Stop the Impeachment Fishing Expedition

By David B. Rivkin Jr. and Elizabeth Price Foley

Feb. 14, 2019, in the Wall Street Journal

As William Barr begins his term as attorney general, House Democrats are aiming a “subpoena cannon” at President Trump, hoping to disable his presidency with investigations and possibly gather evidence to impeach him. Mr. Trump fired back in his State of the Union address: “If there is going to be peace and legislation, there cannot be war and investigation.” To protect the presidency and separation of powers, Mr. Barr should be prepared to seek a stay of all congressional investigations of Mr. Trump’s prepresidential conduct.

The president is not one among many, as are legislators and judges. Crippling his ability to function upsets the constitutional balance of power. For this reason, the Justice Department’s Office of Legal Counsel has repeatedly concluded that a sitting president may not be indicted or prosecuted. The same logic should apply to congressional investigations.

Congress is targeting Mr. Trump’s actions before becoming president because there are well-established constitutional limits, grounded in separation-of-powers doctrine, on its ability to investigate his official conduct. In U.S. v. Nixon (1974), the Supreme Court recognized a constitutionally based, although not unlimited, privilege of confidentiality to ensure “effective discharge of a President’s powers.” In Nixon v. Fitzgerald (1982), the justices held that presidents and ex-presidents have absolute immunity against civil liability for official presidential acts.

Executive immunity for prepresidential activity is less clear. In Clinton v. Jones (1997), which arose out of Paula Jones’s accusation that Bill Clinton sexually harassed her while he was governor of Arkansas, the justices reasoned that Ms. Jones’s lawsuit could proceed because the burden on the presidency objectively appeared light. Specifically, because only three sitting presidents had been sued for prepresidential acts, the justices thought it “unlikely that a deluge of such litigation will ever engulf the presidency.” Read more »

Mueller’s Fruit of the Poisonous Tree

Special counsel Robert Mueller’s investigation may face a serious legal obstacle: It is tainted by antecedent political bias. The June 14 report from Michael Horowitz, the Justice Department’s inspector general, unearthed a pattern of anti-Trump bias by high-ranking officials at the Federal Bureau of Investigation. Some of their communications, the report says, were “not only indicative of a biased state of mind but imply a willingness to take action to impact a presidential candidate’s electoral prospects.” Although Mr. Horowitz could not definitively ascertain whether this bias “directly affected” specific FBI actions in the Hillary Clinton email investigation, it nonetheless affects the legality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.

Crossfire was launched only months before the 2016 election. Its FBI progenitors—the same ones who had investigated Mrs. Clinton—deployed at least one informant to probe Trump campaign advisers, obtained Foreign Intelligence Surveillance Court wiretap warrants, issued national security letters to gather records, and unmasked the identities of campaign officials who were surveilled. They also repeatedly leaked investigative information.

Mr. Horowitz is separately scrutinizing Crossfire and isn’t expected to finish for months. But the current report reveals that FBI officials displayed not merely an appearance of bias against Donald Trump, but animus bordering on hatred. Peter Strzok, who led both the Clinton and Trump investigations, confidently assuaged a colleague’s fear that Mr. Trump would become president: “No he won’t. We’ll stop it.” An unnamed FBI lawyer assigned to Crossfire told a colleague he was “devastated” and “numb” after Mr. Trump won, while declaring to another FBI attorney: “Viva le resistance.”

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Five Ways to Restore the Separation of Powers

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 »

Can Trump cut off funds for sanctuary cities? The Constitution says yes.

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 »

A Win for Congress and a Setback for ObamaCare

A court rules that the House can sue the administration for its end-run on spending.

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years. Read more »

The Supreme Court’s bad call on Affordable Care Act

By DAVID B. RIVKIN JR., ELIZABETH PRICE FOLEY, Los Angeles Times, June 29, 2015

In King vs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.

Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “[e]xchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”

As Justice Antonin Scalia’s dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.

Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”

Scalia observes that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass,” the majority claims that when the court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”
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