Tag Archives: separation of powers

Bailing out states violates the Constitution’s ‘general welfare’ clause

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

6 May 2020 in The Hill

Republican senators, led by Majority Leader Mitch McConnell (R-Ky.), are right to oppose legislation that would provide a broad federal bailout of highly indebted states. Gov. Andrew Cuomo of New York calls this legislative stance “toxic and poison,” but it is constitutionally required.  

As senators, including Florida’s Rick Scott and Texas’s Ted Cruz, made clear in a recent letter to President Trump, no one doubts that the federal government can and should assist states in meeting the coronavirus emergency. Nor can there be any reasonable objection that this aid will benefit certain states — especially New York, which has the majority of coronavirus cases — more than others. There is, however, a profound objection to any plan that would use federal resources to ensure that heavily indebted states need not reassess their policy priorities. These states find themselves in dire fiscal straits primarily because of underfunded pension plans for their public employees. Virtually all of these states are Democrat-run and three of them — Illinois, New Jersey and Connecticut — are facing a particularly calamitous fiscal situation.

Politics aside, bailing out unfunded state pension plans with federal dollars would violate the Constitution’s often ignored, but nevertheless binding, “general welfare” clause. Congress does not, in fact, have unfettered power to spend money as it sees fit. The Constitution permits it to tax, and by implication spend, “to pay the Debts and provide for the common Defense and general Welfare of the United States.” (Art. I, § 8, cl. 1) This language was neither puffery nor surplusage, but was added by the Constitution’s Framers for a compelling purpose.

The Framers were determined to vest the federal government with sufficient authority to carry out its national purpose, but also to limit that power. These principles are reflected in numerous constitutional provisions and that document’s overall architecture. Thus, all congressional powers have some limit, some cabining principle. Just as the commerce clause is limited to the regulation of economic activities and does not permit Congress to exercise a general “police power” regulating people simply because they are here, so Congress’s ability to tax and spend is limited by the requirement that this must be for the general welfare.

This requirement stems from the Framers’ concern that large, powerful states would dominate the federal government and would use federal institutions to benefit their own interests, rather than the Union as a whole. Indeed, the question of how to ensure that a cabal of large states would not run roughshod over small states dominated much of the Constitutional Convention. It shaped many key constitutional provisions, including the bicameral federal legislature, with all states having equal representation in the Senate, the apportionment requirement for direct federal taxes, and the language mandating that “all Duties, Imposts and Excises shall be uniform throughout the United States.”  

Even such an ardent proponent of a strong federal government as Alexander Hamilton was sufficiently concerned about states acting selfishly that he argued initially for abolishing the states as independent sovereigns altogether because “states will prefer their particular concerns to the general welfare.” Eventually, this concern resulted in the constitutional language that required the federal government to operate for the general welfare of the entire nation. Notably, this language is found both in the Constitution’s preamble and Article I, Section 8, which enumerates Congress’s powers. And, as is made clear in an early draft of the general welfare clause, the Framers understood the phrase to mean that “which may concern the common interests of the Union.”

This understanding of the clause is similarly revealed in a debate that took place in September 1787, near the Convention’s end, after the general welfare language had taken its final form.  This debate concerned whether an additional provision should be included in the Constitution specifically vesting the federal government with the power to build canals, which would benefit some states more than others. Some thought yes; others argued that tasks such as canal-building should be the responsibility of the states that would directly benefit. Regardless of this disagreement, they all appeared to have shared the same view that such authority — which today we would take for granted as being well within Congress’s spending power — was not already present.

As in other areas, after the Constitution’s ratification, the Framers took different views of how far the spending power could go. Hamilton, always the preeminent Federalist, took the position that the power to tax and spend constituted a separate grant of authority to Congress, while James Madison believed it was merely a support for Congress’s otherwise enumerated powers.  Hamilton’s view prevailed and was endorsed by the Supreme Court in the 1936 case of United States v. Butler. The court did not, however, determine the meaning of “general welfare” in Butler, except to note that Hamilton understood it to mean “the purpose must be ‘general, and not local.’”

