Tag Archives: Barack Obama

To Stop Obama’s Power Grabs, Kill the Senate Filibuster

By DAVID B. RIVKIN JR. and LEE A. CASEY, March 23, 2015 7:31 p.m. ET

The Obama administration has systematically targeted critical congressional powers, including the authority to enact laws. It has rewritten such statutes as the Affordable Care Act, the Controlled Substances Act and the Immigration and Nationality Act. And it has effectively blocked Congress’s “power of the purse”—eviscerating authorities essential to maintain the balance of power between the legislative and executive branches of the federal government.
The recent standoff over the Department of Homeland Security appropriations bill is only the latest effort by President Obama to thwart Congress’s constitutional authority to limit the president’s use of federal funds to approved purposes. The administration’s basic position is that it is entitled to get its way on all of its spending requests. Any effort to impose budget caps or appropriations riders—all traditional congressional mechanisms—is illegitimate and the cause for the government shutdown, for which Congress is to blame.

By striking at Congress’s constitutional powers, particularly the power of the purse, Mr. Obama seeks an unprecedented aggrandizement of presidential power. One way to prevent that happening is by reforming the filibuster rule.

Spending battles and government shutdowns have taken place in the past. Yet the Obama administration’s strategy, denying the very legitimacy of Congress’s use of its appropriations power, is historically unprecedented. It has been abetted by Democratic senators who deploy the filibuster to keep spending legislation that the president opposes from an up-or-down Senate vote. Their goal is to spare the president any potential political damage from casting a veto, and to allow him to shift responsibility for government shutdowns from himself to Congress—undermining the paramount constitutional virtue of accountability. This situation has particularly vitiated the authority of the House of Representatives, which originates all of the spending bills.

The constitutional balance of power between the two political branches must be restored. In this connection, it is important to understand that the Senate filibuster rule has no constitutional basis. That document does not reference a “filibuster,” but merely permits each house of Congress to determine its own procedural rules. The filibuster is a historical fluke, resulting from the Senate’s failure to impose constraints on how long senators may speak on a particular matter, thereby delaying other business and especially votes on legislation that require only a majority to pass.

Only a cloture motion, which requires a supermajority of three-fifths (60) to pass, can end these delaying tactics—and cloture has become nearly impossible to achieve because of an increasingly ideologically divided Senate in which neither party has a supermajority.

This raises fundamental issues: Since all constitutional provisions must be read in harmony, rules in one house that consistently frustrate the ordinary legislative process by preventing a vote work to nullify other key congressional powers. Ultimately, this undermines the Constitution’s balance of power between Congress and the executive.

Despite the positive role the filibuster has played by delaying improvident legislation, it has become counterproductive. And the filibuster is no longer an untouchable Senate tradition. Last year, then-Majority Leader Harry Reid abolished the filibuster for most judicial and executive-branch appointments simply to help President Obama get controversial nominees confirmed—and did so in the middle of a Senate session, in violation of the rules. There is every reason to expect that similar political expediency will lead to future limitations on the filibuster when there is again a Democratic Senate majority—which should give comfort to any Republicans who continue to support the filibuster out of respect for Senate tradition.

Tradition is important, and eliminating the filibuster, despite its diminished policy utility, would be a momentous step. Yet it is one Senate Republicans should consider taking, given the constitutional imperatives at stake. One possibility is for the Senate to adopt rules limiting the time any particular matter can be debated before a vote, thereby removing the procedural gap that permitted filibustering in the first place. Another would be to reduce the number of votes needed to carry a cloture motion to a simple majority.

Whatever the means chosen, this strategy should be decoupled from any particular policy battle. It should be undertaken only at the beginning of the next congressional session, and with appropriate explanations of the reasons for the change: It is an essential measure so that Congress can begin to reassert itself against an executive branch that increasingly acknowledges no limits on its power; an executive branch that is even considering how the president himself can raise taxes.

If legislation commanding the support of majorities in both the House and Senate can no longer be permanently delayed by filibustering, a recalcitrant president would still be able to shut down a government agency or department by vetoing appropriations. But the American people would know whom to hold responsible.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-to-stop-obamas-power-grabs-kill-the-senate-filibuster-1427153516

Obama’s Security Council Gambit

by David B. Rivkin, Jr. & Lee A. Casey, March 15, 2015

The recent open letter by 47 Republican Senators, putting Iran on notice that the US Constitution fundamentally limits the President’s ability unilaterally to conclude a durable nuclear weapons agreement, has prompted strident criticisms from both the American and Iranian officials, giving some tantalizing hints on how a “nuclear deal” with Iran will be achieved. Despite some carefully-phrased statements to the contrary, it appears that the administration plans to evade the Constitution’s clear requirement that the Senate approve all treaties by having the UN Security Council adopt a resolution implementing the deal.

