Tag Archives: Virginia

Legislators go back to court for contempt ruling against McAuliffe

By David B. Rivkin Jr. and Andrew M. Grossman

September 11, 2016, in the Richmond Times-Dispatch

This past July, the cronyist government of Venezuelan President Nicolas Maduro threw out more than half of the signatures on a petition for a recall to remove him from office, citing “unclear handwriting.”

That is not a problem shared by Virginia Governor Terry McAuliffe, whose autopen machine traces a perfectly legible facsimile of his signature every time. Following the autocratic example of Venezuela and other rule-of-law pariahs, McAuliffe has his autopen working overtime to transform Virginia into a banana republic, one signature at a time.

The signatures — a mere 206,000 or so of them — are the centerpiece of McAuliffe’s scheme to circumvent the Virginia Supreme Court’s July ruling striking down his executive order that suspended the Virginia Constitution’s general rule stripping felons’ voting rights. The court agreed with legislative leaders who had challenged the order that it was not a legitimate exercise of the governor’s power to grant clemency in particular cases. It was, instead, an unlawful attempt to suspend the operation of a law simply because the governor disagrees with it.

Does he ever. The same day that the decision issued, McAuliffe told the press that he “cannot accept” it. A few days later, citing the venerable maxim that “you’ve got to do what you got to do,” he vowed that “all 206,000 (felons) will have their rights back” in a matter of weeks.

Thus, the autopen. Rather than a single bulk order suspending an entire felon-voting bar, McAuliffe would achieve the same result by issuing an individual order for each felon in Virginia who has completed his or her incarceration and supervised release. On Aug. 22, the governor announced that he had issued 13,000 orders restoring voting rights for the felons who had registered to vote under the order struck down by the Supreme Court and promised (many) more to come.

In response, the same legislators who defeated McAuliffe’s first order have asked the Virginia Supreme Court to hold the governor in contempt and act to enforce its prior judgment.

As their motion exhaustively describes, McAuliffe’s new orders amount to outright defiance of the court’s earlier decision. That decision did not turn on the fact that McAuliffe had issued a blanket order, but instead focused on the “practical effect” of that order as nullifying the law. The new orders have the same effect as the old one, unilaterally suspending the operation of the constitution’s felon-voting bar in precisely the same way, with respect to precisely the same persons. As the legislators’ contempt motion observes, the “Court did not reduce the suspension clause of the Constitution to a printing requirement.”

Indeed, seeking to foreclose further legalistic scheming, the court took pains to state that a Virginia governor cannot “suspend unilaterally the enforcement of any criminal law in the Code of Virginia, based solely on his personal disagreement with it, simply by issuing categorical, absolute pardons to everyone” subject to it. And it made clear that proper exercise of the pardon power requires a “specific request by individuals seeking such relief” and consideration of their “individual circumstances.”

So, whether the Virginia Supreme Court’s decision got the law right or wrong, there is no disputing that McAuliffe’s current actions clash with what it ruled. And that is reason enough for the court to hold the governor in contempt and invalidate his flurry of orders.

But the stakes are far higher than in the last round. McAuliffe’s disrespect for the law and for a co-equal branch of government threatens the freedom and political rights of all Virginians. It is worth recalling President John Kennedy’s admonition, offered in response to defiance of the court-ordered desegregation of the University of Mississippi, that “observance of the law is the eternal safeguard of liberty and defiance of the law is the surest road to tyranny.” As Americans, we are free “to disagree with the law but not to disobey it.”

That principle applies with special force to those whom we entrust with the power and responsibility to carry out the law. Nicolas Maduro may be above the law, but Terry McAuliffe and his autopen are not.

David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law in Washington, D.C. 

Source: http://www.richmond.com/opinion/their-opinion/guest-columnists/article_758b5af8-7db4-5c23-b45b-91f8fa015a9c.html


Virginia detainee law is dangerously unconstitutional

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation in Virginia and 11 other states (Arizona, Kansas, Maine, Maryland, Missouri, Oklahoma, Rhode Island, Tennessee, Utah, Washington and West Virginia) is a gross misunderstanding or intentional misreading of the detainee provisions in the 2011 National Defense Authorization Act (NDAA).

Some members of the tea party and the Tenth Amendment Center, a conservative group devoted to states’ rights, have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the act, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the president retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-Sept. 11 rulings, especially Hamdi v. Rumsfeld andBoumediene v. Bush , enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and the president on an issue over which the federal government properly holds sway.

