By David Rivkin and Andrew Grossman, 27 August 2015 in SCOTUSblog

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment. Read more »

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

The Iranian nuclear agreement announced on July 14 is unconstitutional, violates international law and features commitments that President Obama could not lawfully make. However, because of the way the deal was pushed through, the states may be able to derail it by enacting their own Iran sanctions legislation.

President Obama executed the nuclear deal as an executive agreement, not as a treaty. While presidents have used executive agreements to arrange less-important or temporary matters, significant international obligations have always been established through treaties, which require Senate consent by a two-thirds majority.

The Constitution’s division of the treaty-making power between the president and Senate ensured that all major U.S. international undertakings enjoyed broad domestic support. It also enabled the states to make their voices heard through senators when considering treaties—which are constitutionally the “supreme law of the land” and pre-empt state laws.

The Obama administration had help in its end-run around the Constitution. Instead of insisting on compliance with the Senate’s treaty-making prerogatives, Congress enacted the Iran Nuclear Agreement Act of 2015. Known as Corker-Cardin, it surrenders on the constitutional requirement that the president obtain a Senate supermajority to go forward with a major international agreement. Instead, the act effectively requires a veto-proof majority in both houses of Congress to block elements of the Iran deal related to U.S. sanctions relief. The act doesn’t require congressional approval for the agreement as a whole.

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By David B. Rivkin, Jr., and Lee A. Casey; July 21, 2015, in The National Interest

The best approach to Iran in the wake of President Obama’s deal is to recognize the complex nature of the problem, and the absolute need for a well-considered and comprehensive approach. The agreement cannot and should not be simply repudiated on the next president’s first day in office, as some Republican presidential contenders have suggested. The agreement is terrible, but once concluded, the national interest requires that it be undone only with care, patience, and masterful diplomacy—an approach championed by Gov. Jeb Bush and Senator Lindsey Graham. Indeed, to suggest otherwise, is to fail to appreciate the full extent of the damage done by the deal and the difficult foreign-policy legacy President Obama is leaving for his successor.

First and foremost, simply abrogating the deal—which already has been enshrined in a Chapter VII UN Security Council Resolution binding on the United States and all members of the United Nations—would actually put the United States in violation of its international obligations and will hand tremendous strategic benefits to Tehran. This may be inevitable, since Russia and China will certainly take advantage of any American action against Iran to score diplomatic and strategic points against us. But, we do not have to make it easy for them, and we should not.

In addition, whatever action the new president takes on January 20, 2017, Iran will remain free of the vast majority of the sanctions that brought it to the bargaining table in the first place. While the next president will be able to vitiate promptly President Obama’s waivers of the existing statutory sanctions—some of which are certain to go beyond his lawful waiver authority—thereby making the existing domestic statutory sanctions available, it would still make sense to consult with Congress on whether the sanctions regime needs adjustment in light of new circumstances.

Although President Obama has ignored Congress, or affirmatively sought to curtail its constitutional prerogatives, the next President should work with Congress and must seek to build a bipartisan consensus on how to meet the Iranian challenge. As Supreme Court Justice Robert Jackson wrote in the landmark case of Youngstown Sheet & Tube Co. v. Sawyer (1952), a president acts at the height of his constitutional authority when working with, rather than against, Congress.

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In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law. With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision.

King is the second time the Court has rescued the ACA. The first time, NFIB v. Sebelius (2012), involved a frontal assault on the constitutionality of the Act’s individual mandate and its mandatory Medicaid expansion. The five-Justice NFIB majority, led by Chief Justice John Roberts, saved the individual mandate by rewriting the word “penalty” to mean “tax,” and disregarding extensive legislative history indicating that Congress had intended to use its commerce power, not its taxing power.

The NFIB majority also ruled that the ACA’s mandatory Medicaid expansion violated federalism by unconstitutionally coercing states. Because the Medicaid expansion was integral to making the ACA “work,” this constitutional infirmity should have rendered the entire ACA unconstitutional pursuant to a severability analysis. But as with the individual mandate, the NFIB majority opted instead to save the ACA, transforming the Medicaid expansion from mandatory to “optional.” In the words of the four NFIB dissenters, the majority “save[d] a statute Congress did not write.”

To paraphrase Yogi Berra, King is déjà vu all over again. Once again, Chief Justice Roberts has penned a majority opinion rewriting the ACA, but with one important difference: This time, the Court’s rewrite does not even further the policy of “saving” the ACA. If the Court had ruled the other way, the ACA, while not performing well, would have remained largely intact, albeit in a less draconian form that was more respectful of states and individual liberty.
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By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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By DAVID B. RIVKIN JR. And ANDREW GROSSMAN, May 21, 2015

We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

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