Indeed, Iranians seem to have been aware of this cynical game plan for quite some time, as evidenced by strong rejoinders in the Iranian state-controlled press, which mocked the Senate letter. Meanwhile, Iranian Foreign Minister Javad Zarif stated that any nuclear weapons deal “will not be a bilateral agreement between Iran and the U.S., but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council and will also be endorsed by a Security Council resolution.” And European diplomats and UN officials also have been aware for quite some time about the administration’s Security Council gambit. Only Congress and the American people have been in the dark.

This deception aside, the Security Council-centric approach, while solving some of the Administration’s political problems, would impose very significant long-term costs on the United States, and would not ultimately achieve a binding deal that cannot be altered.

The Constitution’s framers purposely divided the treaty-making power between the president and Senate, requiring that the Senate consent to any treaty by a two-thirds supermajority, both to limit presidential power and to ensure that all such international undertakings by the United States enjoyed broad domestic support. This bedrock requirement cannot be avoided by claiming that an agreement ordering critical aspects of our relationship with another country is somehow not a “treaty,” or by reference to another treaty like the UN Charter.Read more…

Ratification of the Charter committed the United States, like other UN members, to comply with certain Security Council resolutions and those resolutions may impose binding international obligations on the United States. Specifically, Chapter VII of the Charter indicates that the “Security Council shall determine the existence of any threat to the peace. . .and shall. . . decide what measures should be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” By invoking Chapter VII, the administration intends to bypass the Senate and Congress as a whole.

The Charter, of course, does not and cannot reorder the Constitution’s division of power between Congress and the president. As the Supreme Court noted in a recent case, involving U.S. obligations to implement International Court of Justice decisions under the Charter, where it found that ICJ decisions were not automatically binding as a matter of domestic law “[t]he President may comply with the treaty’s obligations by some other means, so long as they are consistent with the Constitution.” Medellin v. Texas (2008)

Nevertheless, having the Security Council drive an Iranian agreement will have several deleterious legal and policy consequences. First, while the Iranian nuclear deal would not be binding on the United States as a “signatory” to the agreement, rendering Secretary Kerry’s statement to this effect technically correct but utterly misleading, it would bind the United States as a UN member.

Second, as is common with Chapter VII resolutions, the Iranian nuclear weapons resolution would keep the Council seized of the matter. This means that the resolution could be revised only by future Security Council action, which the United States cannot guarantee. For example, the United States and its allies would be unable to extend the proposed 10-year sunset provision, even if that became necessary based on Iranian conduct, since Iran would surely oppose the measure with the backing of Russia and China, who can veto any change.

This point is worth emphasizing, since the administration’s main oft-articulated reason for choosing the 10-year time frame for the nuclear deal is its belief that over this time period Iran’s regime would lose its revolutionary character and become a responsible regional power. This optimistic assumption has been strongly challenged by Israel, Saudi Arabia and other Sunni Arab states, who point out that Tehran hasn’t mellowed over the last several decades. The response by administration’s supporters has been that the United States will be able to react in the future to evolving Iranian behavior, whether positive or negative; this claim rings hollow, given the Chapter VII resolution that would enshrine the nuclear weapons deal.

And even if Iran’s own behavior is impeccable, other developments may well arise that would require changes in the agreement. For example, Saudi Arabia has indicated that it will endeavor to acquire nuclear infrastructure matching Tehran’s, thus precipitating a nuclear arms race in the Middle East and beyond. And the administration’s erstwhile priority has been to deny uranium enrichment capability to Sunni Arab states.

So, to salvage this goal, it might wish to try changing the Iran nuclear deal, and yet, having chosen the Security Council venue, it would unable to so. This is highly ironic, since the administration’s main justification for eschewing the treaty route is to preserve the President’s flexibility to change the deal on a moment’s notice, if circumstances demanding the change arise.

