Is the President Trumping Constitutional Norms?

Since taking office, President Trump has been derided by the mainstream media and his critics as running roughshod over constitutional norms, fueling the conviction of liberals and some moderate conservatives that the 45th President poses an ongoing threat to the Constitution. In a Heritage Foundation podcast, David Rivkin joins constitutional scholar John Yoo (author of Defender in Chief), who argues that Trump’s adversaries have things exactly backwards. Far from considering Trump an inherent danger to our nation’s founding principles, Yoo contends that the Framers would have seen Trump as restoring their vision of presidential power. It is instead liberal opponents who would overthrow existing constitutional norms in order to unseat Trump, thereby inflicting permanent damage on the presidency.

Madison Warned About ‘Sanctuary’ States

By David B. Rivkin Jr. and John S. Baker Jr.

Aug. 2, 2020, in the Wall Street Journal

President Trump met wide derision last month when he issued an executive order excluding illegal aliens from the census numbers used for apportioning House seats. “Persons means persons,” Thomas Wolf of the Brennan Center for Justice told a reporter. “Everyone must be counted.” But counting is different from allocating political power, and Mr. Trump has the better constitutional argument.

Section 2 of the 14th Amendment provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” This revises a provision in Article I that uses similar language but also includes the infamous Three Fifths Clause.

When voting on the latter provision, the Constitutional Convention used the term “number of inhabitants.” The Committee on Style shortened that to “numbers,” but that linguistic change was of no import. As Chief Justice Earl Warren noted in Powell v. McCormack (1969), the committee wasn’t authorized to make substantive changes to previously voted provisions. In Wesberry v. Sanders (1964), Justice Hugo Black wrote for the court that “the debates at the Convention make at least one fact abundantly clear: that . . . in allocating Congressmen, the number assigned to each State should be determined solely by the number of the State’s inhabitants.”

The administration argues that illegal aliens don’t qualify as inhabitants, and it’s right. The definition of “inhabitant” at the time of the Founding had an important political and economic context because of the legal responsibility of localities to care for the destitute under the 1601 Act for the Relief of the Poor. An inhabitant was a person who rightfully resided in a jurisdiction, contributing to and qualifying for available benefits. Like illegal aliens today, those whose presence was unlawful were not considered inhabitants and were subject to removal.

According to the 2018 Yale study, there are at least 16.7 million, and more likely around 22.1 million, illegal aliens in the U.S. The apportionment following the 2010 census yielded congressional districts containing roughly 710,000 people each. That means the illegal-alien population is the equivalent of around 30 districts, more than any state except California (53) or Texas (36).

States inflating census numbers has been a ever-present danger to the proper functioning of America’s federalist system. In Federalist No. 54, James Madison addressed what he called states’ “interest in exaggerating their inhabitants” to bolster their representation in Congress: “It is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers.”

Millions of illegal aliens are distributed disproportionately throughout the U.S., more than enough to cause shifts in apportionment of congressional seats, which also affect the Electoral College. In an example of the kind of swelling Madison warned about, some states and localities entice illegal aliens with “sanctuary” laws promising to shield them from federal law enforcement and provide them free health care and other benefits. In the years ahead, that could make the illegal alien population become larger and more concentrated in these states.

Yet this is not simply a blue vs. red state conflict over political power. Sanctuary state California will lose representatives if illegal aliens are excluded from apportionment, but so will Texas and Florida. It is also a Sun Belt vs. Rust Belt conflict. States like Indiana, Michigan, Pennsylvania and Ohio are the ones that stand to gain (or at least not lose) in apportionment under the president’s plan.

Since only a few states lose representation after each decennial census, this gradual erosion of political power has rarely been challenged. The Supreme Court has never addressed the constitutionality of including illegal aliens in congressional apportionment and has only occasionally been asked to do so (including in a 2011 case in which we represented Louisiana). When the court rejected Mr. Trump’s proposed citizenship question on the census, it was on technical administrative procedure ground, not the merits.

That leaves it to the political branches to carry out the constitutional mandate of counting only inhabitants for reapportionment. Congress has done so, by enacting statutes giving the president wide discretion on reapportionment decisions. Mr. Trump is right to take the next step.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Baker is a visiting professor at Georgetown’s Center for the Constitution and a professor emeritus at Louisiana State University Law Center.

Source: https://www.wsj.com/articles/madison-warned-about-sanctuary-states-11596396761

A Way to Curb Chinese Intimidation

By David B. Rivkin Jr. and Anastasia Lin

July 13, 2020, in the Wall Street Journal

Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.

