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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

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Is President Trump’s executive order constitutional?

February 6, 2017, in the Washington Post

Editor’s note: On Friday, U.S. District Judge James L. Robart issued a ruling temporarily halting enforcement of President Trump’s executive order barring entry to the U.S. for citizens of seven majority-Muslim countries. On Monday evening, David Rivkin and Karen Tumlin exchanged views and predictions about the legal fight over the executive order. The email discussion was moderated by Post Opinions digital editor James Downie and has been edited for style and clarity.

Karen Tumlin: Hi, James and David, looking forward to having this discussion with you both on this important topic.

The executive order has several legal problems. I would highlight two of the most serious. First, ours is a nation that was founded on the premise that individuals should be free from religious discrimination by the government. That principle is enshrined in our Constitution and prohibits the federal government from discriminating against or favoring any religious group. This executive order does both. By banning the entry of individuals with valid visas from seven majority-Muslim countries, there is no question that the executive order singles out Muslims for disfavored treatment. Equally questionable is the preference given to minority religions under the executive order for refugees. Practically, this favors the admission of Christians.

Second, in addition to this broad delegation of authority from Congress, the president has inherent, formidable constitutional authority of his own over foreign affairs and national security, with the power to control immigration being an integral part of those authorities. So, here we have two political branches that have spoken in unison on this issue, placing the president in the strongest possible legal position. Last but not least, well-established Supreme Court precedents indicate that states — like the states of Washington and Minnesota — have no equal-protection rights of their own, nor can they vindicate equal-protection rights of their citizens. The same is true about being able to challenge alleged religious discrimination. This limitation on the states’ authority to champion such claims is fundamental to our separation-of-powers architecture.

Tumlin: When looking at the legality of this executive order, we have to look back to the very clear, discriminatory intentions for the order that were laid down repeatedly on the campaign trail by then-candidate Trump to create a ban on the entry of Muslims to the United States. The text of the executive order serves to implement that shameful campaign promise, as do statements by the president and the drafters of the order since its signing. Our Constitution does not stand for this kind of governmental discrimination.

You don’t have to discriminate against every Muslim in the world to run afoul of our Constitution’s protections and human decency.

The executive order doesn’t make us safer as a country, it puts us more at risk. But don’t just take my word for it. Have a look at the declaration submitted Monday at the U.S. Court of Appeals for the 9th Circuit by a host of national security ex-officials from both sides of the aisle noting that in their “professional opinion, this Order cannot be justified on national security or foreign policy grounds.”

Rivkin: I disagree. There are a few instances that arise in the unique context of domestic equal-protection challenges to governmental actions that are facially neutral but produce substantial discriminatory impacts on groups of people, based on such suspect classifications as race, nationality, ethnic origin, etc. This doctrine has never been used in foreign affairs, both because of the tremendous judicial deference owed in this area to the two political branches and because discerning the intentions of the president is particularly difficult in the national security area, given the inherent lack of judicial competence in foreign affairs and lack of access to classified information.

 And, as a practical matter, under your logic, courts would rule differently on the constitutionality of exactly the same executive orders, suspending entry of certain types of aliens — with Obama’s order delaying the entrance of refugees from Iraq and President Ronald Reagan’s suspending the entrance of certain Cuban nationals — depending on how they felt about the subjective intentions of a given president. This cannot possibly be true.

And, to reiterate, as far as the judgments regarding whether or not this order makes us safer, such judgments are uniquely unsuited for judicial discernment and the judiciary is barred from engaging on them on the basis of the Supreme Court’s case law, known as the political question doctrine. The fact that some former national security officials challenge the policy wisdom of the order, while other national security officials — most notably those of this administration — support it, merely demonstrates that these are policy disputes that the judiciary is both ill-equipped and constitutionally barred from arbitrating.

James Downie: Karen, how would you respond to the argument that the president has the authority to enact this order?

Tumlin: The president is not king. He, too, must abide by our Constitution as well as the immigration laws duly written and passed by Congress. What the president has done here is attempt to hastily legislate by executive fiat. The result has been confusion among federal officials unsure of how to interpret or implement this presidential dictate and very real human suffering. And let’s be clear, this executive order does not only target non-U.S. citizens living abroad. It has profound consequences on U.S. citizens who can’t bring their parents in to witness the birth of a child, or on businesses that can’t send their most talented U.S.-based executives abroad for important meetings. And the order has left others in limbo overseas who may have taken a trip abroad to, for example, visit an ill relative, and unless the Washington state decision stands will not be able to return to their families and jobs in the United States because their validly issued visa vanished overnight.

