Tag Archives: government

Plenty of debates, not much about states

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By DAVID B. RIVKIN JR. AND ELIZABETH PRICE FOLEY

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Keeping the federal government within its proper constitutional sphere is critical to all Americans, regardless of their political allegiance. This is because federalism is not about protecting “states’ rights” but about preserving individual liberty. In the words of a unanimous 2011 Supreme Court decision, Bond v. United States, by “denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Federalism also allows states to craft policies that best suit the preferences and needs of their citizens, who can always vote with their feet. Likewise, leaving key policy choices to state governments benefits voters through sheer proximity to decision makers. State legislators are often part-timers who work and live in our communities and are more palpably accountable to us.

State-level reform thus comes more swiftly and better reflects the desires of ordinary constituents. States in recent years have led the way in reforming welfare, health care, education and regulatory policies. They have cut deficits, balanced budgets, reformed tax codes and produced jobs.

Federalism also benefits the national government. By having up to 50 different approaches to an issue, Congress can see what works.

Despite federalism’s many virtues, it is not much in vogue. Democrats view it as a quaint, 18th-century relic, another disposable constitutional concept that stands in the way of “progress.” The Obama administration has been particularly disdainful of federalism, with ObamaCare unconstitutionally coercing states into fundamentally revising their Medicaid programs and compelling individuals—under the guise of regulating interstate commerce—to buy a government-approved health-insurance policy.

Republicans pay lip service to federalism but too often toss it aside to achieve their own policy goals. For example, many congressional Republicans, concerned about abusive lawsuits, would nationalize many aspects of medical malpractice, an area of law traditionally reserved to the states.

Meanwhile big-spending states such as California and Illinois have been lobbying Congress for a federal bailout of their unfunded pensions. From the federalist perspective, it is appropriate that the promiscuous spending of some states makes it difficult for them to borrow more money. Such consequences, while dire, provide the political leverage that citizens living within those states need to force their elected representatives to reform.

Yet Washington may well end up rescuing these nearly bankrupt states—because some states will compromise their own sovereignty when the price is right, and the federal government is only too happy to take over and claim political credit. For there is no more assiduous underminer of federalism than the federal government itself. Every session of Congress and every administration adds to the existing voluminous body of federal law that continues to federalize wide swaths of traditional state authority. This must stop.

There was one glimmer of hope for federalism in the third presidential debate, when Mitt Romney talked about saving Medicaid by making block grants to states. “We’ll take that health-care program for the poor and we give it to the states to run because states run these programs more efficiently,” he said. “As a governor, I thought please, give me this program. I can run this more efficiently than the federal government and states, by the way, are proving it.”

If Mr. Romney succeeds in his race for the White House, let’s hope he doesn’t forget that states can be trusted to run their own affairs.

Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush and represented 26 states in challenging ObamaCare. He has advised the Romney campaign. Ms. Foley is a law professor at Florida International University College of Law and author of “The Tea Party: Three Principles” (Cambridge, 2011).

Source: http://online.wsj.com/article/SB10000872396390443328404578022821421131956.html 

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Truth to tell, the Stolen Valor Act is unconstitutional

(Published in The Washington Post, March 12, 2012)

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.

Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.

The 2006 Stolen Valor Act, which makes it a crime to falsely hold oneself as the recipient of military decorations, is challenging these precepts anew. Unfortunately, if the recent oral argument at the Supreme Court is a guide, the basis of the law’s unconstitutionality is being misconstrued and the act might survive.

The government realized that defending the statute as written was a losing proposition so it sought to recast it to bar only those falsehoods meant to be taken as statements of fact. It highlighted the compelling nature of the interest the law serves, positing that the military honor system performs a vital role in fostering the armed forces’ esprit de corps and combat effectiveness.

This claim has prompted many scholars to cite the “chilling effect” analysis often invoked in First Amendment cases. This assumes that the statute being challenged features a constitutionally permissible restriction on some type of expression, due to the existence of a compelling government interest, and that the only question is whether that restriction will lead to self-censorship of other speech the government cannot proscribe.