Corporations typically kowtow, fearful of losing access to China’s massive market. International airlines, including American, Delta and United, changed their websites so that Taipei isn’t listed as being in Taiwan. The general manager of the National Basketball Association’s Houston Rockets apologized for tweeting an image that read “Fight for Freedom. Stand with Hong Kong.” Mercedes-Benz apologized for an English-language Instagram post that included an innocuous quote from the Dalai Lama. The Big Four accounting firms issued statements criticizing Hong Kong protests after some of their employees took out an ad supporting them.

Using its economic power to pressure Western corporations is a key element of Chinese statecraft. The Communist Party keenly appreciates that Western entities are far more credible than Chinese government or media. China scrutinizes statements by Western companies, focuses on those that are even mildly critical of its behavior, and threatens them on social media with economic retaliation and blacklisting.

Such threats often appear to emanate from private Chinese citizens. But given the government’s heavy censorship of Chinese social-media platforms, they inevitably bear the party’s imprimatur. Moreover, the Chinese government almost always backs up the statements attributed to its citizens, waging a joint campaign, so that the language of these “private” complaints tracks Communist Party propaganda.

Beijing also attempts to suppress authentic Chinese voices critical of its human-rights abuses. One of us (Ms. Lin) represented Canada in the Miss World 2016 finals in Washington. The London-based Miss World Organization—most of whose sponsors are Chinese companies—isolated her from the media during the pageant and threatened to disqualify her after she was seen speaking informally to a Boston Globe columnist. The ban on her contact with journalists was ameliorated only after intense public pressure.

It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines. In response to the Arab League boycott of Israel, Congress in 1977 made it illegal for U.S. companies to cooperate with any unsanctioned foreign boycott and imposed civil and criminal penalties against violators. That legislation and the implementing regulations “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy,” according to the Commerce Department.

Antiboycott regulations forbid U.S. companies to “agree” to eschew doing business in Israel or with a company already blacklisted by the Arab League, or to cooperate with the boycott’s enforcement by providing information about business relationships with Israel or blacklisted companies. All requests for such cooperation must be reported to the Commerce Department. The regulations presume that any action taken in response to boycott-related requests violates the law. It isn’t sufficient to claim that one’s boycott-related speech or activity is based on one’s own views.

These regulations survived legal challenges from companies that claimed violations of their First Amendment right to free speech. Federal courts upheld the rules as narrowly tailored restrictions on commercial speech driven by a compelling government interest. American companies eventually grasped that the rules protected them from foreign pressure. In time, antiboycott compliance became part of American corporate culture and didn’t require much enforcement.

Beijing’s efforts to force American companies to support and comply with its propaganda and deception campaigns and furnish information on Chinese dissidents are similarly inimical to vital American interests. Preventing Western companies from participating in Chinese propaganda campaigns would diminish China’s soft power and impair its ability to use economic blackmail as a tool of statecraft.

Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents. In particular, they would be barred from changing their public statements and social-media presence in response to Chinese pressure or from taking other steps to placate Beijing, whether its demands are communicated directly or indirectly. Any such Chinese demands would have to be reported to the U.S. government.

With most Americans—91%, according to a March Pew Research Center report—agreeing that Beijing threatens American interests, such legislation should be able to win bipartisan support. It would also be constitutionally defensible as a narrowly tailored regulation of commercial speech supported by a compelling government interest—countering Beijing’s push for global dominance.

The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech. Like the antiboycott laws, such a statute would protect Western companies, enabling them to tell Beijing that they are unable to comply with its demands. The U.S. can’t stop Chinese state institutions from spreading propaganda, but it can use the law to shield Western companies from the Communist Party’s intimidation.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Ms. Lin, an actress, was Miss World Canada 2015 and 2016. She is the Macdonald-Laurier Institute’s ambassador for China policy and a senior fellow at the Raoul Wallenberg Centre for Human Rights. She is the wife of James Taranto, the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/a-way-to-curb-chinese-intimidation-11594680594

Does the president have the power to start a war?

War has long been the subject of vigorous debate. The United States Constitution gives Congress the power to declare war and appoints the president as commander-in-chief of the military. When it comes to war, who holds the power to ultimately decide the actions of the United States? Gene Healy, vice president at the Cato Institute; David B. Rivkin Jr., partner at BakerHostetler; and Margaret L. Taylor, governance studies fellow at the Brookings Institution will discuss in this episode: does the president have the power to start a war?

This podcast comes as part of Project Sphere, a collaboration between the Cato Institute and the Brookings Institution .

