Tag Archives: Elizabeth Price Foley

Congress can’t outsource impeachment

By David B. Rivkin Jr. and Elizabeth Price Foley

31 May 2019 in the Wall Street Journal

It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.”

House Democrats claim they’re entitled to see Mr. Mueller’s underlying materials. But Congress may not use its subpoena power for a prosecutorial do-over. The Constitution gives law-enforcement authority to the executive, not the legislative, branch. In Quinn v. U.S. (1955), the Supreme Court said that Congress’s “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”

Impeachment isn’t a law-enforcement function, but demanding Mr. Mueller’s documents to search for impeachable offenses is still unconstitutional. The Constitution gives the House the “sole power” of impeachment. Outsourcing aspects of the process to the other branches of government violates separation of powers.

Unfortunately, there is a precedent for such outsourcing, though it is one that ought to give Democrats pause: the impeachment of President Clinton. The offenses for which Mr. Clinton was impeached—perjury before a grand jury and obstruction of independent counsel Kenneth Starr’s investigation—were established by Mr. Starr, who informed Congress that “the evidence of wrongdoing is substantial and credible, and that the wrongdoing is of sufficient gravity that it warrants referral to Congress.” Mr. Starr issued a report and turned his materials over to the House because the now-defunct statute under which he operated required it. The Justice Department’s special-counsel regulations, which govern Mr. Mueller’s investigation, do not.

The Supreme Court upheld the constitutionality of the independent counsel in Morrison v. Olson (1988). It did not address the constitutionality of the requirement that independent counsels turn over evidence of impeachable offenses to the House. If it had, there would be deep concerns about separation of powers. In addition to the textual declaration that the House has the “sole power” of impeachment, the debate over impeachment at the Constitutional Convention supports an outsourcing prohibition.

Delegates were deeply divided on whether the president should be subject to impeachment at all—and if so, which institution should have this great power. They considered vesting the impeachment power in state legislatures but rejected the idea. The concern was that it would make the president too dependent on the states, endangering the vertical separation of powers. They also pondered entrusting impeachment authority to the judiciary—essentially, to the Supreme Court—but concluded that would give the judiciary too much power and enable it to impeach its own members.

Eventually and with misgivings, the Framers settled on vesting impeachment authority in the House, with trial by the Senate. Their greatest fear was that this arrangement would destroy separation of powers by rendering the president perpetually dependent on legislative approval. Charles Pinckney believed congressional impeachment power would chill the president’s exercise of his core constitutional powers (such as vetoing legislation) and encourage Congress to hold impeachment “as a rod over the Executive and by that means effectually destroy his independence.” Rufus King opined that “under no circumstances ought [the president] to be impeachable by the Legislature,” because such power would be “destructive of his independence.”

The Framers took pains to devise meaningful limits on the impeachment power. When George Mason proposed to add “maladministration” to treason and bribery as a basis for impeachment, James Madison demurred: “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” In Federalist No. 65, Alexander Hamilton argued that “the greatest danger” of giving Congress the impeachment power is that its “decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” To allay these concerns, the Framers limited impeachment to “high crimes and misdemeanors”—not mere political disagreements.

In addition, by resting the entire impeachment power in Congress, the Framers constrained it. Congress was to have limited investigatory power and to conduct its proceedings in a transparent, politically accountable manner. That effectively meant presidential misconduct would have to be open and notorious to be impeachable.

In that regard, at least, the 1868 impeachment of Andrew Johnson was exemplary. His firing of War Secretary Edwin Stanton was in open defiance of the Tenure in Office Act, although the Supreme Court eventually concluded the law itself was unconstitutional. Republicans who pushed Johnson’s impeachment were held politically accountable, with Democrats gaining 20 House seats out of 243 in the 1868 elections.

If the House can outsource impeachment, the deepest concerns of the Framers will become reality. Impeachment would have few limits and no political accountability. As a federal prosecutor, Mr. Mueller legitimately obtained information from a grand jury, wiretaps and other forms of surveillance unavailable to Congress. If Congress can secure these materials by simply commanding the executive branch to turn them over, it would tremendously augment its power.

Turnover of prosecutorial materials would allow Congress to hide behind the fact-finding and legal determinations of the other branches, thereby diminishing its own political accountability. Because the nation’s law-enforcement officials have concluded Mr. Trump has not committed any crimes, Democratic representatives cannot legitimately draft articles of impeachment accusing him of criminal conduct involving the same offenses of which he was cleared by the Mueller investigation. The House could impeach him for misconduct that doesn’t violate criminal statutes—say, abuse of power or inappropriate behavior. But lawmakers must be candid about what exactly the charge is.

