Tag Archives: supreme court

Congress can’t outsource impeachment

By David B. Rivkin Jr. and Elizabeth Price Foley

31 May 2019 in the Wall Street Journal

It’s as if nothing happened. Special counsel Robert Mueller and the Justice Department found no wrongdoing by President Trump, so House Democrats stepped up their calls for impeachment. Judiciary Committee Chairman Jerry Nadler issued a subpoena for millions of pages of evidence gathered by Mr. Mueller, including grand-jury material, which is secret under the law. When the department didn’t comply, Democrats said there was a “constitutional crisis,” and the committee voted to hold Attorney General William Barr in contempt.

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast, is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. On the Russian collusion issue, Mr. Mueller reported that his investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Regarding obstruction of justice, Mr. Mueller “did not draw ultimate conclusions about the President’s conduct,” so the duty to do so fell on his boss, Mr. Barr—who, with senior Justice Department officials, concluded that the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.”

House Democrats claim they’re entitled to see Mr. Mueller’s underlying materials. But Congress may not use its subpoena power for a prosecutorial do-over. The Constitution gives law-enforcement authority to the executive, not the legislative, branch. In Quinn v. U.S. (1955), the Supreme Court said that Congress’s “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”

Impeachment isn’t a law-enforcement function, but demanding Mr. Mueller’s documents to search for impeachable offenses is still unconstitutional. The Constitution gives the House the “sole power” of impeachment. Outsourcing aspects of the process to the other branches of government violates separation of powers.

Unfortunately, there is a precedent for such outsourcing, though it is one that ought to give Democrats pause: the impeachment of President Clinton. The offenses for which Mr. Clinton was impeached—perjury before a grand jury and obstruction of independent counsel Kenneth Starr’s investigation—were established by Mr. Starr, who informed Congress that “the evidence of wrongdoing is substantial and credible, and that the wrongdoing is of sufficient gravity that it warrants referral to Congress.” Mr. Starr issued a report and turned his materials over to the House because the now-defunct statute under which he operated required it. The Justice Department’s special-counsel regulations, which govern Mr. Mueller’s investigation, do not.

The Supreme Court upheld the constitutionality of the independent counsel in Morrison v. Olson (1988). It did not address the constitutionality of the requirement that independent counsels turn over evidence of impeachable offenses to the House. If it had, there would be deep concerns about separation of powers. In addition to the textual declaration that the House has the “sole power” of impeachment, the debate over impeachment at the Constitutional Convention supports an outsourcing prohibition.

Delegates were deeply divided on whether the president should be subject to impeachment at all—and if so, which institution should have this great power. They considered vesting the impeachment power in state legislatures but rejected the idea. The concern was that it would make the president too dependent on the states, endangering the vertical separation of powers. They also pondered entrusting impeachment authority to the judiciary—essentially, to the Supreme Court—but concluded that would give the judiciary too much power and enable it to impeach its own members.

Eventually and with misgivings, the Framers settled on vesting impeachment authority in the House, with trial by the Senate. Their greatest fear was that this arrangement would destroy separation of powers by rendering the president perpetually dependent on legislative approval. Charles Pinckney believed congressional impeachment power would chill the president’s exercise of his core constitutional powers (such as vetoing legislation) and encourage Congress to hold impeachment “as a rod over the Executive and by that means effectually destroy his independence.” Rufus King opined that “under no circumstances ought [the president] to be impeachable by the Legislature,” because such power would be “destructive of his independence.”

The Framers took pains to devise meaningful limits on the impeachment power. When George Mason proposed to add “maladministration” to treason and bribery as a basis for impeachment, James Madison demurred: “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” In Federalist No. 65, Alexander Hamilton argued that “the greatest danger” of giving Congress the impeachment power is that its “decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.” To allay these concerns, the Framers limited impeachment to “high crimes and misdemeanors”—not mere political disagreements.

In addition, by resting the entire impeachment power in Congress, the Framers constrained it. Congress was to have limited investigatory power and to conduct its proceedings in a transparent, politically accountable manner. That effectively meant presidential misconduct would have to be open and notorious to be impeachable.