Meanwhile, opponents of the act claim the case is about the generic “right to lie.” The government, they argue, is a bad arbiter of truth and can’t be trusted to pick out liars, and government bans of any lies are likely to have the broad chilling effect. The Supreme Court should protect the right to lie across-the-board, they say.

But government referees truth-telling all the time and the Supreme Court has never protected deliberate lies.

The problem with this entire approach was highlighted during oral argument last month when Justice Elena Kagan asked, “What truthful speech will this statute chill?” The lawyer attacking the act replied: “It’s not that it may necessarily chill any truthful speech.”

Many legal commentators saw a blunder in the making. (Indeed, Kagan called the answer “a big concession.”) Yes, the Stolen Valor Act is unlikely to take anything of great value from public discourse — and this still does not mean that the law is not constitutionally repugnant.

The act has to go because, as the government has repeatedly acknowledged, its sole purpose has been to defend the interests of the military as an institution. The military honor system is vital to upholding morale and motivating combat performance, the government argues, and the dilution of the reputation and meaning of military declarations is particularly damaging in wartime. The government also explicitly denied in its Supreme Court briefs that the act was designed to prevent “harm to medal recipients’ reputation or honor.”

The clincher was the government’s affirmation that the law was enacted under Congress’s constitutional authority to prescribe rules for the regulation of the military. Unlike a 1923 statute that banned such commercial activities as the manufacturing or selling of military declarations without authorization, Congress, aside from the First Amendment, lacks constitutional authority to protect the reputations of individual medal holders. Thus if the 2006 act was about protecting reputations of individual Americans, it clearly would have been unconstitutional.

Having established what the Stolen Valor Act is about, the government’s insurmountable problem is that even false speech that may harm government’s reputation merits constitutional protection. The stakes extend beyond this act to the heart of the First Amendment. Laws penalizing anti-government speech have been tried before: In the Alien and Sedition Acts of 1798 and the Sedition Act of 1918, Congress authorized criminal punishment for disloyal speech and falsehoods that brought the government into disrepute. The discredited history of these seditious libel laws manifests national rejection of government efforts to guard its public image through the threat of imprisonment. In its 1964 ruling in New York Times v. Sullivan, the Supreme Court buried seditious libel for good.

In Sullivan, the court also reaffirmed its decision in Bridges v. California to bar punishments for criticism of the judiciary. The court said in Bridges that “an enforced silence, . . . in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” In other words, veneration for the institutions of government cannot be coerced.

The government argues that the Stolen Valor Act does not revive disallowed seditious-speech doctrines because it prohibits only false claims that dilute the value of the military award system. People remain free to criticize the merit and worth of military medals. But just because the government has left open one avenue of expression does not mean that it can close another to protect its own vaunted iconography.

The Stolen Valor Act should be rejected because laws against seditious speech or speech disrespectful of government can never justify a limitation on free expression, whether true or false. Congress has no business punishing civilian impostors who say they are wartime heroes.

David B. Rivkin Jr. and Bruce Brown are partners in the Washington office of Baker Hostetler. Brown filed an amicus brief against the constitutionality of the Stolen Valor Act on behalf of the Thomas Jefferson Center for the Protection of Free Expression.

Source: http://www.washingtonpost.com/opinions/the-stolen-valor-act-should-be-found-unconstitutional/2012/03/09/gIQAzB5z7R_story.html

Video: Were the President’s recess appointments constitutional?

David Rivkin speaks to the American Enterprise Institute on February 21, 2012.

Photos from the event: http://flic.kr/s/aHsjyVQBVF

Bill’s detainee provisions reaffirm the law of war

(from Roll Call, October 27, 2011)

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

Gen. David Irvine’s objections to the detainee provisions in the 2012 defense budget bill miss the mark.