Proceeding in such a fashion—not hiding behind criminal accusations that prosecutors have rejected—would require House Democrats to assume the full political risk for their impeachment efforts. Instead, they are pressing Mr. Mueller to testify, hoping he will say something beyond what is contained in his report, and to obtain his investigatory materials. By second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal-law violations, Democrats seek cover for their raw political push to unseat a president.

Outsourcing impeachment also fundamentally deforms the executive branch. In Federalist No. 51, Madison explained that each branch must possess “the necessary constitutional means and personal motives to resist encroachments of the others. . . . The interest of the man must be connected with the constitutional rights of the place.” When executive-branch officials see themselves as working for Congress, there is severe constitutional dislocation.

Mr. Mueller’s team, for example, embraced the proposition that a president can obstruct justice by exercising his constitutional powers, such as firing the director of the Federal Bureau of Investigation, if his decisions have a corrupt motive. That position runs roughshod over opinions of the Justice Department’s Office of Legal Counsel, which has consistently concluded that, to protect separation of powers, laws should not be construed to apply to the president’s performance of his official duties, absent a clear statement otherwise.

The obstruction statutes contain no such clear statement. And while Mr. Mueller refrained from ascribing corrupt motives to Mr. Trump, his legal view that the president can obstruct justice while discharging his constitutional powers is at odds with constitutional principles and would have never been adopted by the Justice Department in the normal course of business.

Allowing executive branch officials to investigate a sitting president all but invites a coup. Former Justice Department attorney Neal Katyal recently admitted that “the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress.” Mr. Mueller hinted at the same idea in a public statement Wednesday: “The Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”

To Mr. Katyal and others now proclaiming a “constitutional crisis,” the special counsel works for Congress, not the president. Similarly, House Democrats claim it was illegitimate for Mr. Barr and other senior Justice Department officials to reach a prosecutorial judgment on obstruction of justice. In their view, that determination should have been made by Congress—which has no power to make prosecutorial judgments.

These views reflect a deep constitutional rot. While executive-branch officials must abide by legitimate oversight requests from lawmakers, they work for the president, not for Congress. Investigations of a sitting president by the executive branch threaten the separation of powers by encouraging insubordination to the president. Executive officials may be willing to help grease the wheels of impeachment. That’s no way to run a government of separated powers.

America’s experience with special prosecutors, independent counsels and special counsels has left a trail of partisan-fueled destruction. These investigations are inherently harmful to national unity and a stain on the constitutional fabric. The only way to restore the separation of powers and prevent further damage is to ensure that Congress cannot outsource any aspect of its impeachment powers.

Existing opinions from the Office of Legal Counsel already hold that no sitting president should be indicted or criminally prosecuted, because such actions would debilitate the presidency. The same is true of criminal or counterintelligence investigations. Thus the OLC logic should extend those opinions and conclude formally that a sitting president cannot be investigated by the executive branch.

If the U.S. is led one day by a truly corrupt president, the proposed cure of executive-branch investigation to aid impeachment would still be far worse than the disease. A president who openly violates the law or otherwise betrays the public trust can be voted out of office or impeached by Congress—using, as the OLC has noted, “its own investigative powers” in an open, politically accountable way.

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

Source: https://www.wsj.com/articles/congress-cant-outsource-impeachment-11559341259

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Stop the Impeachment Fishing Expedition

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.”

The court did, however, consider the question of whether civil litigation “could conceivably hamper the President in conducting the duties of his office.” It answered: “If and when that should occur, the court’s discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President’s duties would not occur.”

Unfortunately, the scenario the court called “unlikely” in 1997 now exists. Like Mr. Clinton, Mr. Trump faces an investigation by a zealous prosecutor with unlimited resources inquiring, among other things, into prepresidential activities. In addition, Mr. Trump is subject to a deluge of lawsuits and investigations, including by state attorneys general, involving his conduct before entering politics. The House Intelligence Committee has announced a wide-ranging investigation of two decades’ worth of Mr. Trump’s business dealings. The Ways and Means Committee plans to probe many years of Mr. Trump’s tax returns. By contrast, the 1995 resolution establishing the Senate Whitewater Committee targeted specific areas of possible improper conduct by the White House and federal banking regulators.

Congress has no authority to investigate or prosecute crimes; these responsibilities belong to the executive branch. It has no power to conduct fishing expeditions, and its investigatory authority is supposed to be in the service of legislation. As the Supreme Court warned in Watkins v. U.S. (1954), investigations unrelated to legislative business are an abuse of power that “can lead to ruthless exposure of private lives.” When congressional investigations seek ruthless exposure of a sitting president’s private life, the harm is not only to persons but to institutions.