To be sure, the definition of what types of expenditures advance general welfare has been much debated throughout U.S. history. Prior to the Civil War, a stringent definition prevailed, with Congress vigorously debating expenditures for various types of infrastructure projects and presidents vetoing spending bills that they believed served local needs and did not sufficiently advance general welfare. Post-Civil War, and particularly following the New Deal, a far broader federal spending pattern emerged. This reflected the view that, using federal dollars to pay the costs of natural disasters and similar emergencies, or various infrastructure projects, while benefiting some states more than others at any given point in time, would benefit the nation as a whole in the long run. This practice broadened the understanding of what expenditures served the national interest, but it did not and could not abolish the general welfare requirement altogether.

Thus, however broad Congress’s power to tax and spend may be, this remains the fundamental limitation — expenditures must promote national, rather than local, interests. And it is difficult to imagine a more locally-oriented program than one designed to prop up the fiscal choices of a group of states — to benefit state and municipal government employees by establishing generous, underfunded pension systems — at the expense of other states. Significantly, numerous states repeatedly have rejected similar pension arrangements for themselves, vividly manifesting their view that this was not in their best interests or conducive to general welfare.  Indeed, by subsidizing a particular vision of what constitutes a proper state government, one of the basic justifications for our federalist system — that states can make their own choices as laboratories — would be discarded. True federalism requires that the federal government neither coerces states nor imposes on states’ fiscal burdens that properly belong to individual states that have incurred them.

Senate Republicans have every right, and all senators have an equal obligation, to ensure that any funding legislation meets the general welfare requirement, so that federal dollars cannot be used to pay, either directly or indirectly, for the repair of long-term fiscal liabilities of any recipient state.  

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://thehill.com/opinion/judiciary/495961-bailing-out-states-violates-the-constitutions-general-welfare-clause

Presidential Power is Limited but Vast

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

15 April 2020 in the Wall Street Journal

President Trump has come under attack this week for saying he has “absolute authority” to reopen the economy. He doesn’t – his authority is limited. But while the president can’t simply order the entire economy to reopen on his signature, neither is the matter entirely up to states and their governors. The two sides of this debate are mostly talking past each other.

The federal government’s powers are limited and enumerated and don’t include a “general police power” to regulate community health and welfare. That authority rests principally with the states and includes the power to impose coercive measures such as mandatory vaccination, as the Supreme Court held in Jacobson v. Massachusetts (1905). Nor may the federal government commandeer state personnel and resources to achieve its ends or otherwise coerce the states into a particular course of conduct. There is no dispute about these respective state and federal powers.

In most federal-state disputes, the question is what happens when authorities at both levels exercise their legitimate constitutional powers and cross-purposes. Here, the president has the edge. The Constitution’s Supremacy Clause requires that when the federal government acts within its proper sphere of constitutional authority, state law and state officials must give way to the extent that federal requirements conflict with their own. Federal power encompasses a broad power to regulate the national economy. Thus although the president lacks plenary power to “restart” the economy, he has formidable authority to eliminate restraints states have imposed on certain types of critical commercial activity.

Much of this authority was established by Congress in the Defense Production Act of 1950, which Mr. Trump has invoked on a limited basis to require American manufacturers to make personal protective equipment and ventilators. Most of his current critics lauded these actions and urged him to do more.

The DPA was enacted principally to assures U.S. military preparedness. But it defines “national defense” broadly to include “emergency preparedness” and “critical infrastructure protection and restoration.” The law “provides the President with an array of authorities to shape national defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base.” It authorizes him to prioritize the production of certain products and to “allocate materials, services, and facilities in such a manner, upon such conditions, and to such an extent as he shall deem necessary or appropriate to promote the national defense.”

The DPA isn’t a bank check. The president cannot, for example, impose wage and price controls without additional congressional action, and he is often required to use carrots rather than stisk to achieve the law’s purposes. Nevertheless, because he is acting under an express congressional grant of authority, he is operating, as Justice Robert Jackson explained in his iconic concurring opinion in the “steel seizure” case Youngstown v. Sawyer (1952), at the apex of his legal and constitutional power.

