Should Noncitizens Be Represented in Congress?

by David B. Rivkin, Jr., and Richard Raile

24 April 2019 in the Wall Street Journal

The Supreme Court Tuesday will hear oral arguments in the Trump administration’s appeal of lower-court orders forbidding it to ask a citizenship question in the 2020 census. The justices’ task in Department of Commerce v. New York won’t be difficult: The law and facts overwhelmingly support the administration. But the case is a proxy for future battles over redistricting and reapportionment, vital components of American democracy that determine the balance of political power within and among states.

The Census Act grants the commerce secretary discretion to conduct the census “in such form and content as he may determine.” In rejecting the citizenship question, the lower courts usurped that authority and frustrated Congress’s intent. The question about citizenship is far from unprecedented: It was asked in every census but one from 1820 to 1950. Most advanced democracies ask for citizenship information in censuses, a United Nations-recommended best practice.

The administration argues that the citizenship data would help in enforcement of the Voting Rights Act, and that is manifestly true. By law, “majority minority” districts must be drawn so at least 50% of eligible voters—i.e., citizens over 18—are members of the minority in question. If too many minority residents are ineligible to vote, that defeats the purpose of avoiding the dilution of minority voting strength. Voting-rights litigation and compliance are hampered by the lack of citizenship data in the decennial census.

The plaintiffs in this case, which include 18 states and the District of Columbia, are using the litigation as a means of stifling the legal and policy debate over whether and how citizenship information should be used in redistricting and reapportionment. Read more »

Gerrymandering Disputes Don’t Belong in Court

By David B. Rivkin Jr and Richard Raile

26 March 2019 in the Wall Street Journal

Not every day does the Supreme Court have a chance to advance democracy and reverse a major mistake while also lightening its future workload. But it can do all those things in two cases it hears Tuesday dealing with gerrymandering of congressional districts.

In Davis v. Bandemer (1986), six justices agreed that courts can resolve complaints about so-called partisan gerrymandering, the drawing of district lines to favor the party that controls the process. In legal parlance, the justices held that such complaints are “justiciable.” But no five justices were able to agree on what legal principles courts should apply in deciding such cases. That question has been litigated ever since, including this week’s cases, Rucho v. Common Cause and Lamone v. Benisek. The court should put an end to this futile experiment by ruling that such claims are nonjusticiable political questions.

Electoral maneuvering, of which gerrymandering is one example, is as old as democracy itself. One of the more colorful examples is the English rotten boroughs system, which allowed the Crown and its supporters to control a substantial number of seats in the House of Commons until the passage of the Reform Act of 1832. Partisan gerrymandering strikes many observers as unfair, but it’s not clear what constitutional provision it might violate. The Constitution itself doesn’t even anticipate the existence of political parties.

The Constitution does address the question of who has the power to draw district lines. Article I, Section 4 provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” But the framers understood that what Alexander Hamilton called the “discretionary power over elections” entailed the danger, noted by James Madison, that legislatures might “mould their regulations as to favor the candidates they wish to succeed.” Hamilton went even further, saying unlimited state legislative authority over congressional elections would entail the power to “annihilate” the federal government.

Thus the same section also provides that “Congress may at any time by law make or alter such regulations.” That this delegation of power to Congress was the response to the possibility of abuse is powerful evidence that the Framers addressed the problem through the structural balance-of-power provisions and that a judicial check on legislatures’ politics is unavailable. Because the Framers agreed that a national election code was unworkable and that a benefit inhered in state legislatures’ ability to address local needs and traditions, they chose not to codify standards in the constitution. Read more »

Investigate McCabe’s 25th Amendment Tale

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

24 February 2019 in the Wall Street Journal

Did law-enforcement officials plot to remove President Trump from office? Andrew McCabe, former deputy director of the Federal Bureau of Investigation, suggests they might have. In a recent interview, Mr. McCabe said that in May 2017 Deputy Attorney General Rod Rosenstein “raised the issue” of using the 25th Amendment to remove Mr. Trump from office “and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort.” According to Mr. McCabe, Mr. Rosenstein was “counting votes or possible votes.”

Exactly what happened is unclear. A statement from Mr. Rosenstein’s office called Mr. McCabe’s account “inaccurate and factually incorrect” and asserted: “There is no basis to invoke the 25th Amendment, nor was the DAG in a position to consider invoking the 25th Amendment.” But this is a potentially serious matter, and should be fully investigated.

The 25th Amendment was ratified in 1967, primarily to provide for the appointment of a new vice president when that office becomes vacant, as it did when Lyndon B. Johnson acceded after John F. Kennedy’s 1963 assassination. It also contains a section creating a process whereby a president who is “unable to discharge the powers and duties of his office” can temporarily cede authority to the vice president, and one through which the vice president and a majority of “principal officers”—cabinet members—can sideline a president who is disabled but won’t acknowledge it.

It is that last provision that supposedly excited Mr. Rosenstein’s interest. Mr. McCabe said the idea came in a discussion of “why the president had insisted on firing the director [Mr. Comey] and whether or not he was thinking about the Russia investigation.” To prevent interference with that probe, Mr. McCabe said, he opened new counterintelligence and criminal investigations of the president in May 2017, both of which were shortly subsumed into the probe led by special counsel Robert Mueller, whom Mr. Rosenstein appointed.  Read more »

Obstruction of justice? Careful what you wish for, lawmakers

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

7 February 2018 in the Wall Street Journal

Democrats have attacked Attorney General-designate William Barr for a memo in which he argued against a legal theory some claim could support prosecuting President Trump for obstruction of justice. Mr. Barr argued that an exercise of the president’s constitutional authority—for instance, firing James Comey as director of the Federal Bureau of Investigation—cannot be construed as obstruction even if prosecutors believe he did so for improper reasons.

At his confirmation hearings, Mr. Barr rightly stood his ground. Critics should consider the implications of the motive-driven obstruction theory with respect not only to the president but also to the other branches of government. It has the potential to impair Congress, the judiciary and state governments as well.

The Constitution vests all executive power in the president, including decisions about high-level personnel, investigations, prosecutions and pardons. Human motives are rarely pure, and bad motives are often in the eye of the beholder. Presidents inevitably have self-interested objectives when exercising their authority—enhancing their political position, for example.

If the personal motivations behind every lawful official act could potentially be grounds for criminal charges, then presidents—and their subordinates, “from the Attorney General down to the most junior line prosecutor,” as Mr. Barr put it in his memo—might shirk supervisory authority over a wide variety of cases. Law enforcement would operate on an autopilot, with extreme harshness as the default approach. The result, as Hamilton put it in Federalist No. 70, would be “a feeble executive,” which “implies a feeble execution of the government” and produces “bad government.” Read more »

Democrats Abandon the Constitution

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

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

Read more »

The Rule of Law Prevails in the Travel-Ban Case

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

Read more »