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

August 10, 2022, in the Wall Street Journal

The warrant under which federal agents searched Donald Trump’s Florida home hasn’t been made public, but press leaks suggest that it was related to the former president’s suspected mishandling of official documents. That has prompted speculation that Mr. Trump could be prosecuted under a law governing the misuse of federal government documents, which includes a provision for disqualification from federal office. According to this theory, if Mr. Trump is convicted, he would be ineligible to serve a second term as president. It won’t work. The theory is deficient on both statutory and constitutional grounds.

Presidential records were traditionally considered the former president’s personal property. Congress acknowledged this in the Presidential Libraries Act of 1955, which “encouraged”—but didn’t require—ex-presidents to deposit their papers for the benefit of researchers and history.

After President Richard Nixon resigned in August 1974, he struck an agreement with the archivist of the United States to donate his papers, but he reserved the right to destroy certain materials, including some of the infamous Watergate tapes. To prevent this, Congress enacted the Presidential Recordings and Materials Preservation Act of 1974. That law, which applied only to Nixon, required these materials to be secured by the government and ultimately made public under appropriate regulations. It provided for financial compensation to the former president, a further acknowledgment of his property interest in the materials.

The Presidential Records Act of 1978 addressed the handling of later presidents’ papers. The PRA asserts government ownership and control of “presidential records,” as defined in the statute, and requires the archivist to take possession of these records when a president leaves office, to preserve them, and to ensure public access. There are important exceptions—in particular, for qualifying materials designated by a lame-duck president to be held confidential for 12 years after he leaves office. These materials include “confidential communications requesting or submitting advice, between the president and the president’s advisers, or between such advisers.”

The law also directs presidents to “assure that the activities, deliberations, decisions, and policies” reflecting the execution of their office are “adequately documented.” Once created, these records must be preserved and managed, or disposed of, in accordance with the statute. The PRA defines presidential records to include “documentary materials” created or received by the president or his immediate staff in carrying out activities related to his official duties. Presidential records don’t include records of a “purely private or nonpublic character” unrelated to the execution of the office.

Significantly, while the PRA vests the U.S. District Court for the District of Columbia with jurisdiction over any action brought by a former president claiming a violation of his rights or privileges under the act, it establishes no penalties, civil or criminal, for its violation. The statute also guarantees that “presidential records of a former president shall be available to such former president or the former president’s designated representative.”

Other federal statutes may permit the prosecution of people who improperly dispose of presidential records, which are now considered government property. The one of most interest to Mr. Trump’s foes appears to be 18 U.S.C. Section 2071(b), which imposes fines and up to three years’ imprisonment on anyone having custody of records deposited in a “public office” who “willfully and unlawfully” mishandles these records. It provides that on conviction, the defendant “shall forfeit his office and be disqualified from holding any office under the United States.”

But the Constitution forbids that result with respect to the presidency. Even assuming the government could prove beyond a reasonable doubt that Mr. Trump deliberately mishandled government documents knowing this to be a violation of federal statute—a difficult task, since the PRA itself guarantees his access to his presidential records and former presidents are generally entitled to receive classified information—a court couldn’t disqualify him from serving as president.

The Constitution establishes the qualifications for election to the presidency: Only natural-born American citizens over 35 who have been U.S. residents for at least 14 years may serve. The Constitution also provides the only mechanism whereby an otherwise qualified person may be disqualified from becoming president: This penalty can be imposed (by a separate vote of the Senate) on someone who has been impeached and convicted for high crimes and misdemeanors. The proposed application of Section 2071(b) to the presidency would create an additional qualification—the absence of a conviction under that statute—for serving as president. Congress has no power to do that.

In Powell v. McCormack (1969) and U.S. Term Limits Inc. v. Thornton (1995), the Supreme Court decided comparable questions involving the augmentation of constitutionally established qualifications to serve in Congress. In the former case, the House refused to seat a constitutionally qualified and duly elected member, Rep. Adam Clayton Powell Jr. of New York, because it concluded he had diverted House funds to his own use and falsified reports of foreign-currency expenditures. The justices ruled that Powell couldn’t be denied his seat on these grounds, as that would effectively add an extraconstitutional “qualification” for office. That, they concluded, would deprive the people of an opportunity to elect candidates of their choice, contrary to the Constitution’s structure. The court cited Federalist No. 60, in which Alexander Hamilton wrote: “The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.”

