Tag Archives: david b rivkin jr

The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States.” Numerous presidents have used this authority to suspend entry of aliens from specific countries.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.” In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” That point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible.

President Obama chose to toughen vetting standards for these countries’ nationals rather than bar their entry completely. But if Mr. Trump has a different view of the threat, it is not up to the courts to decide who is right. This is a classic example of a nonjusticiable “political question,” involving matters constitutionally vested in the president and Congress.

Judges—were they adjudicating a suit brought by a party with standing—could overturn the president’s order if it entailed clear violations of due process or equal protection. But attempting to discern Mr. Trump’s motivation in selecting these countries exceeds the judiciary’s proper constitutional role. Judges scrutinize government motives in the domestic context, if presented with allegations that facially neutral governmental action is motivated by invidious discrimination. That inquiry is inappropriate in the foreign-policy sphere.

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

Messrs. Rivkin and Casey practice constitutional and appellate law in Washington and served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840

What Kind of a Judge Is Neil Gorsuch?

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

The Wall Street Journal, Jan. 31, 2017 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When Is a Judge Not Really a Judge?

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

Jan. 23, 2017 in the Wall Street Journal

An “alphabet soup” of federal agencies established since the 1930s have gradually supplanted the rule of Congress and the courts with the rule of supposed expertise. This accumulation of power is what James Madison identified in Federalist No. 47 as “the very definition of tyranny.” An example of this trend is the Securities and Exchange Commission’s increased use of in-house administrative law judges under the Obama administration.

Following high-profile losses in federal court—remember the insider trading charges against Mark Cuban?—the SEC decided to file fewer enforcement cases in courts presided over by independent judges. Instead, the agency began to take advantage of its in-house administrative law judges. Conveniently, a change in the Dodd-Frank Act authorized the agency’s judges to hear more kinds of cases and dispense more penalties.

Administrative law judges are agency employees. The proceedings they oversee provide fewer protections than court cases. They also tend to set stern deadlines and limit the right to factual investigation, often leaving defendants to rely on the SEC’s evidence. According to a 2015 Wall Street Journal analysis, the agency’s shift paid off: Through the beginning of that year, it won 90% of cases in its in-house court, compared with 69% of regular court cases. Administrative decisions can be appealed to court but are rarely reversed. That’s because the judges apply a deferential “clear error” standard to the agency’s factual findings.

The due-process problems inherent in this arrangement are apparent. Less obvious, at least to the SEC, is that it also violates the Constitution’s Appointments Clause, which requires Senate hearings and confirmation votes for department heads and other senior officials. To promote political accountability, the Constitution also requires that “inferior officers” with significant responsibility be appointed by the president or senior officials who are confirmed by the Senate.

This month, the 10th U.S. Circuit Court of Appeals ruled that the SEC’s administrative law judges aren’t mere employees but inferior officers. They take testimony, rule on motions, issue subpoenas, preside over triallike hearings, make factual determinations and can even enter judgments and impose penalties in certain circumstances. The court’s analysis was guided by a 1991 Supreme Court decision holding the same about “special trial judges” who had similar powers under the U.S. Tax Court. The SEC will surely appeal, and there is a high likelihood that the Supreme Court will affirm the lower court’s ruling.

The immediate problem for the SEC is that Congress hasn’t authorized the appointment of administrative law judges through the constitutional process. So the agency faces the risk, in cases it tries in-house, that its decisions will be voided. The SEC and its allies will push for a legislative fix so that in-house judges can be properly appointed. Congressional Republicans should use the demand for legislation as a bargaining chip for other reforms, such as restricting cases that can be heard in administrative courts.

But a legislative fix only heightens the contradictions of trying these cases outside of real courts. Due process requires that judges be neutral. A fix would make them political appointees.

Moreover, in Free Enterprise Fund v. Public Accounting Oversight Board (2010), the Supreme Court struck down an arrangement whereby appointed officers were double-insulated from removal. They could lose their jobs only for good cause, and the agency head with the power to remove them could himself only be fired for good cause. That kind of double protection, the court explained, impermissibly “subverts the President’s ability to ensure that the laws are faithfully executed” and “the public’s ability to pass judgment on his efforts.”

Administrative law judges are nearly identically insulated from political control. They can be dismissed only for good cause by their agencies, and even then only if the Merit Systems Protection Board agrees. If the 10th Circuit’s decision is upheld, this will almost certainly be the next shoe to drop, and it will leave administrative law judges subject to political control.

