Tag Archives: politics

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

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Obama Recess Appointments Invalid

DRIV head shot from Fox interview on gun control

Noel Canning v. NLRB: DC Circuit Court of Appeals Rules President Obama’s Recess Appointments were Invalid

On Friday, January 25, 2013, the U.S. Court of Appeals, District of Columbia Circuit, ruled that  President Obama’s “recess appointments” of three National Labor Relations Board (NLRB) members was unconstitutional.  At issue was whether the President illegally invoked the Recess Appointments clause of Article II, Section 2 of the U.S. Constitution when he filled three existing vacancies on the NLRB during pro forma sessions of Congress (President Obama had maintained that Congress was actually not in session).  Attorneys for Noel Canning argued that, since the recess appointments were illegal, the NLRB lacked a quorum when it ruled that the company violated various provisions of the National Labor Relations Act, and, therefore, the NLRB ruling was invalid and unenforceable. A three-member panel consisting of Chief Judge David Santelle, and Circuit Judges Thomas Griffith and Karen Henderson concurred.

For additional analysis, read this alert.

NOEL CANNING, A DIVISION OF THE NOEL CORPORATION, PETITIONER  v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT, INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 760, INTERVENOR

Argued December 5, 2012 Decided January 25, 2013 No. 12-1115

Excerpts from the ruling:

“We determine that the Board issuing the findings and order could not lawfully act, as it did not have a quorum, for reasons set forth more fully below.”

“While the posture of the petition is routine, as it developed, our review is not. In its brief before us, Noel Canning . . . questions the authority of the Board to issue the order on two constitutional grounds. First, petitioner asserts that the Board lacked authority to act for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under putative recess appointments which were made when the Senate was not in recess. Second, it asserts that the vacancies these three members purportedly filled did not ‘happen during the Recess of the Senate,’ as required for recess appointments by the Constitution. U.S. Const. art. II, § 2, cl. 3. Because the Board must have a quorum in order to lawfully take action, if petitioner is correct in either of these assertions, then the order under review is void ab initio.”

“The [NLRB] Board contends that despite the failure of the President to comply with Article II, Section 2, Clause 2, he nonetheless validly made the appointments under a provision sometimes referred to as the ‘Recess Appointments Clause,’ which provides that ‘[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.’ Id. art. II, § 2, cl. 3. Noel Canning contends that the putative recess appointments are invalid and the Recess Appointments Clause is inapplicable because the Senate was not in the recess at the time of the putative appointments and the vacancies did not happen during the recess of the Senate. . . It is this difference between the word choice “recess” and “the Recess” that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.”

“All this points to the inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.”

“Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring ‘at the end of the ensuing session.’ The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an ‘ensuing session,’ it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in ‘the Recess.’ Thus, background documents to the Constitution, in addition to the language itself, suggest that ‘the Recess’ refers to the period between sessions that would end with the ensuing session of the Senate.”

“As the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, ‘The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.’ 501 U.S. 868, 883 (1991) (internal quotation marks and citation omitted). In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used ‘the Recess’ to refer only to the recess between sessions.”

“As Chief Justice Marshall made clear in Marbury v. Madison, ‘[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.’ 5 U.S. (1 Cranch) at 177. In Marbury, the Supreme Court established that if the legislative branch has acted in contravention of the Constitution, it is the courts that make that determination. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court made clear that the courts must make the same determination if the executive has acted contrary to the Constitution. 343 U.S. 579 (1952). That is the case here, and we must strike down the unconstitutional act.”

“. . .the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.”

“The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. See Freytag, 501 U.S. at 878. These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another. As Madison explained in Federalist No. 51, the division of power between the branches forms part of the ‘security [that] arises to the rights of the people.'”

” . . . the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose. There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations.”

Rivkin and Casey: The myth of government default

The Constitution commands that public debts be repaid. There is no such obligation to fund entitlement programs.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

Three false arguments, pushed hard by the Obama administration and accepted on faith by the media and much of the political establishment, must be laid to rest if the American people are to understand the issues at stake in the federal “debt ceiling” debate.

