Tag Archives: #republican

An ObamaCare Board Answerable to No One

The ‘death panel’ is a new beast, with god-like powers. Congress should repeal it or test its constitutionality.

By David B. Rivkin Jr. and Elizabeth P. Foley

Signs of ObamaCare’s failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law’s most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a “death panel,” threatens both the Medicare program and the Constitution’s separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.

For a vivid illustration of the extent to which life-and-death medical decisions have already been usurped by government bureaucrats, consider the recent refusal by Health and Human Services Secretary Kathleen Sebelius to waive the rules barring access by 10-year old Sarah Murnaghan to the adult lung-transplant list. A judge ultimately intervened and Sarah received a lifesaving transplant June 12. But the grip of the bureaucracy will clamp much harder once the Independent Payment Advisory Board gets going in the next two years.

The board, which will control more than a half-trillion dollars of federal spending annually, is directed to “develop detailed and specific proposals related to the Medicare program,” including proposals cutting Medicare spending below a statutorily prescribed level. In addition, the board is encouraged to make rules “related to” Medicare.

The ObamaCare law also stipulates that there “shall be no administrative or judicial review” of the board’s decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that they can only be fired for “neglect of duty or malfeasance in office.”

Once the board acts, its decisions can be overruled only by Congress, and only through unprecedented and constitutionally dubious legislative procedures—featuring restricted debate, short deadlines for actions by congressional committees and other steps of the process, and supermajoritarian voting requirements. The law allows Congress to kill the otherwise inextirpable board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between Jan. 1 and Aug. 15. If the board fails to implement cuts, all of its powers are to be exercised by HHS Secretary Sebelius or her successor.

The IPAB’s godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.

This wholesale transfer of power is at odds with the Constitution’s separation-of-powers architecture that protects individual liberty by preventing an undue aggregation of government power in a single entity. Instead, power is diffused both vertically—with the federal government exercising limited and enumerated powers and the states exercising all remaining authority—and horizontally, with the powers of the federal government divided among the executive, legislative and judicial branches.

This diffusion of power advances another key liberty-enhancing constitutional requirement: accountability. Accountability enables the people to know what government entity is affecting them, so that they can hold officials responsible at the polls. Congress can also hold the executive responsible through oversight and measures like impeachment.

As Chief Justice John Marshall observed in Wayman v. Southard (1825), Congress may delegate tasks to other bodies, but there is a fundamental constitutional difference between letting them “fill up the details” of a statute versus deciding “important subjects,” which “must be entirely regulated by the legislature itself.” Distinguishing between the two, the court said, requires an inquiry into the extent of the power given to the administrative body.

The power given by Congress to the Independent Payment Advisory Board is breathtaking. Congress has willingly abandoned its power to make tough spending decisions (how and where to cut) to an unaccountable board that neither the legislative branch nor the president can control. The law has also entrenched the board’s decisions to an unprecedented degree.

In Mistretta v. United States (1989), the Supreme Court emphasized that, in seeking assistance to fill in details not spelled out in the law, Congress must lay down an “intelligible principle” that “confine[s] the discretion of the authorities to whom Congress has delegated power.” The “intelligible principle” test ensures accountability by demanding that Congress take responsibility for fundamental policy decisions.

The IPAB is guided by no such intelligible principle. ObamaCare mandates that the board impose deep Medicare cuts, while simultaneously forbidding it to ration care. Reducing payments to doctors, hospitals and other health-care providers may cause them to limit or stop accepting Medicare patients, or even to close shop.

These actions will limit seniors’ access to care, causing them to wait longer or forego care—the essence of rationing. ObamaCare’s commands to the board are thus inherently contradictory and, consequently, unintelligible.