In that regard, at least, the 1868 impeachment of Andrew Johnson was exemplary. His firing of War Secretary Edwin Stanton was in open defiance of the Tenure in Office Act, although the Supreme Court eventually concluded the law itself was unconstitutional. Republicans who pushed Johnson’s impeachment were held politically accountable, with Democrats gaining 20 House seats out of 243 in the 1868 elections.

If the House can outsource impeachment, the deepest concerns of the Framers will become reality. Impeachment would have few limits and no political accountability. As a federal prosecutor, Mr. Mueller legitimately obtained information from a grand jury, wiretaps and other forms of surveillance unavailable to Congress. If Congress can secure these materials by simply commanding the executive branch to turn them over, it would tremendously augment its power.

Turnover of prosecutorial materials would allow Congress to hide behind the fact-finding and legal determinations of the other branches, thereby diminishing its own political accountability. Because the nation’s law-enforcement officials have concluded Mr. Trump has not committed any crimes, Democratic representatives cannot legitimately draft articles of impeachment accusing him of criminal conduct involving the same offenses of which he was cleared by the Mueller investigation. The House could impeach him for misconduct that doesn’t violate criminal statutes—say, abuse of power or inappropriate behavior. But lawmakers must be candid about what exactly the charge is.

Proceeding in such a fashion—not hiding behind criminal accusations that prosecutors have rejected—would require House Democrats to assume the full political risk for their impeachment efforts. Instead, they are pressing Mr. Mueller to testify, hoping he will say something beyond what is contained in his report, and to obtain his investigatory materials. By second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal-law violations, Democrats seek cover for their raw political push to unseat a president.

Outsourcing impeachment also fundamentally deforms the executive branch. In Federalist No. 51, Madison explained that each branch must possess “the necessary constitutional means and personal motives to resist encroachments of the others. . . . The interest of the man must be connected with the constitutional rights of the place.” When executive-branch officials see themselves as working for Congress, there is severe constitutional dislocation.

Mr. Mueller’s team, for example, embraced the proposition that a president can obstruct justice by exercising his constitutional powers, such as firing the director of the Federal Bureau of Investigation, if his decisions have a corrupt motive. That position runs roughshod over opinions of the Justice Department’s Office of Legal Counsel, which has consistently concluded that, to protect separation of powers, laws should not be construed to apply to the president’s performance of his official duties, absent a clear statement otherwise.

The obstruction statutes contain no such clear statement. And while Mr. Mueller refrained from ascribing corrupt motives to Mr. Trump, his legal view that the president can obstruct justice while discharging his constitutional powers is at odds with constitutional principles and would have never been adopted by the Justice Department in the normal course of business.

Allowing executive branch officials to investigate a sitting president all but invites a coup. Former Justice Department attorney Neal Katyal recently admitted that “the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress.” Mr. Mueller hinted at the same idea in a public statement Wednesday: “The Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”

To Mr. Katyal and others now proclaiming a “constitutional crisis,” the special counsel works for Congress, not the president. Similarly, House Democrats claim it was illegitimate for Mr. Barr and other senior Justice Department officials to reach a prosecutorial judgment on obstruction of justice. In their view, that determination should have been made by Congress—which has no power to make prosecutorial judgments.

These views reflect a deep constitutional rot. While executive-branch officials must abide by legitimate oversight requests from lawmakers, they work for the president, not for Congress. Investigations of a sitting president by the executive branch threaten the separation of powers by encouraging insubordination to the president. Executive officials may be willing to help grease the wheels of impeachment. That’s no way to run a government of separated powers.

America’s experience with special prosecutors, independent counsels and special counsels has left a trail of partisan-fueled destruction. These investigations are inherently harmful to national unity and a stain on the constitutional fabric. The only way to restore the separation of powers and prevent further damage is to ensure that Congress cannot outsource any aspect of its impeachment powers.

