Tag Archives: Donald Trump

The Iran Deal Violates U.S. Law

Obama let Tehran get into the medical-isotope business, contrary to the intent of Congress.

By David B. Rivkin Jr. and James L. Connaughton

Oct. 12, 2017, in the Wall Street Journal

As President Trump decides whether to certify his predecessor’s nuclear deal with Iran, here’s another wrinkle he should keep in mind: The deal’s implementation violates federal law, namely the American Medical Isotopes Production Act of 2012.

That statute seeks to end the nuclear-proliferation risk associated with foreign production of radioactive substances for medical use using weapons-grade highly enriched uranium. U.S. doctors use a molybdenum isotope, moly-99, in 20 million procedures annually to detect early cancer, heart disease and other lethal illnesses. But the U.S. has no domestic production capability, relying instead on foreign suppliers who obtain the necessary highly enriched uranium from the U.S. government.

In enacting the 2012 law, Congress sought to end exports of highly enriched uranium while ramping up sufficient domestic production of moly-99 to satisfy U.S. needs. Since America uses roughly half of the world’s moly-99, robust U.S. production would cramp the ability of foreign isotope suppliers to control the market and sell their wares globally.

Under the 2012 law, the National Nuclear Security Administration is supposed to implement programs to encourage U.S. entrepreneurs to develop ways of making moly-99 without using highly enriched uranium, with the goal of making enough of it to justify permanently ending U.S. exports of highly enriched uranium. The Obama administration conspicuously failed to fulfill the law’s requirements. Moly-99 is not being produced in the U.S. and the U.S. government continues to export weapons-grade uranium overseas.

The Iran deal makes matters worse. It specifically permits Tehran an unlimited right to generate highly enriched uranium for use in medical isotope production. Iran is free to join with other producers to control supply and price. Earlier this year Ali Akbar Salehi, Iran’s former lead nuclear negotiator and now head of the Atomic Energy Organization of Iran, declared Iran’s intention to become a major supplier of medical isotopes. Most significantly, the Iran deal’s Joint Comprehensive Plan of Action commits the U.S. and other parties to assist Iranian medical isotope development with technology transfer, project finance, export credits and other forms of investment. The European Union has established a joint nuclear cooperation working group with Iran.

The U.S. cannot in good faith implement these obligations without evading its obligation under the American Medical Isotopes Production Act to curtail such foreign medical isotope production. Under U.S. law, there is no question which obligation prevails. The Obama administration, knowing the Senate would never ratify the JCPOA as a treaty, made it an “executive agreement” instead. Such agreements can have the force of law, but under our Constitution the president cannot unilaterally repeal a statute. It’s another reason the administration should declare the Iran deal null and void.

Mr. Rivkin, a Washington-based constitutional lawyer, served at the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Connaughton served as chairman of the White House Council on Environmental Quality, 2001-09.

Source: https://www.wsj.com/articles/the-iran-deal-violates-u-s-law-1507847288

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The Justices Lay Down the Law

By David B. Rivkin Jr. and Lee A. Casey

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity.

That, the court specifically cautioned, is not an invitation for evasion by immigration advocates: “For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

That exception, Justice Thomas noted for the dissenters, was a “compromise”—most likely the product of Chief Justice John Roberts’s effort to achieve a unanimous decision. Given the circumstances, this was a good outcome. It lends the imprimatur of the full court to the rebuke of the lower courts, and avoids the kind of partisan split that prevailed in both the Fourth and Ninth Circuit Courts of Appeals. All nine justices are also now on record supporting the proposition that the vast majority of foreign nationals cannot claim a constitutional right to enter the United States.

When the court reviews the merits of the case in the fall, however, such considerations will be out of place. While courts can adjudicate cases involving immigration and other foreign affairs issues, judicial engagement in this space is fundamentally different than in domestic affairs. In an area of decision-making that involves both institutional knowledge of international affairs and continuous access to classified information, great deference is in order from the courts. If the courts wade into this area, they would undermine both national security and respect for the judiciary. The perception that judging is swayed by political or ideological considerations would be particularly calamitous in this area. Better a 5-4 decision articulating this view clearly than a unanimous but equivocal one.

The odds of a clear outcome are good. As Justice Thomas pointed out, his colleagues’ “implicit conclusion” is that the administration is likely to prevail on the merits. The high court’s own precedent in this area is clear. Nonresident aliens have no constitutional right to enter the U.S. When denying entry, the president need only provide a “facially legitimate and bona fide” justification. As the court held in Kleindienst v. Mandel (1972), once that justification is established, there is no further inquiry or balancing for the courts to make.

Any other decision would be both inconsistent with the court’s precedent and injurious to the Constitution’s separation of powers. It would also compromise the president’s ability to defend the nation at home and abroad and cause grave harm to the judicial branch in maintaining its own critical constitutional role.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-justices-lay-down-the-law-1498604382

The Fourth Circuit Joins the ‘Resistance’

Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.

In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”

Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”

 The high court has repeatedly reaffirmed and followed Mandel. Fiallo v. Bell (1977) rejected a challenge to immigration preferences that openly favored legitimate over illegitimate children and female U.S. nationals over male—distinctions that almost certainly would have been found unconstitutional in a domestic-policy context. In Kerry v. Din (2015), the justices upheld visa denial for the complainant’s husband, who had been a member of the Taliban. When the executive branch makes a decision “on the basis of a facially legitimate and bona fide reason,” Justice Anthony Kennedy wrote, quoting Mandel, the judiciary can “ ‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of the citizens the visa denial might implicate.”

In holding that Mr. Trump acted in bad faith, the Fourth Circuit fundamentally misconstrued Justice Kennedy’s opinion in Din,which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.

