It rests on an intent to violate a state law that is pre-empted by the Federal Election Campaign Act.

By David B. Rivkin, Jr., and Elizabeth Price Foley

September 8, 2024, in the Wall Street Journal

Donald Trump runs no risk of going to prison in the middle of his campaign, thanks to Judge Juan Merchan’s decision Friday to postpone sentencing until Nov. 26. The delay gives his lawyers more time to prepare an appeal. Fortunately for Mr. Trump, his trial was overwhelmingly flawed, and a well-constructed appeal would ensure its ultimate reversal.

A central problem for the prosecution and Judge Merchan lies in Article VI of the U.S. Constitution, which makes federal law the “supreme law of the land.” That pre-empts state law when it conflicts with federal law, including by asserting jurisdiction over areas in which the federal government has exclusive authority.

Mr. Trump’s conviction violates this principle because it hinges on alleged violations of state election law governing campaign spending and contributions. The Federal Election Campaign Act pre-empts these laws as applied to federal campaigns. If it didn’t, there would be chaos. Partisan state and local prosecutors could interfere in federal elections by entangling candidates in litigation, devouring precious time and resources.

That hasn’t happened except in the Trump case, because the Justice Department has always guarded its exclusive jurisdiction even when states have pushed back, as has happened in recent decades over immigration enforcement.

The normal approach would have been for the Justice Department to inform District Attorney Alvin Bragg, who was contemplating charges against Mr. Trump, of the FECA pre-emption issue. If Mr. Bragg didn’t follow the department’s guidance, it would have intervened at the start of the case to have it dismissed. Instead the department allowed a state prosecutor to interfere with the electoral prospects of the chief political rival of President Biden, the attorney general’s boss.

Mr. Trump was indicted under New York’s law prohibiting falsification of business records, which is a felony only if the accused intended “to commit another crime” via the false record. Judge Merchan instructed the jury that the other crime was Section 17-152 of New York election law, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Prosecutors alleged that Mr. Trump violated this law by conspiring with his lawyer, Michael Cohen, and Trump-related businesses to “promote” his presidential election by coding hush-money payments as “legal expenses” when they should have been disclosed publicly as campaign expenses or contributions—matters that are governed by FECA.

FECA declares that its provisions “supersede and preempt any provision of state law with respect to election to Federal office.” The 1974 congressional conference committee report accompanying enactment of FECA’s pre-emption language states: “It is clear that the Federal law occupies the field with respect to reporting and disclosure of political contributions and expenditures by Federal candidates.” Federal Election Commission regulations likewise declare that FECA “supersedes State law” concerning the “disclosure of receipts and expenditures by Federal candidates” and “limitation on contributions and expenditures regarding Federal candidates.”

The New York State Board of Elections agreed in a 2018 formal opinion that issues relating to disclosure of federal campaign contributions and expenditures are pre-empted because “Congress expressly articulated ‘field preemption’ of federal law over state law in this area” to avoid federal candidates’ “facing a patchwork of state and local filing requirements.”

In using New York’s election law to brand Mr. Trump a felon based on his actions with respect to a federal election, Mr. Bragg subverts FECA’s goal of providing predictable, uniform national rules regarding disclosure of federal campaign contributions and expenses, including penalties for noncompliance. Congress made its goals of uniformity and predictability clear not only in FECA’s sweeping pre-emption language but also in its grant of exclusive enforcement authority to the FEC for civil penalties and the Justice Department for criminal penalties. Both the FEC and Justice Department conducted yearslong investigations to ascertain whether Mr. Trump’s hush-money payments violated FECA, and both declined to seek any penalties.

Prior to Mr. Trump’s New York prosecution, it would have been unthinkable for a local or state prosecutor to prosecute a federal candidate predicated on whether or how his campaign reported—or failed to report—contributions or expenditures. In 2019 the FEC investigated whether Hillary Clinton’s 2016 presidential campaign failed to disclose millions in contributions from an outside political action committee. The agency deadlocked, and no penalties were imposed. In 2022 the FEC levied $113,000 in civil penalties against Mrs. Clinton’s campaign for violating FECA because it improperly coded as “legal services,” rather than campaign expenditures, money paid to Christopher Steele for production of the “dossier” that fueled the Russia-collusion hoax. In neither instance did any state or local prosecutor indict Mrs. Clinton under state election law based on failure to disclose these contributions or expenditures properly. If New York’s Trump precedent stands, Mrs. Clinton could still be vulnerable to prosecution, depending on various states’ statutes of limitation and the Justice Department’s potential involvement.

Mr. Bragg’s prosecution of Mr. Trump is plagued by many reversible legal errors, of which the failure to accord pre-emptive force to FECA is the strongest grounds for its reversal on appeal. The prosecutor’s interference in the 2024 presidential election process has created legal and political problems. The Justice Department’s failure to intervene before the trial is a dereliction of duty.

The department aggressively prosecuted Mr. Cohen based on the same hush-money payments, so it was well aware that New York’s prosecution invaded its exclusive FECA jurisdiction. This is another stark example of the Biden administration’s incompetence—or, worse, the distortion of justice through a partisan lens. It is left to the appellate courts, and ultimately the Supreme Court, to clean up the mess Mr. Bragg and the Justice Department have made.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/why-trumps-hush-money-conviction-cant-stand-appeal-federal-law-pre-empts-11ae9dc3

Under Jack Smith’s theory, Lincoln, Truman, Clinton and Biden could all have ended up in the dock.