These provisions do not change existing U.S. counterterrorism policy, much less challenge the country’s values or character. Rather, they reaffirm measures adopted shortly after 9/11, which the Bush and Obama administrations have rightly seen fit to maintain.

In the wake of 9/11, President George W. Bush concluded that a military response to al-Qaida and its allies was in order, for the obvious reason that the civilian law enforcement system was unable to prevent those devastating attacks. Congress wholeheartedly supported Bush’s decision, adopting a specific Authorization for the Use of Military Force on Sept. 18, 2001.

The United States is, therefore, at war with al-Qaida, its allies and its supporters. U.S. operations against those groups and individuals are governed by the laws of war, which clearly permit U.S. forces to attack al-Qaida’s leadership, operatives, and others who themselves engage in or support hostilities against the United States. In addition, throughout the conflict, the United States is entitled to capture and detain such persons, without criminal charge or trial. Although these detentions may be protracted, they are not “indefinite” because they must end when the fighting does. The Supreme Court has repeatedly upheld the legality of this policy.

It is for this very reason that the 2012 defense authorization bill would reaffirm both the nature of hostilities between al-Qaida and the United States, and these basic rules. In fact, the bill makes clear that detainees’ “disposition” is governed by the law of war — including “long term detention under the law of war without trial until the end of hostilities.”

It also clarifies that U.S. citizens can be held on the same basis but only “to the extent permitted by the Constitution of the United States.”

This is no invitation to remake constitutional law, but the invocation of existing Supreme Court precedent (some dating back to the Civil War and some that are post-9/11) that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as “combatants” or “belligerents.”

The bill does not define all of the groups who are al-Qaeda’s “associated forces” — a practical impossibility because of the irregular nature of al-Qaeda’s own organization and its transnational jihad — but makes clear that these forces must be “engaged in hostilities against the United States or its coalition partners.”

This basic limiting factor prevents improper action against groups or individuals who merely sympathize with al-Qaida or its goals.

In no way does the defense bill “militarize our system of justice.” Rather, it makes clear that the primary U.S. response to al-Qaida is, and will remain, military.

For 10 years now, debate has raged about whether a criminal justice approach to al-Qaida would more effectively protect U.S. national interests than a military one. Those who support a law enforcement model, however, have yet to articulate an answer to the most fundamental legal and practical objection to their position: If al-Qaida is to be treated merely as another global criminal organization, then U.S. forces cannot lawfully attack it anywhere in the world.

The legal rules governing law enforcement and war are fundamentally different. Authorities can use deadly force against criminal suspects only in the most narrow circumstances and almost always as a last resort. Unless perpetrators are caught in the act, they can be arrested only on properly issued warrants, and custody of perpetrators in foreign jurisdictions must be secured through the often time-consuming processes of international judicial cooperation.

Once apprehended, criminal suspects enjoy a plethora of rights designed to even the playing field between them and their governmental accusers. Moreover, the entire criminal justice system is based on the assumption that the potential for prosecution and punishment will, for the most part, deter illegal conduct. This system is manifestly unsuited to confronting a worldwide network of zealots who are determined to make war on the United States for their own ideological and geopolitical purposes.

Certainly, terrorism prosecutions in civilian courts can, and have, made a difference in the fight against international terror. However, redefining that fight as solely a law-enforcement problem in which such proceedings are the central mechanism to “defeat” al-Qaida is a recipe for disaster. President George W. Bush and President Barack Obama have rightly chosen not to take that path. Military force, and the body of law associated with it, is the only means by which the United States can degrade al-Qaida’s capabilities and ultimately grind it out of existence.

Force also is the only means by which Washington can effectively protect the American people from future attacks by al-Qaida, its allies and supporters. Demanding that protection does not transform our country into the home of the chicken-hearted. As law and morality make clear: Civilians are not legitimate targets of attack.

