Tag Archives: David Rivkin

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

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

Let the Electoral College Do Its Duty

By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN
September 7, 2016, in the Wall Street Journal

To those counting the days until Nov. 8 when the presidential election campaign will finally end, some bad news: The contest won’t truly be decided until the Electoral College’s vote on Dec. 19. Then again, this could be good news for Americans who still hope to escape the dilemma presented by the major parties’ nomination of two unpopular candidates, Hillary Clinton and Donald Trump—but only if the electors’ constitutionally guaranteed independence is observed in the face of state laws seeking to control their votes.

America’s method of presidential selection is as peculiar and clever as the federalism and separation-of-powers principles that fostered it. To guard against the passions of populism, the Framers interposed a college of state-based electors between voters and the actual presidential selection. To discourage political obligation and intrigue, they provided that the electors would meet just once, in their respective states, for the sole purpose of casting ballots for the next president and vice president.

And to prevent the presidency from being captured by regional interests, they required the winner to obtain a majority of the Electoral College votes. Failing that, the election is thrown to the House of Representatives, to choose among the top three vote-getters.

Today, the Electoral College vote is regarded as a nearly mechanical process: The parties nominate their slates, elector seats are awarded (in most states) to the popular vote winner’s party slate, and a few weeks later the electors certify what the people have already chosen.

In an unusual campaign year like this one, however, that may be too much to take for granted. Electors are typically party stalwarts, but many ideologically committed Democrats and Republicans lack enthusiasm for this year’s top-of-ticket candidates. Several would-be Republican electors are already publicly flirting with the idea of casting their votes for someone other than Mr. Trump, believing that his erratic outbursts have “disqualified” him from being president.

Right or wrong, that is exactly the kind of discernment that the Constitution demands electors exercise. It was their duty, Alexander Hamilton explained, to ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Instead, representing the interests of their states and constituents, the electors would vote only for those possessing “the esteem and confidence of the whole Union” sufficient to win the requisite majority vote, thereby providing “a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” If the parties have failed in that task, then it falls to the electors to provide a final check.

Elector independence is also a practical necessity. Federal law provides no other means to respond to the death or incapacitation of the popular vote-winner after Election Day but before the Electoral College votes. Likewise, death or disability shortly before Election Day may present the same quandary, given state-law delays in altering ballots. And should electors blind themselves to revelations of corruption or foreign control that might emerge in the weeks before they meet? To deal with all of these contingencies, the Framers’ intention was that electors would exercise their discretion and judgment.

As a matter of original constitutional meaning, elector independence is not a controversial proposition. Both Article II of the Constitution and the 12th Amendment, which clarified the selection of the vice president, provide that electors shall “vote by ballot,” a term of art referring to secret ballots rather than publicly cast votes.

By contrast, other constitutional provisions use words like “choose” or “election” that do not indicate secrecy. Voting in secret is the means by which electors may exercise their discretion, free from any attempt to control their vote.

Nonetheless, 29 states and the District of Columbia have laws on the books purporting to bind electors to vote for their party’s candidate or in accord with the state’s popular vote. Some enforce those mandates with fines or even criminal penalties—typically a misdemeanor charge. Others regard the casting of a “faithless” elector vote as resignation from the post and cancellation of the ballot. Despite dozens of electors choosing over the years to cast ballots for someone other than their party’s candidate or to abstain, these laws have never been enforced. Nonetheless, their very existence misleads the public and, even worse, chills electors from discharging their duty to exercise judgment.

The time is ripe to put an end to this legal charade and establish, as federal-court precedent, that the Constitution forbids enforcement of elector-binding mandates. The Supreme Court ruled in a 1952 decision, Ray v. Blair , that delegate pledges are unobjectionable, as nothing prevents an elector from announcing his intended vote beforehand. But the court recognized that enforcement of pledges raises constitutional concerns.

State courts that have considered the matter have held that elector pledges can impose, in the words of the Supreme Court of Ohio in 1948, only “a moral obligation, not a legal one.” As that court concluded, when a state attempts to “dictate to the electors the choice which they must make for president and vice president, it has invaded the field set apart to the electors by the Constitution of the United States, and such action cannot stand.”

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C. They represented Beau Correll, a delegate to the Republican National Convention, in his successful legal challenge to Virginia’s delegate-binding statute.