Existing opinions from the Office of Legal Counsel already hold that no sitting president should be indicted or criminally prosecuted, because such actions would debilitate the presidency. The same is true of criminal or counterintelligence investigations. Thus the OLC logic should extend those opinions and conclude formally that a sitting president cannot be investigated by the executive branch.

If the U.S. is led one day by a truly corrupt president, the proposed cure of executive-branch investigation to aid impeachment would still be far worse than the disease. A president who openly violates the law or otherwise betrays the public trust can be voted out of office or impeached by Congress—using, as the OLC has noted, “its own investigative powers” in an open, politically accountable way.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/congress-cant-outsource-impeachment-11559341259

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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

Should Noncitizens Be Represented in Congress?

by David B. Rivkin, Jr., and Richard Raile

24 April 2019 in the Wall Street Journal

The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.

The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.

The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.

The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment.

One question is whether states and localities may equalize the populations of their legislative districts according to the number of citizens rather than the total number of persons in the district, including aliens. The one-person, one-vote principle requires that district populations be substantially equal. But in states with large alien populations, equalizing all persons results in voter inequality, giving voters in districts with high numbers of aliens an unfair electoral advantage. This also tends to increase the political clout of urban over rural areas.

The Supreme Court held 8-0 in Evenwel v. Abbott (2016) that states and localities are not required to equalize citizens, but it did not forbid them from doing so. One purpose of the census-question litigation is to deprive states of the data to exercise that option.

An even more fundamental question is how accurate citizenship data might affect the apportionment of House seats (and therefore electoral votes) by state and the drawing of House districts. The conventional wisdom—which the justices assumed in Evenwel, although the case did not directly address the question—has been that the Constitution requires apportionment based on all persons physically present in a state, since the relevant language of Article I and the 14th Amendment refers to “the whole number of persons in each State.” But there is more here than meets the eye.

The draft Constitution required that seats be apportioned according to the number of “inhabitants” per State. That was the word used in the text, and framing debates, until the Convention’s Committee of Style and Arrangement substituted “persons.” But the high court made clear in Powell v. McCormack (1969) that any changes made by that committee were stylistic and not substantive. Further, the term “inhabitant” means more than mere physical presence. Webster’s 1828 dictionary defines it as someone with “a fixed residence” or who “resides permanently in a place.” In law, “inhabitant” was someone “who has a legal settlement in a town, city or parish” such that the person, “if a pauper,” was entitled to financial assistance there.

That mattered in the late 18th and early 19th centuries because the contemporary welfare system was administered at the local level and tied individuals to a political subdivision under a doctrine called “inhabitancy,” discussed in Blackstone’s commentaries on English law, which informed the Constitution’s drafters. The 1662 English statute Blackstone discussed required persons to return for assistance to the parish where they were declared “inhabitants.” As a result, the Constitution’s original public meaning tied apportionment to persons with a fixed abode and far more permanent place in the political community than simple physical presence.

True, inhabitancy and citizenship were not originally synonymous. Until the late 19th century, no federal law regulated immigration, and aliens could arrive and remain at will. Subsequently, however, Congress exercised its power over immigration and naturalization to define the nation’s political community, as well as entitlement to government benefits. Today, anyone who enters the U.S. unlawfully is subject to involuntary removal and thus cannot be considered an inhabitant in the constitutional sense.

Evenwel’s assumptions notwithstanding, these issues have yet to be directly explored, let alone resolved, in the political and judicial arenas. The plaintiffs in today’s cases want them to stay that way. They include states whose overt policies of attracting illegal aliens to so-called sanctuary cities advance their political self-interest in obtaining additional House seats and electoral votes.

Factoring such aliens into reapportionment and redistricting does nothing for them, as it does not change immigration status. Rather, it rewards state policies designed to subvert the Immigration and Nationality Act and to achieve enhanced representation at the expense of more law-abiding states. Today’s case marks only the beginning of a larger debate over these questions.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/should-noncitizens-be-represented-in-congress-11555972120

Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution.