Since Sept. 11, 2001, al-Qaeda and its affiliates have recruited terrorists in the United States. Under the law of armed conflict — which predates the 2001 attacks — enemy combatants, regardless of citizenship, may be detained for the duration of the hostilities.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and a partner at Baker Hostetler. He served in the Justice Department during the Reagan and George H.W. Bush administrations and has represented the 26 states that have challenged the constitutionality of the 2010 Affordable Care Act. Charles D. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department during the George W. Bush administration.

Source: http://www.washingtonpost.com/opinions/virginia-detainee-law-is-dangerously-unconstitutional/2012/04/26/gIQANb8zjT_story.html

Rivkin defends Virginia ruling on healthcare, says it doesn’t go far enough

(from PBS NewsHour, December 13, 2010)

“In the latest in a spate of challenges to the sweeping health care reform law, a Virginia judge said certain provisions, including an individual insurance coverage requirement, were unconstitutional … Gwen Ifill speaks with Neera Tanden of the Center For American Progress and attorney David Rivkin.”

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Part 3:

Health reform law: Will it survive judicial scrutiny?

(from PBS, December 13, 2010)


GWEN IFILL: A federal judge in Virginia ruled today that a critical provision of the health reform law is not constitutional, setting off fresh debate and questions about whether the law will survive.

Health correspondent Betty Ann Bowser begins our coverage with this report.

BETTY ANN BOWSER: Almost as soon as the president signed the Patient Protection and Affordable Care act into law, legal challenges began to mount.

Many of the cases focus on the individual mandate, the part of the bill that requires most Americans to carry health insurance or pay a fine starting in 2014.

Today in Virginia, U.S. District Judge Henry Hudson, a Republican appointed by President George W. Bush, ruled the federal government could not force citizens to purchase insurance under the Commerce Clause of the U.S. Constitution.

In the 42-page opinion, he wrote, “Neither the Supreme Court nor any federal circuit court of appeals has extended commerce clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

But the judge declined to rule the entire law unconstitutional.

MAN: Mr. Attorney General?

BETTY ANN BOWSER: Hours later Attorney General Ken Cuccinelli, who filed the lawsuit, said today’s ruling was a critical milestone in the protection of the Constitution.

KENNETH CUCCINELLI (R-Va.), attorney general: Ordering Americans to buy health insurance, as the bill does, is beyond the Congress’ power under the commerce clause. It underscores that the Constitution’s limitations on federal power really do mean something.

The rule of law means something. Even the president and Congress must act within the boundaries set by the Constitution. The goals here were noble in this bill, but even noble goals may only be pursued within the powers of the Constitution.

BETTY ANN BOWSER: At the White House, Press Secretary Robert Gibbs said he believes the health care act is constitutional. He also said it was necessary to enforce the entire law in order to maintain elements of the bill Republicans like.

WHITE HOUSE PRESS SECRETARY ROBERT GIBBS: Our belief is that the health care act is — will go forward and that it is — that it is constitutional, that it improves people’s lives. And, particularly, this is the basis, as I have said, the provision that allows us to finally address the lingering discrimination against those who have a preexisting condition.

BETTY ANN BOWSER: So far, two federal challenges to the law have been struck down in separate lawsuits in Virginia and Michigan.

Twenty-five other legal challenges to the new law have been filed in federal courts, including a lawsuit brought by Florida. Nineteen other states have joined that case, which will be heard later this week in Pensacola. That suit also charges the individual mandate is unconstitutional, but goes further to say the new law places an unfair financial burden on already cash-strapped states by adding 16 million people to Medicaid.

Gibbs said he believes, ultimately, the courts will rule in the government’s favor in the Virginia case.

ROBERT GIBBS: The Department of Justice obviously is going to have to make some decisions about appealing this particular case. My sense is that that appeal decision is something they will likely make.

BETTY ANN BOWSER: The overall merits of the law are expected to end up before the U.S. Supreme Court.

GWEN IFILL: Now, for reaction to this ruling and insight into the broader battle still playing out over the health care law, we turn to Neera Tanden, former senior adviser to Health and Human Services Secretary Kathleen Sebelius. She’s now the chief operating officer for the Center for American Progress, a liberal advocacy group. And David Rivkin, lead counsel in another health care challenge, this one filed in Florida, as Betty Ann just reported. Attorneys general from 20 states have signed on to that lawsuit.

David Rivkin, how substantially does the judge’s decision today weaken the underlying health care law?

DAVID RIVKIN, former associate White House counsel: It’s a major blow.

It’s a well-reasoned decision that went to great degree in analyzing what lies at the heart, the problem at the heart of this statute. You can regulate commerce. Congress can regulate commerce. Congress cannot compel commerce. There’s no precedent for it.

