In this interview (from 17 April) on the Dan Proft Show, I lay out the arguments made in my Wall Street Journal article explaining the extent and limits of presidential power — what the states may do and what President Trump may do to re-open the economy during the coronavirus pandemic.
By David B. Rivkin Jr. and Lee A. Casey
15 April 2020 in the Wall Street Journal
President Trump has come under attack this week for saying he has “absolute authority” to reopen the economy. He doesn’t – his authority is limited. But while the president can’t simply order the entire economy to reopen on his signature, neither is the matter entirely up to states and their governors. The two sides of this debate are mostly talking past each other.
The federal government’s powers are limited and enumerated and don’t include a “general police power” to regulate community health and welfare. That authority rests principally with the states and includes the power to impose coercive measures such as mandatory vaccination, as the Supreme Court held in Jacobson v. Massachusetts (1905). Nor may the federal government commandeer state personnel and resources to achieve its ends or otherwise coerce the states into a particular course of conduct. There is no dispute about these respective state and federal powers.
In most federal-state disputes, the question is what happens when authorities at both levels exercise their legitimate constitutional powers and cross-purposes. Here, the president has the edge. The Constitution’s Supremacy Clause requires that when the federal government acts within its proper sphere of constitutional authority, state law and state officials must give way to the extent that federal requirements conflict with their own. Federal power encompasses a broad power to regulate the national economy. Thus although the president lacks plenary power to “restart” the economy, he has formidable authority to eliminate restraints states have imposed on certain types of critical commercial activity.
Much of this authority was established by Congress in the Defense Production Act of 1950, which Mr. Trump has invoked on a limited basis to require American manufacturers to make personal protective equipment and ventilators. Most of his current critics lauded these actions and urged him to do more.
The DPA was enacted principally to assures U.S. military preparedness. But it defines “national defense” broadly to include “emergency preparedness” and “critical infrastructure protection and restoration.” The law “provides the President with an array of authorities to shape national defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base.” It authorizes him to prioritize the production of certain products and to “allocate materials, services, and facilities in such a manner, upon such conditions, and to such an extent as he shall deem necessary or appropriate to promote the national defense.”
The DPA isn’t a bank check. The president cannot, for example, impose wage and price controls without additional congressional action, and he is often required to use carrots rather than stisk to achieve the law’s purposes. Nevertheless, because he is acting under an express congressional grant of authority, he is operating, as Justice Robert Jackson explained in his iconic concurring opinion in the “steel seizure” case Youngstown v. Sawyer (1952), at the apex of his legal and constitutional power.
Any state restrictions on commerce or personal behavior would have to yield to the federal imperative. “The states have now power, by taxation or otherwise, to retard, impede, burden, or in any other manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government,”, the Supreme Court explained in McCulloch v. Maryland (1819). States, whether acting alone or in coordination, would be barred, for example, from forbidding their residents to return to work in critical industries, or from restraining industrial, agricultural, or transportation facilities in ways that impede the federal mandate.
That said, even the most expansive interpretation of the DPA, and other federal statutes regulating interstate commerce, wouldn’t permit President Trump to reopen all aspects of the American economy on his own authority. The reopening of many local businesses, such as restaurants and nonessential retailers, would be up to the states.
Thus state governors and lawmakers are as vital a part of this effort as the president and Congress. Federal and state officials have to work together, however much they may dislike each other politically or personally to get America back on its feet.
The truly difficult legal issues coming out of the Covid-19 crisis are whether government at all levels has sufficiently protected individual rights. All exercises of federal and state power, emergency or not, are subject to the overriding limitations of the Bill of Rights. The courts have traditionally taken the nature and extent of national emergencies into account in construing and applying these rights, but they cannot be ignored entirely.
So far the American people have largely accepted temporary restrictions on their liberty – especially freedom of assembly and religion – that may not stand up to court challenges. It would serve the president and governors well to make a priority of easing these restrictions and others as soon as possible after the worst of the danger has passed.
Mssrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.
Source: https://www.wsj.com/articles/presidential-power-is-limited-but-vast-11586988414
In this interview (April 3rd, 2020) with Timothy Doescher from the Heritage Foundation, Cully Stimson and I lay out some of the limitations on what governments can do even during a pandemic.
By David B. Rivkin, Jr., and George Beebe
31 March 2020 in The Hill
Few people regard the novel coronavirus pandemic as an intelligence failure. And, judging by conventional standards, it is not one. The U.S. Intelligence Community (IC) was created to collect and analyze secret information about our adversaries’ capabilities and intentions that pose strategic threats to American national security. Despite allegations by some foreign propagandists and domestic conspiracy-mongers, COVID-19 was not dreamed up in some biological weapons laboratory and unleashed diabolically on the world. Its origins in Chinese “wet markets” were far more prosaic. Today’s rapidly emerging global dangers could not have been uncovered by intercepting secret Chinese communications or capturing their plans for biological warfare.