The first is that Congress’s failure to raise the debt ceiling—the amount of money the federal government is authorized to borrow at any given time—will cause a default on the national debt. The second is that federal entitlement programs are constitutionally protected from spending cuts. The third is that the president can raise the debt ceiling on his own authority.

To take up the first canard: Contrary to White House claims, Congress’s refusal to permit new borrowing by raising the debt ceiling limit will not trigger a default on America’s outstanding public debt, with calamitous consequences for our credit rating and the world’s financial system. Section 4 of the 14th Amendment provides that “the validity of the public debt of the United States, authorized by law . . . shall not be questioned”; this prevents Congress from repudiating the federal government’s lawfully incurred debts.

The original concern of this provision was to guarantee the integrity of federal debts incurred during and immediately after the Civil War (while the debts of the Confederacy were nullified permanently), and to ensure that a newly “reconstructed” Congress—to which the Southern states were readmitted—would not reverse these decisions. However, the amendment’s language was not limited to the Civil War-related debts. In Perry v. United States (1935), the Supreme Court made clear that the provision “indicates a broader connotation” protecting the nation’s debts as a whole.

This means that a failure to raise the debt ceiling—to prevent new borrowing—does not and cannot put America’s current creditors at risk. So long as this government exists, and barring a further constitutional amendment, those creditors must be paid.

Nor are they at risk in practice, since the federal government’s roughly $200 billion in tax revenue per month is more than sufficient to service existing debts. If the executive chose to act irresponsibly and unconstitutionally and failed to make any debt payments when they come due, debt-holders would be able to go to the Court of Federal Claims and promptly obtain a money judgment.

These basic facts should inform any credible decisions by credit-rating agencies in establishing the government’s creditworthiness. Significantly, these agencies have traditionally acted favorably when heavily indebted countries have not defaulted on their debt but cut deeply their public spending.

Second, despite White House claims that Congress must raise the debt ceiling to pay the bills it has incurred, the obligations protected as “debts” by the 14th Amendment do not include entitlement programs such as Medicare and Social Security. These programs are not part of the “public debt,” which consist of loans that are made to the federal government through bonds and similar financial instruments. Entitlement programs are instead political measures that are fully subject to the general rule that one Congress cannot, by simple legislation, prevent a future Congress from making cuts.

This fundamental and vital distinction is clear from both the text and the drafting history of the 14th Amendment’s Section 4. The wording of the section was revised before its enactment and ratification to replace the term federal “obligations” with that of “debts,” a far more narrow (and manageable) category.

The distinction was recognized by the Supreme Court in Flemming v. Nestor (1960), which involved the power of Congress to modify Social Security benefits. The court noted that entitlements and “contractual arrangements, including those to which a sovereign itself is a party, remain subject to subsequent legislation by the sovereign.”

Congress can reduce a wide range of payments to various beneficiaries at any time by amending the statutes that authorize them or simply by failing to appropriate sufficient funds to pay for them. Nor does Congress have any legal or constitutional obligation to borrow money to pay for entitlements.

Third, assertions, most recently made by Nancy Pelosi, that the president can rely on Section 4 as a pretext for raising the debt ceiling by himself are manifestly incorrect and constitutionally dangerous. Section 4 grants no power whatsoever to the president—instead, the 14th Amendment grants Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

More fundamentally, this argument—which has been tentatively advanced and then tentatively withdrawn by the White House, both during the 2011 debt-ceiling battle and in the last several weeks—is contrary to the language, structure and history of the Constitution.

Like the British Parliament before it, Congress controls the power of the purse—the authority to raise taxes, borrow money and direct how revenues are spent. In particular, Article I, Section 2, grants to Congress the power “to borrow money on the credit of the United States.” There is no similar grant to the president. Any effort by the chief executive to borrow money without congressional action would be every bit as injurious to our constitutional system as presidentially ordered taxation.

True enough, the “debt ceiling” is not a constitutional requirement. Congress could choose instead—as used to be the case during most of our history—to vote separately on the issuance of each federal debt instrument. However, nowhere in the Constitution is the president authorized to borrow or spend money without congressional action, except insofar Congress itself may permit.