If you go down in that direction, you produce the federal government exercising general police power. That’s reserved for the states. The goals, as General Cuccinelli said, are noble that underlie the statute. The government has done it in the wrong way. They have done it in a fundamentally unconstitutional way.

GWEN IFILL: Neera Tanden, your response to the same question. How much does it weaken the law?

NEERA TANDEN, senior vice president for academic affairs, Center for American Progress: Well, I think it weakens a fundamental protection of the law, which is preexisting conditions regulations, but it doesn’t actually overturn the overall law, which is what the Virginia attorney general requested.

It strikes at a particular provision, the individual mandate. But there’s a lot of other provisions that provide protections. So it’s a — it strikes at an important part. It’s not an unimportant part. But it does not undermine the whole law. But we believe this will be overturned. And we agree with the White House that this ultimately be resolved as constitutional.

GWEN IFILL: As Betty Ann reported, Ms. Tanden, we have seen two other challenges so far. And they have upheld the law. This one, at least this key critical provision, was not upheld. What’s the difference?

NEERA TANDEN: Well, the judge found differently. He took the same set of facts and disagreed with the finding that it’s constitutional.

Obviously, he found that this kind of activity, where people are choosing not to have health insurance in a system where — we live in a system where everyone gets health care at one point or another. And it’s just a decision when to get health care. They get coverage. They’re in — everyone who goes to the hospital is covered in our system.

And so it’s a question of purchasing health insurance. Other judges saw this same set of facts and said it would not be — it was not unconstitutional. He looked at the same set of facts and found them constitutional.

We’re seeing a partisan split amongst judges on this decision.

GWEN IFILL: Is this a partisan split? And whether it is or not, how does this affect what you do with the upcoming case in Florida?

DAVID RIVKIN: It provides some good reinforcement for our case. And we’re very optimistic about that.

Let’s get something off the table, very unfortunate to talk about it in a partisan sense. Frankly, when I go before a judge or judges, I even don’t check which president appointed them, because they’re not functioning in that mode anymore.

It’s interesting. Ms. Tanden used the word activity. And that’s the key problem. This statute does not regulate activity. This statute regulates or purports to regulate inactivity.

GWEN IFILL: Explain in non-legalese what that means to people who don’t follow that.

DAVID RIVKIN: Well, the individuals — if you look at all the commerce clause jurisprudence, the federal government regulates you, Gwen, because of what you do, because of things you manufacture, because of things you buy, because of you traveling in the course of business.

It reaches activities. And the entire jurisprudence dealing with the commerce clause reaches activities. Here, we’re being told that your decision not to enter the stream of commerce has economic impacts.

And you know what? Even if it’s true, the problem with that logic, that everything you do, if you go to sleep tonight, your decision to go to sleep means you’re not working. That has an impact on the labor market. There’s no limiting principle. The Department of Justice has labored mightily both in our case and the Virginia case to come up with some limiting principle to tell the court, if you find for us here, if you sustain this mandate, you wouldn’t have to do it again and again.

And they have failed. And that is why I believe this case is going to come out in our favor at the end of the day.

GWEN IFILL: Neera Tanden, you can respond.

NEERA TANDEN: This notion of inactivity or activity is a doctrine that is made up by constitutional conservatives.

The issue here really is that we have a health care system. For example, 30 economists, two Nobel Prize-winning economists, filed an amicus brief exactly on this point of economic activity. We have a system in our country where, if you get sick, you go to the hospital, they have to cover you.

So, what does that mean? That means that there’s $40 billion in cost in the health care system for people who don’t have health insurance, but get care because of sickness. And that — costs don’t just magically disappear. They’re shifted on to other people.

So every decision by a sick person to get — to go to the emergency room, I and you are paying for in your premiums. It’s that health care is a different kind of market. It’s different from buying widgets. We’re all interconnected. And that’s the issue with Affordable Care Act. It’s interconnected.

NEERA TANDEN: So, if we want — I’m sorry.

GWEN IFILL: That’s all right.

I just wanted to move on to another point before we find ourselves out of time, because another key part of this argument, Mr. Rivkin, turned on the question about whether the penalties for non — or any — the costs of noncompliance actually constitute a penalty or a tax. What difference does that make?

DAVID RIVKIN: Well, because if this was a valid tax, the government could support the mandate using its tax authority. But this is not a tax.

GWEN IFILL: Which is what they argue.

DAVID RIVKIN: Which is what — why they argued — the paradox here, of course, is the people who enacted this bill, including the president, argued vociferously that it’s not a tax, and that, even if it were a tax, it wasn’t a valid way of using it.

But let me just mention one very important point. Under Ms. Tanden’s logic, the same problems would occur again. For example, people roughly — unfortunately, Americans default on over $80 billion worth of credit card bills every year. And that money gets passed on to those who do pay their credit card bills.