Downie: David, can you expand on the argument that it’s not discriminatory against Muslims? Ilya Somin elsewhere on The Post’s site writes, “The unconstitutional motive behind Trump’s order can’t be sidestepped by pointing out that it blocks some non-Muslim refugees too. Poll taxes and literacy tests excluded a good many poor whites from the franchise, but were still clearly aimed at blacks.” What are your thoughts on that?

 Rivkin: My argument is focused on the fact that a relatively small percentage of the world’s Muslim countries are impacted by this order. Stated differently, this executive order is a singularly ineffective — in legal parlance, it would be called under-inclusive — form of a Muslim ban. Accordingly, it is not a Muslim ban at all, but a suspension of entrants from seven countries with conditions on the ground that both promote terrorism and make effective vetting impossible. By contrast, poll taxes were very effective in excluding blacks, as well as impacting many poor whites; in legal parlance, they were overly inclusive but nevertheless served their intended discriminatory purpose. This is fundamentally not the case here.

Tumlin: I would humbly submit that a more relevant lens to look at this question is in terms of recent Muslim migration to the United States. For example, 82 percent of all Muslim refugees who entered the United States in fiscal years 2014 through 2016 hailed from the seven countries. The executive order may not use the words “Muslims keep out,” but it certainly would serve to achieve that goal if allowed to stand.

Downie: In closing, how do you expect the 9th Circuit to decide on Robart’s ruling?

Rivkin: I believe that the 9th Circuit will not let Robart’s decision stand. I say this fully appreciating the fact that the 9th Circuit is the most idiosyncratic in the country and the one most often overruled by the Supreme Court. However, given the fact that the case brought by the states is so deeply flawed — they fail both standing-wise and merits-wise — I believe that the 9th Circuit will do the right thing and will rule in a matter of days. I would also expect that, because the plaintiffs in this case lack standing, the 9th Circuit would not only overturn Robart’s temporary restraining order but would dismiss the entire case without ever reaching the merits. If I am wrong and the 9th Circuit fails to do this, I have every confidence that this would be the result reached by the Supreme Court, when it became seized of that case.

Tumlin: I respectfully disagree with David on this always risky judicial crystal ball-gazing. In the 10 days since the executive order was signed, we have seen people take to the streets all across this country to protest it, lawyers like me have taken to the courts to challenge its illegality, and a diverse and stunning cross-section of Americans from every walk of life have questioned its wisdom. All because this executive order stands in sharp contrast with our legal and moral principles as a nation. I have every confidence that the 9th Circuit will let this temporary block on this harmful executive order stand.

 It is also worth mentioning that a real question exists as to the propriety of the 9th Circuit weighing in on the district court’s order at all at this time. Generally, temporary restraining orders are not appealable immediately to the higher courts.

Rivkin: In our constitutional system, the extent of political controversies, including the protests, surrounding a given issue is utterly unrelated to the analysis of legality and should have no effect on any court. And whether or not this order is inconsistent with our moral and legal traditions is a classical hortatory declaration, suitable for political debates, and is not a viable legal argument.

David B. Rivkin Jr. practices appellate and constitutional law in the District and served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Karen Tumlin is legal director for the National Immigration Law Center and the NILC Immigrant Justice Fund.

Source: https://www.washingtonpost.com/opinions/is-president-trumps-executive-order-constitutional/2017/02/06/26ee9762-ecc1-11e6-9973-c5efb7ccfb0d_story.html

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

Hold On Jasta Minute!

Legal tradition says that hard cases make bad law. Few cases are harder than those having to do with the plight of the families of 9/11 victims.

This led Congress to adopt the Justice Against Sponsors of Terrorism Act. Jasta, as it is known, gives federal courts the power to determine whether a foreign state has intentionally sponsored terror against American citizens. This power, however, belongs to the president and cannot be constitutionally wielded by the judiciary.

Jasta was enacted in September over President Obama’s veto. Although the law mentions no particular state, its target is clearly Saudi Arabia. The families of 9/11 victims have long sought money damages from the kingdom, based on the Saudi citizenship of most of the 9/11 attackers and planners.