Source: http://www.wsj.com/articles/let-the-electoral-college-do-its-duty-1473290734

Gun control proposals in the wake of Orlando could endanger constitutional rights

By David B. Rivkin Jr. and Andrew M. Grossman in the Washington Post,  June 21, 2016

In the aftermath of horrific terrorist massacres such as the Orlando nightclub shooting, the natural impulse of the American people is to ask what the government can do to prevent such tragedies. Securing public safety is indeed the government’s most important job; keeping guns away from terrorists has obvious value. But this must be done in a way that complies with the Constitution.

This admonition has animated much of the recent debate about the rules governing National Security Agency surveillance of suspected terrorists. Regrettably, it has not been embraced in the gun control debate unfolding in the aftermath of Orlando.

Yet the Constitution’s due process protections are the vital safeguard of individual liberty and mitigate against arbitrary government action by setting the procedures the government must observe when it seeks to deprive an individual of a given substantive right.

Constitutionally “appropriate” procedure varies based on the importance of the right at issue and the risk of an erroneous deprivation of that right, and the government’s interest. For example, while government officials may commit a person who is dangerous to himself or others on an emergency basis, a judicial determination of the validity of the commitment must follow. Law enforcement officers may arrest a person they believe to be guilty of a crime, but the person who has been arrested is entitled to appear before a judge.

Our legal traditions spell out the process that is due for the categories of people currently denied the right to keep and bear arms. Those include felons and those charged with felonies, people adjudged “mentally defective” and those dishonorably discharged from the military. The unifying factor is that people subject to these bars have all received their day in court.

But that’s not the case with the new gun control proposals. One proposal is to block gun sales to those named on the terrorist watch list maintained by the FBI’s Terrorist Screening Center. The list, however, is entirely unsuited to that task.

According to National Counterterrorism Center guidance, agencies can add someone to the list based on a “reasonable suspicion” or “articulable evidence” that the person is a “known or suspected terrorist.” Listings can be based on anything from civilian tips and social-media postings to actual government investigations. The guidance makes clear that “irrefutable evidence or concrete facts are not necessary.”

The predictable result is a very long list, with entries of varying quality. As of July 2014, the main list contained about 800,000 names. More than 40 percent are designated as having “no recognized terrorist group affiliation.” This kind of list may be valuable for prioritizing counterterrorism activities, supporting investigations and determining where additional scrutiny may be warranted, such as with visa applications.

However, the watch list was never intended to be used to punish listed individuals by depriving them of their constitutionally protected rights. And, legally, it is unsuitable for that task. While there is an administrative redress process to remove a name from the list, there is no judicial review, no hearing and not even notification of whether a request was granted or denied, much less the grounds of the decision.

The no-fly list, which contained about 47,000 names in 2013, is subject to the same shortcomings. Individuals are never informed why they’ve been listed and have no opportunity for a hearing before a neutral judge to clear their names. In court filings, the government has explained that the list represents officials’ “predictive judgments” about who may pose a threat. Whatever the merits of that approach as applied to the eligibility for air travel, it falls far short of the kind of concrete proof and procedure necessary to deprive a person of a constitutionally protected right.

Even narrower approaches being bandied about raise similar concerns. For example, an amendment by Sen. Dianne Feinstein (D-Calif.) would authorize the attorney general to block a firearms sale if the attorney general determined that the buyer was engaged in conduct relating to terrorism. The amendment does provide that a frustrated buyer may bring a lawsuit in federal court to challenge a denial. But its text suggests that this is just window dressing: The attorney general may withhold the evidence underlying the denial from the plaintiff, placing the burden on the plaintiff to prove his innocence by rebutting evidence that he’s never seen.

Those agitating for firearms restrictions now should understand that the precedent they set is a dangerous one that extends far beyond the realm of the Second Amendment. If the government’s say-so is sufficient to block a gun sale — thereby abridging a right enumerated in the Constitution, with little or no ability for redress — what right wouldn’t be at risk of arbitrary deprivation, particularly among the powerless?

David B. Rivkin Jr. served in the White House counsel’s office and the Justice Department in the Reagan and George H.W. Bush administrations. Andrew M. Grossman is an adjunct scholar at the Cato Institute. They practice appellate and constitutional law in Washington.