The high court reaffirmed that conclusion in Thornton, which struck down an Arkansas ballot measure imposing term limits on the state’s U.S. representatives and senators. The justices articulated as their “primary thesis” that “if the qualifications for Congress are fixed in the Constitution, then a state-passed measure with the avowed purpose of imposing indirectly such an additional qualification”—in this case, not having already served a specific number of terms—“violates the Constitution.”

Using Section 2071(b) to disqualify Mr. Trump (or anyone else) from serving as president is unsupportable under Powell and Thornton. Such a claim would be far weaker than the one the House made in Powell, as the constitution authorizes each congressional chamber to judge the “qualifications of its own members” but gives Congress no authority over presidential qualifications. The only constitutional means to disqualify a president for wrongdoing is through impeachment and conviction.

If preventing Mr. Trump from running in 2024 was the purpose of the Mar-a-Lago search, the government wasted its time and the taxpayers’ resources.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/trump-cant-be-disqualified-over-documents-fbi-mar-a-lago-presidential-records-act-constitution-impeachment-conviction-supreme-court-2024-11660159610

By Paula J. Dobriansky and David B. Rivkin Jr.

Nov. 11, 2020, in the Wall Street Journal

As an insular nation with a population smaller than Ohio’s, Cuba plays an outsize role in both world affairs and U.S. domestic policy. Either President Trump, who won Florida, or Joe Biden, who’d have liked to, should take stock of the Cuban regime’s actions—among them gross violations of human rights, efforts to destabilize the Western Hemisphere, and broad collaboration with China, Iran, North Korea and Russia. The U.S. needs a bold new approach, using corruption-focused sanctions against Cuban officials and their accomplices.

One of the most reprehensible aspects of Cuban statecraft has been its trafficking every year of some 50,000 medical doctors, who are effectively enslaved and forced to work in other countries. “The Cuban regime takes up to 90% of what they charge . . . other countries for each doctor, pocketing considerable revenues and exploiting the doctors, who receive but a pittance,” Michael Kozak, the acting assistant secretary of state for Western Hemisphere affairs, said in an April briefing. Cuban government 2018 figures indicate slave labor brings in $7 billion a year and that it is the regime’s single largest source of revenue, accounting for 60% of its total foreign income.

Past U.S. administrations have pursued various policies toward Cuba, ranging from the decades-long economic embargo and restrictions on travel to a “normalization” policy under President Obama. Mr. Trump rolled back the Obama administration’s policy and reimposed comprehensive sanctions—but more needs to be done.

The U.S. should target Havana’s most heinous policies and do so in a way that would be difficult for its allies and supporters to counteract. The key to the new strategy is the Global Magnitsky Act of 2016, known informally as GloMag. It authorizes sanctions to cut off Cuban officials and their accomplices from global financial services, augmenting traditional sanctions that have cut them off from the U.S. financial industry.

The 2012 Magnitsky Act targeted individual Russian officials involved in the killing of lawyer Sergei Magnitsky in prison in 2009. The GloMag expanded that regime to cover foreign government officials implicated in human-rights abuses and corruption anywhere in the world.

President Trump further expanded the GloMag program in 2017, through Executive Order 13818, which broadens the scope of conduct that can trigger sanctions from “gross violations of internationally recognized human rights” to “serious human rights abuse,” and replaces “significant acts of corruption” with the broader term “corruption.” Since the law’s passage, the U.S. has imposed GloMag sanctions on individuals and entities from more than 20 countries, most recently designating for corruption Gibran Bassil, a senior Lebanese official. Still, these designations came in a trickle, rather than a wave.

Sanctions—including asset freezes, travel bans and exclusion from financial services—should be imposed on Cuban government officials involved in a variety of acts, all of which inevitably involve corruption, such as human trafficking, violating sanctions against Iran and North Korea, and drug trafficking. Sanctions should also target their agents or associates, whether or not they work for the government. There is sufficient available evidence that the Treasury’s Office of Foreign Assets Control could quickly make GloMag designations and rapidly adjust them as the targets attempt to circumvent sanctions. These designations could also be made even more expeditiously by a presidential executive order.

If adroitly deployed on a large scale, GloMag sanctions would cut deeply into Havana’s revenues and impair the ability of virtually all Cuban officials and their allies to do business or even travel. GloMag and other legal tools also allow the U.S. to reach third parties, who have financial or other dealings with targeted Cuban officials. Those parties could be subjected either to sanctions or criminal prosecution. The availability of these legal tools would reduce support for the Cuban regime world-wide.