Any state restrictions on commerce or personal behavior would have to yield to the federal imperative. “The states have now power, by taxation or otherwise, to retard, impede, burden, or in any other manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government,”, the Supreme Court explained in McCulloch v. Maryland (1819). States, whether acting alone or in coordination, would be barred, for example, from forbidding their residents to return to work in critical industries, or from restraining industrial, agricultural, or transportation facilities in ways that impede the federal mandate.

That said, even the most expansive interpretation of the DPA, and other federal statutes regulating interstate commerce, wouldn’t permit President Trump to reopen all aspects of the American economy on his own authority. The reopening of many local businesses, such as restaurants and nonessential retailers, would be up to the states.

Thus state governors and lawmakers are as vital a part of this effort as the president and Congress. Federal and state officials have to work together, however much they may dislike each other politically or personally to get America back on its feet.

The truly difficult legal issues coming out of the Covid-19 crisis are whether government at all levels has sufficiently protected individual rights. All exercises of federal and state power, emergency or not, are subject to the overriding limitations of the Bill of Rights. The courts have traditionally taken the nature and extent of national emergencies into account in construing and applying these rights, but they cannot be ignored entirely.

So far the American people have largely accepted temporary restrictions on their liberty – especially freedom of assembly and religion – that may not stand up to court challenges. It would serve the president and governors well to make a priority of easing these restrictions and others as soon as possible after the worst of the danger has passed.

Mssrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://www.wsj.com/articles/presidential-power-is-limited-but-vast-11586988414

Congress Declares War, but Only the President Can Make It

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

15 January 2020 in the Wall Street Journal

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/congress-declares-war-but-only-the-president-can-make-it-11579133486

Barr’s loyalty is to the Constitution, not a party

By David B. Rivkin and Andrew M. Grossman

 

December 24, 2019, in the Wall Street Journal

 

Washington’s knives are out for Attorney General William Barr, and the stabbing has intensified since he delivered a November address at the Federalist Society. Predecessor Eric Holder —who while serving in the Obama administration described himself as “the president’s wingman”—accused Mr. Barr of championing “essentially unbridled executive power.” In the same Washington Post op-ed, Mr. Holder added that Mr. Barr’s “nakedly partisan” remarks rendered him a pawn of President Trump and “unfit to lead the Justice Department”—an utterly unhinged claim.

 

In the New York Times, William Webster, who directed both the Federal Bureau of Investigation and the Central Intelligence Agency, chastised Mr. Barr for criticizing FBI bias. Meanwhile, the Never Trump group Checks and Balances accused Mr. Barr of advancing an “autocratic vision of executive power” that is “unchecked” by Congress and the courts.

 

Some of the attacks are mere symptoms of Trump derangement syndrome, but others reflect by a deep-seated resistance to the Constitution’s separation of powers and the threat that its enforcement poses to the unaccountable administrative state. In either case, they’re wrong. Far from calling for executive supremacy, Mr. Barr has vigorously advocated the Framers’ vision of the Constitution’s separation-of-powers architecture, featuring the three governmental branches—Congress, the president and the judiciary—each exercising its distinctive authorities while checking the others. In his Federalist Society address, Mr. Barr, quoting Justice Antonin Scalia, explained that the Constitution gives the president and Congress “many ‘clubs with which to beat’ each other.”

 

Mr. Barr’s extolling of the “unitary executive” is hardly revolutionary—nor, as critics imagine, is it a call for dictatorship. It posits only that the president, being responsible for execution of the law, must be able to control his subordinates. This was the rule across the government until Humphrey’s Executor v. U.S. (1935), in which the Supreme Court carved out an exception for members of certain “independent” regulatory agencies, whom the president can fire only for “good cause.”

 

The Framers had good reason to favor a strong presidency. The early republic’s weak civilian executive leadership almost lost the Revolutionary War, shifting nearly the entire burden to Gen. George Washington. Postwar government under the Articles of Confederation was a ruinous shambles, unable to assert any sort of national leadership. To be sure, the Framers also feared legislative overreaching. They resolved all these problems by creating a coequal executive who could act, in Mr. Barr’s words, with “energy, consistency and decisiveness.”

