Trump Can Ax the Clean Power Plan by Executive Order

President Obama pledged to wield a pen and phone during his second term rather than engage with Congress. The slew of executive orders, enforcement memorandums, regulations and “Dear Colleague” letters comprised an unprecedented assertion of executive authority. Equally unparalleled is the ease with which the Obama agenda can be dismantled. Among the first actions on President Trump’s chopping block should be the Clean Power Plan.

In 2009 Congress rejected a cap-and-trade scheme to regulate greenhouse-gas emissions. The Environmental Protection Agency then devised a nearly identical scheme to mandate shifting electricity generation from disfavored facilities, like those powered by coal, to those the EPA prefers, like natural gas and renewables. No statute authorized the EPA to seize regulatory control of the nation’s energy sector. The agency instead discovered, in an all-but-forgotten 1970s-era provision of the Clean Air Act, that it had that power all along.

To support its preferred policy, the agency was compelled to “interpret” the statute in a way that contradicts what it acknowledges is the “literal” reading of the text and clashes with decades of its own regulations. It also nullifies language blocking regulation for power plants because they are already regulated under an alternative program. By mangling the Clean Air Act to intrude on areas it was never meant to, the regulation violates the constitutional bar on commandeering the states to carry out federal policy.

These defects are why the Supreme Court put the EPA’s plan on hold while an appeals court in Washington, D.C., considers challenges brought by the energy industry and 27 states. These legal challenges now appear to have been overtaken by events. President Trump can immediately issue an executive order to adopt a new energy policy that respects the states’ role in regulating energy markets and that prioritizes making electricity affordable and reliable. Such an order should direct the EPA to cease all efforts to enforce and implement the Clean Power Plan. The agency would then extend all of the regulation’s deadlines, enter an administrative stay and commence regulatory proceedings to rescind the previous order. Read more »

Legislators go back to court for contempt ruling against McAuliffe

By David B. Rivkin Jr. and Andrew M. Grossman

September 11, 2016, in the Richmond Times-Dispatch

This past July, the cronyist government of Venezuelan President Nicolas Maduro threw out more than half of the signatures on a petition for a recall to remove him from office, citing “unclear handwriting.”

That is not a problem shared by Virginia Governor Terry McAuliffe, whose autopen machine traces a perfectly legible facsimile of his signature every time. Following the autocratic example of Venezuela and other rule-of-law pariahs, McAuliffe has his autopen working overtime to transform Virginia into a banana republic, one signature at a time.

The signatures — a mere 206,000 or so of them — are the centerpiece of McAuliffe’s scheme to circumvent the Virginia Supreme Court’s July ruling striking down his executive order that suspended the Virginia Constitution’s general rule stripping felons’ voting rights. The court agreed with legislative leaders who had challenged the order that it was not a legitimate exercise of the governor’s power to grant clemency in particular cases. It was, instead, an unlawful attempt to suspend the operation of a law simply because the governor disagrees with it.

Does he ever. The same day that the decision issued, McAuliffe told the press that he “cannot accept” it. A few days later, citing the venerable maxim that “you’ve got to do what you got to do,” he vowed that “all 206,000 (felons) will have their rights back” in a matter of weeks. Read more »

Let the Electoral College Do Its Duty

By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN
September 7, 2016, in the Wall Street Journal

To those counting the days until Nov. 8 when the presidential election campaign will finally end, some bad news: The contest won’t truly be decided until the Electoral College’s vote on Dec. 19. Then again, this could be good news for Americans who still hope to escape the dilemma presented by the major parties’ nomination of two unpopular candidates, Hillary Clinton and Donald Trump—but only if the electors’ constitutionally guaranteed independence is observed in the face of state laws seeking to control their votes.

America’s method of presidential selection is as peculiar and clever as the federalism and separation-of-powers principles that fostered it. To guard against the passions of populism, the Framers interposed a college of state-based electors between voters and the actual presidential selection. To discourage political obligation and intrigue, they provided that the electors would meet just once, in their respective states, for the sole purpose of casting ballots for the next president and vice president.

And to prevent the presidency from being captured by regional interests, they required the winner to obtain a majority of the Electoral College votes. Failing that, the election is thrown to the House of Representatives, to choose among the top three vote-getters.

Today, the Electoral College vote is regarded as a nearly mechanical process: The parties nominate their slates, elector seats are awarded (in most states) to the popular vote winner’s party slate, and a few weeks later the electors certify what the people have already chosen. Read more »

Gun control proposals in the wake of Orlando could endanger constitutional rights

By David B. Rivkin Jr. and Andrew M. Grossman in the Washington Post,  June 21, 2016

In the aftermath of horrific terrorist massacres such as the Orlando nightclub shooting, the natural impulse of the American people is to ask what the government can do to prevent such tragedies. Securing public safety is indeed the government’s most important job; keeping guns away from terrorists has obvious value. But this must be done in a way that complies with the Constitution.

This admonition has animated much of the recent debate about the rules governing National Security Agency surveillance of suspected terrorists. Regrettably, it has not been embraced in the gun control debate unfolding in the aftermath of Orlando.

Yet the Constitution’s due process protections are the vital safeguard of individual liberty and mitigate against arbitrary government action by setting the procedures the government must observe when it seeks to deprive an individual of a given substantive right.

Constitutionally “appropriate” procedure varies based on the importance of the right at issue and the risk of an erroneous deprivation of that right, and the government’s interest. For example, while government officials may commit a person who is dangerous to himself or others on an emergency basis, a judicial determination of the validity of the commitment must follow. Law enforcement officers may arrest a person they believe to be guilty of a crime, but the person who has been arrested is entitled to appear before a judge. Read more »

Punishing Climate-Change Skeptics

Some in Washington want to unleash government to harass heretics who don’t accept the ‘consensus.’

By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN

March 23, 2016 6:29 p.m. in the Wall Street Journal

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann ’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view. Read more »

Don’t bring Garland into 2016 presidential circus

by David B. Rivkin, Jr., and Lee A. Casey, USA Today, March 16th, 2016

President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court’s institutional legitimacy.

Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.

There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court’s own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government. Read more »