Third, it would be up to the Security Council to determine whether or not Iran is complying, and whether any particular violation is material. Even if the United States believes that Iran is in clear violation of its obligations, it could not suspend compliance with its own obligations unless the Security Council agreed. If it threatened to use force without Security Council approval – which remains possible as a self-defense measure under the Charter – the U.S. would certainly be branded an international lawbreaker at a tremendous diplomatic cost.

Indeed, the broader consequence of this whole approach would be to make the Security Council Iran’s powerful international protector, buttressing its ambitions as a regional hegemon and inducing Sunni Arab states to propitiate Tehran. While the Security Council has not always been responsive to US wishes—given the veto power wielded by other permanent members—Washington has at least been able to render it ineffective by exercising it own veto. The transformation of the Security Council into Iran’s ally would represent one of the most disastrous failures of American statecraft, the point that the administration seems to have overlooked.

Fourth, the international law consequences aside, the administration may well argue that a Security Council resolution binding on all UN member states, coupled with certain existing delegations of authority from Congress to the president, has a comparable domestic legal effect, giving the President authority to suspend or even cancel the statutory sanction regime now in place against Iran. Although this argument is legally flawed, it might give the administration some political cover to lift sanctions against Iran.

The administration is also likely to claim that, having dismantled U.S. statutory sanctions, it will retain leverage against Iran thru the so-called “snap back scheme,” whereby the Security Council, having vitiated some Iran sanctions entirely, will suspend the rest of them on a rolling basis. This would require the Security Council to renew the suspension every 180 days, theoretically enabling the United States to block this by exercising it veto power.

This argument, however, fails to carry the day; since the Security Council would be seized of the compliance issues, it would be exceedingly difficult for the United States to claim that Iran has violated the agreement and unilaterally block the renewed sanction suspension. Moreover, once the sanctions have been relaxed for a protracted period of time and enough Western companies have invested in Iran, re-imposing them would be ever more difficult. And, once the Iranian economy has recovered, it will become resilient to the resumption of sanctions, even if they could be re-imposed.

Overall, it is understandable why by-passing Congress and going directly to the Security Council has appeal to the president and his advisors, who are desperately looking for something that can be portrayed as foreign policy achievement and appreciate the depth and breadth of congressional opposition to any agreement permitting Iran to retain its nuclear infrastructure. But this tactic would also create tremendous diplomatic and national-security costs for the United States in the future, giving Iran the “high ground” as a victim of American lawlessness in future confrontations over its nuclear ambitions.

It would also set a dangerous precedent for future presidents, who may also be determined to achieve their foreign policy ends regardless of Congress and the Constitution’s requirements for treaty-making. This would lead to the aggrandizement of presidential power at the expense of Congress and warping of the separation-of-powers architecture, which is the primary means of protecting individual liberty in our constitutional system.

Moreover, if the purpose of using the Security Council is truly to tie the hands of a future president and Congress who may view the Iranian regime and its geo-political ambitions differently, it will not work. However binding Security Council resolutions may be on the international level, they are not “treaties” and the UN Charter – which is – is not self-executing. Thus, although the U.S. might be in violation of its international obligations, as a matter of domestic law, the president must still obtain congressional assent before he can lawfully lift statutory sanctions against Iran.

A future president could simply begin again enforcing those sanctions against Iranian assets, individuals and businesses that violate them. Perhaps even more importantly, even if the United States were to take a harder line against Iran in the future, violating the anticipated resolution, the Security Council would have to adopt a second resolution imposing enforcement measures against the United States, which the United States could of course veto.

In other words, if the administration does proceed to enshrine a nuclear-arms deal with Iran through the Security Council as a means of cutting Congress out of the process, it will not achieve its ultimate goal of a long-term agreement binding on the United States. It will merely impose additional and avoidable costs on the United States in the future when – as will almost certainly be the case – Iran again moves towards achieving nuclear power status. As a result, the administration should eschew this path and accept what the Constitution requires – Senate approval of the treaty it is now negotiating.

Messrs. Rivkin and Casey are partners at BakerHostetler LLP, specializing in constitutional litigation, and served at the Department of Justice and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://nationalinterest.org/feature/obamas-security-council-gambit-12421

When bad Obama policies collide

By Elizabeth Price Foley and David B. Rivkin Jr. — Tuesday, March 10, 2015

Since its partisan passage in 2010, Obamacare has traversed a rocky road. President Obama has taken numerous executive actions to delay and modify the poorly written law in an effort to ease the political consequences of full implementation and make it work. However, in the president’s zeal to rewrite yet another area of law — immigration — he’s sabotaged one of Obamacare’s primary goals: expanding employer-sponsored health insurance.