Under her logic, the government can impose a mandate on everybody who has credit cards to carry insurance that pays for that. Look at the mortgage disaster, over a trillion dollars worth of mortgages. Why shouldn’t the federal government require people to purchase special insurance that guards against default?

There’s no limiting principle. Every activity, under her logic, every human behavior would provide that kind of result.

GWEN IFILL: Let’s allow her to defend her logic.

NEERA TANDEN: The difference there is, there is a federal law. It’s called EMTALA. It requires everyone who gets sick, needs emergency care, to be able to go to the emergency room.

There are no sick provisions. There’s no such law in other areas. Conservatives don’t want to take on the essential rule that the sickest amongst us get coverage when they’re sick, when they’re sick, when they have an emergency room. They don’t want to take on that law, but they want to take on this one.

And that law underpins this Affordable Care Act and why it’s important that it is maintained, so that we can actually keep things like preexisting conditions, so people who have cancer, who have other illnesses can actually get the protection of this law.

These pieces are interrelated. They’re critically important. And they’re interconnected. And just on the tax issue, I would say this is an area where the judge clearly overreached. This is part of the IRS code. He chose to determine that it is not a tax. He just made that determination on his own. Other judges have looked at this differently. And I think that’s another grounds for appeal.

GWEN IFILL: She said everything was interconnected here, which brings us to the question of severability.

The judge very specifically only ruled on this one part and stayed away from knocking down the whole law or saying that anything that happened here would affect any other part of the law.

Was he correct in that?

DAVID RIVKIN: I believe the decision doesn’t go as far as it should. In our case, we are making this argument very forcefully. In fact, we’re challenging, as you said, not only the individual mandate, but the Medicaid expansion and unconstitutional burden it imposes on the states.

We feel the entire statute is not constitutional, because, indeed, it’s all integrated. But I want to add one fundamental point. Everything that the government is seeking here, universal coverage, better access, could be done.

The problem of this bill is not the goals. The government chose to do it in an unconstitutional way, quite frankly, I think for reasons of political expediency. We can have a better approach to covering the uninsured, broadening and decreasing participation, and providing better costs in the insurance market. But it cannot be done about — violating the Constitution. And that’s what this bill does.

GWEN IFILL: Mr. Rivkin, you got the first word. Neera Tanden, you get the last word.

NEERA TANDEN: The irony here is that, if the federal government issued a public plan for every American, as it does with Medicare, it wouldn’t be held unconstitutional.

If this was a more centrist decision, if the president chose to use an individual mandate, which conservatives have supported like Mitt Romney and Stuart Butler, it is well within the purview of the president and the Congress and the federal government to do that, because it is simply ensuring that people who free-ride in the system, who don’t get health care coverage, but get sick, that they have — take the responsibility for their own health care.

GWEN IFILL: Neera Tanden, David Rivkin, thank you both very much.

DAVID RIVKIN: Good to be with you.

Source: http://www.pbs.org/newshour/bb/health/july-dec10/healthcare_12-13.html

Commerce Clause is coming to town

(from The Wall Street Journal, December 12, 2010)

Paul Gigot: This week on “The Journal Editorial Report,” ObamaCare legal challenges gain steam. A Virginia court rules against the individual mandate, just as another suit advances in Florida. We’ll talk to the lead attorney in that case. Plus, call it a pre-Christmas miracle. The House passes the tax-cut deal, and Harry Reid is forced to pull his omnibus spending monster in the face of certain defeat. Could things really be changing in Washington? And governors wage war on public-sector unions as bloated pay, pensions and benefits threaten to bankrupt struggling states.


Gigot: Welcome to “The Journal Editorial Report.” I’m Paul Gigot.

ObamaCare suffered a major setback this week when a Virginia court ruled that the law’s linchpin, the requirement that Americans purchase insurance or pay a penalty, is unconstitutional. A federal district court judge, Henry Hudson, declared that the so-called individual mandate exceeds the authority granted to Congress under the Commerce Clause. The Virginia ruling comes the same week as another legal challenge gets under way in Florida. More than 20 state attorneys general are suing in federal court there, where oral arguments were heard on Thursday.

Attorney David Rivkin is the legal counsel in that suit, and he joins me now.

David Rivkin, welcome back to the program. Very good to have you here.

Rivkin: Pleasure.

Gigot: Let’s talk about the Virginia case first. How significant is it, from your point of view, that a judge struck down the individual mandate?