With no standards to apply, judges are left to invent them—or to dismiss challenges as nonjusticiable. That’s where political-question doctrine comes in. Under the Constitution, some problems have no judicial resolution and are instead left to the other, democratically elected branches. Recent Supreme Court precedent establishes two principal hallmarks of a nonjusticiable political question—constitutional text committing a choice to the other branches and the absence of judicially manageable standards. Both apply here.

Another problem is that it is impossible to decide a partisan-gerrymandering case without making an initial determination of what a “fair” redistricting scheme would look like. That’s a question of policy, not law. A principle of partisan fairness is not like the one-person, one-vote rule, which stems from the individual right to representation and identifies equality by a clear, judicially manageable ratio of persons to districts. Nor is a gerrymander like a restraint on speech, which can be cured by allowing all sides to voice their views; or like discrimination, which can be cured by a mandate not to take account of race or another suspect characteristic.

Under the Constitution, the right to political representation belongs to individual human beings, not groups. Even if it is possible to draw maps in which Republicans and Democrats have equal electoral opportunities, a “right” to translate a party’s percentage of votes into seats is not one that all Americans can share. What about independents, members of the Green or Libertarian parties, or even partisans who disagree with platform planks of the two major parties, such as pro-choice Republicans or antitax Democrats?

How to define representational units is a choice that confronts every republican government, and that choice is inherently political. The Constitution itself was made possible by the Great Compromise, which accorded all states, regardless of population, two Senate seats. That affected the electoral opportunity of all citizens and groups. So did the choices to create the Electoral College and to make judges appointed for life rather than elected or term-limited. These were all deliberate choices to define representation according to policy and political compromise. They are not fundamentally different from the choices legislatures confront with every decade’s redistricting.

None of this is to suggest that each legislature’s redistricting choices are good ones; many are not. The questions are nonjusticiable not because they are easy, but because judges cannot distinguish good from bad answers without becoming politicians. If the calls for partisan “fairness” in redistricting represent a meaningful political desire, that desire will percolate through the system and translate into democratic change—like the change from appointment to election of senators. It wouldn’t even take a constitutional amendment for Congress to enact redistricting criteria limiting state legislatures’ political discretion. Proponents of fairness by lawsuit show remarkably little patience for the democratic process they claim to defend.

Messrs. Rivkin and Raile practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Raile has represented clients in redistricting litigation in Arizona, Georgia, North Carolina, Ohio, Pennsylvania and Virginia.

Source: https://www.wsj.com/articles/gerrymandering-disputes-dont-belong-in-court-11553555381

Another IRS free-speech scandal

By David B. Rivkin and Randall John Meyer

November 23, 2018, in the Wall Street Journal

The Internal Revenue Service infamously targeted dissenters during President Obama’s re-election campaign. Now the IRS is at it again. Earlier this year it issued a rule suppressing huge swaths of First Amendment protected speech. The regulation appears designed to hamper the marijuana industry, which is still illegal under federal law although many states have enacted decriminalization measures. But it goes far beyond that.

The innocuously named Revenue Procedure 2018-5 contains a well-hidden provision enabling the Service to withhold tax-exempt status from organizations seeking to improve “business conditions . . . relating to an activity involving controlled substances (within the meaning of Schedule I and II of the Controlled Substances Act) which is prohibited by federal law.” That means that to obtain tax-exempt status under any provision of the Internal Revenue Code’s Section 501—whether as a charity, social-welfare advocacy group or other type of nonprofit—an organization may not advocate for altering the legal regime applicable to any Schedule I or II substance.

Marijuana is a Schedule I substance, meaning the Food and Drug Administration has found it has “no currently accepted medical use and a high potential for abuse.” Schedule II drugs include such widely prescribed medications as Adderall, Vyvanse, codeine and oxycodone. The IRS can deny tax-exempt status to any organization that seeks to improve the “business conditions” of a currently prohibited activity involving these medications. That could include simply advocating for a change in the law or regulation forbidding the possession, sale or use of marijuana or other Schedule I substances. It would also encompass advocacy for relaxing the regulatory regime currently governing the production, distribution or prescription of Schedule II medications.