 

Humphrey’s Executor was only the beginning of the attack on the constitutional design. Congress whittled away at executive power, depriving the president of the authority and duty to “take care that the laws be faithfully executed.” The courts not only approved those usurpations, but themselves meddled in disputes between the political branches and seized broad swaths of executive discretion.

 

Numerous lawmakers, most of the media and much of the political class now claim—at least during a Republican administration—that even core executive-branch activities, such as diplomacy and law enforcement, must be substantially free from presidential control. Hence the steady drumbeat of criticism directed at Mr. Trump for overseeing and making policy for the Justice Department, the FBI and the intelligence community as a whole.

 

The result isn’t a strong Congress but the supplantation of the Constitution’s checks and balances with a worst-of-all-worlds muddle. Leaders of independent agencies like the Consumer Financial Protection Bureau exercise executive power free from accountability to the president or voters and subject only to the partisan whims of Congress. The bureaucratic “resistance,” spurred on by its allies in Congress, openly defies presidential decisions, undermining the principle of democratic control even in core areas of presidential responsibility like foreign policy. For their part, the courts increasingly police ordinary separation-of-powers disputes between Congress and the executive, destroying the possibility of compromise through political means.

 

These deviations from the Framers’ blueprint explain much of the government’s current dysfunction. Congress avoids politically dangerous decisions by palming tough choices off on agencies and the courts. The legal and political limbo of the so-called Dreamers is a ready example. Ceaseless congressional investigations nearly incapacitate the White House and are designed to achieve precisely that result. Executive agencies find their every action—even those involving inherently discretionary matters—subject to judicial scrutiny and nationwide injunctions imposed by judges whose jurisdiction is supposed to be limited to a state or district. Whereas the separation of powers fostered practical compromise, today’s judicial supremacy reduces everything to winner-take-all litigation.

 

Mr. Barr warned in his address that we must “take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” Too often, previous attorneys general regarded the elements of separation of powers opportunistically, as cudgels to be employed in particular disputes. Mr. Barr’s vision and goals are broader. He’s concerned not only with the conflicts of the day but the structure necessary for the federal government to work. It’s a bold vision, but it’s the opposite of a partisan one.

 

If Mr. Barr achieves even a fraction of his agenda to restore the Framers’ vision of a strong, independent executive, he will go down as Mr. Trump’s most consequential executive appointment.

 

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar of the Cato Institute.

 

Source: https://www.wsj.com/articles/barrs-loyalty-is-to-the-constitution-not-a-party-11577229447

Schiff’s ‘Obstruction’ Theory

By David B. Rivkin and Lee A. Casey

 

Nov. 14, 2019, in the Wall Street Journal

 

Is it an impeachable offense for a president to resist impeachment? House Intelligence Chairman Adam Schiff told CNN last week that White House officials’ refusal to testify in his committee’s impeachment probe could lead to “obstruction of Congress” charges against President Trump. At a press conference last month, he warned the White House against trying to “stonewall our investigation” and said: “Any action like that, that forces us to litigate or have to consider litigation, will be considered further evidence of obstruction of justice.”

 

He’s wrong. In the absence of a definitive judicial ruling to the contrary, the president has a well-established constitutional right—even a duty—to resist such demands. The Constitution authorized the House to impeach the president if it has evidence of “high crimes and misdemeanors,” but it does not require the president, who heads an equal branch of government, to cooperate in gathering such evidence. Accordingly, the Trump administration has refused to honor various document-production requests, and has instructed some current and former officials to ignore committee subpoenas.

 

Not all officials have complied with this instruction, but those who have—including former national security adviser John Bolton, former deputy national security adviser Charles Kupperman, chief of staff Mick Mulvaney and deputy White House counsel John Eisenberg—are acting lawfully and appropriately.

 

It has long been established that the president, and by extension his advisers, have two types of immunity from making disclosures to Congress. One applies to national-security information, the other to communications with immediate advisers, whether related to national security or not. Both immunities, when applicable, are absolute, which means they can’t be trumped by competing congressional needs.

 

The national-security privilege was most definitively explained in a 1989 memorandum from the Justice Department’s Office of Legal Counsel (OLC). It noted that the privilege is anchored in the longstanding right “not to disclose state secrets,” first asserted by President Thomas Jefferson and affirmed by the courts in 1807. Although the Supreme Court unanimously rejected an assertion of executive privilege for all presidential communications in U.S. v. Nixon (1974), it “unmistakably implied,” according to the OLC memo, “that the President does enjoy an absolute state secrets privilege.”