Nor is investigating Mr. Trump’s prepresidential activities a legitimate exercise of the House’s impeachment power. The Framers viewed impeachment as a remedy for serious violations of public trust committed while in office. As Gouverneur Morris told the constitutional convention, impeachment would punish the president “not as a man, but as an officer, and punished only by degradation from his office.” Alexander Hamilton likewise observed in Federalist No. 65 that impeachment involves “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The House Judiciary Committee has embraced this interpretation several times. In 1872, it refused to impeach Vice President Schuyler Colfax for taking—while he was in Congress—discounted shares of the Union Pacific Railroad as part of the Credit Mobilier scandal. The Judiciary Committee concluded in a report that impeachment “should only be applied to high crimes and misdemeanors committed while in office.” The committee’s Democrats took a similar tack in 1998, objecting to the committee’s resolution to impeach Mr. Clinton on the ground that perjury and obstruction of justice arising from the Jones case did not “amount to the abuse of official power which is an historically rooted prerequisite for impeaching a President.”

While the full House impeached Mr. Clinton for perjury before a grand jury, it voted down an article of impeachment for perjury in Ms. Jones’s civil case. Earlier efforts to impeach presidents clearly involved official acts: Andrew Johnson was impeached after violating the Tenure of Office Act. The effort to impeach Nixon began only after tapes implicating him in the Watergate burglary were obtained.

“Impeachment is like a wall around the fort of the separation of powers,” the Judiciary Committee Democrats wrote in 1998. “The crack we put in the wall today becomes the fissure tomorrow, which ultimately destroys the wall entirely.” If Congress can use its investigatory power to fish for evidence of impeachable acts, presidents will become politically accountable to Congress, not the people. Impeachment proceedings must be designated as such from the get-go, not obfuscated as amorphous “investigations.”

To protect the separation of powers, the president should defy all demands for information about his prepresidential activities. If Congress or private litigants seek to enforce these demands, the Justice Department should move to stay these proceedings while Mr. Trump is in office. If Democrats want to remove Mr. Trump from office, there are two legitimate ways to do so: By defeating him at the polls in 2020 or through properly conducted impeachment proceedings based on evidence of “high Crimes and Misdemeanors” committed while in office.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: www.wsj.com/articles/stop-the-impeachment-fishing-expedition-11550188732

Mueller’s Fruit of the Poisonous Tree

Five Ways to Restore the Separation of Powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Win for Congress and a Setback for ObamaCare

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years.

The most specious but widespread objection to the lawsuit was that Congress, as an institution, is incapable of suffering an injury serious enough to establish “standing” to sue. Critics argued that, because the Supreme Court in Raines v. Byrd (1997) denied standing to a group of six congressmen who sued President Bill Clinton over his use of the line-item veto, there is no such thing as legislative standing.

But Raines never foreclosed legislative standing; it merely denied standing to six disgruntled members of Congress who had lost a political battle with their own colleagues. Raines didn’t involve a claim of institutional injury. The House lawsuit, by contrast, was authorized by a majority vote and does claim an institutional injury. In the words of Judge Collyer, the “plaintiff here is the House of Representatives, duly authorized to sue as an institution, not individual members as in Raines. . . . That important fact clearly distinguishes this case.”

Congress is not an institutional orphan, incapable of vindicating injury to its constitutional prerogatives. Indeed, just a few months ago, in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court recognized that the Arizona legislature had standing to assert its claim that a state executive commission had usurped its power to initiate redistricting. Standing existed because the Arizona legislature was “an institutional plaintiff asserting an institutional injury.”

Judge Collyer ruled that the House has standing to pursue its appropriations-related claims, but not its employer-mandate-related ones. Regarding the former, she recognized that the “genius of our Framers was to limit the Executive’s power” by reserving to Congress exclusive control over the federal purse. In her words, “Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution.”

The Obama administration contended that Congress could remedy its appropriations injury via “the elimination of funding” for ObamaCare. But as Judge Collyer noted, the administration was “apparently oblivious to the irony” of this argument, since a failure to appropriate money is, itself, an elimination of funding. She concluded, “Congress cannot fulfill its constitutional role if it specifically denies funding and the Executive simply finds money elsewhere without consequence.”

While Judge Collyer correctly permitted the appropriations claim to move forward, she incorrectly concluded that “the Employer-Mandate Theory is fundamentally a statutory argument” that merely asserts that the administration is “misinterpreting” ObamaCare. She was mistaken in asserting that other, private litigants are “free to sue” over such misinterpretation. Several private plaintiffs have already tried to litigate these misinterpretations, and federal courts in both the seventh and 11th circuits have held that they, too, lack standing.