In such situations, traditional approaches to gathering and analyzing intelligence can only make limited contributions. They can help to determine what secretive governments, such as those in China and Iran, actually know about the spread of COVID-19 and its lethality, and to what degree they may be hiding the truth. And some spinmeisters, evidently intent on both polishing the IC’s image and tarnishing that of President Trump, already have been portraying classified briefings in January and February as an intelligence success because they did just that.
But the notion that Trump is guilty of failing to heed these briefings — or that Sens. Richard Burr (R-N.C.), Diane Feinstein (D-Calif.), and other U.S. senators are legally and ethically culpable for allegedly dumping stocks in response to them — overstates how actionable they were. Anyone who doubts this should ask whether the CIA itself took early action to protect its own personnel and facilities from the coming wave of danger that it supposedly forecast.
Rendering the entirely unsurprising judgment that Beijing was failing to level with its people or the world is not the same as sounding urgent alarms about a global health crisis that could lead to world economic depression. And making a marginal contribution to scaling a deadly threat after it has emerged is not why American taxpayers devote tens of billions of dollars annually to our intelligence cadre. The fundamental purpose of intelligence is to warn effectively about incipient dangers before they become urgent realities, not to help measure their dimensions — or advance partisan political agendas — afterward.
In the context of this larger purpose, the emergence of the novel coronavirus crisis highlights some unacceptable weaknesses in American intelligence. Since its inception in 1947, the IC’s primary mission has been to warn of deliberate, secretly planned attacks by our adversaries, whether they are powerful state actors or non-state terrorists. This challenge endures, as great power competition intensifies, and terrorism persists. While the IC’s record on this is mixed, it is at least a task well-suited to high-technology intelligence collection and to analysis, breaking down a problem and studying its component parts individually.
Unfortunately, our globalized 21st century-world also produces national security threats of a different kind, those that arise when small, non-secret factors combine to produce a devastating cascade of knock-on effects that no one has planned or anticipated. Novel coronavirus turned into a crisis not because it is deadlier than the SARS virus that emerged in China in 2002 (its fatality rate is lower, though it has claimed more lives), but because it debuted in a more entangled but less trusting world, whose weaker physical and psychological antibodies were not up to the challenge. This is the type of a problem that requires synthetic rather than analytic thinking: examining interconnections and feedback loops that can cause small developments to mutate into big dangers.
As it stands today, the IC is ill-staffed and poorly organized for warning about such emerging “complex systems” threats, unfolding in a chaotic world, before they become unmanageable crises. The IC’s enormous cadre of narrowly focused analysts and collectors is ideal for handling traditional intelligence tasks, where uncovering hidden technical details can spell the difference between success and failure in dealing with foreign adversaries.
But large organizational size and narrow specializations can be real handicaps when the task is to bring together a wide range of disciplines and understand the interconnections among factors that could produce “perfect storms” of danger. And old cultural and regulatory barriers between foreign intelligence and domestic American affairs impede understanding the feedback effects between factors internal to the United States and those beyond our borders.
To meet this type of challenge, intelligence must operate on a smaller and smarter scale. It must rely less on secret information, and more on interdisciplinary teams of experts tasked with understanding the larger context of events. In cases such as the novel coronavirus crisis, it must assemble diverse groups of doctors, epidemiologists, economists, business leaders, data scientists, psychologists and other experts who are not typically central players in intelligence assessments.
And it needs to be much better informed about what American entities are doing at home and abroad, because these entities are often important parts of complex international systems. Intelligence experts cannot understand how perfect storms of danger develop beyond our borders — nor can American policymakers know how to deal with them effectively — unless they also understand the ways U.S. factors and capabilities affect them.
Rising to this challenge also requires a much more cooperative and trusting relationship among the IC, White House and Congress. To provide meaningful assessments, intelligence organizations must engage policymakers in their discussion of systemic variables and feedback loops early in the process. They must view their role as helping policymakers to identify variables they can influence, directly and indirectly, and to anticipate the possible impacts on the system of various policy options. They must help U.S. leaders strike an effective balance between punishing Beijing for hiding the true extent of COVID-19’s early spread — a necessary deterrent to future misconduct — and pushing it too far, particularly in an environment where the Communist Party’s reputation and Chinese President Xi Jinping’s own sagacity have taken a beating, and adopting measures that might boomerang against our own national security.
None of that can happen when the IC is an active player in domestic political warfare. In this regard, press leaks about the IC’s supposedly perspicacious warnings about the novel coronavirus threat are actually indications of collective failure. Such internecine strife destroys the trust necessary for frank dialogue among those attempting to understand the dynamics of problems such as the novel coronavirus crisis, and those attempting to manage them.
