Tag Archives: National Review

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

Hillary’s Rationale for Opposing Citizens United Fell Apart in Last Week’s Debate

by DAVID B. RIVKIN JR. & DARIN BARTRAM

February 9, 2016 in the National Review Online

Few politicians have railed more loudly against the Supreme Court’s 2010 key First Amendment decision, Citizens United v. FEC, than the star of the Citizens United–produced political documentary (Hillary: The Movie) that provided the factual basis for the decision. But forget about the kind of independent advocacy at issue in that case or even highly regulated campaign contributions. At last Thursday’s debate against Bernie Sanders, Hillary Clinton grandly asserted that she could not be bought or influenced even by huge amounts of money flowing directly into her own pocket from mega-corporations such as Goldman Sachs. She angrily denied the corrupting influence of money in politics when she is the one cashing the check. Having done that, on what possible basis can Secretary Clinton oppose the kind of independent speech unleashed by Citizens United?

It has become a matter of Democrat orthodoxy that Citizens United has been a disaster, because it enables groups of citizens, including those organized in the corporate form, to freely engage in political speech. To many Democrats, that is tantamount to buying elections and politicians. Secretary Clinton’s opposition to Citizens United is well known and a central plank of her presidential campaign. Just last month, in noting the six-year anniversary of that decision, she accused the Court of having “transformed our politics by allowing corporations to spend unlimited amounts of money to influence elections.”

While slamming the Supreme Court’s decision, Hillary Clinton has pledged something that most presidential candidates shy away from: a litmus test for future Supreme Court nominees if she is elected, to ensure they would vote to overturn Citizens United. She has also endorsed partially repealing the First Amendment to enable the government to restrict political speech for a variety of purposes, including the alleged need to equalize the ability of diverse voices to participate in democratic governance. Presumably, films like Hillary: The Movie wouldn’t make the cut.

The Supreme Court in Citizens United concluded that the First Amendment prohibits the government from restricting independent political advocacy by corporations, labor unions, and associations, because such speech expenditures do not pose a threat of quid pro quo corruption or even the credible appearance of corruption. They simply expand the marketplace of ideas. The decision led to the establishment of super PACs, regulated groups that can receive unlimited donations from individuals and corporations to spend on political and policy advocacy. It also permitted well-established national advocacy groups — whether the National Rifle Association or the Sierra Club — to become energetically engaged in political speech and debates.

It would perhaps be unreasonable to ask Clinton to live under the campaign-finance regulations she claims to favor rather the ones that exist today and under which her Republican opponents operate. (To be sure, Senator Bernie Sanders has managed to nearly match her in the polls notwithstanding his lack of a quasi-official super PAC.) Not surprisingly, Sanders has distinguished himself from Clinton by noting her cozy relationship with Wall Street firms and repeatedly called attention to the huge speaking fees Clinton has received from Goldman Sachs and others, as well as the millions of dollars in campaign and super-PAC contributions from the finance and pharmaceutical sectors that support her candidacy.

At the Thursday debate, Clinton clearly had had enough. She said that Sanders was engaging in a “very artful smear” when he repeatedly highlighted these fees and contributions. She accused him of insinuating that someone who “ever took donations or speaking fees from any interest group has to be bought.” Clinton also very forcefully said, “You will not find that I ever changed a view or a vote because of any donation I ever received.”

By asserting that she can take money from these groups, including honorary fees to spend as she sees fit for personal rather then political benefit, and that she has not been even slightly influenced by all this largess, she has disavowed the corrupting influence of money in politics far beyond anything contained in Citizens United. Money corrupts the typical politician, she seems to be claiming; but she alone is a person of such moral probity that, like Marlow venturing into the jungle in Heart of Darkness, she can escape unchanged — even when companies such as Goldman Sachs are cutting checks to her personal account. Does Clinton honestly believe it would be more corrupting if, rather than paying off Clinton directly, Goldman instead sponsored TV ads in support of her candidacy? Of course not — the very idea is ludicrous.