The president’s executive actions on immigration — the major one of which is currently on hold due to a court order — confers two specific benefits upon approximately 6 million individuals who have entered this country illegally or overstayed their visas. First, they are completely exempted from deportation. Second, they are granted work permits. These unilaterally conferred benefits are powerful evidence that the president isn’t just exercising executive “discretion” by prioritizing enforcement of existing immigration law — he is rewriting it.

This massive influx of now-lawful workers will predictably reduce job opportunities for U.S. citizens and lawful residents. But beyond this obvious negative impact, granting work permits to these individuals will have a subtler, equally pernicious effect: It will encourage employers to hire these 6 million individuals over U.S. citizens and legal residents. This is due to Obamacare’s structure.

Under Obamacare, employers must pay a tax — called the “employer responsibility” tax — if they either fail to offer insurance altogether, or they offer “substandard” insurance. The employer responsibility tax is hefty, ranging between $2,000 to $3,000 per year, and is payable for every full-time employee who buys health insurance on an exchange and receives a tax subsidy as a result. The idea is to incentivize employers to offer generous insurance coverage, thus keeping workers off the exchanges, and away from tax subsidies. If no full-time worker receives a tax subsidy for buying health insurance, the employer will pay no employer responsibility tax.

Under this scheme, the “ideal” worker — in terms of minimizing exposure to the employer responsibility tax — is a worker who is incapable of obtaining a tax subsidy for buying health insurance. Who are these workers? One large category is the 6 million immigration action beneficiaries. As Homeland Security Secretary Jeh Johnson confirmed at a recent hearing of the House Homeland Security Committee, beneficiaries of the president’s immigration actions “will not be eligible for comprehensive health care, ACA.” That is, they won’t receive government subsidies to purchase health insurance.

Because the 6 million immigration beneficiaries aren’t eligible for Obamacare tax subsidies, hiring them reduces employers’ chances of triggering the employer responsibility tax. Employers have a powerful financial incentive to hire them in place of U.S. citizens and permanent residents. The president’s unilateral grant of work permits, combined with the fact that these workers cannot trigger the employer responsibility tax, makes those workers significantly more attractive.

To make matters worse, recent reports indicate that millions of U.S. citizens and lawful residents — who are eligible to receive Obamacare tax subsidies — have opted to defy the individual mandate and forego buying expensive health insurance. Under the statute, that’s supposed to trigger a tax, too, but the president has effectively gutted this provision by unilaterally creating 19 categories of exemptions, including a blanket one for “general hardship.”

Because individuals who don’t buy health insurance won’t be claiming any Obamacare tax subsidies, they — like the 6 million immigration action beneficiaries — cannot trigger the employer responsibility tax. Both of these categories of workers are more attractive to hire, because they will not, by definition, have subsidized health insurance under Obamacare. The inevitable result is that more workers will lack employer-provided health insurance coverage.

The president isn’t a one-person lawmaker. He doesn’t have the power in our constitutional regime to fix laws he thinks are broken. When a president does so, he not only intrudes on Congress’ power, but also creates unpredictable repercussions for other laws. It’s no small irony that, by unilaterally attempting to fix our immigration law, Mr. Obama has undermined his own signature legislative achievement.

Elizabeth Price Foley is a constitutional law professor at Florida International University College of Law. David B. Rivkin Jr. is a partner at the firm Baker Hostetler LLP, and served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://www.washingtontimes.com/news/2015/mar/10/elizabeth-price-foley-david-rivkin-jr-obamas-amnes/

Nevada’s Right Choice on Immigration

By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”

The president is, in other words, stuck with laws passed by Congress and signed into law by previous presidents. The reason for this is at the heart of America’s constitutional separation of powers—the power to make laws and to execute them are divided between separate branches of government, Congress and the president respectively.

The third branch—the judiciary—has the power to say what the law is, including when the president and or Congress have crossed the constitutional lines. It is only litigation before the courts that can now vindicate the most basic tenets of our constitutional system.

However desirable immigration reform might be, congressional action won’t prevent this president from ignoring provisions in a new law that he dislikes or opposes. Only a determination by the courts that he has overstepped his constitutional authority can do that. Unless the president’s ability to play lawmaker is decisively defeated in litigation, congressional legislation on any contentious public-policy issue would be inherently futile.