Reckoning with these problems should be an urgent matter for the acting Director of National Intelligence, a position created to bring together diverse entities and foster collaboration across the IC. The cascade of developments flowing from the outbreak of COVID-19 is far from over. To one degree or another, the United States, Europe, Russia and China all will be wounded — physically, economically and psychologically. These wounds could very well contribute to a dangerous new phase of great power competition. Understanding the dynamics that could send it spiraling beyond manageable bounds into deadly warfare is a vital task for American intelligence.
David B. Rivkin, Jr., is a constitutional lawyer who has served in the Justice and Energy departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He also worked for a number of years for the Defense Department as a defense and foreign policy analyst.
George S. Beebe is vice president and director of studies at the Center for the National Interest, former head of Russia analysis at the CIA, and author of “The Russia Trap: How Our Shadow War with Russia Could Spiral into Nuclear Catastrophe.”
By David B. Rivkin Jr. and Charles Stimson
March 19, 2020, in the Wall Street Journal
The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.
All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.
Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.
States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.
“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.
Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.
The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.
The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.
To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.
Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domesti law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.
Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.
Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.
Source: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429
By David B. Rivkin, Jr., and George Beebe
28 February 2020 in The National Interest
What does one do when the country’s intelligence leadership is acting, well, not very intelligently? That is the inescapable question prompted by last week’s reports that a senior representative of the Office of the Director of National Intelligence (ODNI) told members of the House Permanent Select Committee on Intelligence (HPSCI) in an official briefing that Russia is interfering in the 2020 U.S. presidential election and hopes to see President Donald Trump re-elected.
According to the New York Times account, Trump learned of this briefing only after the fact. And if press reports are accurate, the briefer cited no direct evidence of meddling on Trump’s behalf or of Russia’s broader intentions regarding U.S. presidential elections. Rather, the case was apparently based on inferences from such inherently ambiguous evidence as Russian hacking of the Ukrainian energy firm Burisma, supposedly done to help Trump dig up dirt on Hunter Biden. Such inferences were evidently reinforced by an assessment, lacking in analytical merit but redolent with politics, that the Kremlin would somehow naturally favor Trump over other 2020 presidential candidates.
Republican HPSCI members reportedly erupted in response. They disputed the plausibility of an assessment that Russia would prefer a president who has built up the U.S. military, proved willing to use force in the Middle East, greatly stiffened sanctions on Moscow, fought Russia’s Nord Stream 2 gas pipeline project, and toughened other policies affecting Russia. Why would Russians not favor Democrats who would cut the U.S. defense budget, balk at using military force, and impose a ban on fracking that would drive up global oil and gas prices and benefit Russia’s energy export earnings? Trump, in turn, called the allegation of Russian support a “hoax.”
Should Intelligence Assessments Be Taken with a Grain of Salt?
Should intelligence overseers in Congress, the White House, and media subject the judgments of professional analysts to tough scrutiny? History says yes. Formulating intelligence assessments is an inherently uncertain and difficult business. Even establishing basic facts is a challenge when dealing with adversaries, who attempt to shroud their capabilities in secrecy. Intelligence assessments of the Soviet nuclear forces buildup, for example, were plagued by both over- and under-estimations, leading first to erroneous American concerns about a “missile gap” under Khrushchev, and later to surprise when the Soviets tried to put missiles in Cuba and then pushed well past nuclear parity in the 1970s.
In fact, one of the key reasons for the consistent underestimations of the Soviet nuclear force posture circa 1970s–1980s, was not a failure of the U.S. technical collection capabilities, but the CIA’s failure to accept that Moscow’s key strategic goal was to be able to fight and win a nuclear war. Ironically, Moscow was not trying to hide its thinking on this issue, as numerous Soviet military officials laid out their nuclear war-fighting ethos in published books and articles. However, U.S. intelligence analysts discounted this evidence, believing that Moscow, whatever it might have been publicly saying and doing, somehow subscribed to a mutually assured destruction theory as the best way to both maximize deterrence and minimize the risks of nuclear war.
By contrast, in earlier years, the CIA greatly overestimated the then-existing Soviet nuclear capabilities. By the late 1950s, the Soviet Union was locked in a strategic arms competition with the United States, and it was losing badly. America enjoyed a considerable and growing advantage in both long- and intermediate-range nuclear forces. Yet, having embarked on an ambitious foreign policy designed to test American resolve, and possibly drive U.S. forces out of Berlin, Khrushchev was not prepared to curtail his aspirations.
To enhance his military capabilities vis-à-vis the United States, he could have deployed a number of costly, inaccurate and vulnerable first-generation ICBMs. Alternatively, he could have chosen to invest the USSR’s large, but not unlimited, resources in the development of more advanced land-based missiles (with deployment many years in the future) and other, more reliable, strategic delivery systems that might tip the nuclear balance in his favor.