We will probably never know whether Secretary Clinton’s assertion at the debate of Sanders’s “very artful smear” was rehearsed, or spontaneous. What is beyond doubt is that Secretary Clinton just gutted the basis for her long opposition to the Citizens United decision.

David B. Rivkin Jr. served at the Department of Justice and the White House Counsel Office during the Reagan and George H. W. Bush administrations. Darin Bartram practices constitutional law in the Washington, D.C., area.

Source: http://www.nationalreview.com/article/431009/hillary-clintons-citizens-united-opposition-hypocrisy-illogic

AUT–Austin’s Race-Conscious Policies

The Supreme Court may soon end racial discrimination disguised as ‘diversity.’

by DAVID B. RIVKIN JR. & ANDREW GROSSMAN, December 8, 2015, in the National Review

The don’t-ask-don’t-tell era of racial preferences in college admissions may soon be at an end, as Abigail Fisher’s challenge to the University of Texas’s affirmative-action program makes its second appearance before the Supreme Court, which will hear the case this Wednesday. 

Significantly, Ms. Fisher isn’t asking the Court to ban affirmative action. Instead, her case seeks to hold schools to the general rule that the government may employ race-based measures only as a last resort. And even then, such measures must be almost perfectly calibrated to serve a compelling interest — in this instance, achieving the educational benefits of diversity.

In the admissions context, those principles have too often been honored in the breach. And for that, blame the Court. Its 2003 decision upholding the University of Michigan Law School’s affirmative-action program combined the tough language typical of decisions reviewing race-conscious government policies with a loose and open-ended analysis of the way the program actually worked and the way it was justified.

University administrators took the decision as license to do what they pleased, never mind necessity or tailoring, so long as they stayed vague about the way their programs worked. Admissions at UT–Austin offer a case in point. In 2008, the year Ms. Fisher applied, the bulk of students (81 percent) were admitted under Texas’s Top Ten Percent law, which grants automatic admission to top students at Texas high schools. That alone made UT–Austin one of the most racially diverse campuses among elite public universities.

Nonetheless, the university layered on top of that base a race-conscious admissions program. The justification — which has changed several times over the seven years that the university has spent fighting Ms. Fisher’s lawsuit — was that the Top Ten admittees lacked what it called “qualitative diversity” or “diversity within diversity.” In other words, university officials felt, despite never having surveyed the relevant characteristics of minority students admitted under the Top Ten law, that they somehow lacked adequate diversity among themselves.

The resulting race-conscious program is called “holistic review.” The program bases admissions on a combination of academics and “personal achievement.” As part of the process, an admissions reviewer assigns each applicant a “personal achievement score,” ranging from 1 to 6, based on a laundry list of factors, including race. After the scores are assigned, applicants are selected, major by major, on the basis of grids that chart academic achievement against personal achievement. That means there is no way to know whether or how the use of race influenced any particular admissions decision.

If even this stripped-down summary sounds convoluted, there’s a reason for that: It is convoluted — and, by all appearances, deliberately so. The purpose is to obfuscate. And that’s a real problem for the university. Even putting aside whether UT can justify using race at all, given the enormous diversity it has achieved through race-neutral means, its holistic-review program is completely divorced from its rather specific “diversity within diversity” justification.

If one were trying to boost qualitative diversity, whatever exactly that may be, UT’s approach isn’t what any sane person would do. To begin with, it’s astonishingly arbitrary. Despite the enormous emphasis that admissions officials place on racial considerations, the decision of when to use race as a “plus” factor and how much weight to accord it are left entirely to the application reviewers, without specific guidance or oversight. The idea, presumably, is that they know what they’re looking for.

A sane person acting in good faith would place emphasis on transparency. UT does not. To the contrary, its holistic-review process could not have been made more opaque. Even the university has no way to oversee decisions regarding race because it has structured its process so that those decisions cannot be disentangled from the consideration of other factors.