Once these false arguments are cleared away, the real issue in the debt-ceiling debate becomes clear: the proper level of federal spending. Should Congress fail to increase the debt ceiling as much as the president wants, the effective result would be major government spending cuts, with payments on public debt excluded.

This is tough medicine and not to be administered lightly. If Republicans are serious about winning this debate, they must strive to convince the American people that such spending cuts are necessary, given President Obama’s openly articulated unwillingness to implement any meaningful spending cuts other than defense and his clear preference for limitless borrowing.

Whether they can succeed in this task is unclear. But the public must at least be allowed to ponder these vital issues without being misled by false claims involving debt default, the nature of federal obligations, and which branch of government is in charge of the public fisc.

Messrs. Rivkin and Casey are partners in the Washington, D.C., office of Baker Hostetler LLP and served in the White House and Justice Department during the Ronald Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/article/SB10001424127887324081704578232080227662110.html#articleTabs%3Darticle

The opening for a fresh ObamaCare challenge

By defining the mandate as a tax, one that will not be uniformly applied, the Supreme Court ran afoul of the Constitution.

By DAVID B. RIVKIN, JR. AND LEE A. CASEY

ObamaCare is being implemented, having been upheld as constitutional by the Supreme Court in June in a series of cases now known as National Federation of Independent Business v. HHS. It is becoming increasingly clear, however, that the court took a law that was flawed but potentially workable and transformed it into one that is almost certainly unworkable. More important, the justices also may have created new and fatal constitutional problems.

ObamaCare, or the Affordable Care Act, was conceived as a complex statutory scheme designed to provide Americans with near-universal health-care coverage and to effectively federalize the nation’s health-care system. The law’s core provision was an individual health-insurance purchase mandate, adopted by Congress as a “regulation” of interstate commerce. The provision required most Americans to buy federally determined minimum health-care insurance, or to pay a penalty more or less equivalent to the cost of that coverage.

Equally important were provisions requiring creation of state-run health-care insurance exchanges (where middle-income earners could obtain the prescribed coverage) and an expanded Medicaid program (also administered by the states) to cover people with incomes up to 133% (later upped to 138%) of the federal poverty level. An income of up to $31,809 for a family of four would qualify for Medicaid. States that failed to join in the Medicaid expansion were threatened with the loss of all federal Medicaid dollars, nearly a quarter of all state expenditures.

In the ObamaCare ruling, the Supreme Court correctly held that Congress could not impose the individual mandate as a constitutional regulation of interstate commerce and that Congress could not constitutionally use its spending power to coerce the states to expand Medicaid. Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a “tax” on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out of these provisions while staying within the traditional Medicaid program. Given that interpretation, the court’s majority upheld the statute as constitutional.

The court’s determination to preserve ObamaCare through “interpretation” has exacerbated the law’s original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law’s requirements into a “tax,” the court has given the public a green light to ignore ObamaCare’s requirements when it is economically beneficial. Law-abiding individuals, who might otherwise have complied with the law’s expensive purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage. There is certainly no stigma attached to simply paying a tax, and noncompliance with the law’s other requirements—such as those imposed on employers—is arguably made more attractive on the same basis. This effect fundamentally undercuts Congress’s original purpose, which was to expand health-care coverage to the greatest number of people, not to improve federal revenues.

Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges, leaving this to a federal bureaucracy unequipped to handle these new administrative burdens. As a result, a growing number of low-income Americans will be unable to obtain the free or cost-effective insurance that Congress originally meant them to have, although they remain subject to the mandate-tax.

Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’s “Uniformity Clause” (Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress’s power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as “uniform” taxes that affect states differently in practice, precedent makes clear that a permissible tax must “operate with the same force and effect in every place where the subject of it is found,” as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court’s precedents require.