Nor is Mr. Laxalt obliged to follow Gov. Sandoval’s preference. Nevada law permits the governor to direct the attorney general to bring or defend an action in the courts. But as Mr. Laxalt explained, it also imposes an entirely independent obligation on the attorney general to take such action if he believes it necessary to secure the state’s interests.

All American states, including Nevada, have critical interests at stake here, both because of the burdens President Obama’s suspension of federal immigration law imposes on their state budgets and governments, but also because of their basic character as coequal sovereigns. The Constitution is a “grand bargain” among the states and the American people. That bargain includes a powerful federal government, but one that has limited powers that may be exercised only in accordance with the institutional arrangements the Constitution creates.

The separation of legislative and executive authority is among the most important limitations on federal power. It is now up to the federal courts to restore the Constitution’s balance between the president and Congress and between the federal government and the states. Mr. Laxalt made the right choice. Those state attorneys general that have yet to join Texas v. United States of America should follow his lead.

Messrs. Rivkin and Casey practice law in Washington, D.C., and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://www.wsj.com/articles/david-rivkin-and-lee-casey-nevadas-right-choice-on-immigration-1422924012

How Congress Can Use Its Leverage on Iran

By DAVID B. RIVKIN JR. And LEE A. CASEY, Jan. 20, 2015

Nuclear talks between Iran and the U.S. recommenced Jan. 14, ahead of full international talks with senior officials from the U.S., U.K., France, Russia, China and Germany two days later. A final agreement is to be reached no later than June 30. Nothing less than Middle Eastern and global security hangs in the balance.

That security depends on verifiable elimination of Iran’s nuclear-weapons and ballistic-missile programs. Unfortunately, the Obama administration is likely to accept a deal leaving in place a substantial Iranian nuclear-weapons infrastructure, including uranium-enrichment capability, long-range ballistic missiles and the ability to deploy a rudimentary nuclear force on short notice. A course correction that only Congress can effect is urgently needed.

It is difficult for Congress to stop a president determined to sign an agreement with foreign leaders. And as this newspaper pointed out in a recent editorial, President Obama has threatened to veto any legislation to impose further sanctions on Iran if the June 30 deadline is not met. Still, Tehran’s insistence that existing U.S. sanctions be lifted as part of a nuclear-weapons agreement gives U.S. lawmakers substantial leverage. The collapse of oil prices, which dealt a heavy blow to the already weakened Iranian economy, has further increased this leverage. Here is what Congress should do:

First, Congress should insist that any Iranian agreement take the form of a treaty. The Constitution requires that treaties be made only with the advice and consent of the Senate. At the time it was adopted, and throughout most of U.S. history, agreements fundamentally ordering the relationship between the U.S. and foreign nations took the form of treaties, not executive orders. A mere executive agreement, which Mr. Obama may use to evade congressional constraints here, would be constitutionally insufficient.

Iran, too, should insist on a treaty and—to ensure sanctions ultimately are lifted—on congressional involvement in the negotiations. Presidents can unilaterally terminate both executive agreements and treaties, but executive agreements carry far less weight. Presidents are more likely to revise or revoke a predecessor’s agreements or orders than they are to repudiate treaties. The Iranians have already made clear that any deal would require their parliament’s approval. It is disconcerting to see Tehran treating its legislative branch with more deference than this U.S. president is treating Congress.

Second, the entire Congress—Senate and House—should be involved. A treaty ratified by the Senate has the force and effect of law. But the current Iranian sanctions regime is so complex—having been created over decades and involving an intricate and tangled web of statutes, executive orders and implementing regulations—that only new legislation can amend or eliminate it in a manner that ensures Iranian compliance.

Presidential orders nullifying specific sanctions, such as enabling U.S. financial institutions to return to business with currently blacklisted Iranian banks, should be unacceptable to the Iranians since such actions could be reversed by President Obama’s successor. Indeed, Tehran has repeatedly expressed concern that the U.S. might not deliver on its sanctions-lifting commitments.

Third, Congress should pass legislation now clearly stating the parameters of an acceptable nuclear deal with Iran, emphasizing the need to eliminate any Iranian breakout capability. It should also put the Iranians and our allies on notice that, absent congressional approval, the president cannot deliver comprehensive and permanent relief from the existing sanctions statutes.