The Foreign Sovereign Immunities Act of 1976 gives countries immunity from being sued in federal courts. Jasta strips that immunity from any country the court finds acted with a culpable level of intent in sponsoring a terrorist attack on American soil. Mere negligence is insufficient under the law. In making this determination, the courts will also inevitably be branding the relevant state as a sponsor of terrorism.

A federal judge’s determination that Saudi Arabia intended to sponsor the 9/11 attacks would greatly strain U.S.-Saudi relations. More generally, whether the U.S. should identify any particular state as a terrorism sponsor is a supremely sensitive foreign-policy decision, involving myriad factors and rendering impossible U.S. cooperation with such a state.

For this reason, the Constitution reserves such determinations to the political branches of government, and more particularly to the president, who is principally responsible for the formulation and implementation of American foreign policy.

If a president decides to classify a nation as a sponsor of terrorism, Congress can define the consequences, including depriving such states of the sovereign immunity from lawsuit that they ordinarily enjoy in U.S. courts. It cannot, however, force a president to make such a determination. Nor can Congress vest such decision-making authority in the courts.

The Supreme Court’s ruling last year in Zivotofsky v. Kerry is instructive here. The court struck down Congress’s effort to require the executive branch to recognize Jerusalem as part of Israel by permitting American citizens born there to have their passports indicate “Israel” as their birthplace. It said, “these matters are committed to the Legislature and the Executive, not the Judiciary.”

The judiciary doesn’t have access to the sort of information that would enable it to determine the motives of a foreign state. And even if it did, deciding whether to classify a country as a sponsor of terrorism is a task inherently ill-suited for judicial discernment. Recognizing and acting upon such information lies at the very core of the president’s foreign-affairs powers.

Jasta’s enactment has already damaged U.S.-Saudi relations and has alarmed many traditional U.S. allies, who understandably do not like the outsourcing of sensitive foreign-policy issues to the American judiciary and private litigants. Jasta is unconstitutional and should be struck down as such.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington, D.C.

Source: http://www.wsj.com/articles/hold-on-jasta-minute-1480551317

It’s unrealistic and unfair to make Trump use a blind trust

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

November 22, 2016, in the Washington Post

Suggestions that President-elect Donald Trump put his business holdings in a “blind trust” to avoid potential conflicts of interest are unrealistic and unfair. Such a trust would not eliminate the virtual certainty that actions Trump takes as president will affect his personal wealth, for good or ill. The step is not required by law. And presidents who have chosen to use this device held very different assets than Trump’s. He can keep his holdings and adopt a reasonable system to avoid conflicts and reassure the American people that the Trump administration is acting ethically.

To establish a blind trust of the sort used by his predecessors, Trump would not merely have to liquidate a securities portfolio and permit an independent trustee to manage those assets. He would have to sell off business holdings that he has built and managed most of his life, and with which he is personally identified in a way that few other business magnates are.

These businesses also provide employment for many thousands of people, including his children. All of it would have to go. This liquidation would by definition take place in the context of a “buyer’s market,” and so Trump would also be required to accept a vast personal loss in financial worth. Those suggesting the blind trust model must understand that their proposal is a poison pill Trump will not swallow.

Moreover, requiring Trump to liquidate his holdings would discourage other entrepreneurs from seeking the presidency, leaving the field clear for professional politicians and investors. Given that the American people have made clear their disgust with Washington’s elite, creating a disincentive for businesspeople to seek the presidency is not in the public interest.

Trump has suggested that he will let his adult children run the family businesses during his presidency, and there is nothing in the Constitution that prevents this arrangement. The emoluments clause, often invoked as the reason Trump must sell his businesses, is no bar. This constitutional provision prevents the president (and any other federal officer) from accepting gifts or compensation from foreign states. It does not limit Trump’s ability to benefit from dealings with non-state foreign entities. Whether a “state-controlled” entity falls within the emoluments clause prohibitions has traditionally been addressed on a case-by-case basis, depending principally on how independently such an entity operates from an actual government.