Moreover, authorizing the advisory board to make rules “relating to” Medicare gives the board virtually limitless power of the kind hitherto exercised by Congress. For instance, the board could decide to make cuts beyond the statutory target. It could mandate that providers expand benefits without additional payment. It could require that insurers or gynecologists make abortion services available to all their patients as a condition of doing business with Medicare, or that drug companies set aside a certain percentage of Medicare-related revenues to fund “prescription drug affordability.” There is no limit.

If the Independent Payment Advisory Board exercises these vast powers, political accountability will vanish. When constituents angrily protest, Congress, having ceded its core legislative power to another body, will likely just throw up its hands and blame the board.

Since ObamaCare eliminates both judicial review for any of the board’s decisions and public-participation requirements for rule making, this unprecedented insulation of the board guts due process. Even the president’s limited ability to check the board’s power—since he can remove members only for neglect or malfeasance—represents a more circumscribed standard than usual for presidential appointees.

The bottom line is that the Independent Payment Advisory Board isn’t a typical executive agency. It’s a new beast that exercises both executive and legislative power but can’t be controlled by either branch. Seniors and providers hit hardest by the board’s decisions will have nowhere to turn for relief—not Congress, not the president, not the courts.

Attempts to rein in government spending are laudable, but basic decisions about how and where to cut spending properly belong to Congress. In the 225 years of constitutional history, there has been no government entity that violated the separation-of-powers principle like the Independent Payment Advisory Board does.

While the board is profoundly unconstitutional, it is designed to operate in a way that makes it difficult to find private parties with standing to challenge it for at least its first several years in operation. An immediate legal challenge by Congress might be possible, but also faces standing difficulties. Unless and until courts rule on IPAB’s constitutionality, Congress should act quickly to repeal this particular portion of ObamaCare or defund its operations.

Mr. Rivkin, a partner at Baker Hostetler LLP, served in the Justice Department under Presidents Reagan and George H.W. Bush and represented 26 states in challenging ObamaCare. Ms. Foley is a professor of constitutional law at Florida International University and the author of “The Law of Life & Death” (Harvard, 2011).

Source: http://online.wsj.com/article/SB10001424127887324634304578539823614996636.html

Reporters need a federal shield law

News must often be gathered by confidential sources, or not at all. That confidentiality must be uniformly protected.

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

A Colorado judge’s threatened contempt sanctions against Fox News investigative reporter Jana Winter—who refuses to reveal a confidential news source—has refocused public attention on how journalists operate.

News must often be gathered from confidential sources, or not at all. Given how vital is the freedom of the press in a democracy, that confidentiality must be maintained. It is time that Congress recognize this and enact legislation that enables journalists to protect their confidential sources and newsgathering materials.

Ms. Winter covered the July 20, 2012 mass shooting that killed 12 people and injured 58 others in an Aurora, Colo., movie theater. Based on confidential law-enforcement sources, she reported that James E. Holmes, who is charged with the murders, had previously sent a notebook to his psychiatrist describing his intent to kill.

Now that Mr. Holmes is facing trial, his defense attorneys want to know the identities of Ms. Winter’s sources to aid in their client’s defense. The judge has yet to decide whether the notebook, which is potentially covered by a patient-psychiatrist privilege, is admissible. He has postponed until August a decision on whether he will force Ms. Winter to reveal her sources. But if he ultimately sides with the defendant, Ms. Winter will have to choose between violating her sources’ trust and going to jail.

Such pressures on reporters are not uncommon, with prosecutors, defense counsel and judges demanding disclosure of their confidential sources and newsgathering materials. In 2005, for instance, New York Times reporter Judith Miller was jailed for refusing to reveal a confidential source, who leaked to her the identity of CIA employee Valerie Plame, to a grand jury.

Although most states provide some protection for journalists in the form of a reporter’s “privilege,” or “shield law,” the extent of these provisions varies. Fewer than half of the states (including such key media markets as New York, California and Washington, D.C.) have a robust privilege that protects journalists’ confidential sources, with a few narrow exceptions. Other states have recognized only a “qualified” privilege, where consideration is given to how difficult it might be to otherwise obtain the desired information.

