President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

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

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

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By David B. Rivkin Jr.

Editor’s note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption — that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

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“Congress has crossed a fundamental constitutional line.”

United States Supreme CourtAs the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.” The hearty laughs and chuckles have long since ceased.

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David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand. David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate. The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit www.texasbar.com.

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Constitutional Attorney David Rivkin to debate Harvard Law Professor at Texas Bar Association Meeting

The final word on the Obama administration’s signature health care law has yet to be spoken.  As the Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (aka ObamaCare) looms, organizations throughout the nation are lining up speakers and events to present their opinions—whether a pre-decision debate that might sway an undecided justice, or a post-mortem discussion on how the justices got it right or wrong.  Regardless of when the Supreme Court decision is handed down, the June 15 Texas Bar Association debate on the topic, the interchange promises to be both lively and substantive.

David Rivkin, an appellate attorney whom the Wall Street Journal credits with initiating the question of ObamaCare’s constitutionality and who represented the 26 states in the Florida health care lawsuit, will debate Harvard Law professor Einer Elhauge, who has filed amicus briefs asserting the legality of ObamaCare’s individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

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Congress’s power to regulate interstate commerce is broad but not limitless.

(published in The Wall Street Journal, March 21, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

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