Rivkin: It’s very significant. It’s a good opinion. It certainly demonstrates that more than one federal court finds the heart of this law, the individual mandate, to be constitutionally objectionable. There are some issues with the opinion. It’s not as broad as we would have liked–namely, it only, Paul, strikes down the individual mandate and not the rest of the statute. And it does not provide for injunctive relief. It basically provides for declaratory judgment that the act is unconstitutional. But it’s a good start.

Gigot: All right, so you think that this guarantees, now, that the case will eventually end up at the Supreme Court.

Rivkin: Absolutely. I believe that our case would end up before the Supreme Court, and so would Virginia’s case. The question is when and in what context.

Gigot: All right. One of the issues here was whether or not the government can legislate for inactivity–that is, for doing nothing, for not buying insurance. Is this the core of the case in the dispute, in your view?

Rivkin: It is, and it’s very important to underscore, Paul. This is beyond the health care. The fundamental question is this: Can the federal government exercise general police power–namely, take individuals who are not engaged in commerce, who are not engaged in any economic activities, and compel them to do so? This is quintessentially a police power. That’s what states can do. So if the federal government can do that–

Gigot: Under the Constitution–under the Constitution, the states have that–

Rivkin: –we’ve fundamentally transformed our constitutional architecture. We have given the federal government the powers that only states can have. And in the process, we harmed individual liberty, because remember, the reason state sovereignty matters is not just for the sake of the states. The framers wanted to diffuse power–both vertically between the federal government and the states, as well as horizontally among different branches of the federal government–to prevent the concentration of power in any one set of hands. That’s really the heart of our constitutional architecture.

Gigot: OK, but the government argues that, look, you have–everybody gets sick eventually. Everybody needs medical care eventually, and since the federal government pays for an awful lot of that care, particularly through Medicare and other public programs, that, in essence, not buying insurance is a form of economic activity. You’re just–you’re still putting the burden on others. You’re just not agreeing to pay in yourself. What’s your response to that argument?

Rivkin: We got into it quite heavily in the hearing yesterday and earlier stages of our cases. It’s a totally specious argument. The government basically is saying, that because you, in the future, may do something that imposes a burden on others–OK, they call it cost-shifting–because of that, the government can require you to buy insurance to do that. First of all, that problem is endemic, the possibility of cost shifting, Paul, across all market segments. Look at the subprime mortgage. Look at the fact that over $70 billion worth of credit card bills don’t get paid every year.

Gigot: Somebody’s paying those bills.

Rivkin: Billions of dollars are wiped out in bankruptcy. What do you think happens with all that money? They get passed on to market participants. There’s no limiting principle under that theory. The government can require, then, people to purchase insurance to mitigate against any possible future occurrences.

But let’s be honest. This is not about it at all, and I think the judge understood that very clearly. This is an effort to get the middle class to put in more money to cover the poor. The only way in which the government could have done it legitimately–the way you redistribute the wealth, if you will, in our constitutional system–is impose a tax, collect it, and then give people subsidies. What you cannot do is have a mandate that compels people to do that. That is both unconstitutional and–really, politically, think about it, this is the way you do it without paying the political price for it. Of course, the people that did it paid some price for it–

Gigot: All right, but I want to pursue–I want to–

Rivkin: –but the tax would have been even more prohibitive.

Gigot: But I want to pursue this point about the tax. Because during the debate over ObamaCare, the president said it was not a tax. It was not a tax increase, this penalty. But now, in the legal arguments, the Justice Department is saying clearly that in fact it is a tax. It’s not a penalty that’s unusual. And in fact, in that sense, it’s constitutional because we know that all kinds of other taxes are legal and constitutional. What’s your response to that?

Rivkin: Well, that’s not what they did. And as a matter of fact, in our case, in the Virginia case, the judge reached this question in his opinion just earlier in the week. In our case, the judge reached this question and decisively disposed of it quite a long time ago. Basically, that’s not what Congress did. We also made arguments that this is an unconstitutional way of imposing a tax, but forget that.

The fundamental point is this: As you just said, the president and all the people who enacted the statute have said decisively: This is not a tax. You cannot play this kind of bait-and-switch, and I think it’s deplorable. Again, what it does–it kind of plays a bad joke on the citizenry. It tells them at the front end, we’re exercising this power. And then when you get into court, you make those legal arguments. As a matter of fact, what the Justice Department has done in this case continuously, Paul, is they have rewritten the statute. And that’s the point we made a couple of times yesterday.

Gigot: The judge is–

Rivkin: Instead of defending the statute as Congress wrote it, they keep rewriting the statute to try to make it more palatable in terms of legal defensibility.

Gigot: All right. Quickly, you have 20 states now in your lawsuit. How many do you expect to get in the end, after the new governors and attorneys general take office in January?

