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

December 26, 2016, in USA Today

President-elect Donald Trump is perfectly entitled to retain his business holdings, and to permit his adult children to run those businesses, as a means of avoiding conflicts-of-interest during his presidency. The Constitution does not require him to divest his holdings, nor do other federal laws.

Although many previous presidents have chosen to put their personal holdings in a “blind trust,” this was not required and in Trump’s case such a requirement would be particularly iniquitous. Trump could not simply liquidate his holdings in the public securities markets at market prices. He would have to find buyers for a vast array of real estate holdings and ongoing businesses. Each of those potential buyers would be well aware of his need to sell, and to sell quickly, and the value of his holdings would be discounted.

In addition, of course, the Trump Organization is a family business, as it has been since the time of Trump’s father. Most of his children are employed in that business. Neither law nor logic require Trump to pull the rug out from under them. A newly elected president is simply not required to make such personal sacrifices as the price of assuming an office to which he was constitutionally elected.

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The Constitution separates power in two ways: among the three branches of the federal government and between the federal government and states. As James Madison wrote in the Federalist Papers, separation creates “a double security” for liberty because “different governments will control each other, at the same time that each will be controlled by itself.”

The Obama administration has spurned this core constitutional principle, aggrandizing executive power at the expense of Congress and states. It has rewritten laws, disregarding its constitutional duty to faithfully execute them.

ObamaCare’s implementation provides multiple examples: delaying statutory deadlines, extending tax credits to groups Congress never included, exempting unions from fees, expanding hardship waivers beyond recognition and granting “transition relief” for preferred employers. Read more »

By David Rivkin and Elizabeth Price Foley

December 7, 2016, in the Los Angeles Times

Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.  

But whatever one thinks about Trump’s strategy, it almost certainly would pass muster at the Supreme Court.Several cities and public universities have vowed to resist President-elect Donald Trump’s plan to deport undocumented criminals by doubling down on sanctuary policies. In response, Trump has pledged to curtail federal funding for sanctuary providers. Activists, predictably, are crying foul, and some legal scholars, such as Harvard’s Noah Feldman, have even claimed that such a response would be unconstitutional.  

Feldman and others point to New York v. United States (1992) and Printz v. United States (1997), in which the Supreme Court concluded that the federal government cannot conscript state or local officials to carry out federal law. The federal government must enforce its own laws, using federal personnel. So when state or local police arrest immigrants who are present in the country illegally, they are under no obligation to deport them, as deportation is the responsibility of the federal government alone. 

This “anti-commandeering” doctrine, however, doesn’t protect sanctuary cities or public universities — because it doesn’t apply when Congress merely requests information. For example, in Reno v. Condon (2000), the Court unanimously rejected an anti-commandeering challenge to the Driver’s Privacy Protection Act, which required states under certain circumstances to disclose some personal details about license holders. The court concluded that, because the DPPA requested information and “did not require state officials to assist in the enforcement of federal statutes,” it was consistent with the New York and Printz cases.

It follows that, consistent with the anti-commandeering doctrine, Congress can require state, local or university police to tell federal agents when they arrest an immigrant present in the country illegally. Read more »

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

November 22, 2016, in the Washington Post

Suggestions that President-elect Donald Trump put his business holdings in a “blind trust” to avoid potential conflicts of interest are unrealistic and unfair. Such a trust would not eliminate the virtual certainty that actions Trump takes as president will affect his personal wealth, for good or ill. The step is not required by law. And presidents who have chosen to use this device held very different assets than Trump’s. He can keep his holdings and adopt a reasonable system to avoid conflicts and reassure the American people that the Trump administration is acting ethically.

To establish a blind trust of the sort used by his predecessors, Trump would not merely have to liquidate a securities portfolio and permit an independent trustee to manage those assets. He would have to sell off business holdings that he has built and managed most of his life, and with which he is personally identified in a way that few other business magnates are.

These businesses also provide employment for many thousands of people, including his children. All of it would have to go. This liquidation would by definition take place in the context of a “buyer’s market,” and so Trump would also be required to accept a vast personal loss in financial worth. Those suggesting the blind trust model must understand that their proposal is a poison pill Trump will not swallow.

Moreover, requiring Trump to liquidate his holdings would discourage other entrepreneurs from seeking the presidency, leaving the field clear for professional politicians and investors. Given that the American people have made clear their disgust with Washington’s elite, creating a disincentive for businesspeople to seek the presidency is not in the public interest. Read more »

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 »

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech. Read more »