Tag Archives: United States

Plenty of debates, not much about states

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By DAVID B. RIVKIN JR. AND ELIZABETH PRICE FOLEY

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Keeping the federal government within its proper constitutional sphere is critical to all Americans, regardless of their political allegiance. This is because federalism is not about protecting “states’ rights” but about preserving individual liberty. In the words of a unanimous 2011 Supreme Court decision, Bond v. United States, by “denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

Federalism also allows states to craft policies that best suit the preferences and needs of their citizens, who can always vote with their feet. Likewise, leaving key policy choices to state governments benefits voters through sheer proximity to decision makers. State legislators are often part-timers who work and live in our communities and are more palpably accountable to us.

State-level reform thus comes more swiftly and better reflects the desires of ordinary constituents. States in recent years have led the way in reforming welfare, health care, education and regulatory policies. They have cut deficits, balanced budgets, reformed tax codes and produced jobs.

Federalism also benefits the national government. By having up to 50 different approaches to an issue, Congress can see what works.

Despite federalism’s many virtues, it is not much in vogue. Democrats view it as a quaint, 18th-century relic, another disposable constitutional concept that stands in the way of “progress.” The Obama administration has been particularly disdainful of federalism, with ObamaCare unconstitutionally coercing states into fundamentally revising their Medicaid programs and compelling individuals—under the guise of regulating interstate commerce—to buy a government-approved health-insurance policy.

Republicans pay lip service to federalism but too often toss it aside to achieve their own policy goals. For example, many congressional Republicans, concerned about abusive lawsuits, would nationalize many aspects of medical malpractice, an area of law traditionally reserved to the states.

Meanwhile big-spending states such as California and Illinois have been lobbying Congress for a federal bailout of their unfunded pensions. From the federalist perspective, it is appropriate that the promiscuous spending of some states makes it difficult for them to borrow more money. Such consequences, while dire, provide the political leverage that citizens living within those states need to force their elected representatives to reform.

Yet Washington may well end up rescuing these nearly bankrupt states—because some states will compromise their own sovereignty when the price is right, and the federal government is only too happy to take over and claim political credit. For there is no more assiduous underminer of federalism than the federal government itself. Every session of Congress and every administration adds to the existing voluminous body of federal law that continues to federalize wide swaths of traditional state authority. This must stop.

There was one glimmer of hope for federalism in the third presidential debate, when Mitt Romney talked about saving Medicaid by making block grants to states. “We’ll take that health-care program for the poor and we give it to the states to run because states run these programs more efficiently,” he said. “As a governor, I thought please, give me this program. I can run this more efficiently than the federal government and states, by the way, are proving it.”

If Mr. Romney succeeds in his race for the White House, let’s hope he doesn’t forget that states can be trusted to run their own affairs.

Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush and represented 26 states in challenging ObamaCare. He has advised the Romney campaign. Ms. Foley is a law professor at Florida International University College of Law and author of “The Tea Party: Three Principles” (Cambridge, 2011).

Source: http://online.wsj.com/article/SB10000872396390443328404578022821421131956.html 

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Civilian trial for 9/11 suspects should be off the table

(from The Los Angeles Times, May 10, 2010)

Holding such a trial would not only put classified information at risk but also put a dozen unlucky jurors potentially in harm’s way.

By David B. Rivkin Jr. and Vincent J. Vitkowsky

In a recent hearing before the Senate Judiciary Committee, Atty. Gen. Eric H. Holder Jr. said that a civilian trial in New York City for Khalid Shaikh Mohammed and four other accused 9/11 plotters was still “not off the table.” This is unfortunate, and not only because such a trial would inevitably compromise classified information, impose massive security and logistical costs on New York, and provide the defendants with a superb propaganda platform. Another major problem with a civilian trial has been largely overlooked: the impact on the 12 private citizens unlucky enough to be chosen as jurors.

The trial of Mohammed would be a long and dangerous ordeal for jurors. They would be forced to surrender years of their lives. They would have to be entrusted with classified information of value to Al Qaeda. Their identities almost certainly would become public knowledge, and they could easily be subjected to intimidation. Consider Osama bin Laden’s threat on March 25 to execute all captured Americans if the defendants or any other Al Qaeda operatives in U.S. custody are executed. Wouldn’t jurors who vote to convict or impose the death penalty have reason to fear that they themselves could become targets for revenge attacks? Meanwhile, a juror who, however improbably, voted to acquit a defendant thought to be responsible for an attack that killed thousands of Americans is likely to be ostracized by many of his fellow countrymen. Either scenario would wreak havoc with civilian jurors’ lives.

The problems posed by holding highly publicized terrorists trials, involving defendants who belong to a functioning paramilitary organization, are well illustrated by the British experience in Northern Ireland, where the British government was forced to create specialized terrorism courts, in part because of the inability to obtain convictions from thoroughly intimidated jurors. Under constant threat from the IRA and other factions, most prospective jurors in Northern Ireland either showed a propensity to acquit or were afraid to serve.

Closer to home and more recently, the experience from the civilian trial of Zacarias Moussaoui, the so-called 20th hijacker, also demonstrated the formidable potential for verbal intimidation, propaganda and grandstanding, with significant deleterious impact on the jury. Even though Moussaoui pleaded guilty, a jury had to be empanelled because the government sought the death penalty. The sentencing phase alone took a full year. The prosecution reviewed the horrors of 9/11, and the defense put the government on trial by arguing that the U.S. did little to prevent the attacks.

Moussaoui had to be ejected from the courtroom several times. As the prosecution described 9/11, he pumped his fists and shouted, “God curse America!” He called the collapse of the twin towers “gorgeous,” and predicted that “3,000 miscreants” will burn in “hellfire.” He testified that the 9/11 survivors and family members were “pathetic” and “disgusting.” Most of the jury favored death, but there was a lone holdout, so the jury delivered a sentence of life imprisonment. Upon hearing it, Moussaoui declared, “America, you lost! I won.” It was difficult not to conclude that, given Moussaoui’s involvement in the worst terrorist attack on American soil, the failure to secure the death penalty was both a setback for the prosecution and a source of grief for many of the victim’s’ families.

To be sure, similar concerns about intimidation can arise when private citizens serve as jurors in some criminal trials. Organized crime’s presence in the U.S. is of much longer standing than Al Qaeda’s, and jurors have often faced threats of retribution. That is one reason criminal trials do not always succeed. Witness, for example, the government’s capitulation earlier this year in deciding not to proceed against John Gotti Jr. in New York after four mistrials in over five years. Yet, while Gotti is a U.S. citizen, entitled to be tried in a civilian court, Mohammed is not.

All of the jury intimidation problems are resolved entirely by trying Mohammed and the other accused 9/11 plotters before a military commission. The jury in this setting would consist of 12 officers who have voluntarily accepted the risks of their profession, including the prospects of facing death on or off the battlefield. Given the choice between trying the accused mastermind of the 9/11 attacks before a vulnerable jury in civilian court or before a military commission in a secure location such as Guantanamo Bay, we should choose wisely.

David B. Rivkin Jr., an attorney in Washington, served in the Department of Justice in the administrations of Presidents Ronald Reagan and George H.W. Bush. Vitkowsky is an attorney in New York City. Both are affiliated with the Center for Law and Counterterrorism.

Source: http://articles.latimes.com/2010/may/10/opinion/la-oe-rivkin-20100510