This would prevent the worst possible scenario: Mr. Obama makes unilateral sanctions-related commitments, on which he ultimately cannot deliver. Tehran would thus have a perfect diplomatic cover to continue its nuclear-weapons program, while casting the U.S. as the deal breaker.

The legislation should lift sanctions in stages, as Iran begins to dismantle its nuclear and ballistic-missile programs in a transparent, permanent and verifiable manner, finally complying with its own international obligations. Congress should make clear that failure to submit an agreement as a treaty will lead to the imposition of an even broader and harsher sanctions regime against Iran. The statute should impose these sanctions now, slated to go into effect by a date certain, unless Congress repeals them after reviewing the final deal with Tehran.

These standby sanctions should have no waiver provisions. Given the administration’s willful nonenforcement of other statutes it dislikes, the legislation should enable private parties to bring civil actions against sanction-busting companies and persons. They can be patterned after the private enforcement provisions in the False Claims Act, which allow private citizens to sue on behalf of the federal government.

A genuine and enforceable deal ending Iran’s nuclear programs would give the president and the United States a major foreign-policy triumph. But this is possible only with the full cooperation of Congress, which Mr. Obama needs to treat as a partner and not as an enemy to be ignored, outmaneuvered, stonewalled or steamrolled.

Messrs. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP. Mr. Rivkin is also a senior fellow at the Foundation for the Defense of Democracies.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-lee-a-casey-how-congress-can-use-its-leverage-on-iran-1421800630

Federal Antidrug Law Goes Up in Smoke

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban.Read more…

The Controlled Substances Act is an exercise of Congress’s express power to regulate interstate commerce. The law declares that a “major portion of the traffic in controlled substances flows through interstate and foreign commerce” and that even locally grown and sold drugs have a substantial impact on interstate commerce. Drugs manufactured, distributed or consumed within a single state cannot be tolerated because they undermine Congress’s desire to stop interstate drug trafficking.

State laws legalizing and regulating marijuana—in Colorado, Alaska, Oregon and Washington—conflict with the CSA and cripple its effectiveness. States cannot be required to enforce federal law. But as the Supreme Court held in A rizona v. United States (2012), when the federal government doesn’t enforce its own laws, states still “may not pursue policies that undermine federal law.” Colorado’s decision to legalize and regulate the sale of marijuana undermines the Controlled Substances Act, giving a major boost to all segments of that business. Indeed, in an interview this month Colorado’s attorney general, John Suthers, acknowledged that his state is “becoming a major exporter of marijuana.”

Neighboring states such as Nebraska and Oklahoma have seen a significant influx of high-potency marijuana purchased in and directed toward Colorado markets, increasing those states’ law-enforcement costs. If the CSA is a valid federal statute, the U.S. Constitution’s supremacy clause (Article VI, paragraph 2) instructs that conflicting state laws cannot be allowed to stand. This is where Raich comes in.

In Raich, individuals who used marijuana pursuant to California’s “compassionate use” law asserted that the CSA was unconstitutional as it applied to them, because Congress’s power to regulate interstate commerce couldn’t reach state-sanctioned intrastate marijuana use. The Raich majority refused to create a CSA “exemption” for medicinal marijuana, reasoning that “a nationwide exemption for the vast quantity of marijuana . . . locally cultivated for personal use . . . may have a substantial impact on the interstate market for this extraordinarily popular substance.” It concluded that the CSA was a valid exercise of the congressional power to regulate interstate commerce and that “marijuana possession and cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities beyond congressional reach.”

Even the pro-federalism dissent by Justice Sandra Day O’Connor —which asserted that state compassionate-use laws could peacefully coexist with the CSA—acknowledged that medical marijuana was qualitatively distinct from recreational marijuana. More specifically, Justice O’Connor believed that the relatively small population of medical marijuana users didn’t have a “substantial effect” on the interstate market for recreational marijuana—the market Congress intended to extinguish in the Controlled Substances Act.

Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.

The Controlled Substances Act can be amended or repealed. Congress has taken a step in this direction by providing in its recent omnibus spending bill that the Justice Department cannot use appropriated funds to prevent states from implementing “laws that authorize the use, distribution or cultivation of medicinal marijuana.”

This development may lead the Supreme Court to take another look at the CSA’s constitutionality, something that could occur in the context of the Oklahoma and Nebraska lawsuit against Colorado. Alternatively, Attorney General Eric Holdercould use his authority under the Controlled Substances Act to remove marijuana from Schedule I. But Coloradans—or the citizens of any other state—lack the power in our constitutional regime to enact a law that conflicts with the CSA.