Because European Union governments and other U.S. allies have vigorously embraced anticorruption policies, they would find it difficult to oppose this strategy. Canada, Britain and several other Western countries have GloMag-like sanction statutes of their own.

Domestically, a strong stand against the modern slave trade that underpins Havana’s statecraft should draw bipartisan support. Internationally, given Britain’s indispensable role in eradicating the trans-Atlantic slave trade in the 19th Century, London should be a U.S. partner in cracking down on Cuba-driven slave trade and corruption. By strategically employing GloMag, the U.S. can curtail Cuba’s malign activities and push the Cuban regime toward major reforms.

Ms. Dobriansky is a senior fellow at Harvard’s Belfer Center. She served as undersecretary of state for global affairs, 2001-09. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/how-trump-or-biden-can-get-serious-about-human-rights-in-cuba-11605134209

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

Nov. 6, 2020, in the Wall Street Journal

Whoever first quipped “It’s all over but the counting” forgot about the lawyers. Over the past year, Democrats and their allies marched through state after state in an unprecedented legal campaign to upend longstanding rules of election administration. The result is more uncertainty than ever over the basic rules of voting, and an increased likelihood that races will have to be called by the courts. Although it’s too early to say for certain, that may include the presidential election.

The battle lines are being drawn in states President Trump needs to win. Pennsylvania provides a typical illustration. In 2019 the state overhauled its election code to allow everyone to vote by absentee ballot. What had been a relatively restrictive regime, with early deadlines and limited availability, was transformed into one of the most liberal in the nation, requiring only that ballots be received by the statewide voting deadline, 8 p.m. on Election Day.

Even that wouldn’t hold. After three lawsuits to extend the deadline struck out this summer, the Pennsylvania Democratic Party hit a home run on the fourth at-bat. What changed was that the secretary of state, charged with defending state law, switched sides to support her own political party. The Pennsylvania Supreme Court held that the ballot-receipt deadline, established by state law, violated the state constitution’s “Free and Equal Election Clause” and legislated a three-day extension along with a presumption of timeliness for unpostmarked ballots received by Friday. It dismissed out of hand arguments that the U.S. Constitution’s Elections and Electors clauses vest exclusive authority in state legislatures to set the rules of federal elections that can’t be rewritten by state judges or executive-branch officials.

The U.S. Supreme Court split evenly on requests by the state Republican Party and the GOP-controlled Legislature to block the lower-court ruling—effectively denying them. But both have asked the court to review the case on the merits, and the Trump campaign filed a motion on Wednesday to join that case as a party. If Pennsylvania is close, the Biden campaign will join the other side, creating a 2020 reincarnation of Bush v. Gore.

We’ve come to this pass because of Democratic politicians’ recklessness and the Supreme Court’s timidity. Democrats knew from the beginning that it was risky for state courts to shift the rules of federal elections, because voters might rely on state-court decisions later overturned under federal law. The justices also could have avoided the problem by deciding the issue before Election Day, when voters still had the opportunity to get their ballots in on time according to the rules.

In this case, Chief Justice John Roberts’s inclination to duck politically charged cases may prove self-defeating. If the court has to step in now, after the votes have been cast and counted, a political storm could become a hurricane.

Republicans filed two Election Day lawsuits in Pennsylvania challenging local election officials’ disparate treatment of defective mail-in ballots. While state law doesn’t permit mail-in voters to be notified of defects with their ballots—doing so would interfere with the timing and confidentiality of the counting process—officials in several counties apparently contacted voters to allow them to cure defects. The problem, aside from violating state law, is that this treats voters differently depending on where in the state they live, in contravention of equal-protection principles. It’s little different from the gerrymandered recount the high court rejected in Bush v. Gore.

The backdrop in Arizona is a long-running lawsuit by the Democratic National Committee challenging the state’s requirement (shared by most states) that voters cast their ballots in assigned precincts, along with its prohibition on “ballot harvesting,” the collection of ballots by parties outside the voter’s family or household. The Ninth U.S. Circuit Court of Appeals ruled in favor of the Democrats and enjoined both policies in 2016, but the Supreme Court blocked the injunction a day later, with no recorded dissents.

