Tag Archives: Arizona immigration

Can Obama’s imperial power grabs be stopped? Rivkin tells Lou Dobbs

Constitutional Attorney David Rivkin to debunk the president’s latest controversial move on immigration on Fox Business Network

Published on 9 January 2012

by Brent Baldwin


OfficialWire PR News Bureau

David Rivkin, the lawyer who designed and argued the successful multi-state challenge to ObamaCare, is turning his guns on the latest and possibly the most egregious unconstitutional power grab by the Obama administration. Watch Rivkin in action on Lou Dobbs.

David Rivkin will be interviewed on Lou Dobbs Tonight on the Fox Business Network Friday, January 13 (7 to 8 p.m. EST) regarding a recent article he co-authored for The Washington Postabout President Barack Obama’s claims that he can preempt state law whenever immigration policy “might irritate a foreign government.”

The case stems from the Arizona immigration policy of penalizing illegal immigrants, and, according to Rivkin, it boils down to an unprecedented expansion of presidential power, among others.

“This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an ‘imperial presidency.’ It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.”

The Supreme Court has granted swift review of this issue, and Rivkin will explain on tonight’s show what he believes about the repudiation of Obama’s latest power grab will be quickly forthcoming.

Source: http://www.officialwire.com/main.php?action=posted_news&rid=311146


Obama’s imperial power grab on immigration

(published in The Washington Post, December 27, 2011)

By David B. Rivkin Jr. and Joe Jacquot

David Rivkin served in the Justice Department during the Reagan and George H.W. Bush administrations. He represented the 26 states in their challenge to the 2010 Affordable Care Act before the trial and appellate courts. Joe Jacquot is a former deputy attorney general of Florida and a former chief counsel of the Senate Judiciary Committee’s subcommittee on immigration.

The Obama administration has taken federal-state relations to a new low in its quest for an unprecedented expansion of presidential power. In response to Arizona’s efforts to identify and arrest undocumented immigrants, the president claims that he can preempt state law whenever its enforcement might irritate a foreign government. This unconstitutional power grab cannot stand.

While the challenge by 26 states to the 2010 Affordable Care Act seeks limits on Congress’s powers, the Arizona law defends the fundamental authority of states to act in contravention of the president’s preferences. There is genuine controversy over the Arizona immigration policy of penalizing illegal immigrants , designed to drive down their numbers and reduce the burdens on the state budgets and institutions, but the case the Supreme Court recently agreed to hear poses broader legal questions that go to our Constitution’s most fundamental principles, executive power and state sovereignty.

Under the Constitution, some powers are exclusive to the federal government or the states, while others are shared. By limiting the federal government’s reach to authorities found in specific, enumerated grants of power, the Constitution reserves broad authority for individual states. States retain traditional “police power” to legislate on issues of public safety and welfare.

Arizona relied on its police power in passing the immigration-related law the Obama administration has challenged. That law’s most controversial provisions make Arizona state and local law enforcement responsible for investigating possible violations of federal immigration law. If an officer has reasonable suspicion that a person encountered during a police stop or detention is in this country illegally, the officer must check the person’s immigration status. If immigration authorities confirm that the person is illegal, the officer must arrest him or her.

No one disagrees that Congress could preempt state efforts to enforce immigration law, under its constitutional power to “establish a uniform rule of naturalization.” But Congress actually rejected that approach. Instead in the 1996 statute, it afforded the states broad flexibility to address immigration-related matters consistent with federal statutory requirements. The Supreme Court held as much last year when it approved another Arizona law that revokes the permits of businesses that hire illegal workers.

Nevertheless, the Obama administration claims that federal power preempts Arizona’s law in two ways. First, it has argued, in court filings intended to strike down the Arizona law under the Constitution’s “supremacy clause,” that federal law prevails when state law conflicts with it. The administration argues that, as Congress has authorized the executive branch to identify and detain illegal immigrants, the president’s decision not to enforce the law creates a conflict.