That means the in-house judges will be political appointees subject to the supervision of other political appointees—and at risk of dismissal for failure to follow instructions. Will agencies be able to maintain the pretense that they are “judges” in any meaningful sense? It’s difficult to see how.

The SEC’s overreaching may spell the end of the administrative state’s growth—marking the point when Congress and the courts started to regain lost ground. Thanks, Mr. Obama.

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

Source: http://www.wsj.com/articles/when-is-a-judge-not-really-a-judge-1485215998

Environmentalists’ fact-free case against Scott Pruitt

By David B. Rivkin Jr. and Andrew M. Grossman, in the National Review

January 18, 2017

Environmentalists know that they don’t like Scott Pruitt, the Oklahoma attorney general whom President-elect Donald Trump has tapped to lead the Environmental Protection Agency. But they don’t seem to know exactly why, based on the fact-free attacks being lobbed in his direction. Could it be that they’re simply mistaken?

Sure, Pruitt’s led the movement of states resisting the Obama-era EPA’s overreaches and challenging them in court. (In full disclosure, he brought us in to represent Oklahoma in its challenge to EPA carbon-emission rules.) But his point in those cases has always been that the EPA has to live within the limits of the law, including the constitutional prohibition on the federal government directing the states to do its bidding. So when EPA overstepped the line, Pruitt took it to court. A desire to see the agency follow the law isn’t exactly disqualifying for an EPA administrator.

It also doesn’t say much about how Pruitt regards the environment. He’s on record as arguing that conservatives should recognize the important role of the EPA in addressing pollution that flows across state lines, which is a uniquely federal problem. But that, he’s said, should be the EPA’s focus. Echoing the Clean Air Act itself, Pruitt’s view is that most pollution is the primary responsibility of states and local governments. Only they can understand and act on the trade-offs involved in environmental protection and have the flexibility to take into account local needs, rather than impose one-size-fits-all nationwide rules.

On that score, Pruitt has practiced what he preached. When Pruitt entered office in 2011, one of the most serious environmental problems facing Oklahoma was poultry runoff, mostly from Arkansas farms, fouling the waters of the Illinois River and Lake Tenkiller in the eastern part of the state. Oklahoma had brought a federal lawsuit against 14 poultry producers in 2005, and it took nearly five years for the case to be teed up for a decision, in 2010.

After waiting two more years for the court to act, Pruitt decided to take matters into his own hands and negotiate a solution directly with Arkansas. The states commissioned Baylor University researchers to study Oklahoma’s water-quality standards and worked together to reduce runoff through increased waste treatment and disposing of poultry waste outside of the river basin.

J. D. Strong, the former head of the Oklahoma Water Resources Board, specifically credits Pruitt with getting all the responsible parties “around the table” to make progress. During Pruitt’s tenure, Strong told Energy & Environment News, the state “made great strides when it comes to actual efforts to clean up scenic rivers in Oklahoma.”

Today, Lake Tenkiller has reclaimed its position as the “emerald jewel in Oklahoma’s crown of lakes” and is popular for fishing and watersports — a result that Pruitt, an avid fly-fisherman, has touted as a point of pride. Meanwhile, the federal court still hasn’t ruled on Oklahoma’s pollution lawsuit.

Pruitt’s record shows that he’s also serious about law enforcement, a core function of the EPA. Some environmentalists have tarred Pruitt as being in the pocket of the energy industry, but energy companies such as BP and ConocoPhillips that he has sued might have a different view of things. The state of Oklahoma accused those companies and others of “double-dipping” by billing the state for environmental-cleanup expenses for underground tanks that had already been paid for by insurance. One of those lawsuits was settled this past June, netting the state $2.8 million.

Pruitt’s record shows that he’s also serious about law enforcement, a core function of the EPA. The other talking point of Pruitt’s opponents is that he’s a climate change “denier,” but they never seem to be able to pin down anything he’s said or written denying the phenomenon — which is notable, given his leadership in opposing the Obama EPA’s climate-change regulations and many opportunities to express that view. What he has said is that “scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind.”

That same view is shared by the United Nations Intergovernmental Panel on Climate Change, which has acknowledged that future climate changes “cannot be precisely predicted” and that the mechanisms of climate change “are not yet completely understood.” Even the Obama EPA recognizes that scientists are still researching “how much Earth will warm, how quickly it will warm, and what the consequences of the warming will be.”

If Pruitt is asked at his confirmation hearing whether he believes in climate change resulting from human activity, we know that he’ll respond in the affirmative, based on his understanding of the science. But to his opponents, he’ll still be a “denier,” just because he opposes an unlawful and enormously expensive regulatory program that the EPA’s own model says won’t have any measurable impact on the climate. So much for following the science.