David S. Tatel, a highly respected judge of the U.S. Court of Appeals for the D.C. Circuit, suggested in Ms. Miller’s case—where contempt sanctions were upheld because of the gravity of the national security issues involved—that “reason and experience,” as manifested by the laws in “forty-nine states and the District of Columbia,” support “recognition of a privilege for reporters’ confidential source.” Unfortunately, today federal law recognizes only a modest reporter’s privilege, grounded in the rules of evidence and applied by courts on a case-by-case basis, without detailed congressional guidance. Congress can and should do more, defining such a privilege by statute.

A national privilege should include a presumption that journalists may protect the confidentiality of their sources and that this privilege can be overridden only when there would otherwise be an imminent danger to public safety or national security (such as the actual threat of violence or attack). Confidentiality would not be overridden merely because it might jeopardize a prosecution or civil lawsuit.

A national law would not violate the Constitution’s fundamental federalism principles. States are guaranteed wide latitude in addressing their own needs and concerns. But where a national market has developed—as is the case with news and newsgathering—a uniform federal approach to regulation is justifiable.

Federal pre-emption of state law in this area will be a step further than Congress has considered in the past, but Congress has wrestled with this problem before. A bill that would have applied to all federal proceedings, establishing a robust privilege subject to a few exceptions, came close to passage in 2009. It foundered because of the “WikiLeaks” controversy, where a trove of the most sensitive U.S. diplomatic and military documents was released en masse. The bill’s defeat may well have been Julian Assange’s ultimate revenge against the freedom of the press that he disingenuously claimed to venerate.

A reporter’s privilege is not cost-free—sometimes it will impede the ability of the government and private plaintiffs to win in court. However, the cause of justice is not the only worthwhile goal in America’s system of ordered liberty. Civil and criminal prosecutions are already hampered by a set of well-recognized privileges—accorded to psychiatrists, priests, lawyers and spouses—that reflect a societal recognition that they are worth the costs.

Similarly, prosecutors are often unable to introduce important evidence if it was improperly obtained, reflecting the belief that inculcating proper behavior by law-enforcement personnel is worth the costs. A strong federal shield law for reporters would be consistent with how we balance the cause of justice and other key constitutional and societal values.

Given the growing importance of nontraditional media sources, the privilege should apply to professional reporters and citizen-bloggers. It should not, however, be extended to cases where the reporter himself is the target of a criminal investigation unrelated to his receiving of confidential information, such as securities trading on inside information.

Enacting a robust federal shield law for reporters has obvious merits and no partisan impediments. It is thus necessary and doable.

Messrs. Rivkin and Casey served in the U.S. Justice Department during the Reagan and George H.W. Bush administrations. They are partners practicing in the Washington, D.C., office of Baker & Hostetler LLP.

Source: http://online.wsj.com/article/SB10001424127887324030704578424930938783180.html

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.


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.”

David Rivkin BBC/NPR appearance on gun control transcript

David Rivkin on Gun Control and the Second Amendment

The following is a transcript of David Rivkin’s appearance on the BBC Newshour radio broadcast on December 17, 2012.  The show was a direct response to the shootings at Sandy Hook Elementary School in Newtown, CT.

Host: David Rivkin joined us from the Washington studio and on the line from San Francisco I also spoke to Clara Jeffrey who is coeditor of Mother Jones a left leaning investigations magazine, does she think that this is a turning point?

Clara Jeffery: I think it could be, I think this has outraged the country. It’s one of many mass shootings this year.  The numbers keep getting worse and worse. We’ve had twice as many casualties as in any year past and I think it will behoove ordinary people to organize and responsible gun owners to step forward and say that they too support reasonable restrictions.  We need to put the wind behind politicians to make the change.

Host: And why this incident? Is it because it involved very young elementary school age children?