Rivkin: At least five or six. I believe it would have more than 25 states, which is very important from a symbolic perspective.

Gigot: Right, I can’t remember a case where so many states have directly challenged the federal government on a single law.

David Rivkin, we’ll be following this very closely. Thanks so much for being here.

Rivkin: Good to be with you.

Gigot: When we come back, Christmas came early this week as the House votes to extend the Bush-era tax rates, and Harry Reid is forced to pull his pork-laden, $1.2 trillion dollar spending blowout. Is there a message in these victories for the GOP and the 112th Congress?


Gigot: Well, call it a pre-Christmas miracle, a tax-and-spend reversal the likes of which are rarely seen on Capitol Hill. Senate Majority Leader Harry Reid was forced Thursday night to pull his pork-laden, 2,000-page, $1.2 trillion spending bill. And just hours later, the House voted to extend the Bush-era tax rates for all income levels. Could things really be changing in Washington?

Joining the panel this week, Wall Street Journal columnist and deputy editor Dan Henninger, senior editorial page writer Joe Rago and Washington columnist Kim Strassel.

So Kim, I thought I’d seen everything in politics. I’ve been around long enough to have seen a lot. But this is amazing. A Democratic Congress extends the Bush tax rates first. Amazing enough. And then the spending breakdown by the Democrats. What happened on that spending bill?

Strassel: Look, what happened is Harry Reid decided to pull this omnibus bill. It was a $1.2 trillion bill, 6,000 earmarks. They were going to try and jam it through in just a few days before anyone could read it through. And what ended up happening is that a lot of the Republicans in the Senate who had been tempted to vote for this thing–they got a lot of grassroots pressure, they got a lot of argument back from Mitch McConnell, and they decided that they weren’t going to do it. The Republicans stayed unified, and the Democrats had no choice but to pull this thing.

Gigot: Some of these Republicans, Kim, were going to retire. I think three or four of them are leaving the Senate with the new year. This was a last hurrah, and so they wanted to bring home some of that bacon to their home states–

Strassel: Yeah.

Gigot: –maybe for the This-or-That Senator Monument here or there across the state with their name on it.

Strassel: That’s right.

Gigot: But what arguments did McConnell make in those–in the room to say, “Look, don’t do this, don’t vote for this, don’t give Harry Reid a victory”?

Strassel: Well, look, I mean, there is the argument, especially for the retirees: Do you really want your last vote to be a joke of a bill that nobody has read?

But there’s also–look, here’s the thing. The big power that Republicans got in this last election is the ability to write spending bills. And that’s what they’re going to be able to use to cut back on Obama priorities like ObamaCare and other programs, as well as fulfill their promises to the public to cut back spending.

The problem with the omnibus is it would have tied their hands to do any of that until next September. And I think that’s what McConnell argued to those guys is: “Guys, look, do you really want to hamstring your colleagues who are coming back next year to do this?”

Gigot: Right. All right, because that would have–the spending, Joe, would have been built into the baseline for next year, so Republicans coming in next year with the House majority would have had to cut spending from that baseline, making it that much more difficult, especially on the prefunding of ObamaCare.

Rago: Yeah, there was all sorts of built-in spending mechanisms in this bill, and, you know, if they want to have any hope next year of rationalizing entitlements, of rolling back some of these new priorities, this really would have caused a problem for them.

Gigot: I want to salute Thad Cochran, the ranking member of the Appropriations Committee, from Mississippi. This is a rare event for me. But he basically walked away from hundreds of millions of earmarks for his state–take one for the team–if you will, which is unheard of for an appropriator of either party.

Henninger: Yeah, well, I think we should try to understand a little bit what’s going on here. The spin this morning is that this is a victory for fiscal conservatives and tea partiers. Well, I guess it is that, but this is basically–

Gigot: It sure is.

Henninger: But you know what? Congress’s approval rating is down in the teens.

Gigot: Thirteen.

Henninger: Yeah, 13.

Gigot: Gallup.

Henninger: OK. That number represents more than fiscal conservatives and tea partiers. It represents a lot of people.

Gigot: Here’s the question: Who are the 13?

Henninger: Yeah, who are the 13% who are approving Nancy Pelosi?

Gigot: I mean, what in the world are they smoking? I mean–

Henninger: But this is just a building block. This is a stepping stone into next year. And I have to say, I’m allowing myself to feel pretty optimistic about it. Some of these people who are leaving, like George Voinovich and Kit Bond–

Gigot: Ohio senator, Kit Bond a Missouri senator.