Source: https://www.washingtonpost.com/opinions/gun-control-proposals-in-the-wake-of-orlando-may-endanger-constitutional-rights/2016/06/21/9c79dc88-37d8-11e6-a254-2b336e293a3c_story.html

Punishing Climate-Change Skeptics

Some in Washington want to unleash government to harass heretics who don’t accept the ‘consensus.’

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

March 23, 2016 6:29 p.m. in the Wall Street Journal

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann ’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view.

Mr. Mann’s lawsuit divided climate scientists—many of whom recognized that it threatened vital scientific debate—but the climate Inquisition was only getting started. The past year has witnessed even more heavy-handed attempts to enforce alarmist doctrine and stamp out dissent.

Assuming the mantle of Grand Inquisitor is Sen. Sheldon Whitehouse (D., R.I.). Last spring he called on the Justice Department to bring charges against those behind a “coordinated strategy” to spread heterodox views on global warming, including the energy industry, trade associations, “conservative policy institutes” and scientists. Mr. Whitehouse, a former prosecutor, identified as a legal basis for charges that the Racketeer Influenced and Corrupt Organizations Act, or RICO, the federal statute enacted to take down mafia organizations and drug cartels.

In September a group of 20 climate scientists wrote to President Obama and Attorney General Loretta Lynch encouraging them to heed Mr. Whitehouse and launch a RICO investigation targeting climate skeptics. This was necessary since, they claimed, America’s policy response to climate change was currently “insufficient,” because of dissenting views regarding the risks of climate change. Email correspondence subsequently obtained through public-records requests revealed that this letter was also coordinated by Mr. Whitehouse.

Reps. Ted Lieu (D., Calif.) and Mark DeSaulnier (D., Calif.) followed up with a formal request for the Justice Department to launch an investigation, specifically targeting Exxon Mobil for its funding of climate research and policy organizations skeptical of extreme warming claims. Attorney General Lynch announced in testimony this month that the matter had been referred to the FBI “to consider whether or not it meets the criteria for what we could take action on.” Similar investigations are already spearheaded by state attorneys general in California and New York.

Meanwhile, Mr. Whitehouse, joined by Sens. Edward Markey (D., Mass.) and Barbara Boxer (D., Calif.), sent letters to a hundred organizations—from private companies to policy institutes—demanding that they turn over information about funding and research relating to climate issues. In his response to the senators, Cato Institute President John Allison called the effort “an obvious attempt to chill research into and funding of public policy projects you don’t like.”

Intimidation is the point of these efforts. Individual scientists, think tanks and private businesses are no match for the vast powers that government officials determined to stifle dissent are able to wield. An onslaught of investigations—with the risk of lawsuits, prosecution and punishment—is more than most can afford to bear. As a practical reality, defending First Amendment rights in these circumstances requires the resources to take on the government and win—no matter the cost or how long it takes.

It also requires taking on the Climate Inquisition directly. Spurious government investigations, driven by the desire to suppress a particular viewpoint, constitute illegal retaliation against protected speech and, as such, can be checked by the courts, with money damages potentially available against the federal and state perpetrators. If anyone is going to be intimidated, it should be officials who are willing to abuse their powers to target speech with which they disagree.

That is why we are establishing the Free Speech in Science Project to defend the kind of open inquiry and debate that are central to scientific advancement and understanding. The project will fund legal advice and defense to those who need it, while executing an offense to turn the tables on abusive officials. Scientists, policy organizations and others should not have to fear that they will be the next victims of the Climate Inquisition—that they may face punishment and personal ruin for engaging in research and advocating their views.

The principle of the First Amendment, the Supreme Court recognized in Dennis v. United States (1951), is that “speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.” For that principle to prevail—in something less than the 350 years it took for the Catholic Church to acknowledge its mistake in persecuting Galileo—the inquisition of those breaking from the climate “consensus” must be stopped.

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

Source: http://www.wsj.com/articles/punishing-climate-change-skeptics-1458772173

Don’t bring Garland into 2016 presidential circus

President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court’s institutional legitimacy.

Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.

There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court’s own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government.