But no precedent suggests that the president’s refusal to carry out Congress’s wishes, as expressed in law, somehow prevents a state from doing so or renders its actions contrary to congressional intent, which is the appropriate standard for preemption. And that argument is especially ludicrous in this instance, where Congress specifically required federal officials to inform state and local law enforcement of a person’s immigration status when requested. In this way, federal law actually supports and facilitates Arizona’s enforcement approach. Congress’s intentions could hardly be clearer.

The administration’s fallback argument is simply that the president has unilateral power under the Constitution to nullify Arizona’s law respecting immigration. Mexico, the administration explains, has lodged complaints regarding Arizona’s law, and this implicates the president’s power over foreign affairs, which in turn trumps Arizona’s immigration-related actions.

This is a stunning and audacious power grab, far more expansive than the legal theories that prompted critics of President George W. Bush to argue that he established an “imperial presidency.” It simply cannot be that, despite all the Constitution’s limitations on federal power and executive action, the president’s powers become absolute whenever another nation complains.

Indeed, the Supreme Court recently rejected even a more limited version of that argument advanced by the Bush administration. In Medellin v. Texas , the court rejected Bush’s attempt to enforce U.S. treaty obligations by blocking Texas’s execution of a Mexican national who had not been given his consular-notification rights. Yes, the court explained, the president is well-placed to resolve sensitive foreign policy decisions, but that status does not confer “unilateral authority to create domestic law” or override state law.

Nearly 60 years ago, in the Youngstown case that famously reversed President Harry S. Truman’s efforts to seize the nation’s steel mills during the Korean War, Justice Robert Jackson explained that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.” When those measures are also incompatible with the basic precepts of federalism, his power is nonexistent. The fact that the Supreme Court granted swift review of this case suggests that it will repudiate the Obama administration’s imperial power grab.

Source: http://www.washingtonpost.com/opinions/obamas-imperial-power-grab-on-immigration/2011/12/27/gIQAaI6GLP_story.html

Transcript of Rivkin discussing states’ ability to check federal power

(from Fox News’ Fox and Friends, July 13, 2010)

Steve Doocy, Host: How can states limit the federal government’s power? The Justice Department says, “our best case is the Supremacy Clause in the Constitution that says no state law should eclipse the federal law.” You realize that for instance, Maryland, one of a dozen states, is trying to rewrite the Constitution. How so?

David Rivkin: Well they are seriously considering having a Constitutional Convention, a constitution which, by the way, has been amended for a number of times to see if they can come up with more parliamentary revisions.

The point, Steve, is that it reflects a sentiment we see around the country which says, in addition to passing statutes, it pays from time to time to look at the most fundamental set-up which is the state constitution or the federal constitution and come up with things that really cure the problems that have arisen—including the one you mention which is a lack of balance between federal and state authority.

Doocy: David, you suggest they change things so that if two-thirds of states agree, they can suggest their own amendments to the Constitution, right? How would that work?

Rivkin: Yes, that is correct. In order to get there you would need to have a very targeted state convention or you need Congress to propose that amendment. The idea is to put states on the same level plane as Congress in coming up with specific targeted amendments.

To emphasize, this is very important, if states had this power today, you would put a real check, deterrence if you will, on the political class. I think, for example, Congress would have been less willing to push for unconstitutional health care reform if there was a way the states could come back and revist, for example, the commerce clause. Arizona would’ve been played very differently. It’s really a way of restoring the balance that has been unfortunately lost over the last several decades.

Doocy: Well, David, what’s the chance that this might actually happen?

Rivkin: I believe it is going to actually happen. It’s something that states ought to be taking seriously. This is a cause that everybody who is concerned about expansion of federal power should endorse including the Tea Party movement, independents. To me this is nothing more than restoring the regional balance between the federal and states governments that the framers had in mind. And very important, it’s not just about states rights, because that word has acquired bad currency in some quarters. It’s about restoring individual liberty. Because remember individual liberty is to be protected by balancing federal and state power, not just from the Bill of Rights.

Source: http://www.youtube.com/watch?v=-nC_5zYCYjM&feature=youtu.be