The litigation dragged on. After a 10-day trial, a district court held that neither of these policies violates the Voting Rights Act. The Ninth Circuit reversed, but it stayed its own decision, anticipating that the Supreme Court would do so if it didn’t. The Supreme Court agreed last month to hear the state’s appeal, but it has yet to schedule arguments in the case. Meanwhile, Democrats stand ready to challenge the disqualification of wrong-precinct votes if that’s necessary to nudge up the numbers.

The presidential race may require legal decisions resolving such issues, as well as recounts and all the additional questions they implicate, to be decided in as many as half a dozen states. Manual recounts may be requested in several states, adding additional delays to the overall process. The Trump campaign has already filed lawsuits challenging various aspects of ballot handling and counting in Michigan and Georgia; suits in Nevada and Arizona may follow. Every case will have to be decided before Dec. 8, the federal statutory “safe harbor” deadline for states to appoint elector slates, or, at the absolute latest, by Dec. 14, when the Electoral College votes.

The media is already accusing the Trump campaign of attempting to litigate its way to victory, but practically every issue in play arises from the Democrats’ march through the courts in the run-up to Election Day. For all the cries of “disenfranchisement,” both sides agree that every lawful ballot should be counted. But after so many conflicting court decisions over the past year, what’s uncertain now is the law, and there’s no dishonor in asking the courts to say what it is.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin has served in the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/another-election-goes-to-court-11604618993?mod=e2two

“If Democrats win, if they take the White House and the Senate, they abolish the filibuster by a simple majority, and they extend the Supreme Court to any size they want. It is completely Constitutional. It is not unlawful. But it will be a horrible result for everybody. Court packing would dramatize and enshrine in all its ugliness for everybody the Democrats’ view of the Supreme Court, which is essentially a legislature whose job is to ensure policy outcomes… I have no doubt that if they were to win, they would do that.”

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

Oct. 11, 2020, in the Wall Street Journal

The U.S. Supreme Court will decide as early as Monday whether to grant a stay in Pennsylvania Democratic Party v. Boockvar, in which the Keystone State’s supreme court, despite state election law to the contrary, ordered officials to count mail-in ballots received up to three days after Election Day. The justices should do so. This may turn out to be a normal election, in which we know the result by Nov. 4 and the Electoral College meets Dec. 14 to make it official. But a lot could go wrong, and the complex legal issues can be resolved only by the high court. Consider these possible scenarios:

• The counting drags on. If the election is close—and even if it isn’t—the process of tallying the vote could end up making the 2000 election dispute look simple. This year’s election procedures are being revised by courts in multiple states. This raises such questions as whether widespread mail-in voting and “ballot harvesting” are permissible and whether ballots received after Election Day can be counted, along with the overarching question of whether state or federal courts can create new election rules to address the Covid-19 pandemic.

In Bush v. Gore, the justices were forced to act by an impending deadline. Based on a specific constitutional grant of authority, Congress established the date on which the Electoral College must vote—a hard deadline (this year Dec. 14). In addition, Congress created a “safe harbor,” Dec. 8 this year, by which the state’s electoral slate is presumed to be valid. The court in 2000 acted to stop the recounts to meet the latter deadline.

Regardless of the statutory safe harbor, Article II of the Constitution requires each state to appoint electors “in such manner as the legislature thereof may direct” in time for the Electoral College vote. Because this is a specific constitutional duty conferred on state legislatures, they are exercising federal authority. Therefore neither state nor federal courts may rewrite election laws applicable to the selection of presidential electors. Justice Brett Kavanaugh emphasized that point concurring in Andino v. Middleton, an Oct. 5 order in which the justices stayed an injunction by the Fourth U.S. Circuit Court of Appeals that would have prevented South Carolina from enforcing its witness requirement for absentee ballots.

The Constitution similarly authorizes Congress to establish a single day—this year Nov. 3—on which presidential electors (and members of Congress) must be chosen. The election must be conducted on that day. This was the Supreme Court’s conclusion in Foster v. Love (1997), which involved congressional elections. The justices ruled that “the combined actions of voters and officials meant to make a final selection of an officeholder” must take place on Election Day, even if some aspects of voting may take place earlier. Thus although ballots can be completed beforehand and returned through the mail, they must be received by Nov. 3.