Any other standard would constitute an invitation to the judiciary to direct the nation’s foreign and defense policies. Having misapplied Din, the Fourth Circuit went on to apply a standard domestic case-law analysis, under which the existence of a discriminatory purpose essentially dooms the exercise of governmental authority irrespective of other justifications. Under that approach, the government would have lost in Mandel, Fiallo and Din.

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.

Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr. Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No. 78.

The government is likely to seek an emergency Supreme Court stay of the Fourth Circuit’s decision. That may be difficult, because it requires a showing of “irreparable harm.” But even without a stay, there is little doubt the Supreme Court will remain faithful to its precedents and reverse the Fourth Circuit’s wrongheaded decision.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/the-fourth-circuit-joins-the-resistance-1496071859

‘You’re Fired,’ Trump Should Tell Richard Cordray

Under a dubious statute, the CFPB head can be dismissed only for cause—but there’s plenty of it.

By David B. Rivkin Jr. and Andrew M. Grossman

April 13, 2017, in the Wall Street Journal

The greatest mystery in Washington involves not Russian spies or wiretaps but Richard Cordray’s continued employment as director of the Consumer Financial Protection Bureau. In the face of President Trump’s mandate for change, Mr. Cordray continues the Obama administration’s regulatory crusade against lenders, blocking access to the credit that supports so many small businesses and so much consumer spending.

Why would a president who made a TV show out of firing underlings now suffer a subordinate who refuses to get with the pro-growth agenda he campaigned on? If reports from the West Wing are to be believed, Mr. Trump’s unusual timidity is the result of overcautious legal and political advice.

Mr. Cordray is insulated from presidential control by a New Deal-era innovation: a statutory clause that allows the president to fire an independent agency head only “for cause,” meaning “inefficiency, neglect of duty, or malfeasance in office.” In October a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down that restriction an infringement of the president’s constitutional authority to “take care that the laws be faithfully executed.”

When Congress created the CFPB by passing the Dodd-Frank Act of 2010, Judge Brett Kavanaugh explained, it broke with decades of historical practice. Generally the power of independent agencies is diffused among multiple commissioners or directors so as to reduce the risk of abuse. Unless he can be fired, Mr. Cordray, as the sole director of the CFPB, wields more unilateral power than any government official save the president.

The panel’s decision, however, was set aside in February when the full 11-judge court voted to rehear the case. White House lawyers are reportedly waiting to see how the litigation unfolds—a process that could go well past the end of Mr. Cordray’s term in mid-2018.

But it is a mistake to regard the twists and turns of that appeal as a reason to give Mr. Cordray a reprieve. Whatever the D.C. Circuit ultimately decides, no one disputes that the president may dismiss the CFPB director for cause. And the evidence is ample to support firing Mr. Cordray, on all three grounds permitted under law:

Inefficiency. Regulation, the Supreme Court has recognized, should seek to maximize economic efficiency through cost-benefit analysis. Yet the CFPB has pursued an agenda at odds with any clear-eyed view of economic growth and efficiency.

Its rules have made community banks and credit unions more reluctant to issue mortgages, particularly in rural areas, and accelerated consolidation of the industry, reducing competition. Its regulations have limited access to checking accounts, credit cards and other financial products, driving vulnerable Americans to depend on riskier sources of financial services and credit. The agency has even worse policies in the works, such as limits on consumer arbitration and payday lending.

Taken as a whole, the CFPB’s heavy-handed approach to regulation and enforcement has driven up the cost of borrowing, to the detriment of consumers and small businesses.

More prosaically, Mr. Cordray’s CFPB has botched basic administrative procedures meant to ensure efficiency in regulation. About a third of its rules were finalized before being published in the agency’s Unified Agenda, depriving the public of valuable notice and frustrating the regulatory review process. That haste has also led to serious errors: About a quarter of the CFPB’s rules have required correction after being finalized. Further, Mr. Cordray has specifically embraced “regulation through enforcement,” which forgoes orderly rule making entirely in favor of imposing penalties for newly contrived “violations.” This is no way to run a financial watchdog.

• Neglect of duty. Mr. Cordray allowed tens of millions of dollars in cost overruns to pile up for a lavish renovation of the CFPB’s Washington headquarters.

The agency also missed the major consumer-finance scandal of the past decade. It ignored years of complaints about an epidemic of unauthorized customer accounts at Wells Fargo . The CFPB galloped in to exact a penalty only after an investigation by California officials and other regulators was complete.

Malfeasance. What was the CFPB doing all that time? The bureau, it turns out, had spread its resources too thin, focusing on alleged discrimination in auto-dealer lending—an area that Congress specifically excluded from its purview. Not only did the agency run roughshod over that limitation, but its statistical analysis relied on dubious methods such as guessing borrowers’ race based on their surnames.

No such guesswork was required for the Merit Systems Protection Board and Government Accountability Office to find that the CFPB itself had become a hotbed of race and sex discrimination. As early as 2013, a report by Deloitte Consulting revealed that the agency’s internal performance reviews were biased against minority employees, many of whom also reported discrimination at the agency. Years later, claims of discrimination persist, particularly among black employees. Mr. Cordray failed to resolve these issues even years after initial reports.

Any of these things would be sufficient to dismiss Mr. Cordray for cause. All of them together make it necessary to do so.

If Mr. Cordray were to challenge his firing, we have little doubt the courts would support Mr. Trump. Assuming the courts even agreed that they have the power to review a presidential finding of cause for dismissal—which is far from established—they would still grant it substantial deference. The president would prevail, so long as he has documented his findings, explained his reasoning, and satisfied any due-process concerns by affording Mr. Cordray an opportunity to respond.

As far as Mr. Cordray is concerned, no further caution is required. What the president needs is resolve, and his famous TV catchphrase.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/youre-fired-trump-should-tell-richard-cordray-1492124207

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

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