Likewise, neither federal law nor regulations limit the president in this area. Presidential candidates and presidents must disclose their finances, but the president is not covered by the principal financial conflict-of-interest law, and the relevant regulations specifically exclude the president. Indeed, it is doubtful that Congress could constitutionally limit the president’s personal investments or business activities consistent with separation of powers principles.

Of course, Trump’s wide holdings will likely raise real or perceived conflicts of interest during his presidency. Establishing a blind trust would have helped him address those concerns. There are, however, other measures that the president-elect can take to avoid conflicts. He can establish a firewall between himself and his adult children with respect to family business affairs. They would agree to give him no information about their business dealings, and he would pledge not to discuss those dealings with them.

In addition, his children could promise to refer any potential transactions involving foreign corporations or other entities to the White House counsel’s office or the Justice Department’s Office of Legal Counsel to analyze whether it would raise concerns under the emoluments clause. If the answer is yes, then they will avoid that transaction. The president himself would not be informed of the request or determination.

Finally, to the extent he wishes to seek advice about public policy from his children — which he appears to have done frequently before his election — the president can consult the White House counsel’s office about whether discussing a particular issue with them would create potential conflicts of interest. Most government issues do not have a direct impact on the hospitality industry and simply taking action that is good for the economy as a whole would not give rise to a conflict.

It is clear that Trump cannot satisfy all of his critics, but these measures are both reasonable and workable. They would — or should — reassure most Americans that his administration is acting with probity.

David B. Rivkin Jr. and Lee A. Casey, who practice appellate and constitutional law in the District, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel’s office in the George H.W. Bush administration.

Source: https://www.washingtonpost.com/opinions/its-unrealistic-and-unfair-to-make-trump-use-a-blind-trust/2016/11/22/a71aa1d4-b0c0-11e6-8616-52b15787add0_story.html

Obama’s empty climate agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future.

Likewise, the president cannot unilaterally commit the US to binding emission-reduction targets. The Senate and executive branch have both understood for years that any “targets and timetables” for emissions must be put to a ratification vote. When the Senate ratified the United Nations Framework Convention on Climate Change in 1992, it extracted a promise from the George H.W. Bush administration to that effect. And when President Bill Clinton signed the Kyoto Protocol in 1997, it was failure to secure Senate ratification that blocked the U.S. from becoming a party and stopped it from becoming binding under U.S. law. In foreign-affairs law, these are extraordinarily strong precedent for the proposition that any binding reductions must be put to Congress.

The Obama administration’s solution to these seemingly intractable problems is to structure the deal as what it calls a “hybrid agreement.” Under this approach, only measures dealing with emissions reporting would be binding on parties. The rest would constitute what diplomats call “political commitments” — in other words, empty promises that are not legally enforceable. In short, the agreement will contain little in the way of substance.

That is not, however, how it will be touted to the American people. The administration, having identified the Paris agreement as a key plank of the president’s “climate legacy,” has sent a gaggle of senior officials to the negotiations and launched an all-out publicity barrage. The chief focus so far has been on the agreement’s longwinded aspirational language, including the likely-to-be-declared long-term goal of “decarbonisation of the global economy over the course of this century.” But that, like the other “commitments,” will have all the legal force of a fortune cookie message.

For those participating in the Paris talks, there should be a sense of déjà vu. The negotiations over the 2009 Copenhagen Accord marked the Obama administration’s climate-diplomacy debut, and the United States played a lead role in drafting the deal. Its key provisions? Aid payments to to developing nations and “quantified economy-wide emissions targets.” President Obama called it “meaningful and unprecedented breakthrough.” Structured to avoid the need for ratification, the accord was not legally enforceable and quickly came to be viewed, on its own terms, as a complete failure.

One that the president appears determined to repeat in Paris.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who previously worked at The Heritage Foundation, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2015/12/10/paris-climate-change-constitution-treaty-column/76676732/

Congress Can Respond to Putin With More Sanctions

By PAULA J. DOBRIANSKY And DAVID B. RIVKIN JR., Oct. 4, 2015 6:11 p.m. ET

From Ukraine to Syria, the Obama administration has consistently misread Russian President Vladimir Putin ’s objectives and the implications of cooperating with him. This has led to costly failures, but the administration is unlikely to change its approach. Congress need not sit idle too. By enacting new sanctions on Russia, U.S. lawmakers can send a strong signal to Moscow that its continued aggression against Ukraine and growing complicity in a genocidal war in Syria will come at a heavy price.