Clara Jeffery: Of course because it makes it even more horrific and something that every parent certainly can relate to. You know we’ve had so many this year, each one seemingly worse than the other.  They are all horrible.  And I think the country is really just waking up to that this is a pattern. That there are more and more guns. There are people who are not getting the mental health care that they need.  And we just can’t continue to live in a society that where we put our children and our citizens at such great risk.

Host: David Rivkin, do you see it that way? Do you see that this could be a turning point in the debate and real changes to the laws governing gun ownership could be in the pipeline?

David Rivkin: I do not.  It is a tragic event, it tugs very powerfully at the emotional heartstrings of our soul.  But we need to understand several points what happens here, is that proponents in this debate on both sides, run to their favorite talking points.  I would say a few reasons why it would not lead to fundamental change.  First of all, there are constitutional realties, based on the second amendment as reflected in a couple of recent Supreme Court decisions.  One is called Heller, another one is MacDonald, that put very strong limits on what can be done as far as curtailing firearm ownership.  In addition to that there are serious restrictions based upon our structural separation of powers as to what the federal government, as distinct from what states can do, because criminal law matters are very much reserved for the states.  So, the federal government can certainly ban certain types of guns from interstate and intrastate commercial traffic.

But frankly it would make absolutely no difference, because the reason we have these types of tragedies is not a reflection of some magic firearm in somebody’s hand.   Look, you can pull out how many guns are semi automatic guns, a person armed with a couple of regular hunting rifles and a couple of hand guns would be able to inflict the same type of damage.  Remember what happened in Norway, that virtually has an absolute ban on gun ownership and I think he killed over 60 people.  So all these notions that if you just have some regulatory regime that you would put in place as a silver bullet– it’s just absurd.  It’s not going to make any difference.

Host: I just wonder at this point whether it’s worth reminding people what the second amendment says.  I’ll just read it out. “A regulated militia is necessary to the security of the free state. The right of the people to keep and bear arms shall not be infringed.”  Why is that such an absolute. I just wonder whether you can explain that to our listeners?  Why Perhaps could it not be changed or reinterpreted.

David Rivkin: The reason it could not be reinterpreted is the Supreme court in the last several terms has said very clearly that that language establishes a constitutionally protected right to own guns at the individual level,quite aside from militia, and if I had 40 minutes, I could describe those details.

Host: Sure, I know it’s very complicated.

David Rivkin: Let me say this: you can’t really get there without a constitutional amendment and a constitutional amendment is unthinkable, given how difficult it is to pass. And despite what my colleague says, a large majority of Americans even after terrible tragedies like this understand it is not about gun ownership– it is about mental illness.  The real way of solving those problems is to go back with some of the excess of the sixties and seventies where a lot people were deinstitutionalized and so that it’s virtually impossible to commit somebody.

One unifying feature of all these tragedies was they were committed by mentally unbalanced people who need to be confined both for their own protection and the protection of those around us.  This person could have had a homemade bomb and could have blown up the whole school.  You can’t possibly come up with some sort of mechanical ways of keeping this from happening.

Host: Alright Clara Jeffery, would you agree with that? That it’s not just about gun ownership.

Clara Jeffery: It’s not just about gun ownership.  Certainly we need more mental health care and which has been slashed recently in the United States in the last few decades.  But the fact remains that if you walk into a classroom with a semiautomatic assault rifle, you can inflict a lot more damage a lot more quickly.  That was the gun he used to butcher these children.  Those weapons repeatedly, again and again, we see when we analyze 63 mass shootings in America over the last couple of decades, assault weapons are the weapons of choice.  Because people who want to do this kind of thing want an arsenal that only a member of the military should have.

David Rivkin: Let me pose a questions to my colleague, do you really think if assault weapons were banned, you walk into a school where not a single teacher has any firearms and no police officers.  If you had two regular hunting rifles which even the biggest proponent of gun control is not thinking about banning, that he could not have killed as many children as he did? A regular hunting rifle and a couple of pistols, that would not suffice?