We suspect that environmentalists oppose Scott Pruitt not because of his views on the environment. Instead, they know that he’ll focus on the EPA’s nuts-and-bolts missions of enforcing the law and policing interstate pollution, while forgoing the grand, expensive, and often pointless gestures that have been the EPA’s hallmark under the current administration. That’s their problem.

But, for the rest of us, Pruitt will be a welcome breath of fresh air.

David B. Rivkin Jr., and Andrew Grossman practice appellate and constitutional law in Washington, D.C.

Source: http://www.nationalreview.com/article/443958/scott-pruitt-trump-epa-climate-change

Hold On Jasta Minute!

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

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

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

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

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

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

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

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

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

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

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

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

Trump Can Ax the Clean Power Plan by Executive Order

President Obama pledged to wield a pen and phone during his second term rather than engage with Congress. The slew of executive orders, enforcement memorandums, regulations and “Dear Colleague” letters comprised an unprecedented assertion of executive authority. Equally unparalleled is the ease with which the Obama agenda can be dismantled. Among the first actions on President Trump’s chopping block should be the Clean Power Plan.

In 2009 Congress rejected a cap-and-trade scheme to regulate greenhouse-gas emissions. The Environmental Protection Agency then devised a nearly identical scheme to mandate shifting electricity generation from disfavored facilities, like those powered by coal, to those the EPA prefers, like natural gas and renewables. No statute authorized the EPA to seize regulatory control of the nation’s energy sector. The agency instead discovered, in an all-but-forgotten 1970s-era provision of the Clean Air Act, that it had that power all along.

To support its preferred policy, the agency was compelled to “interpret” the statute in a way that contradicts what it acknowledges is the “literal” reading of the text and clashes with decades of its own regulations. It also nullifies language blocking regulation for power plants because they are already regulated under an alternative program. By mangling the Clean Air Act to intrude on areas it was never meant to, the regulation violates the constitutional bar on commandeering the states to carry out federal policy.

These defects are why the Supreme Court put the EPA’s plan on hold while an appeals court in Washington, D.C., considers challenges brought by the energy industry and 27 states. These legal challenges now appear to have been overtaken by events. President Trump can immediately issue an executive order to adopt a new energy policy that respects the states’ role in regulating energy markets and that prioritizes making electricity affordable and reliable. Such an order should direct the EPA to cease all efforts to enforce and implement the Clean Power Plan. The agency would then extend all of the regulation’s deadlines, enter an administrative stay and commence regulatory proceedings to rescind the previous order.

That would leave the D.C. appeals court—which some supporters of the plan are still counting on for a Hail Mary save—or the Supreme Court with little choice but to send the legal challenges back to the agency. While the Clean Power Plan could technically linger in the Code of Federal Regulations for a year or so, it would have no legal force.

When an agency changes course, it must provide a reasoned explanation to address factual findings supporting its prior policy. In certain instances that requirement may impose a real burden. For example, a rule rescinding the EPA’s “Endangerment Finding” regarding the effects of greenhouse gases would have to address the evidence underlying it. A failure to provide a satisfactory explanation of a change in policy may render a rule “arbitrary and capricious” and vulnerable to legal challenge.

Environmentalist groups have already vowed to bring suit to defend the Clean Power Plan, but a challenge would be toothless. The aggressive legal positions underlying the Obama administration’s most controversial rules—including the Clean Power Plan, the Waters of the United States rule, and the FCC’s Open Internet order—will make it easier to rescind them. That’s because rejecting the assertion of legal authority underlying such a rule is enough to justify a policy change. If the agency’s view is that it simply lacks the power to carry out a rule, then it follows that the rule must be withdrawn.

Even if a court were to find that the EPA’s interpretation of the Clean Air Act underlying the plan is permissible, that would still not compel the Trump EPA to accept that interpretation as the only permissible one. And even if a court were to rule—erroneously, in our view—that the Clean Power Plan does not violate the Constitution’s vertical separation of powers, that would still not absolve the executive branch of the responsibility to consider that constitutional issue for itself and then act accordingly.

President Obama may soon come to understand that the presidential pen and phone is a double-edged sword.

Messrs. Rivkin and Grossman, who practice appellate and constitutional law in Washington, D.C., 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/trump-can-ax-the-clean-power-plan-by-executive-order-1479679923

Release the GOP Delegates

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech. Continue reading