After Russia annexed Ukraine’s Crimea in 2014, the Obama administration and many U.S. allies imposed sanctions on Russian businesses and individuals. But those measures clearly haven’t been effective in discouraging Mr. Putin’s quest to exert Russian power and influence.

In Ukraine, despite the supposed cease-fire effected by the Minsk Accords negotiated by Germany, France, Ukraine and Russia, Moscow-supported aggression continues in the contested east. Russian troops remain in the region, as an extensive Sept. 14 report from the Atlantic Council documents, and Reuters has reported that new Russian military bases are being built.

In Syria, Mr. Putin, under the guise of fighting Islamic State, supports the Bashar Assad regime, which has used barrel bombs and chemical weapons in slaughtering tens of thousands of civilians, mostly Sunni Muslims—making Russia complicit in, and legally accountable for, these actions. The Obama administration over the past week has hinted that it might cooperate with Russia’s anti-ISIS campaign.

The danger of association with an aggressor like Mr. Putin, who is also working with Iraq and Iran, can be seen in Russian airstrikes over the past few days directed not at ISIS but at other opponents of the Assad regime. The Obama administration’s initial seeming openness to working with Mr. Putin in Syria has already compromised the White House’s ability to hold Moscow accountable on any front, including for its aggression in Ukraine.

Under the U.S. Constitution, the president has formidable authority for conducting foreign policy, but there are several steps—practical and symbolic—that Congress can take that would demonstrate a resolve toward Russia that hasn’t been forthcoming from the Obama administration.

On the symbolic side, Congress can legislate a finding, based on ample evidence, that the Russian military has committed war crimes in Ukraine, and is aiding and abetting the Assad regime’s genocide and Iran’s terrorism-sponsoring activities. Using the congressional bully pulpit can help drive the public debate, especially during the 2016 presidential election campaign.

Congress can also enact new sanctions that will have an immediate and profound effect—starting with the Russian oil-refining industry.

Despite Mr. Putin’s far-reaching strategic aspirations, Russia is punching well above its weight. The Russian economy continues to shrink, buffeted by falling oil prices and Western sanctions, and 2014 capital flight has exceeded $150 billion. Hundreds of Russian casualties in Ukraine are causing discontent, with Russian media reporting how Russian contract soldiers—in the part-volunteer, part-draftee military—are refusing to deploy to Ukraine or Syria. According to the Moscow-based independent polling organization Levada, fewer than 14% of Russians support military intervention in Syria.

Russia’s greatest vulnerability may be its refineries. While Russia is one of the world’s top energy producers, its refining facilities are antiquated, with low product quality, no spare capacity, and infrastructure in desperate need of significant investment. The refining infrastructure is so weak that Russia ran out of gasoline in 2011, precipitating shortages and substantial popular discontent. Russian media reported that the head of the majority-government-owned Rosneft oil company, Igor Sechin, sent Mr. Putin a letter on July 15 warning of a major shortfall in refined products by 2016-17 unless the refining sector gets emergency financial assistance.

Most of Russia’s approximately 50 major refineries date to the Soviet period. According to a 2014 report prepared for Russia’s parliament, the refiners also require a steady supply of Western, particularly American, equipment. Current U.S. sanctions apply only to new Russian oil and gas production projects. But an embargo—even if only a unilateral one by the U.S.—on exports of refinery pumps, compressors, control equipment and catalytic agents would cause widespread shortages of refined products, putting tremendous pressure on Russia’s civilian economy and Moscow’s ability to carry out military operations. The Putin regime would suffer major political damage.

President Obama might veto such refinery sanctions legislation because of its potentially drastic effect, but as Russia’s behavior becomes ever more outrageous, he might not be able to summon Democratic support as readily as he did for the Iranian nuclear deal. In any case, Congress would do well to make U.S. policy toward Russia a matter for serious discussion during an election year—and to remind Mr. Putin that with the Obama administration’s days dwindling, a significant course correction in U.S. foreign policy could be on the horizon.

Ms. Dobriansky is a former undersecretary of state for democracy and global affairs in the George W. Bush administration. Mr. Rivkin is a constitutional lawyer who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Source: http://www.wsj.com/articles/congress-can-respond-to-putin-with-more-sanctions-1443996688