October 30, 2017
By David B. Rivkin Jr. and James L. Connaughton
Oct. 12, 2017, in the Wall Street Journal
As President Trump decides whether to certify his predecessor’s nuclear deal with Iran, here’s another wrinkle he should keep in mind: The deal’s implementation violates federal law, namely the American Medical Isotopes Production Act of 2012.
That statute seeks to end the nuclear-proliferation risk associated with foreign production of radioactive substances for medical use using weapons-grade highly enriched uranium. U.S. doctors use a molybdenum isotope, moly-99, in 20 million procedures annually to detect early cancer, heart disease and other lethal illnesses. But the U.S. has no domestic production capability, relying instead on foreign suppliers who obtain the necessary highly enriched uranium from the U.S. government.
In enacting the 2012 law, Congress sought to end exports of highly enriched uranium while ramping up sufficient domestic production of moly-99 to satisfy U.S. needs. Since America uses roughly half of the world’s moly-99, robust U.S. production would cramp the ability of foreign isotope suppliers to control the market and sell their wares globally.
Under the 2012 law, the National Nuclear Security Administration is supposed to implement programs to encourage U.S. entrepreneurs to develop ways of making moly-99 without using highly enriched uranium, with the goal of making enough of it to justify permanently ending U.S. exports of highly enriched uranium. The Obama administration conspicuously failed to fulfill the law’s requirements. Moly-99 is not being produced in the U.S. and the U.S. government continues to export weapons-grade uranium overseas.
The Iran deal makes matters worse. It specifically permits Tehran an unlimited right to generate highly enriched uranium for use in medical isotope production. Iran is free to join with other producers to control supply and price. Earlier this year Ali Akbar Salehi, Iran’s former lead nuclear negotiator and now head of the Atomic Energy Organization of Iran, declared Iran’s intention to become a major supplier of medical isotopes. Most significantly, the Iran deal’s Joint Comprehensive Plan of Action commits the U.S. and other parties to assist Iranian medical isotope development with technology transfer, project finance, export credits and other forms of investment. The European Union has established a joint nuclear cooperation working group with Iran.
The U.S. cannot in good faith implement these obligations without evading its obligation under the American Medical Isotopes Production Act to curtail such foreign medical isotope production. Under U.S. law, there is no question which obligation prevails. The Obama administration, knowing the Senate would never ratify the JCPOA as a treaty, made it an “executive agreement” instead. Such agreements can have the force of law, but under our Constitution the president cannot unilaterally repeal a statute. It’s another reason the administration should declare the Iran deal null and void.
Mr. Rivkin, a Washington-based constitutional lawyer, served at the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Connaughton served as chairman of the White House Council on Environmental Quality, 2001-09.
By David B. Rivkin Jr. and Lee A. Casey
June 27, 2017, in the Wall Street Journal
In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.
The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.
The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.
The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity. Read more »
Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.
In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”
Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.” Read more »
By David B. Rivkin Jr. and Andrew M. Grossman
April 13, 2017, in the Wall Street Journal
The greatest mystery in Washington involves not Russian spies or wiretaps but Richard Cordray’s continued employment as director of the Consumer Financial Protection Bureau. In the face of President Trump’s mandate for change, Mr. Cordray continues the Obama administration’s regulatory crusade against lenders, blocking access to the credit that supports so many small businesses and so much consumer spending.
Why would a president who made a TV show out of firing underlings now suffer a subordinate who refuses to get with the pro-growth agenda he campaigned on? If reports from the West Wing are to be believed, Mr. Trump’s unusual timidity is the result of overcautious legal and political advice.
Mr. Cordray is insulated from presidential control by a New Deal-era innovation: a statutory clause that allows the president to fire an independent agency head only “for cause,” meaning “inefficiency, neglect of duty, or malfeasance in office.” In October a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia struck down that restriction an infringement of the president’s constitutional authority to “take care that the laws be faithfully executed.”
When Congress created the CFPB by passing the Dodd-Frank Act of 2010, Judge Brett Kavanaugh explained, it broke with decades of historical practice. Generally the power of independent agencies is diffused among multiple commissioners or directors so as to reduce the risk of abuse. Unless he can be fired, Mr. Cordray, as the sole director of the CFPB, wields more unilateral power than any government official save the president. Read more »
The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.
Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.
The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.