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 »

Apple, the FBI and free speech

A court order that compels the iPhone-maker to write and then sign new code may violate the First Amendment.

by David B. Rivkin, Jr., and Andrew M. Grossman, in USA Today

February 19, 2016

It would be one thing if Apple could carry out a court order that it unlock an iPhone used by the San Bernardino terrorists simply by waving a magic wand. But encryption isn’t magic; the order requires Apple to write and digitally sign a security-degraded version of its iOS operating system. That raises serious First Amendment concerns because the order amounts to a government-compelled speech.

The FBI picked this fight to set a precedent. For years, it’s been locked in a “crypto war” with Silicon Valley over how to provide law enforcement access to users’ data. So far, Apple, Google, and other companies have rebuffed demands to implement government back doors that defeat encryption and other security measures, arguing that such bypasses weaken security and facilitate abuses by criminals, corporate spies and foreign governments.

Apparently unable to identify a true ticking-time-bomb scenario to bring to court, the FBI settled for the next best thing: obtaining encrypted data off the workplace phone of shooter Syed Farook. The phone’s encryption is keyed to a passcode, and Apple’s software erases data after ten incorrect passcode attempts. So the government, relying on an aggressive reading of the 1789 All Writs Act, obtained an order directing Apple to “bypass or disable the auto-erase function” and make it possible to cycle through all possible passcodes.

While the FBI has previously obtained warrants requiring Apple to extract unencrypted data from devices running older software, this appears to be the first time that it has sought to conscript a company to write new software to circumvent security features. If it prevails, such a precedent will govern future cases. Read more »

Justice Scalia kept constitutional originalism in the conversation — no small legacy

by David B. Rivkin Jr. & Lee A. Casey, in the Los Angeles Times

“I’m Scalia.” That’s how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.

By turns combative, argumentative and thoughtful, Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench. He was also charming, witty and cordial, able to maintain a close friendship with Justice Ruth Bader Ginsburg, perhaps his leading intellectual rival on the Supreme Court’s left wing.

Appointed to the federal appeals court in Washington, D.C., by President Reagan in 1982, Scalia was elevated by Reagan to the Supreme Court in 1986. Scalia was, first and foremost, an “Originalist” — the title of a popular play about the justice that premiered last year in the capital. Scalia was not the first to argue that the Constitution must be applied based on the original meaning of its words — that is, the general, public meaning those words had when that document was drafted, rather than any assumed or secret intent of its framers. He did, however, supply much of the intellectual power behind the movement to reestablish the primacy of the Constitution’s actual text in judging.

With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory, which many had previously dismissed as hopelessly simplistic. Read more »