Clara Jeffery: The ability to fire off a barrage of bullets, to not have to reload, yes it’s simple math, you can kill more people quicker.  But the assault weapons aside, what we also need to change in this country is the culture of gun ownership.  I am not saying that is ever going to happen maybe ever and certainly not overnight that we would have some kind of outright ban on guns. There is a second amendment provision and I mean the interpretation of the second amendment can change overtime in the courts.  We’ve interpreted other parts of the constitution differently in different eras.  But what could change is the way that the NRA and other gun ownership affiliates basically bullying people into thinking that any discussion of how people should use, store guns is not up for discussion.

Host: That was Clara Jeffery of the website Mother Jones. I was also talking to the Constitutional Lawyer David Rivkin in Washington.  Well, you can find more about the debate on gun laws in America and some statistics on the number of fire arms murders in the U.S. if you go to our website, a special website that’s been set up about this story it’s bbc.com/newtown and we’ll be coming back to this story after the news at half past.  Were going be hearing from the head teacher in Texas who says that giving teachers guns is the best way to keep children safe.  You’re listening to Newshour of the BBC World Service.

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.


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

Obama vs. Congress—and the Law

The President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)


On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

The entire system of separation of powers—which is the heart of the Constitution’s “checks and balances” designed to limit governmental power and thereby protect individual liberty—depends upon each branch of the federal government fulfilling its assigned role and respecting that of the others. Unfortunately, Mr. Obama has now made clear that he won’t respect these basic constitutional limits on his power.

Last year, for example, the administration was displeased with Congress’s failure to enact the White House-supported Dream Act, which would have legalized numerous categories of young undocumented aliens. And so, in August 2011, the administration announced it would not deport illegal aliens who had only violated the immigration laws. Henceforth, only those who had committed criminal offenses, in addition to immigration ones, would be the subject of deportation proceedings.

Mr. Obama followed this with a White House announcement in June of this year that granted effective amnesty to undocumented aliens under age 30 who had come to the United States before the age of 16. This entire group will no longer be subject to deportation proceedings and may also qualify for renewable work permits. Thus the president implemented portions of legislation he could not get through Congress on his own signature and acted in ways blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.

Earlier this year, in February, the administration gutted the strict student testing and monitoring requirements of the 2001 “No Child Left Behind” law. The law, which passed with strong bipartisan support, is meant to make schools more accountable for their pupils’ progress. But the testing and monitoring requirements are loathed by teachers unions across the nation—a key Democratic constituency for November. Unable to convince Congress to revise key provisions of the law, the president simply authorized “waivers” from many of these requirements—including one that states establish reading and math proficiency standards for all students by 2014. But “No Child Left Behind” does not provide for such waivers.

Most recently, the administration announced that it will waive the central tenet of the Clinton welfare-reform law—the requirements that recipients work or prepare (through approved education or training) to do so. Although certain aspects of the Personal Responsibility and Work Opportunity Act are subject to waiver, the federal work requirements are not among them.

The pattern of lawlessness here would have outraged the Constitution’s Framers. It should outrage all of us—including and especially members of Congress on both sides of the party divide.

Congress makes the laws and they must be enforced. For the Constitution’s Framers, this principle was bedrock—not only the ultimate achievement of our own revolution, but of England’s Glorious Revolution a century before. King James II was deposed in 1688, in no small part, because he claimed and exercised the power to “suspend” parliament’s laws.

Congress does not have to reach back to the 17th century for a precedent. Like President Obama, President Richard M. Nixon also refused to implement federal statutes when he believed Congress was wrong. Nixon did so by refusing to spend (“impounding”) money authorized and appropriated by Congress. It responded with the Congressional Budget and Impoundment Control Act in 1974, followed by a Supreme Court decision (Train v. City of New York, 1975) overturning one of the president’s impoundments, effectively ending the practice.