The American people have a right to expect that their government will secure them from attack by armed enemies so  that they can continue to enjoy the liberties that define the nation.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker Hostetler LLP, and served in the Justice Department during the Reagan and George H.W. Bush administrations. Rivkin is also co-chairman of the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.

Source: http://www.rollcall.com/issues/57_49/david_rivkin_lee_casey_defense_detainee_provisions_reaffirm_law_war-209805-1.html

Richmond’s Fourth Circuit is stage for next “lawfare” battle against military and national security officials

David Rivkin to present oral arguments for Donald Rumsfeld, Robert Gates, other Secretaries of Defense

Published on 25 October 2011

by Staff

(OfficialWire)

RICHMOND, VIRGINIA (USA)
OfficialWire PR News Bureau

Jose Padilla, a U.S. citizen, former gang member, and designated enemy combatant who was sentenced to 17 years in prison, is mounting an aggressive appeal. The oral arguments on October 26 in Richmond’s Fourth Circuit will strike at the heart of the Constitution.

Padilla brought a lawsuit against former Secretary of State Donald Rumsfeld and other high-ranking officials, alleging he was illegally detained and tortured in the military brig after his 2002 arrest. That suit, which has been described as “lawfare” or exacting personal and financial “flesh” from an opponent, was dismissed last February by a federal judge in Charleston, South Carolina, who ruled Padilla had no right to sue for constitutional violations.

Now Padilla’s appeal, Estela Lebron, for herself and as Mother and Next Friend of Jose Padilla vs. Donald Rumsfeld et al, will be heard in the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. In addition to the issue of “lawfare,” this appeal will seek to decide several questions related to legal rights of “enemy combatants”:

  • Whether U.S. officials are entitled to “qualified immunity” against claims that they unconstitutionally and unlawfully seized, detained, abused, and tortured a U.S. citizen on U.S. soil.
  • Whether “special factors” preclude a Bivens remedy (a Bivens claim involves whether an individual alleging a Fourth Amendment violation, such as unreasonable search and seizure, can sue the offenders under the Constitution) for the unconstitutional seizure, detention, abuse, and torture of a U.S. citizen on U.S. soil.
  • Whether the district court erred in holding that Plaintiffs lack standing to contest Jose Padilla’s ongoing designation as an “enemy combatant.”

The case is scheduled for the morning of Wednesday, Oct. 26 in the Red Room (Room 412) of the Lewis F. Powell, Jr. United States Courthouse in Richmond, beginning at 9:30 a.m. and the media is invited to attend.

Former White House lawyer, David B. Rivkin, Jr., the attorney famous for crafting the successful constitutional challenge to ObamaCare, as well as other attorneys from the law firm Baker Hostetler, will be in Richmond representing Mr. Rumsfeld and is available after the hearing for interviews.

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Source: http://www.officialwire.com/main.php?action=posted_news&rid=304009

Did Obama overstep in Libya? Noted lawyer David Rivkin has answer

Constitutional Attorney David RivkinInternational law expert to host Federalist Society teleforum on Libyan debate

Published on June 21, 2011

by Brent Baldwin

(OfficialWire)

WASHINGTON, D.C. (USA)
OfficialWire PR News Bureau

Rivkin, the lawyer who successfully initiated the constitutional debate on the 2010 Affordable Care Act (“ObamaCare”), has achieved renown as one of the nation’s “staunchest defenders of the Constitution.” His legal opinions stem not from a conservative ideology, but rather a deep-rooted belief in personal freedom and the Constitution itself.Former White House lawyer, David B. Rivkin, Jr. has written extensively about the powers granted to presidents by the U.S. Constitution.

Through op-eds in The Wall Street Journal, The Los Angeles Times, The Washington Post, and other major media outlets, Rivkin and his long-time associate Lee Casey spend considerable time on legal opinions.  Rivkin is also a frequent speaker at local Federalist Society Chapters throughout the U.S.