The justices have discretion over which petitions to hear and when. In cases involving a pending election, they should err on the side of speed and decisiveness. The sooner and more clearly these disputes are adjudicated, the likelier the election will go smoothly—and the less likely the need for an 11th-hour judicial intervention à la Bush v. Gore.

If counting isn’t complete by the time the Electoral College votes on Dec. 14, it’s possible one or more states will fail to appoint electors, violating its constitutional duty and leaving it disfranchised.

In that case, another question may arise: If states are absent from the Electoral College, does a candidate need a majority of the 538 available electoral votes (270) to be elected president or vice president, or is a majority of the votes cast sufficient? The 12th Amendment calls for “a majority of the whole number of electors appointed,” but the Supreme Court has never addressed this issue because it has never arisen. In only three elections—1789, 1864 and 1868—have any states’ electors gone unappointed, and in all three cases the winner had a majority either way.

• State authorities certify competing slates of electors. That’s what happened in the election of 1876 between Republican Rutherford Hayes and Democrat Samuel Tilden. Competing officials claimed their party had won 21 electoral votes from Florida, Louisiana and South Carolina, plus a single vote from Oregon—together enough to be decisive. Congress enacted legislation establishing a 15-member bipartisan “electoral commission” to resolve the dispute. The result, just in time for Inauguration Day on March 4, 1877, was a political deal that recognized Hayes as president and ended Reconstruction throughout the South.

The law creating the commission rested on no obvious congressional authority and thus was surely unconstitutional. But in an era when the federal judiciary’s role was far more circumscribed than today, the issue didn’t come before the Supreme Court. That would be different today—and rightly so. A dispute over the certification of electors is a legal question, not a political one. It would have to be resolved in the courts, and, given the stakes, ultimately by the Supreme Court.

• Congress attempts a power grab. In the years after the 1876 dispute, lawmakers enacted statutes to address the presidential election process, including barely intelligible language that purports to establish rules for determining which electoral votes Congress will count and authorizing members to lodge disputes. This too is constitutionally dubious although like the 1876 solution, it has never been litigated.

The 12th Amendment provides that once the electoral votes have been cast, the vice president receives and opens the votes before a joint session of Congress. (Under current statutory law, this takes place Jan. 6, after the new Congress has taken office.) But this is a purely ministerial function. If no candidate has an Electoral College majority, the House and Senate, respectively, choose the president and vice president. That is Congress’s only legitimate role in deciding the election.

This is for good reason. The Framers considered having Congress choose the president but concluded it would give too much power to the legislative branch and violate the separation of powers. Their solution was the Electoral College, an ephemeral body with no institutional interests of its own. Judges don’t decide election outcomes either, but the Supreme Court has recognized since Marbury v. Madison (1803) that it is their duty to “say what the law is.”

However disputed the election results may be, there is no basis for Congress to override the Electoral College or refuse to count the votes. The House recognized this in its 1932 report proposing the 20th Amendment, which noted that it was using “the term ‘President elect’ in its generally accepted sense, as meaning the person who has received the majority of the electoral votes, or the person who has been chosen by the House of Representatives in the event that the election is thrown into the House. It is immaterial whether or not the votes have been counted [in Congress], for the person becomes President elect as soon as the votes are cast.”

Whichever candidates receive the majority of electoral votes on Dec. 14 immediately become president and vice president elect, and they will take office on Jan. 20, 2021—even if it takes a Supreme Court ruling to make it so.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/the-supreme-court-and-the-election-returns-11602435660

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

Sept. 26, 2020, in the Wall Street Journal

It speaks volumes that the early opponents of Judge Amy Coney Barrett’s confirmation have almost nothing to say about the work that has defined her career. Her scholarly and judicial writings place her at the center of the mainstream consensus on the judge’s role as an arbiter, not a lawmaker, who abides by the duty to enforce the law as written.

“A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference,” she wrote in a 2017 article, shortly before she took the bench. That requires “fidelity to the original public meaning, which serves as a constraint upon judicial decisionmaking.” Judging also requires humility, to guard against “the feeling of infallibility” that often tempts judges to stray from the law. After all, “courts are not always heroes and legislatures are not always villains. They are both capable of doing good, and they are both capable of doing harm.” Ultimately, “the measure of a court is its fair-minded application of the rule of law.”