The rule does not apply to all speech dealing with the listed substances, only that involving an “improvement” in “business conditions,” such as legalization or deregulation. Efforts to maintain restrictions or impose additional ones are fine by the IRS. This is constitutionally pernicious viewpoint discrimination. As the Supreme Court stated in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”

Defenders of the IRS may argue that tax-exempt status is a privilege, not a right. But the court has held that the government cannot require recipients of governmental largess to relinquish constitutional rights in return—particularly free-speech rights.

The IRS may point to Bob Jones University v. U.S. (1983), in which the high court upheld the denial of tax-exempt status to a private school with racially discriminatory practices that were “contrary to settled public policy.” But public policy on drugs, especially marijuana, is far from settled. A majority of states have enacted legalization measures contrary to federal law; Michigan, Missouri and Utah all did so this month. And Congress has already defunded Justice Department prosecutions of medical cannabis businesses that are legal under state law.

More important, Bob Jones involved not advocacy but action—discriminatory policies that constrained the university’s students. The case would likely have come out differently if the schools complied with public policy while arguing that it should change.

Although no constitutional right is absolute, governmental policies that burden First Amendment rights are strictly scrutinized by the courts and will be upheld only if based upon a compelling governmental interest.

The framers of the Bill of Rights had experienced the full brunt of British antisedition laws, which were used to punish political advocacy. They were determined that this never happen again. Banning or even burdening the freedom to advocate for changing governmental policies, no matter how unpopular or odious the message may be, violates not only the First Amendment but the idea of government by the people. Impeding such advocacy cannot have any legitimate governmental purpose, much less a compelling one.

Accordingly, while government has been able to justify limiting activities or conduct even when it has an expressive or religious component, the Supreme Court has sanctioned limits on the content of speech only in extreme circumstances. In Holder v. Humanitarian Law Project (2010), for instance, the justices upheld a ban on policy advocacy undertaken under the direction of, or in coordination with, certain terrorist groups. This narrow prohibition was constitutional only because the coordinated speech amounted to a “material support” to terrorist groups. The same speech, if conducted independently, would have been fully protected.

Here, by contrast, the IRS seeks to control independent policy advocacy. That’s something the federal government may not do. Yet it’s the second time this decade for the IRS.

Messrs. Rivkin and Meyer practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/another-irs-free-speech-scandal-1542918151

Democrats Abandon the Constitution

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

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

Equal Senate representation for the states was a key part of the Connecticut Compromise, along with House seats apportioned by population. The compromise persuaded large and small states alike to accept the new Constitution. It was so fundamental that Article V of the Constitution—which spells out the amendment procedure—provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” That means an amendment changing the structure of the Senate would require ratification by all 50 states.

• Judicial independence. Commentators who disapprove of the Supreme Court’s composition have urged, as one law professor put it, “shrinking the power of the courts to overrun our citizens’ democratic decisions.” Some suggest limiting and staggering the justices’ terms so that a vacancy would come up every other year, ensuring that the court follows the election returns. That could be achieved via constitutional amendment, but it would go against the Framers’ wisdom. As Hamilton wrote in Federalist No. 78, life tenure for judges is “the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”

Some of Justice Kavanaugh’s detractors have demanded that if Democrats take the House next month, they open an investigation into the sex-crime allegations Senate Democrats failed to substantiate. But although Congress has wide oversight powers with respect to the executive branch, it has no such oversight authority over the judiciary. The only way the House can legitimately investigate a sitting judge is in an impeachment proceeding.

And Justice Kavanaugh cannot be impeached for conduct before his promotion to the Supreme Court. Article III provides that judges “hold their Offices during good Behavior,” so that a judge can be removed only for “high Crimes and Misdemeanors” committed during his term in office.

That puts inquiry into allegations about Justice Kavanaugh’s conduct as a teenager and young adult well outside Congress’s investigative authority, along with any claims that he misled the Judiciary Committee. Such claims could be reviewed only as part of a criminal investigation by federal prosecutors based on a referral from the Senate, the only body that may decide whether his testimony contained “material” misrepresentations. For the House to inquire into this matter would impermissibly encroach on the Senate’s advice-and-consent power.