 

The privilege for communications with the small group of senior White House staff who are the president’s immediate advisers is equally well-grounded. The OLC first fully articulated it in 1971 under future Chief Justice William Rehnquist. The office has reaffirmed it many times under presidents of both parties in response to all manner of congressional requests.

 

The privilege is premised on the Constitution’s separation of powers: “The President is a separate branch of government,” a 1982 OLC memo put it. “He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it.” The president’s immediate advisers are effectively his alter egos. Compelling them to appear is the equivalent of compelling him.

 

This point bears emphasis. Congress also has absolute privileges from interference with its operations, including the Constitution’s Speech and Debate Clause. Under that protection, lawmakers may defy the executive branch—for example, by publicly reading classified information into the congressional record—and they have done so.

 

Both privileges apply to the situation at hand, in which Congress seeks information from Mr. Trump’s most senior advisers about sensitive issues of national security. Ultimately, the courts must determine whether the president may invoke these privileges and whether his advisers must comply with the Intelligence Committee’s demands. Mr. Kupperman has brought a lawsuit challenging the subpoena, which is now pending before Judge Richard Leon of the U.S. District Court for the District of Columbia. Mr. Schiff appears to have little confidence in his legal position, because he attempted to make the case moot by withdrawing the Kupperman subpoena. House lawyers asked the court to dismiss the action on that ground. Judge Leon refused.

 

The House claims it doesn’t want judicial review because of another pending lawsuit involving a subpoena. But that case is materially different. It was brought before the impeachment inquiry began and involves efforts to force former White House counsel Don McGahn to testify about the firing of James Comey as director of the Federal Bureau of Investigation and matters related to special counsel Robert Mueller’s investigation. It raises no question of national-security immunity, so it cannot resolve the question with respect to Mr. Kupperman—at least not in Mr. Schiff’s favor.

 

The House majority’s effort to avoid adjudication of its demands for testimony presents another key problem. Under Mr. Schiff’s legal theory of what constitutes an impeachable offense, the House must demonstrate that the president has engaged in quid pro quo conduct vis-à-vis Ukraine, where U.S. military aid was allegedly withheld to secure cooperation in investigating Hunter Biden’s association with Burisma Holdings, a Ukrainian energy company. Mr. Trump vigorously denies that he intended to withhold U.S. aid.

 

His state of mind is of utmost importance to the House’s case. Yet, the only witnesses who have provided testimony on the question had little if any direct contact with the president. Advisers like Messrs. Bolton, Kupperman and Mulvaney, by contrast, would have been in daily contact with him. If House Democrats are serious about impeaching Mr. Trump for his dealings with the Ukrainian president, obtaining a judicial ruling that they are entitled to this critical testimony should be their top priority.

 

Mr. Schiff’s claim that Mr. Trump is guilty of an impeachable offense if he “forces us to litigate” is preposterous. It is the president’s right and obligation to protect the institution of the presidency from inappropriate congressional demands. If Mr. Schiff believes he is right on the law, he should welcome the opportunity to put his case to a judge. His refusal to do so exposes the entire exercise as a partisan sham.

 

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

 

Source: https://www.wsj.com/articles/schiffs-obstruction-theory-11573776120

Alito Teases a Judicial Revolution

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

23 June 2019 in the Wall Street Journal

The Supreme Court’s decision last week in Gundy v. U.S. was deceptively anticlimactic. The vote was 5-3, but there was no majority opinion and the decision made no new law. Justice Samuel Alito’s lone concurrence, however, suggested that a major break with precedent—and a return to the Constitution’s original meaning—will soon be in the offing.

The Constitution’s first clause after the Preamble states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Since 1935 the justices have ignored that provision and permitted lawmakers to delegate their authority to the executive branch. At issue in this case was a provision of the Sex Offender Registration and Notification Act of 2006, or Sorna, that directed the attorney general to “specify the applicability” of the law’s registration requirements to offenders, like Herman Gundy, whose crimes predated the act. Mr. Gundy, who was sentenced to 10 years in prison for failing to register, claimed this delegation was illegitimate.