Her opinions for the Seventh U.S. Circuit Court of Appeals show skilled legal craftsmanship and sensitivity for the people whose rights are at stake. Among her most influential decisions is Doe v. Purdue University(2019), on the rights of college students accused of sexual assault. The case involved a male student who was suspended from school and expelled from ROTC based on his girlfriend’s accusation that he had groped her while she slept. He disputed the charge, but the university refused to disclose the evidence against him, to consider exculpatory evidence, and to interview witnesses—even the accuser, whose account it deemed more “credible” than his. All this was “fundamentally unfair,” Judge Barrett concluded, falling “short of what even a high school must provide to a student facing a days-long suspension.”

The male student alleges that the university “tilted the process against men accused of sexual assault” to comply with since-rescinded U.S. Education Department guidance, and thereby discriminated against him on the basis of sex in violation of Title IX. Judge Barrett’s decision, joined by two other female judges, allows that claim to go foward.

What’s notable about the opinion is Judge Barrett’s skill in working through the complexities of the parties’ arguments—which involved disputes over technical legal matters such as standing and remedies, among many others—without losing sight of the bigger picture. Her decision was not an unalloyed win for the male student, who lost on his claim for money damages. But the persuasive force of its reasoning made it an instant landmark in the wave of litigation sparked by the 2011 Education Department guidance. More than half the courts of appeals and dozens of district-court cases have already cited it.

Judge Barrett brought the same analytical acumen to bear in Kanter v. Barr (2019). Her dissenting opinion is an originalist tour de force on the Second Amendment’s application to “felon dispossession” laws, which restrict gun ownership by convicted criminals. The majority held that the government may categorically strip even nonviolent felons of Second Amendment rights. Judge Barrett took a narrower view based on the amendment’s text and history.

Surveying laws and practice around the time of the amendment’s framing in the late 18th century, she found support only for keeping weapons from those deemed dangerous and likely to misuse them. That category, she concluded, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness”—like the plaintiff, who had been convicted of mail fraud, or hypothetical felons convicted for “selling pigs without a license in Massachusetts” or “redeeming large quantities of out-of-state bottle deposits in Michigan.”

In U.S. v. Watson (2018), a Fourth Amendment case, the court considered whether police had reasonable suspicion to block a parked car based on an anonymous report that “boys” were “playing with guns” nearby. Judge Barrett, writing for a unanimous panel, concluded they didn’t. Because Indiana law permits carrying a firearm in public without a license, that tip didn’t create a reasonable suspicion of a crime, even if it might have been prudent for police to visit the scene and speak with those involved voluntarily. Judge Barrett rejected out of hand the government’s argument that a more forceful response could be justified based on the locale: “People who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods.”

Judge Barrett has also been sensitive to the needs of law enforcement. In Sanzone v. Gray (2018), she joined two other judges in an unsigned opinion holding that officers were entitled to qualified immunity from money damages when a suspect pointed a gun at officers immediately before he was shot. But she has also denied immunity in a series of cases in which officers allegedly lied or fabricated evidence in warrant affidavits. Her decisions hew close to the facts and the law, neither deferring to law enforcement nor accepting unfounded claims of abuse.

Judge Barrett has been especially attuned to overreaching by administrative agencies. She joined several opinions declining to defer to government agencies’ interpretations of their own regulations—a controversial doctrine known as Auer deference, which four Supreme Court justices said last year they were prepared to overturn.

She has also been aggressive in scrutinizing agencies’ factual determinations, particularly in Social Security cases. If C.S. Lewis was right that “integrity is doing the right thing even when no one is watching,” then these decisions deserve special appreciation, because they hold the government to its burden when the outcome matters to no one but the litigants.

A final illustration of Judge Barrett’s temperament and discernment can be found in two decisions on immigration law. In Cook County v. Wolf (2020), she dissented from a panel opinion blocking the Trump administration’s “public charge” rule, which restricts admission of aliens likely to depend on public benefits. Her dissent was vindicated when the Supreme Court stayed the injunction. In Morales v. Barr (2020), however, she wrote a ruling against an administration policy preventing immigration judges from “administratively closing,” and thereby delaying, deportation cases. While the two opinions differ in their bottom-line results, what they share in common is diligent and faithful statutory analysis following the example of Justice Antonin Scalia, for whom Judge Barrett clerked.

Judge Barrett’s body of work shows her to be independent, discerning, diligent and fair. That’s why her opponents are likely to resort to personal attacks.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office.

Source: https://www.wsj.com/articles/what-kind-of-judge-is-amy-coney-barrett-11601154273