Michael Barone has observed that “all procedural arguments are insincere.” Those who now complain about the undemocratic nature of the Electoral College and the Senate were quite content when their party seemed to have a lock on the former and held a large majority in the latter. And it is the Supreme Court’s countermajoritarian character that made possible the decisions, such as Roe v. Wade and Obergefell v. Hodges, that progressives now fear are at risk of being overturned or pared back.

There’s one thing the left could do to make the Supreme Court more liberal without amending the Constitution. Some have suggested a return to Franklin D. Roosevelt’s “court packing” plan, which sought to expand the court to as many as 15 justices. Nothing in the Constitution prevents Congress from expanding the Supreme Court’s membership. Article III merely establishes a Supreme Court; it does not say how many justices it should have. Congress has altered the number of justices by statute several times, most recently in the Circuit Judges Act of 1869, which expanded the court from seven members to nine. But this would require a president and House and Senate majorities willing to go down this path, likely at considerable political cost. In other words, progressives would have to win elections. And if they did that, they’d be able to change the court without making it bigger.

The anger and disappointment of Justice Kavanaugh’s opponents is understandable, as would be that of his supporters if the vote had gone the other way. They are perfectly entitled to pursue political remedies, including using his appointment as a campaign issue. They also are entitled to pursue amendments to the Constitution that would make our system of government more responsive to the popular will. What they cannot do is overturn the Connecticut Compromise guaranteeing each state equal representation in the Senate, or launch unconstitutional investigations or impeachment of a sitting Supreme Court justice. The Constitution protects all of us, even Supreme Court justices.

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/democrats-abandon-the-constitution-1539645364

Kavanaugh’s Foes Politicize the FBI

By David B. Rivkin Jr. and Kristi Remington

October 1st, 2018, in the Wall Street Journal

The bipartisan bonhomie occasioned by the reopening of Judge Brett Kavanaugh’s background investigation dissipated quickly. By the weekend, Senate Democrats—who had demanded the investigation by the Federal Bureau of Investigation—were challenging its credibility, objecting to its scope and focus, and lamenting that the White House had any involvement in shaping the process.

The reopened investigation, according to Sen. Lindsey Graham—reflecting the White House’s view—potentially entailed interviewing Deborah Ramirez, who claims that Judge Kavanaugh committed lewd conduct while a freshmen at Yale, and the three purported witnesses named by first accuser Christine Blasey Ford—Mark Judge, P.J. Smyth and Leland Keyser—all of whom have attested they have no memory that would corroborate her accusation. Julie Swetnick’s sordid and implausible claims were to be left out, and if any new allegations against Judge Kavanaugh were to emerge, these also wouldn’t be investigated.

President Trump told reporters Monday: “The FBI should interview anybody that they want within reason, but you have to say within reason.” That qualification is crucial. It is clear that Judge Kavanaugh’s opponents are clamoring for an open-ended fishing expedition that, probably by design, would go on much longer than a week. They are insisting that the FBI investigate Judge Kavanaugh’s drinking while in high school and college and interview anyone who might know about it. Two such people have already come forward, and there are no disincentives for new claimants, possibly driven by partisan or personal animus, to emerge.

Sen. Patrick Leahy (D., Vt.) tried to justify his demand to broaden the FBI investigation by claiming that heavy drinking was “directly relevant” to the sexual-assault allegations. If this approach were adopted, the FBI would have to interview a very large pool of witnesses about Judge Kavanaugh’s alcohol intake, and possibly many other personal traits, over many years. Never mind that alcohol use is a standard FBI question, certainly asked in the course of Judge Kavanaugh’s previous six background investigations.

Kavanaugh foes also want the FBI to interview people who might challenge the credibility of pro-Kavanaugh witnesses. Mr. Judge is a prominent target here. His former girlfriend Elizabeth Rasor has stated publicly that he has disclosed to her facts relating to his past sexual activities that have nothing to do with Judge Kavanaugh, but cast Mr. Judge in a negative light. This approach could also open up a never-ending investigation, in which the FBI inquires into the credibility of all witnesses, whether pro- or anti-Kavanaugh, including witnesses interviewed to test other witnesses’ credibility.