The case was heard four days before Justice Brett Kavanaugh’s confirmation. Had Justice Alito dissented, the resulting 4-4 split would have upheld the lower court’s ruling against Mr. Gundy without any opinion being issued. Instead, Justice Alito joined his four liberal colleagues in rejecting Mr. Gundy’s appeal but said he was prepared to switch sides: “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” A dissent from Justice Neil Gorsuch, meanwhile, set forth the case for nondelegation.

In their quest to control governmental power and protect individual liberty, the Framers separated federal power among three branches of government. As Justice Gorsuch notes, they also “went to great lengths to make lawmaking difficult,” requiring consent of both houses of Congress and the president, or legislative supermajorities. The veto was the executive branch’s only role in the legislative process.

That was deliberate. Justice Gorsuch quotes Montesquieu, who was quoted by James Madison in Federalist No. 47: “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

For more than a century after its creation, the high court actively policed the separation of executive and legislative powers, requiring Congress to make the hard, politically risky policy decisions and permitting only limited delegation of operational details. But in the 1930s, under pressure to uphold the vast delegations of the New Deal, the justices changed course and held that delegation was permissible so long as an “intelligible principle” could be discerned to govern how that power was exercised.

Gundy offered an excellent opportunity to begin reasserting the original constitutional design. Sorna’s delegation of power was extreme. While setting up an elaborate registration system for sex offenders convicted after its enactment, the law granted the attorney general “authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” A single official in the executive branch was given the power to impose requirements carrying severe criminal penalties on more than 500,000 Americans, and then to carry them out.

Justice Elena Kagan, who wrote the plurality opinion, struggled mightily to find an intelligible principle. She wrote that the court had interpreted Sorna as requiring applicability “to all pre-Act offenders as soon as feasible.” But as Justice Gorsuch noted, that language appears neither in the statute nor in the Justice Department’s implementing regulations.

Justices Gorsuch’s and Alito’s opinions, together with Justice Kavanaugh’s strong separation-of-powers jurisprudence as an appellate judge, suggest that a majority of justices are prepared to reimpose proper constitutional restraints on congressional delegations. All they need is a suitable case.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/alito-teases-a-judicial-revolution-11561317002

Demanding Trump’s tax returns is congressional overreach

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

17 May 2019 in The Hill

Democrats in Congress long have demanded that President Trump make his tax returns public. Many promised voters that, if given the House majority in the 2018 elections, they would force public disclosure of Trump’s returns. Indeed, they’ve demanded access to the president’s returns, but Treasury Secretary Steven Mnuchin has refused to give Congress that access. He was right to refuse. His action is firmly grounded in federal statute and the Constitution.

In April, House Ways and Means Committee Chairman Richard Neal (D-Mass.) demanded Trump’s tax returns from 2013 to 2018, invoking a federal statute (26 U.S.C. § 6103) that makes federal tax returns confidential. Other statutory sections, including 26 U.S.C. § 7213, make it a felony to disclose information in federal tax returns without proper authorization.

There are narrowly drawn exceptions to the general rule of confidentiality, including one that allows congressional tax committees to demand copies of individual tax returns. That information, however, cannot be made public without the taxpayer’s written consent. Secretary Mnuchin must have a well-grounded fear that one or more members of Congress would make the president’s returns public, hiding behind the Constitution’s speech or debate clause to escape prosecution. This factor alone can preclude the release of tax information.

There are, however, even more fundamental problems with the request. The committee’s stated purpose is to investigate how the IRS enforces tax laws against sitting presidents. That is an obvious pretext. Even if the Democrats’ posturing could be ignored, the fact that only Trump’s returns are sought — and not those of former presidents — makes the game clear.

Former presidents have disclosed some tax information, but their full returns and all supporting documents were not released. And since the ostensible oversight focus is how the IRS audits tax returns of sitting presidents, that type of information is not publicly available. In addition, even if Secretary Mnuchin were to ignore the politics involved, he would be justified in withholding the president’s tax returns on constitutional grounds.