When neither Congress nor private litigants have standing to challenge an executive’s unilateral rewriting of a statute, the executive possesses a dangerous, unchecked legislative power.

If the “genius of our Framers was to limit the Executive’s power,” as Judge Collyer wrote, by reserving to Congress exclusive control over the federal purse, the Founders were equally inspired in giving Congress exclusive control over legislation and obligating the president to “faithfully” execute such laws.

“The power of executing the laws,” the Supreme Court emphasized in Utility Air Regulatory Group v. EPA (2014), “does not include a power to revise clear statutory terms that turn out not to work in practice.” If a law has defects, fixing them lies solely within Congress’s legislative power, not with the executive branch. Disregard for this aspect of congressional power—not merely its appropriations power—also amounts to a “grievous harm on the House” sufficient for institutional standing.

As for the Obama administration’s Hail Mary claim that the House lawsuit involved a “political question” that shouldn’t be taken up by the judiciary, disputes between Congress and the executive have been decided by the courts since Marbury v. Madison in 1803. As Judge Collyer put it, “the mere fact that the House of Representatives is the plaintiff does not turn this suit into a non-justiciable ‘political’ dispute.” You could almost say the administration’s claim was ridiculous, frivolous—and, as of Wednesday, resoundingly dismissed.

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

Source: http://www.wsj.com/articles/a-win-for-congress-and-a-setback-for-obamacare-1441928788

The Supreme Court’s bad call on Affordable Care Act

By DAVID B. RIVKIN JR., ELIZABETH PRICE FOLEY, Los Angeles Times, June 29, 2015

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.

Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “[e]xchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”

As Justice Antonin Scalia’s dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.

Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”

Scalia observes that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass,” the majority claims that when the court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”

To reach the desired meaning, the King majority declared that “an exchange established by the State” was somehow ambiguous, enabling it to ignore the text and advance instead its vision of the ACA’s overarching purpose. But the precedent upon which the King majority relied for this contextual interpretation, FDA vs. Brown and Williamson Tobacco Corp. (2000), involved a fundamentally different situation.

In that case, a group of tobacco manufacturers challenged the Food and Drug Administration’s authority to regulate tobacco products as “medical devices” or “drugs.” The court concluded that the words “device” and “drug” did not directly address tobacco and were consequently ambiguous.

When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy.

The court looked beyond the Food, Drug and Cosmetic Act, or FFDCA, for contextual clues, discovering that Congress had subsequently passed several statutes allowing the continued sale of tobacco products, while regulating their labeling and advertising. This suggested to the justices that Congress did not intend tobacco to be regulated under the FFDCA as a drug or device.

In King, by contrast, there were no subsequent statutes providing contextual clues about congressional intent. The only reliable evidence was contained in the act’s language itself. This extra-textual approach is deeply problematic for the rule of law, since discerning a statute’s meaning from its context is always a dicey proposition, necessitating judicial inquiry into inchoate matters such as the law’s “purpose.”

Ascertaining a law’s purpose from evidence outside its text is virtually impossible, given that Congress consists of 535 members, each of whom is motivated by different purposes. This is why, at least until King, the court has not resorted to contextual interpretation when the text is plain.

In the words of Palmer vs. Massachusetts (1939), contextual interpretation is a “subtle business, calling for great wariness lest what professes to be … attempted interpretation of legislation becomes legislation itself.” Yet this is exactly what happened in King: Attempted interpretation became legislation itself. By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said or what it thinks Congress meant to say, the court upset the entire constitutional balance.

The King majority acknowledged that the ACA is full of “inartful drafting” and was written “behind closed doors, rather than through the traditional legislative process.” It also conceded that it was passed using unusual parliamentary procedures, and “[a]s a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”

Despite all these flaws, the majority felt compelled to save Congress, and the ACA, from its own foibles. Specifically, the King majority believed that applying the ACA’s plain meaning “would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

Even if a loss of subsidies would have exacerbated the death spiral, courts are emphatically not in the law-writing business. Article I, Section 1 of the Constitution grants “all” lawmaking power to Congress,” not merely “some.” The job of the judiciary is to implement laws, warts and all.

When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy. And they bypass the political process established by the Constitution’s separation of powers, arrogating to itself — and the executive — the power to amend legislation.

This leads to bad laws, bad policy outcomes and fosters the cynical belief that “law is politics.”

<em>David B. Rivkin Jr. is a constitutional litigator at BakerHostetler who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.</em>

Source: http://www.latimes.com/opinion/op-ed/la-oe-0629-rivkinfoley-king-burwell-20150629-story.html