The Constitution gives the president many tools, some legal and some political, to use in his daily cut and thrust with Congress over national policy and priorities. But it does not permit him to ignore the laws Congress has enacted, and to make his own rules simply because he thinks the desired policy result is the right thing to do. A president who does not understand this does not understand the constitutional requirement that he “take care that the laws be faithfully executed,” or his inaugural oath to “faithfully execute the Office of President of the United States.”

Messrs. Rivkin and Casey served in the White House and U.S. Department of Justice during the Reagan and George H.W. Bush administrations.

A version of this article appeared July 27, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Obama vs. Congress—and the Law.

A triumph and tragedy for the law

To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.


The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

Congress grounded ObamaCare’s individual insurance coverage mandate in its power to regulate interstate commerce, supported by the Constitution’s Necessary and Proper Clause, which permits Congress to make all laws “necessary and proper” for carrying into effect its various enumerated powers. It relied on these constitutional provisions so as to avoid the clear political costs involved in simply raising taxes to create the universal health-care system ObamaCare’s backers really desired.

ObamaCare defenders, in the courts of law and public opinion, have been pressing these points for the last two years, and they lost. A majority of justices ruled that the Commerce Clause, even in conjunction with the Necessary and Proper Clause, cannot support federal regulation of “individuals as such, as opposed to their activities.”

This is a profound and highly significant reaffirmation of the Constitution’s federalist structure, which assigns only limited and enumerated powers to the federal government and reserves the power to enact broad health and welfare regulations to the states. Here, the court clearly rebuked Congress, sending a very clear message: There are judicially enforceable limits to your power.

Equally important, the court also ruled that the federal government cannot use its spending power to coerce the states into adopting federal programs and requirements. As originally enacted, ObamaCare required the states to expand their Medicaid programs so that they would cover those with incomes far above the federal poverty line. This would have shifted untold costs to the states, with the federal government paying these costs only for a limited time. The alternative that states faced was the loss of all federal Medicaid funding. Seven justices ruled that, applied in this manner, the law was unconstitutional and rewrote it to avoid this outcome. As a result, this federal hammer can no longer be used to force the states to support ObamaCare’s Medicaid expansion.

This is significant. Since deciding Steward Machine Co. v. Davis in 1937, the Supreme Court has maintained that the Constitution limits Congress’s power to coerce the States through federal grants, but it has never identified the boundaries between the permissible use of federal funding as a carrot and unconstitutional federal coercion. The ObamaCare decision began to draw those lines, putting real limits on Congress’s ability to use the states as simple administrative units to carry out its will.

On the debit side, the court upheld ObamaCare’s individual mandate as an exercise of the federal taxing power. The law was not passed as a tax, and both the president and ObamaCare’s congressional supporters persistently proclaimed that they were not raising taxes. The court itself was forced to concede that “the statute reads more naturally as a command to buy insurance than as a tax.”

In order to reach its conclusion that the mandate was a tax, and avoid the political fallout of striking down President Obama’s signature achievement in an election year, the court did more than overlook the statutory text’s natural meaning. It ignored congressional enactment of the mandate in a separate provision from any penalty. As Justices Scalia, Kennedy, Thomas and Alito wrote in dissent, “to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it.” The perhaps unintended irony of this judicial edit is that politicians who wish to impose this type of mandate in the future will no longer be able to claim that they are not imposing a new tax.

The court’s ObamaCare opinion presents an uncertain legacy. The court reaffirmed and clarified the constitutional limits on Congress’s power to regulate commerce and to spend money. Yet the individual mandate and the law’s Medicaid expansion were upheld through judicial copyediting that the court has always found to be beyond its own constitutional power. The fact that this happened in the context of a hotly contested statute raises questions about the court’s ability to remain immune to political pressures.

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 June 29, 2012, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: The Court Rewrites ObamaCare.

Source: http://online.wsj.com/article/SB10001424052702303561504577494972697358622.html?KEYWORDS=david+rivkin