Indeed, UT has gone to such lengths to obfuscate its use of race that it can’t even show that its application readers aren’t treating race as the defining factor in the applications they review, which would amount to a forbidden quota system.

A sane person would also focus on results. But the results of UT’s use of race are unmeasurable. The university cannot identify students admitted because of racial preferences and therefore has no ability to identify their characteristics or ascertain the impact of racial preferences on diversity at any level. In fact, UT’s admissions director conceded that he could not identify any applicant who had been admitted on the basis of race. He also didn’t see why that was a problem.

None of this is unique to UT. Many of the affirmative-action programs administered in the wake of the Court’s 2003 decision are similarly structured. Dissenting from the majority opinion in that case, Justice Anthony Kennedy warned that undue deference to schools would allow them to cite vague diversity interests as a pretext for unconstitutional discrimination. And that’s exactly what has happened.

The difference today is that the author of the Court’s 2003 decision, Justice Sandra Day O’Connor, has been replaced on the bench by Justice Samuel Alito, who hews more closely to Justice Kennedy’s views on this subject. A constitutional corrective is in order. 

David B. Rivkin Jr. and Andrew Grossman practice appellate litigation in the Washington, D.C., office of Baker Hostetler, LLP. They filed an amicus brief for the Cato Institute in support of Ms. Fisher.

Read more at: http://www.nationalreview.com/article/428157/universities-and-race

A GOP debate preview

(Published in The National Review Online, pg. 3 of 5, November 22, 2011)

By David B. Rivkin, Jr. and Andrew Grossman

“Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their safety seems to be first.” So wrote John Jay in Federalist No. 3. Yet in this election cycle, the means of providing for that safety — what we broadly label “foreign policy” — actually seems to be last on the mind of many candidates and voters. This simply reflects how far we’ve drifted from constitutional government.

Nearly all of the objects that occupy our attention, except for foreign relations and the national defense, fall far outside the federal government’s limited powers, as originally understood. Under the Articles of Confederation, the national army was dependent on the states for troops, materiel, and money, which were only grudgingly given, if at all, leaving the nation unable even to secure its own territories from the British and the Spanish. Foreign relations were in chaos, with each state able to veto any treaty’s ratification and all states at war with one another for foreign trade. More than anything, the Constitution aimed to remedy these defects by fortifying federal power over foreign affairs and placing chief responsibility for external relations in the hands of the president; on the domestic side, by contrast, the Constitution little altered the states’ primacy.

With oceans providing little isolation these days, America faces more and greater threats than it did in 1789, balanced against the also greater benefits of interconnectedness. As the current president learned within his first days in office, defending the nation against transnational terrorism is itself a full-time job, requiring vigilance, resolve, and sound judgment. Then there is the growing military might of China and India; Iran’s nuclear ambitions; the nuclear-armed asylum of North Korea; and growing instability in Mexico. Beyond those direct threats to security are risks to our vital interests, from the anxiety and uncertainty of the Arab Fall and Russia’s aggressive energy politics to the plight of the tottering eurozone. Not least is America’s aspiration to be the beacon of light and hope to the world’s repressed and a consistent force for freedom and against tyranny.

To a constitutionalist, the president is foremost America’s commander-in-chief and head diplomat, and so he is principally responsible for all of these things. One need only consider America’s declining standing in the world these past three years to understand fully why foreign policy matters in a president.

— David B. Rivkin Jr. and Andrew M. Grossman are lawyers at the Washington, D.C., office of Baker Hostetler LLP. Mr. Rivkin served at the Justice Department and the White House Counsel’s office in the Reagan and George H. W. Bush administrations.

CIA interrogations have their day in court

(from The National Review, July 28, 2010)

Al-Qaeda terrorist Ahmed Ghailani provided a test case for CIA interrogations. The interrogations passed.

In February, we wrote in the Wall Street Journal about a classified brief filed in federal court in which the Obama Justice Department argued for the importance and efficacy of the CIA interrogation program. Now a federal judge has reviewed the evidence and agreed.