Congressional demands for information must be grounded in proper constitutional powers. Congress does not have general investigative authority, let alone a mandate to enforce federal law, both of which are vested in the president. Nor does it have adjudicative power, which is reserved to the judiciary. Its proper investigative power is broad but limited to the purposes of legislation or oversight. And Congress’s oversight powers can be exerted only over matters that plausibly can be reached through the exercise of congressional legislative powers.

As the Supreme Court stated in Watkins v. United States (1957), with respect to a McCarthy-era demand by the House Un-American Activities Committee for information from a private citizen, “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” and “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.”

With this in mind, the proper tailoring of tax information-related requests by Congress is essential. For example, it may well be that looking at how the IRS audits tax returns of sitting presidents is a worthwhile legislative pursuit; however, assembling all available tax returns of former presidents and arranging the information so that the congressional review does not include ascertaining the identity of the president to whom a given set of tax returns belongs and then ensuring that even this randomized information cannot be publicly disclosed would serve all legitimate legislative needs. Everything else is simple harassment.

To ascribe to Congress greater authority in this area would produce a situation where, under the guise of enacting tax laws, congressional committees could gain access to the tax information of individual Americans, including those regarded by specific members of Congress as political or ideological enemies. This would result in unprecedented abuses of the most sensitive personal information about U.S. citizens that would render Nixon-era IRS abuses tame by comparison.

And, even putting aside partisanship, enabling Congress to snoop on Americans at will is not to be countenanced. What seemingly has eluded Chairman Neal’s supporters is that due process requirements operate with equal vigor on all branches of government, including Congress. Basic due process requirements prevent the executive branch from obtaining private information on U.S. citizens merely because it wants this data.

Instead, when seeking access to financial and other information, law enforcement agencies must demonstrate, usually to a judge, why such information can be legitimately obtained. Improperly gained information is routinely suppressed, and executive branch officials who have obtained it often are reprimanded and even prosecuted. The congressional statute in issue has to be construed with these constitutional imperatives in mind.

There is an additional consideration: Although Congress has oversight authority over the executive branch generally, it has no such authority over the president himself — any more than the president has oversight authority over Congress or the judiciary. Each branch of the federal government is constitutionally equal; none is subordinate. Trump’s business activities before he entered office, and his refusal to make public his tax returns, are not proper subjects of congressional investigation. Although presidential candidates usually release their tax returns as a matter of campaign strategy, Congress could not compel such a release by statute. The Constitution sets qualifications for the presidency, and Congress cannot alter that list.

The fact that Trump’s tax returns are being sought pursuant to a statute that ordinarily would require the Treasury secretary to provide the returns, does not alter the constitutional balance involved. Indeed, the use of Congress’s oversight powers and legislative powers are cabined by the same constitutional principles. The request is based upon an unconstitutional application of a statute — unconstitutional as applied to the situation.

Even if Congress were acting within its constitutional authority, an effort to use its legitimate powers to force disclosure of the president’s tax returns — with the clear goal of debilitating the presidency — would have to be balanced by the courts against the stated congressional need. In balancing otherwise legitimate, but conflicting, assertions of power by the two political branches, courts have looked at their respective needs and the harm that would be inflicted on their respective institutional authorities if one branch were to give way. If Congress does need President Trump’s tax returns for some legitimate legislative purpose, that need will be equally served by providing his returns after he leaves office.

Congress has many powers that can thwart a president’s policy or personnel choices, but only impeachment can personally hold a president responsible for his actions. Even here, it is not clear what relevance a president’s pre-inauguration personal tax returns could have to the question whether he has committed high crimes and misdemeanors while in office.

What Chairman Neal seeks cannot be granted. What is really at stake are not President Trump’s political fortunes but the preservation of the constitutionally required balance of powers between two political branches. Secretary Mnuchin is defending the ability of presidents to function without fear of congressionally driven debilitation. There is every reason to believe that he will prevail in the courts of law as well as in the court of public opinion.

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and the Department of Justice under former Presidents Reagan and George H.W. Bush.

Source: https://thehill.com/opinion/white-house/444231-demanding-trumps-tax-returns-is-congressional-overreach