Sensibly enough, he chose the latter course. However, to maintain the highest quality deterrence against the West and, even more to the point, to support the enhanced Soviet prestige necessary for an ambitious foreign policy, Khrushchev also engaged in an elaborate deception designed to make the West believe that Moscow had already fielded strategically meaningful numbers of advanced ICBMs. The Soviet leader’s public statements were supported by a carefully tailored intelligence disinformation campaign that not only tried to hide Moscow’s actual capabilities but also masked Soviet insecurities by suggesting Khrushchev wanted to challenge directly the United States in building up nuclear forces.
From Khrushchev’s perspective, the plan worked like a charm, at least temporarily. The alleged “missile gap” between the United States and the USSR was seized upon by a young Democratic Senator from Massachusetts, John F. Kennedy, to discredit the Eisenhower Administration and to defeat then-Vice President Richard M. Nixon in the 1960 presidential election. Not only did the Soviet Union avoid wasting billions of rubles, but Khrushchev concluded that he could outmaneuver the inexperienced Kennedy.
To be sure, Moscow’s gambit ultimately failed, as the U.S. eventually discovered that Moscow was not “cranking out missiles like sausages,” in Khrushchev’s oft-used expression, and blocked the Soviets from installing medium and intermediate-range missiles in Cuba. This did not, however, negate the fact that for a considerable period of time U.S. intelligence estimates about Soviet capabilities were profoundly wrong.
Divining Intentions Is Extra Hard
Discerning adversary capabilities is difficult enough, particularly when dealing with closed societies with strict government controls on information. But divining an adversary’s intentions is an even more challenging task. In part, this is because capabilities, even when ascertained with the utmost precision, often lend themselves to multiple explanations of intent. Americans accurately recognized that Japan would have enormous disadvantages in an extended war with the United States, but they did not imagine that Tokyo might nonetheless attempt a knock-out blow of the Pacific Fleet at Pearl Harbor. Israelis correctly understood that Egypt could not hope to defeat their forces on the battlefield, but they failed to consider that Sadat might still see some advantage in launching a surprise offensive in the 1973 Yom Kippur War.
Moreover, decisions made by heads of state can often surprise even their closest aides. Intelligence reporting can accurately convey information from highly-placed foreign officials, yet still miss the mark when it comes to portraying foreign intentions. This problem can arise either because the officials just do not know enough about the intentions of their superiors, or because their superiors changed their minds, or simply because their superiors chose to lie to them. Saddam Hussein, for example, deceived his own generals in leading them to believe that, despite the international sanctions imposed in the aftermath of the first Gulf War, Iraq retained operational weapons of mass destruction
The difficulty in grasping intentions is particularly acute when it comes to foreign influence operations. Often, media operations are aimed at little more than reinforcing a state’s diplomatic messaging. The BBC and Voice of America have long broadcast content into countries dominated by state-controlled media, hoping to provide audiences with alternative perspectives on events. But sometimes media campaigns are not intended to persuade, but to deceive and even subvert—to tear the social and political fabric of their target audiences and undermine government authority.
The objectives of such subversion, however, can be agonizingly difficult to ascertain with much confidence. Sometimes the goal of subversion can be to topple a foreign authority—to so damage the operations of a regime so that it can no longer function effectively and crumbles from within. In other instances, the aim is less ambitious and more pragmatic—to force the target leadership to do things it would rather not do, such as refrain from behavior perceived as threatening. And when creating controversial online content also happens to be the most effective way to attract views, generate clicks, and bolster advertising revenues, separating subversive intent from other more mundane motivations in digital media campaigns becomes even more challenging.
More generally, given the past record of intelligence failures—particularly when it came to the analysis of intentions of various hostile powers, and the fact that there are still ongoing debates about such key Cold War episodes as the real Soviet motivations that drove a series of Berlin crises, and the Cuban Missile Crisis—the notion that the judgments of the Intelligence Community about Russian intentions virtually delivered in real-time today should be accepted without skepticism is nothing short of risible.
What Does Moscow Want?
In view of such inherent challenges, what can we say about the renewed controversy over Russian electoral meddling? There is no doubt that Russians are continuing to post digital news and social media content aimed at American audiences. It is also clear that Russian hackers have targeted American electoral databases and vote-counting systems in the past. What is less clear are the motivations that lie behind this activity.
That it is aimed at securing the victory or defeat of any particular candidate or party is an unproven hypothesis at best. The Kremlin cannot fail to realize that any significant pro-Trump meddling would be exposed and would hurt rather than help his electoral prospects. This being the case, one might plausibly argue that the real reason Moscow might unveil some footprint of a pro-Trump campaign is because it would expect this to be discovered and actually harm Trump. In fact, such a scenario illustrates perfectly how difficult it is to ascertain Putin’s intentions, even if one had perfect evidence of what Moscow was actually doing in U.S. elections.