On Dec. 18, 2009, the U.S. attorney for the Southern District of New York, Preet Bharara, made the secret filing in response to a motion by Ahmed Ghailani, an al-Qaeda terrorist facing charges for his role in the U.S.-embassy bombings in Kenya and Tanzania in 1998. Ghailani argued that those charges should be dropped because lengthy CIA interrogations denied him his constitutional right to a speedy trial.

In his response, Bharara explained that “the defendant was . . . a rare find, and his then-recent interactions with top-level al-Qaeda terrorists made him a potentially rich source of information that was both urgent and crucial to our nation’s war efforts.” Bharara went on to say that “when the United States took custody of the defendant . . . and it justifiably believed that he had actionable intelligence that could be used to save lives, it reasonably opted to treat him initially as an intelligence asset.” And it turned out that “the defendant . . . did in fact have actionable intelligence about al Qaeda.” The “information supplied by the defendant had important real-world effects,” and he provided “crucial, real-time intelligence about senior al-Qaeda leaders and al-Qaeda plots.” Bharara concluded: “The results of the CIA’s efforts show that the defendant’s value as an intelligence source [was] not just speculative.” Thus, “the interest in national security plainly justified holding the defendant in this case as an enemy combatant [and] interrogating him . . . even if that meant delaying his criminal trial.”

Earlier this month, the federal judge presiding over the case, Lewis A. Kaplan, affirmed these conclusions by the Obama Justice Department. His ruling included a classified supplement describing Ghailani’s interrogation and the results it produced. But in his unclassified ruling, Judge Kaplan wrote: “Suffice it to say here that, on the record before the Court and as further explained in the Supplement, the CIA Program was effective in obtaining useful intelligence from Ghailani throughout his time in CIA custody.”

Kaplan went on: “The government has offered evidence that Ghailani continued to be of intelligence value throughout his time in CIA custody. Ghailani’s counsel have had access to extensive classified materials related to his interrogation, yet they have pointed to no evidence to the contrary. As discussed in the Supplement, the Court concludes that the government’s evidence is persuasive.”

He concluded: “The government has offered credible evidence indicating that the decision to place Ghailani in the CIA Program was made in the reasonable belief that he had valuable information essential to combating al-Qaeda and protecting national security. The same evidence shows that the government had reason to believe that this valuable intelligence could not have been obtained except by putting Ghailani into that program and that it could not successfully have done so and prosecuted him in federal court at the same time.” Therefore, “Two years of the delay [while Ghailani was held by the CIA] served compelling interests of national security.”

The judge also rejected “Ghailani’s claim that he was so affected psychologically by the alleged CIA mistreatment that his ability to assist in his defense has been impaired.” The court appointed a psychiatrist to examine Ghailani, and, “On the basis of the psychiatrist’s report and the entire record, including the evidence from the defense psychologist, the Court found that Ghailani suffers from no mental disease or defect, that he is capable of assisting in his defense, and that he is mentally competent. The Court is not persuaded that his mental state has been affected in any material degree by anything that took place while he was in CIA custody.”

The ruling was a major victory for the prosecution. And it was also a major vindication of the CIA interrogation program. The Obama Justice Department has now argued in federal court that the CIA program was necessary for our national security, that it was effective in producing actionable intelligence about al-Qaeda plots that could not have been obtained in any other way, and that it caused no damage to the terrorist’s mental state. A federal judge has reviewed the intelligence, heard the counterarguments of the terrorist who was interrogated, and agreed with the Obama administration that in the case of Ahmed Ghailani, the CIA interrogation program “served compelling interests of national security.”

– Marc A. Thiessen is a visiting fellow at the American Enterprise Institute, a weekly columnist for the Washington Post, and the author of Courting Disaster, just published by Regnery. David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies, a contributing editor to National Review, and a partner in the Washington, D.C., office of Baker and Hostettler, LLP.

Source: http://www.nationalreview.com/articles/243554/cia-interrogations-have-br-their-day-court-marc-thiessen?page=1