Why we need a little skepticism, and more evidence, on Russian bounties

By David B. Rivkin Jr. and George S. Beebe

July 5th 2020 in The Hill

The most fundamental task of both journalists and intelligence analysts is to clarify the often blurry line separating truth and falsehood. They must deal with a firehose of unverified claims pouring into their inboxes daily, and the consequences of lending credence to false reports can be severe. Sound analysis requires a careful balance between over- and under-connecting the dots. The recent track record in this endeavor, however, is discouraging. The Russian bounty controversy is the latest example.

This story has unfolded in two parts. The first is the allegation, which has seized American media headlines, that a secret Russian military intelligence unit has been paying Afghan militants to kill Americans. The second is the claim that President Trump either knows about this activity and has done nothing, or has preemptively closed White House doors to reports of Russian malfeasance.

The initial question to ask in evaluating the veracity of the allegation is, how credible are the sources? Here, the answer: not very. According to the New York Times, the primary sources are militants and criminals captured and interrogated by Afghanistan’s government. But human sources are often intentionally or unintentionally misleading. Captured militants frequently tell their interrogators things they hope will win more lenient treatment. Others relate stories they honestly believe, but amount to little more than hearsay. “Curveball,” the aptly named source for the now discredited claim in 2002 that Iraq had built mobile biological weapons laboratories, simply lied to his intelligence handlers to advance his anti-Saddam agenda.

The second question is, what other information might support or disconfirm the allegations? Here, too, there is reason for skepticism. The Times cites evidence of “large financial transfers” from Russian military intelligence to the Taliban. But scrutiny of that datapoint raises some puzzling questions. Between 14 and 22 Americans were killed in Afghanistan each year from 2016 to 2019; nine have been killed so far this year. If the Russian money indeed was sent to fund a bounty program within this time frame, why has it not had much impact? And if the Times report of large financial transfers — one of which was at least $500,000 — is accurate, it would appear that the typically tight-fisted Russians either were paying enormous sums per kill or were paying in advance, which is not how bounties usually work.

Which brings us to a third question: Who benefits from these allegations? The list certainly includes the central Afghan government, which has overseen the interrogations on which the story is based and desperately wants the U.S. military to remain in Afghanistan, despite President Trump’s efforts to wind down our presence. Few things could more effectively throw a wrench into the gears of Afghan peace talks than credible reports that the Taliban is working with Russians to kill Americans. The list also includes Trump’s domestic political opponents, who long have attempted to tar him with false accusations of working on the Kremlin’s behalf or even on its payroll. The discredited Russian collusion story is a prime example of this effort.  

Notably, the list does not include Russia. Moscow encouraged and supported the U.S. war against the Taliban for many years after the 9/11 attacks, but as the United States has drawn down its presence, it has backed both a U.S. withdrawal and peace talks with the Taliban. The Kremlin is not looking for ways to impede U.S. departure from a region that Moscow once dominated. Rather, it is trying to cultivate relationships with the many warlords and factions that are likely to rule Afghanistan’s various regions in the aftermath of the American withdrawal. That effort very likely includes limited provisions of weapons and money to Taliban leaders, but it would be quite surprising if it also included special bonuses for killing individual Americans.

Why such skepticism? For one thing, this kind of scalp-hunting would be an unprecedented escalatory act. Even at the height of the Cold War, both the Soviet Union and the United States refrained from such activity, despite engaging enthusiastically in proxy warfare in theaters around the world. The KGB even sought an explicit understanding with the CIA that neither organization would kidnap or assassinate its rival’s personnel, largely because it feared where such targeting could lead.

Russia today is undoubtedly hostile toward the United States and desirous of curtailing American global influence, but it nonetheless has not thrown all caution to the wind. There is no evidence that the Russians are head-hunting in Syria, where they would have greater incentives to target Americans and greater ability to do so. Instead, they have by universal acknowledgement worked with their U.S. counterparts to deconflict Russian and American military operations there. In 2018, when U.S. forces used the deconfliction channel to warn of a looming attack by a large contingent of Russian mercenaries who were trying to dislodge the U.S. from a strategic position in Syria, Russian officials did nothing to dissuade U.S. commanders from counterattacking, and Moscow did absolutely nothing after hundreds of Russian fighters were subsequently killed and wounded.

Finally, it is impossible to escape the impression that the rush toward outrage over the Russian bounty allegations is tinged with more than a whiff of hypocritical political opportunism. Senior Democrats who have been quick to charge Trump with treason for failing to punish the Russians might recall their own support for striking nuclear deals and lifting sanctions on Iran not long ago, despite undisputed facts that Teheran provided actual training, operational intelligence and weapons to Iraqi insurgents that led to the killing and maiming of thousands of American soldiers.

