey-scalia-legacy-originalism-20160216-story.html

Obama’s Illegal Guantanamo Power Play

By DAVID B. RIVKIN JR. and LEE A. CASEY, in the Wall Street Journal

Dec. 2, 2015 6:51 p.m. ET

Two days after terrorists rampaged in Paris, the Obama administration announced that it had transferred five prisoners—including a former Osama bin Laden bodyguard—from the U.S. prison facility at Guantanamo Bay, Cuba, to the United Arab Emirates.

In the past several days, the White House has signaled that a more significant step is coming soon: the complete shutdown of the facility and the transfer of the remaining detainees—there are 107 at the moment—to sites on the U.S. mainland. Obama-administration surrogates say the president will effect the change by using his favorite tool, an executive order. But this would be utterly illegal, since Congress has specifically prohibited the transfer of Guantanamo detainees to U.S. soil.

Although the president’s war powers are broad and formidable, so are those of Congress. In particular, the Constitution specifically vests the legislative branch with the powers to “declare War”; to “raise and support Armies”; to “make Rules concerning Captures on Land and Water”; to “make Rules for the Government and Regulation of the land and naval Forces”; and to appropriate funds for all of these purposes. Continue reading