Henninger: Ohio senator. Well, take George Voinovich. He’s an Ohio Republican. He’s leaving. He’s being replaced by Rob Portman, another Ohio Republican. It is night and day between George Voinovich and Rob Portman. Russ Feingold is leaving–Wisconsin. He’s being replaced by Ron Johnson. The team that Mitch McConnell is going to get–take the fight next year, is much stronger than the one he had this year.

Gigot: Kim, let’s talk about the tax bill as well, because a week ago–

Strassel: Another miracle.

Gigot: I know. But–well, a week ago, the Democrats were in a revolt in the House and saying: “We won’t pass this, we–it has to be amended, this is an outrage.” And in the end, something like 277–Democrats in the House voted for it; 81 senators voted for it. So what happened to have all of that opposition melt away?

Strassel: Well, what you had is–I mean, everyone needed to basically work through the issues publicly, so we had to do that for about a week, and let the liberal Democrats in particular complain about estate tax provisions and carrying on tax rates for all individuals in the country. But in the end, Democrats had to make the choice: Were they going to basically undercut their president who made this deal, and also end up being the people who were responsible for raising taxes on every American in the end? And in the end, a lot of them decided, “OK, that’s not really necessarily a vote I want to take.”

Gigot: Dan, how big an intellectual and political turn does this bill–and this week, really, the tax bill in particular–make? I mean, have we made a turn back towards growth economics, at least partially?

Henninger: I think so, Paul. And I think so because so many people in Washington–again, we cite the Bowles-Simpson commission, which was really–

Gigot: This was the deficit commission.

Henninger: The deficit commission, which at its base is a pro-growth, pro-competition plea, and there are a lot more people who’ve, I think, gotten the idea that the United States is somewhat dead in the water right now with this impossible tax system that we’ve got now.

Gigot: Right.

Henninger: And an omnibus spending bill that you just dump out in December. The United States is a serious country. It can’t compete on that basis. So I think maybe we are beginning to see the winds gathering around a pro-growth agenda.

Gigot: I think what you’re seeing is the left wing of the Democratic Party has been marginalized on policy. They just can’t deliver anything. So Obama’s being forced now to negotiate with people like Paul Ryan. And the arc of policy’s changing in a very fundamental way. I think it’s a very good development for the economy.

Well, as all eyes are on the political shenanigans in Washington, there’s a revolution brewing in the states too, as governors from both parties take on the public-sector unions, whose pay, pension and benefits are draining the public fisc.


Gigot: Finally this week, an update on the battle to rein in public-sector unions, whose pay, pensions and health benefits are bankrupting some of the biggest states in the country. New Jersey Gov. Chris Christie’s crusade has been well documented. But in Monday’s Wall Street Journal, Minnesota Republican governor and presidential possible Tim Pawlenty came out swinging as well, calling the rise of government unions “a silent coup, an inside job engineered by self-interested politicians and fueled by campaign contributions.” And neighboring Wisconsin’s incoming Republican governor, Scott Walker, may try to end collective bargaining for public workers in his state. And it’s not just Republicans. New York’s incoming Democratic governor, Andrew Cuomo, is gearing up for a battle with that state’s powerful public-sector unions in an effort to close an $8 billion deficit next year.

So, Joe, really interesting developments across the state. What’s driving it?

Rago: Well, you know, I think the money has just run out. You know, there’s sort of this iron triangle of public-sector unions, higher taxes and ever-larger entitlements, and there’s just no money left. So, you know, even these Democratic governors are looking at this and saying, you know–Andrew Cuomo, for instance, is partnering with Gary LaBarbera, who is the head of New York’s largest construction trades union.

Gigot: A public–a private-sector union.

Rago: A private-sector union. And they’re looking at the budget and saying, the government can’t build roads, it can’t build bridges.

Gigot: Interesting. That’s a fascinating political point. Because what it means is that private union workers feel that they now are getting taken, too, by the public unions, who have the power to raise taxes constantly, and it comes out of their paychecks.

Henninger: Yeah, well, we’re going to see that fight unfold here in New York state as Andrew Cuomo apparently is going to take on the public unions. Now, the teachers unions, just as they did with Chris Christie in New Jersey, are gearing up to run ads against Andrew Cuomo. Cuomo is making–reaching out to the private unions to see if they’d be willing to run counter-ads against those. So, i mean, this is an unprecedented turn.

Gigot: And Kim, one of the issues here is the states aren’t going to get more money from Washington, are they? I mean, the stimulus spending included huge–I mean, multiple billions, hundreds of billions really, for the states. That’s done. That’s not coming again, is it?

Strassel: Right. No, and this–you might even call this the one small political upside of this recession is, as Joe said, the money has run out, but it has finally focused public attention on this. And look, the numbers here are astonishing. Since the beginning of 2008, the private sector has lost eight million jobs. But the government–state, local and federal–has added 600,000 positions.