When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.

Mr. Rivkin, a constitutional litigator, served in the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law.

Source: http://www.wsj.com/articles/david-b-rivkin-jr-and-elizabeth-price-foley-federal-antidrug-law-goes-up-in-smoke-1419810742

Obama Cynically Cut China Deal To Force Energy Price Hikes On U.S Consumers

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Radically cutting U.S. greenhouse gas emissions has been a central goal for the president since taking office. The centerpiece of this drive was supposed to be a cap-and-trade system, but that was dead on arrival even when Democrats controlled Congress. So the Environmental Protection Agency (EPA) has been dutifully marching forward with a slew of politically-challenged and legally-questionable regulations, from its first wave of permitting requirements for new facilities emitting greenhouse gases (struck down in part by the Supreme Court) to its proposed “performance standards” for new power plants (withdrawn and then re-proposed following legal objections) to its recently-proposed “Clean Power Plan” to cap emissions from existing power plants (already the subject of litigation and withering criticism).

The China Deal Is Smoke and Mirrors

But unilateral action has its risks. If EPA stumbles at all in its roll-out of the Clean Power Plan, that could delay environmentalists’ goal of regulating existing plants for years, particularly if Obama’s successor doesn’t share his priorities. Even if the agency does meet its internal deadlines, there’s still no guarantee the next administration won’t roll back its plans.

This is where the China deal fits in. It provides political cover by creating the appearance—really, the false impression—that the United States isn’t alone in sacrificing economic growth to lower emissions and, in particular, that the president isn’t putting U.S. businesses at a competitive disadvantage to Chinese industry.

There’s also diplomatic cover, in that the next president will be at least hesitant to walk away from an international agreement, binding or not. Much diplomacy is conducted informally, and, all else being equal, nations and their leaders do well to keep their word.

And there’s a measure of legal cover. To be sure, an executive agreement like this one is not legally binding—a treaty, after all, has to be ratified by the Senate, which the president knows is politically impossible. But the courts are generally more deferential to policy decisions that have foreign-policy consequences, given the president’s unique competence and authority in that area. Expect our bilateral “obligations” to China to occupy a place of prominence in legal briefs defending the Clean Power Plan, which is conveniently referenced in the U.S.-China executive agreement, from the legal challenges that are sure to follow its introduction.

Will the Courts Care?

Savvy as it may be, the China deal is also remarkably cynical and has the air of being too-clever-by-half. Lacking the power to simply change domestic laws—well, at least until recently—President Obama is attempting a partial end-run through the exercise of his potent but carefully circumscribed foreign-policy powers. There’s absolutely no reason the deal had to be with China; the Seychelles or Tonga would have worked just as well.

This treads a bit too close to Justice Scalia’s concern, expressed in a treaty-power decision last year, that the Obama administration’s position was a recipe for circumventing the Constitution’s limitations on federal power. Under an unbounded treaty power, he explained, “negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools” would be sufficient to resuscitate the statute prohibiting the carrying of firearms near schools that the Courtpreviously struck down for exceeding Congress’s enumerated powers. Notably, at oral argument, Solicitor General Donald Verilli said it was simply “unimaginable” that the president or Congress would abuse foreign-policy powers to aggrandize their own authority in domestic affairs.

And yet. Remember when it was unimaginable that the president would act unilaterally to alter the legal status of millions of immigrants?

As with the president’s immigration actions, the creative repurposing of executive power that underlies the China deal will have unexpected consequences. If international agreements become just another tool of domestic policy, subject to reconsideration every four or eight years, will it diminish the standing of our word among nations? Or will it ossify U.S. domestic policy, as policy choices are taken off the table to comply with existing agreements?

The key question is whether Congress and the courts will recognize the China deal for what it is—a cynical exercise of bogus internationalism directed entirely at domestic affairs—and treat it accordingly.

Messers. Rivkin and Grossman practice law, with a particular focus on constitutional litigation, at BakerHostetler in Washington DC. Rivkin served at the Justice Department and the White House counsel’s office under presidents Reagan and George H.W. Bush.

Source: http://thefederalist.com/2014/12/03/obama-cynically-cut-china-deal-to-force-energy-price-hikes-on-u-s-consumers/