None of this disproves the allegation that the Russians are paying bounties for dead Americans in Afghanistan, an activity that, if true, would require a resolute U.S. response. It is not out of the question that the Russian government or parts of it might see such bounties as payback for perceived U.S. perfidy in Ukraine, Georgia and Russia itself. But it certainly means that the standard of evidence for validating such allegations should be much higher than our media’s barely concealed lust to embrace them would suggest.

Confirmed or not, the allegations should serve as a sobering reminder that unconstrained shadow warfare with Moscow can produce genuine dangers for Americans. One glaring difference between the Cold War and today is that the Cold War was fought within the parameters of agreed rules. Today, we have almost none. We would be wise to consider this as our national discourse on Russia proceeds.

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 specializing in Soviet nuclear weapons policy.

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.”

Source: https://thehill.com/opinion/national-security/505804-why-we-need-a-little-skepticism-and-more-evidence-on-russian

RFK vs. D.C. Statehood

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

July 2, 2020, in the Wall Street Journal

Voting along party lines except for one Democratic dissent, the House last week approved a bill to grant statehood to almost all of the District of Columbia – and create two safe Democratic Senate seats in a city that typically votes 90% Democratic in presidential elections. But while Congress has the power to admit new states, changing the district’s status would require a constitutional amendment.

The Framers had good reason to put the capital outside the borders or control of any state. Attorney General Robert F. Kennedy, writing in opposition to a 1964 statehood bill, summed up their view: “It was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State.”

In 1783, a mutinous band of Continental solders drove Congress out of Philadelphia after Pennsylvania’s government refused assistance. The recent protests and riots in Washington’s streets make it easy to imagine a similar clash if the federal government lacked sovereignty over the city. To prevent such a situation, the Constitution’s Framers wrote a provision giving Congress the power “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States.” Congress took over 100 square miles of Maryland and Virginia with the District of Columbia Organic Act of 1801.

In 1846, Congress retroceded Virginia’s portion, now Arlington County and a portion of the city of Alexandria. Was that constitutional? We think not. While the retrocession didn’t alter the configuration of the district in as fundamental a way as the House is now trying to do, the most logical reading of the Constitution is that no change in the district’s boundaries is permissible and that the original cession is irrevocable.

The Supreme Court has never ruled on the question. When it reached the justices, in Phillips v. Payne (1875), they dismissed the case, holding that the plaintiffs – taxpayers seeking reunion with the District of Columbia, which had lower taxes than Virginia – lacked standing. But if Congress approves statehood, other states would clearly have standing to challenge the dilution of their voting rights by the addition of two senators from an area ineligible for admission as a state.

The House bill attempts to hew to the Constitution’s design by excluding a small area of the district – including the White House, other federal buildings and the National Mall – and leave it as a federal district. RFK rejected a similar proposal in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings … clearly does not meet the concept of ‘the permanent seat of government’ which the framers held.”

There’s an additional problem: The bill violates the 23rd Amendment, ratified in 1961, which enfranchised the district’s residents in presidential elections. The amendment allocates three electoral votes to “the district constituting the seat of government of the United States.” Under the House bill, that would not be the new state (which would get three electors of its own), but the rump federal district, which lots of structures but few or no inhabitants.

The bill provides for “expedited procedures” in both congressional chambers to propose an amendment repealing the 23rd. But doing so would require two-thirds majorities, and ratification needs approval from 38 state legislatures. That would require broad bipartisan cooperation – a tall order in today’s political climate, especially if one party sees an advantage in leaving the problem unsolved.

There are strong arguments for granting Washington residents representation in Congress. The Framers understood and were troubled by the undemocratic contradiction of denying capital residents the vote. Alexander Hamilton believed the federal district should have representation in the House but not the Senate (whose members were chosen by state legislatures until 1913). James Madison countered that the new capital’s residents would have an elected local government and “find sufficient inducement of interests to become willing parties to the cession” to justify their lack of congressional representation.

The District of Columbia has always been an imperfect solution to a constitutional problem. The debate over its role and status will and should continue. But abolishing the permanent seat of the federal government would be a profound change – the sort that can be accomplished only with a national consensus implemented through a constitutional amendment, not by a law pushed through for partisan advantage.

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

Source: https://www.wsj.com/articles/rfk-vs-d-c-statehood-11593709155