The Federalist Society’s teleforum will is scheduled for Wednesday, June 22 at 1 p.m. and will feature Rivkin, who practices appellate law at Baker Hostetler LLP, and Professor Ilya Somin of George Mason University School of Law. They will discuss the question of whether President Obama has exceeded his authority in the controversial Libyan operation.

President Obama’s team recently issued a 32-page report stating that, under the 1973 War Powers Resolution (WPR), congressional authorization was unnecessary for the current U.S. operations in Libya. Others who disagree have called for his impeachment. Rivkin, who has defended the president’s actions in Libya, recently won the prestigious 2011 Burton Award for Legal Achievement for his writing in The Washington Post.

To listen to the teleforum, interested parties can dial toll free 1-888-752-3232.

For more information, visit www.davidrivkin.com.

Source: http://officialwire.com/main.php?action=posted_news&rid=78319

Listen to this episode

Reversal on 9/11 trials a big gamble for Obama

WASHINGTON, April 5, 2011 (AFP) – By reversing itself and deciding to prosecute the 9/11 mastermind before a military tribunal, the Obama administration risks alienating its left-wing base and irking conservatives.

A stern Attorney General Eric Holder, who had spent a year and a half seeking to try Khalid Sheikh Mohammed and four alleged co-conspirators in federal civilian court, announced Monday that the administration was giving up on the controversial bid.

Obama’s team had to “face a simple truth” that the congressional restrictions against trials in the United States were “unlikely to be repealed in the immediate future,” he said.

“And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.”But the bid to lay the blame at Congress’s feet on the very day President Barack Obama officially declared his candidacy for a second term, raised some analysts’ eyebrows.

“This is a problem of Obama’s making, even though… Holder tried to blame Congress,” said Jonathan Turley, a law professor at George Washington University.

“The Obama administration is almost hypocritical in complaining about this case when the president, Obama, preserved the military tribunals.”The president vowed to close the Guantanamo Bay prison camp within a year in one of his first initiatives after taking office in January 2009. But he failed to fulfill that goal as he struggled to tear down the counterterrorism framework left over from George W. Bush’s administration.

David Rivkin, a conservative attorney who favors the military trial venue, complained about the “unfortunate” delay for Obama to come to his latest decision.
“We are now exactly where we were at the time this administration takes office in January 2009. Things were moving forward. Military commissions obviously have suffered considerable losses in personnel and funding,” Rivkin added.

“The administration spent those years delegitimizing the military commission and making them moribund. Obviously, it has degraded them. It’s gonna take months.”David Glazier, a Loyola Law School professor in Los Angeles, said Obama’s move may signal he is trying to reach out to conservatives as he launches his reelection bid.

“There is a lot of conservative opposition to the idea of using federal courts trials even though they are legally preferable,” he said.

“It might be a way that the administration is trying to avoid that being a campaign issue by giving the conservatives what they want on this issue even though they know that legally it is not the right thing to do.”Republican lawmakers largely welcomed Obama’s move and said the issue was now closed. But pulling it all off as intended will still be a challenge.

A death penalty is not guaranteed because there is nothing under the law used in the Guantanamo tribunals to stop the suspects from pleading guilty. And in December 2008, the defendants said they were inclined to do so without a full trial.

But if one of the suspects pleads guilty in a court martial or the commission, nothing says the defendants can be put to death.
So “if the administration puts them in the military commission, and then does so in a way that they can’t get a death sentence, presumably it ends up antagonizing the very people it is trying to placate,” Glazier noted.

“The conservatives in the US that the Obama administration seems to be trying to placate by announcing military commissions, also seem determined to have a death sentence.”And changing venue for the trials will inevitably delay them.

“Cases prosecuted by the Obama administration in the commissions now are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate. That is not justice. Americans deserve better,” said Anthony Romero, executive director of the American Civil Liberties Union.

But for Turley, whatever delays may arise, “this decision makes us look like hypocrites and regardless of the evidence presented at the military tribunal, its legitimacy will always be questioned because of the forum in which these men were tried.”