Tag Archives: constitution

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

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

What Kind of a Judge Is Neil Gorsuch?

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

The Wall Street Journal, Jan. 31, 2017 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Five Ways to Restore the Separation of Powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Clean Power’ Plays and the Last Stand for Federalism

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

Sept. 25, 2016, in the Wall Street Journal

After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way.

Even these approaches were not enough for the Obama administration to cajole the states to carry out its energy agenda. So it resolved to obliterate one of the last vestiges of the Constitution’s vertical separation of powers: the bar on federal commandeering of the states and their officials to carry out federal policy.

The Clean Power Plan is enormously complicated, but its overall approach is straightforward. Previous emissions regulations have focused on reducing emissions from particular facilities, but this one relies on shifting electricity generation from disfavored facilities (coal-fired power plants) to those the EPA prefers (natural gas and renewables). The EPA then determined what, in its view, is the maximum amount of such shifting that each of the nation’s regional electric grids could possibly accommodate and calculated the emissions reductions.

Parcel those figures out by state, factor in additional reductions due to estimated efficiency improvements at older plants, and the result is state-specific reduction targets. The states can elect to achieve those targets themselves—or, if they decline, the EPA will do it for them. “Textbook cooperative federalism,” says the EPA.

Not quite. Whether or not the states choose to implement the plan directly, it leaves them no choice but to carry out the EPA’s federal climate policy. That’s because the EPA can destroy but not create. It can regulate emissions of existing facilities, but it lacks the legal authority to facilitate the construction and integration of new power sources, which is ultimately the only way to achieve the plan’s aggressive targets.

That duty falls to the states, which the plan depends upon to carry out what the EPA calls their “responsibility to maintain a reliable electric system.” Doing nothing, as in the cooperative federalism scenario, is not an option.

So this is how the plan works: The EPA pushes coal-fired plants off the grid, and then counts on the states to ensure that the resulting reductions in capacity are matched by increases in EPA-preferred forms of power generation. State agencies will have to be involved in decommissioning coal-fired plants, addressing replacement capacity—like wind turbines and solar arrays—addressing transmission and integration issues, and undertaking all manner of related regulatory proceedings. All this to carry out federal policy.

The Clean Power Plan implicates every evil associated with unconstitutional commandeering. It dragoons states into administering federal law, irrespective of their citizens’ views. It destroys accountability, by directing the brunt of public disapproval for increased electricity costs and lost jobs onto state officials, when the federal government deserves the blame. And it subverts the horizontal separation of powers, by allowing the executive branch to act where Congress has refused to legislate.

One can only wonder what will be left of our constitutional order if the plan passes judicial muster.

The federal government would no longer be a government of limited powers, but instead be able to compel the states to do its bidding in any area. The states, in turn, would be reduced to puppets of a federal ventriloquist, carrying out the dirty work for which federal actors wish to avoid accountability. And the federal executive, in many instances, could effectively create new law by working through the states, free of the need to win over Congress.

So it is difficult to imagine a U.S. where the Clean Power Plan is the law of the land. It would not be the same country, or the same Constitution, that Americans have enjoyed all these years.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and represent the State of Oklahoma and the Oklahoma Department of Environmental Quality in their challenge to the Clean Power Plan.

Source: http://www.wsj.com/articles/clean-power-plays-and-the-last-stand-for-federalism-1474841482