Gigot: This–

Strassel: OK, 600,000. The average federal employee earns $123,000 in pay and benefits. That’s twice what the private-sector employee gets. And they are in programs that private-sector employees have not seen in ages, things like fully funded pensions.

Gigot: Right.

Strassel: And so you’re seeing public outrage over this as well, which is driving it. And in particular, the move to modernize some of these programs, in addition, to cut back on some of these public employees.

Gigot: This collective-bargaining issue, Joe, is really fascinating, because public-sector workers haven’t always had collective bargaining. In California, it only happened as recently as 1978. John Kennedy gave it to federal workers in 1962. This movement to claw that back is fascinating. Is it going to succeed?

Rago: Well, it’s going to be a tough fight. But I think the actual public, as opposed to the public-sector unions, are actually on the side of this. You know, there was a–in 2006, Jon Corzine, then the governor of New Jersey, spoke to this big rally–

Gigot: About 10,000 people, if I recall.

Rago: –of the labor movement, and said, you know, “We’ll fight to get you a fair deal.” And he was really supposed to be on the other side of the table.

Gigot: Representing taxpayers.

Rago: Exactly. And you know, I think people are looking at this and saying, you know, something’s wrong here.

Gigot: This is why the incentives are so different in the public sector versus the private sector. And in fact, you know, FDR and George Meaney–

Henninger: Franklin Delano Roosevelt was inalterably opposed to collective bargaining, as was Fiorello LaGuardia.

Gigot: For public workers.

Henninger: For public workers.

Gigot: Not for private workers.

Henninger: That’s exactly right. Roosevelt said it was a violation of state sovereignty, by which he meant the state represented all of the citizens in the state, unlike a private company, which has just a discrete number of citizens. And it was unacceptable for a faction or group to try to collective-bargain against all the people of a state. And I think that chicken has clearly come home to roost that FDR warned us about.

Gigot: Joe, Tim Pawlenty really must believe that he sees there’s a political opportunity here. Are you going to see, do you think, more of the presidential candidates come out and do that? Well, I guess no Democrats will be running, but I guess they’ll be doing it at the state level. Jerry Brown in California is a Democrat who looks like he’s going to do this.

Rago: Right, well, you know, Jerry Brown is actually the one who introduced collective bargaining in the 1970s in his first stint as governor.

Gigot: He signed the bill.

Rago: This week he gave a speech to the teachers union saying, “You’ve been living in fantasy land. We have a major fiscal problem here.” So I wouldn’t be surprised if you see the Democrats, especially on education, coming out and taking on these unions. And certainly there’s going to be a lot of competition among Republicans to sort of–to come up with creative solutions to this problem.

Gigot: When there’s no money, there’s no alternative.

We have to take one more break. When we come back, our “Hits and Misses” of the week.


Gigot: Time now for “Hits and Misses” of the week. Dan, first to you.

Henninger: Paul, this week the Food and Drug Administration recommended that the anti-cancer drug Avastin no longer be approved for the treatment of breast cancer, despite the fact that many, many anticancer groups petitioned them to leave it on the market. This reminds me of the sort of thing that happened in the early stages of AIDS, when you had AIDS patients begging the FDA, demonstrating out in front of the building to approve these things. I have to say, I think only under an Obama Food and Drug administration could this policy roll as far downhill as it has with this decision.

Gigot: OK. Joe?

Rago: Paul, a miss this week to Peter Orszag, who left a senior position at the White House for a senior position at Citigroup, a bank that wouldn’t exist without taxpayer support. One reason that voters distrust big business almost as much as big government is that it’s so hard to tell them apart.

Gigot: All right. Kim Strassel?

Strassel: Hey, this is a miss to the Justice Department. You know, we are going on a month since WikiLeaks released hundreds of classified diplomatic cables that injured the United States. And yet, despite the fact that its leader, Julian Assange, just got out on bail in Britain this week, despite the fact that WikiLeaks intends to release thousands more of these, the Justice Department has not moved. I’m not quite sure what could be more important right now than the United States’ general security and our troops’ safety.

Gigot: I’d like to see one of those breast cancer marches on Washington, Dan. That would really be something

Rago: It could happen, it could happen.

Gigot: All right.

Source: http://online.wsj.com/article/SB10001424052748704138604576029903820956220.html

A view from the front lines of the ObamaCare battle ….

On Thursday, Oct. 21, 2010, the Washington Legal Foundation held a briefing titled “The States v. ‘ObamaCare’: Legal Challenges to the Health Reform Law and How They Are Faring in Court” at the M.J. Murdock Center For Free Enterprise in Washington, D.C.