The demands get even more absurd. “For its investigation to be comprehensive, the FBI must also get to the bottom of what ‘boofing’ means,” wrote Brian Fallon, who worked as press secretary for Hillary Clinton’s 2016 campaign, in Politico on Monday. That’s a reference to a joke in Mr. Kavanaugh’s high-school yearbook entry. As Mr. Fallon notes, “Kavanaugh said it referred to ‘flatulence.’ ”

The entire debate is complicated by confusion about what the FBI does in a background investigation. Even former Director James Comey is mixed up. He penned a vastly misleading New York Times op-ed Sunday, in which he seemed to conflate background checks with criminal probes. “It is one thing to have your lawyer submit a statement on your behalf,” Mr. Comey wrote. “It is a very different thing to sit across from two F.B.I. special agents and answer their relentless questions.”

The FBI is primarily a law-enforcement agency. Its criminal investigations are often wide-ranging, can be potentially expanded into new areas, and have no preset time limits. Although the president has authority under the Constitution to direct the exercise of all federal law-enforcement activities, in practice the FBI enjoys great autonomy when conducting criminal investigations. Agents seek both to uncover the facts and to assess the credibility of everybody they interview. Their questioning is often aggressive and repetitive. Interviewees are warned they will face criminal penalties if they lie to the FBI.

FBI background investigations are a fundamentally different affair. They are not based on any explicit statutory authorization but are founded on regulations authorizing investigations of persons who seek federal government employment. The bureau’s authority to conduct investigations of nominees dates to at least President Eisenhower’s Executive Order 10450 of 1953, though some scholars credit the beginning of the process to President Hoover and his request of Attorney General William Mitchell to investigate the qualification of applicants for judicial positions.

FBI background investigations are carried out by a special team within the bureau called Special Inquiry and General Background Investigations Unit. SIGBIU functions as a gatherer of facts. It doesn’t cajole or challenge witnesses and routinely offers them anonymity. It never proffers any credibility assessments or speculates about the motives of witnesses.

SIGBIU operates on tight deadlines and usually moves faster with Supreme Court nominations. The process begins and is completed well before the nominee’s Senate Judiciary Committee hearing takes place. Occasionally, SIGBIU is directed to conduct further interviews. Throughout the whole process, it operates under instructions from both the Justice Department and the White House Counsel’s Office.

Significantly, there is a firewall between SIGBIU and FBI’s criminal-investigative divisions. SIGBIU’s goal is to have witnesses be open and forthcoming. Agents routinely assure witnesses that nothing that they say during the interview will be referred for criminal investigation. Even more fundamental, the FBI’s velvet-glove approach to background investigations reflects its recognition that people they interview are not suspected of any crimes and cannot be coerced into cooperating or threatened with a grand jury subpoena.

Running a background investigation as if it were a criminal one would destroy the FBI’s ability to conduct the former. It would cause many Americans to refuse to cooperate. It would cause the bureau to exceed its constitutionally proper remit. And having the FBI proffer credibility determinations in the context of a judicial appointment would politicize the bureau—and, as then-Sen. Joe Biden correctly asserted during Justice Clarence Thomas’s 1991 confirmation hearings, it would usurp a function that properly belongs to the president and the Senate.

The demands by anti-Kavanaugh Democrats are blatantly partisan and unfair. What they seek has never been done with any judicial nominee in American history. They also run afoul of important legal and practical realities of FBI-conducted background investigations. If countenanced, they would politicize the FBI and destroy the judicial confirmation process.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations. Ms. Remington served in the Justice Department during George W. Bush administration. She was responsible for overseeing the judicial nomination and confirmation process, including for Chief Justice John Roberts and Justice Samuel Alito.

Source: https://www.wsj.com/articles/kavanaughs-foes-politicize-the-fbi-1538433332