Thus, having transformed the individual mandate into a tax, the court may face renewed challenges to ObamaCare on uniformity grounds. The justices will then confront a tough choice. Having earlier reinterpreted the mandate as a tax, they would be hard-pressed to approve the geographic disparity created when states opt out of the Medicaid expansion. But that possibility is inherent in a scheme that imposes a nominally uniform tax liability accompanied by the practical equivalent of a fully off-setting tax credit available only to those living in certain states. To uphold such a taxing scheme would eliminate any meaningful uniformity requirement—a result that the Constitution does not permit.

ObamaCare was always a poorly conceived and constitutionally deficient statute. The Supreme Court’s ruling upholding the law has simply made it worse. In the future, that decision is likely to be seen as a prime reason that the federal courts should judge and never legislate—even in the cause of rescuing an otherwise unconstitutional law from oblivion.

Messrs. Rivkin and Casey are lawyers in the Washington, D.C., office of Baker & Hostetler LLP. They pioneered the constitutional arguments against the individual mandate and represented 26 states in challenging ObamaCare before the trial and appellate courts.

A version of this article appeared December 6, 2012, on page A17 in the U.S. edition of The Wall Street Journal, with the headline: The Opening for a Fresh ObamaCare Challenge.

Source: http://online.wsj.com/article/SB10001424127887324705104578151164101375482.html?mod=djemEditorialPage_h

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 

Failed U.S. leadership in foreign policy

Ali Musa DaqduqUnfortunately, examples of failed U.S. leadership in foreign policy continue to increase in both frequency and gravity:

  1. We have failed to stop Iran’s nuclear-weapons program.
  2. We have failed to punish Tehran for facilitating the deaths of American soldiers
  3. We have failed to punish them for plotting to assassinate the Saudi ambassador to Washington.

In the aftermath of September 11, 2012, an even more tragic failure,the Obama administration failed to have Iraq extradite Hezbollah terrorist Ali Musa Daqduq to the U.S. for trial. The president continues to reinforce the impression of American impotence. In December 2011, nearly a year ago, we predicted that the failure to extradite Daqduq would “have serious repercussions, measured in diplomatic defeats and lost lives.”

Did the fact that an Iraqi court cleared Daqduq of all charges embolden the attackers on Benghazi last month?

The Supreme Court ruling on federal government’s police powers: The good, the bad, and the Fig Leaf

The Supreme Court ObamaCare ruling is the topic at a Federalist Society forum on October 4 at Florida International University College of Law. David Rivkin, who led the 26-state case against the US government, and Prof. Elizabeth Foley will present.

FOR IMMEDIATE RELEASE


PRLog (Press Release)
 – Oct 01, 2012 –

The issue of government takeover of healthcare isn’t going away. While Chief Justice John Roberts’ opinion on the legality of ObamaCare put limits on Congress’ power to regulate citizens’ activity, it gutted limitations on Congress’ taxing power.

David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor), said that the Supreme Court decision in June was both “excellent and bad.” The Supreme Court ObamaCare ruling is the discussion topic on Thursday, October 4, at Florida International University College of Law.Prof. Elizabeth Foley, a “founding faculty” of the FIU College of Law, will serve as commentator for the event.

Over the past decades, Congress has enacted legislation that increasingly broadened its regulatory powers, assuming that any regulation is justified by the Constitution’s Commerce Clause. The Supreme Court decision established limits on Congress’ power to do so. For those interpreting the Constitution as limiting and enumerating the powers of government, this aspect of the ruling was good news.

Unfortunately, according to Rivkin, the Supreme Court’s decision to uphold ObamaCare required that they effectively rewrite the law and broaden Congress’ tax authority. They converted the individual mandate into a tax for not purchasing insurance. Rivkin asserted that this expansion of the taxing power enables Congress to tax inactivity—crossing a constitutional barrier into police powers.

Rivkin has observed that the Supreme Court adheres to the principles of federalism, i.e., the dual sovereignty of the federal government and the states, only when ruling on laws that are not important—a position commonly known as “fig leaf federalism.”

For more information about David Rivkin, visit http://www.fed-soc.org/events/detail/the-health-care-mand…

Source: http://www.prlog.org/11988497-the-supreme-court-ruling-on-federal-governments-police-powers-the-good-the-bad-and-the-fig-leaf.html