It is particularly vulnerable to the perception that it is acting politically, rather than scrupulously applying the Constitution and statutes to adjudicate cases. As Alexander Hamilton famously explained in The Federalist, delineating the separation of powers among the three federal branches and defending the proposition that the judiciary was to be “the least dangerous” branch, it was to “have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” But, with no electoral constituency to supports its legitimacy and authority, that judgment must be respected. Unfortunately, after three generations as a central force in effecting various types of social and political changes, the Supreme Court’s judgments are respected mostly by the “winners” of the relevant political battles it has determined to resolve.

This state of affairs, particularly when coupled with the fact that a number of intense battles between Congress and the president and the president and the states — implicating both the core separation of powers issues and pivotal matters of public policy — are now on the court’s docket, and will remain there for the foreseeable future, requires that both Congress and the president work to support and protect its legitimacy as a non-political institution.

The problem here, and the most likely explanation for the court’s declining approval ratings, is not what issues the court decides — as early as the 1830s Alexis de Tocqueville noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question” — but how it decides. Or, perhaps more to the immediate point, how it is perceived to decide those issues.

With this in mind, having a protracted battle over the confirmation of a new justice unfold in the middle of an already bitter national election would be the worst thing to happen. Each side has its “litmus” tests, whether it is the overturning of the Supreme Court’s decisions on campaign expenditures and gun control on the left, or its decisions on abortion, same-sex marriage and Obamacare on the right. Nominating and confirming a justice with such litmus tests dominating the process — as they certainly will — would reinforce the impression that the court is indeed a political institution and would damage its reputation, legitimacy and efficacy beyond repair.

President Obama indisputably has the constitutional right to make appointments to the Supreme Court, but only by and with the advice and consent of the Senate. As a full partner in this process, the Senate would be entirely justified — indeed, it would be responsible and prudent — to postpone any consideration of a nomination to fill Justice Scalia’s seat until after the new president, Democrat or Republican, is inaugurated. And this would not be a slight or injury to President Obama, who has already appointed two Supreme Court justices. His term is in its final year, and filling seats on the Supreme Court is not a personal, presidential entitlement. The Senate majority leadership has concluded that postponing the confirmation process is appropriate, and it is perfectly entitled to do so. Having the Supreme Court function for a time with eight members will not destroy the republic, while making any new justice an election year football would gravely damage the court as an institution — an institution that is necessary to the republic’s survival and prosperity.

David B. Rivkin, Jr., and Lee A. Casey served in the U.S. Justice Department under presidents Ronald Reagan and George H.W. Bush.

Source: http://www.usatoday.com/story/opinion/2016/03/16/supreme-court-nomination-merrick-garland-elections-2016-politics-constitution-column/81855264/

Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases.

That makes it all the more important that the courts get the legal principles right this time around. Overlooked so far in this debate is the First Amendment’s prohibition on compelled speech. The Supreme Court has affirmed time and again that the right to free speech includes the right not only decide what to say but also what not to say. Representative cases have upheld the right of parade organizers to bar messages they disapprove and of public employees to refuse to subsidize unions’ political speech.

Computer code can be speech: no less than video games (which the Supreme Court found to be protected), code can convey ideas and even social messages. A new encryption algorithm or mathematical technique, for example, does not lose its character as speech merely because it is expressed in a computer language instead of English prose.

That’s not to say that all code is absolutely protected. But there’s a strong case to be made where code embodies deeply held views on issues of public policy and individual rights — such as the right to be free from government surveillance. Forcing a person to write code to crack his own software is little different from demanding that he endorse the principle of doing so.

And that leads to the most troubling aspect of the court order: it does, in fact, demand that Apple endorse the government’s views by requiring that it digitally sign the software so that it can run on an iPhone. A signature speaks volumes: agreement, endorsement, trust, obligation. Apple says all those things when it decides to sign a new version of its operating system.

The government can’t force a person to sign a petition and endorse a political view. But that is exactly what it demands here: to compel Apple to endorse a version of its own software that runs precisely counter to its values. At the very least, that is one more reason for a court to reject the government’s aggressive legal position in this case.

David B. Rivkin, Jr., who served in Republican administrations, and Andrew M. Grossman, who is an adjunct scholar of the Cato Institute,, are attorneys at Baker & Hostetler. 

Source: http://www.usatoday.com/story/opinion/2016/02/19/apple–iphone-fbi-san-barnardino-terrorism-free-speech-column/80569422/