By David B. Rivkin, Jr., and Elizabeth Price Foley

April 24, 2024, in the Wall Street Journal

The Supreme Court hears oral arguments Thursday in Trump v. U.S., in which Donald Trump argues that the Constitution precludes his prosecution for his role in the Jan. 6, 2021, riot. Mr. Trump’s detractors insist that recognizing presidential immunity would put him above the law. They’re wrong. Immunity for official actions is a necessary part of the constitutional structure, and criminal prosecution isn’t the only way to hold a president accountable for unlawful official acts.

Because no previous president ever faced criminal charges, the question before the justices is novel. But the high court has addressed the unique constitutionally driven relationship between the presidency and the courts. In Kendall v. U.S. ex rel. Stokes (1838), it declared: “The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.”

Franklin v. Massachusetts (1992) dealt with the question of when statutes enacted by Congress apply to the president. The ruling noted that “the President is not explicitly excluded” from the Administrative Procedure Act, “but he is not explicitly included, either.” Under such circumstances, “out of respect for the separation of powers and the unique constitutional position of the President . . . textual silence is not enough to subject the President to the provisions.”

More fundamentally, in Nixon v. Fitzgerald (1982), the court held that separation of powers demands absolute immunity from civil lawsuits for acts falling within the “outer perimeter” of the president’s official responsibilities. Absolute immunity is necessary because the president “occupies a unique position in the constitutional scheme,” and the specter of litigation “could distract a President from his public duties.” That applies with even greater force to the threat of criminal prosecution.

Special counsel Jack Smith argues that “no President need be chilled in fulfilling his responsibilities” because there are “strong institutional checks to ensure evenhanded and impartial enforcement of the law,” including grand jury indictment, due process and the government’s burden of proving guilt beyond a reasonable doubt. But even if the prospect of conviction is remote, the threat of prosecution impairs the presidency.

Further, the most important institutional check, the norm against politicized prosecutions, has so broken down that not only Mr. Smith but district attorneys in New York and Atlanta have rushed to bring Mr. Trump to court. Imagine how other presidents might have fared if they had to worry about prosecution for official acts:

• Abraham Lincoln suspended habeas corpus without congressional authorization. In Ex Parte Merryman (1861), Chief Justice Roger Taney, acting as a circuit judge, held that the power to suspend habeas lies solely with Congress. Lincoln ignored Taney’s ruling and continued his suspension of habeas until the end of the Civil War. No one suggested that Lincoln be prosecuted for false imprisonment, false arrest or kidnapping.

• Harry S. Truman seized domestic steel plants during the Korean War, violating statutes that authorized the president to seize private property only in narrow circumstances. The Supreme Court declared his actions unconstitutional in Youngstown Sheet & Tube Co. v. Sawyer (1952). But no federal prosecutors suggested they could prosecute him for “conspiracy against rights,” or “conspiracy to commit an offense against the United States,” the charges Mr. Smith has brought against Mr. Trump.

• Bill Clinton, George W. Bush, Barack Obama and Joe Biden all unilaterally ordered military actions as commander in chief. Critics accused them of usurping Congress’s power to declare war, but nobody seriously suggested that they be prosecuted for murder, torture, war crimes or misappropriation of government resources.

The president isn’t the only official to enjoy immunity for official acts. In Yaselli v. Goff (1927), the Supreme Court affirmed a lower court’s conclusion that federal prosecutors have absolute immunity from civil liability because the “public interest requires that persons occupying such important positions . . . should speak and act freely and fearlessly in the discharge of their important official functions.” In Kalina v. Fletcher (1997), the justices held that even under Section 1983—a civil-rights law authorizing lawsuits against state officials who violate federal constitutional rights—prosecutors enjoy absolute immunity for acts undertaken in their “role as an advocate.” This is because that role is unique to prosecutors, and the public’s interest “in protecting the proper functioning of the office, rather than the interest in protecting its occupant, . . . is of primary importance.”

The court reached the same conclusion about judges in Pierson v. Ray (1967), which held that Section 1983 didn’t abrogate judges’ absolute immunity for “acts committed within their judicial jurisdiction,” because such immunity is “for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.”

In Gravel v. U.S. (1972), the justices held that the Speech and Debate Clause extends absolute immunity to members of Congress and their aides for official actions. This is to protect a member of “a co-equal branch of the government” from “executive and judicial oversight that realistically threatens to control his conduct as a legislator.”

Like prosecutors, judges and congressmen, a president threatened with prosecutions for official acts couldn’t exercise his duties with full vigor. Unlike those other officials, the president is the singular head of a branch of government, making his ability to exercise his powers all the more essential.

That leaves the question of whether the actions for which Mr. Trump was charged were official or, as Mr. Smith asserts, private. In McDonnell v. U.S. (2016) the court held that an “official act” is an action on any matter that is “pending . . . before a public official,” and includes the president’s “using his official position to exert pressure on another official, knowing or intending that such advice will form the basis for an ‘official act’ of another official.”

Mr. Trump acknowledges that “no court has yet addressed the application of immunity to the alleged facts of the case.” The justices should draw a line and extend absolute criminal immunity to actions within the outer perimeter of the president’s duties. Then it would be for the lower courts to decide on which side of the line these actions fall.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/whats-at-stake-in-the-trump-immunity-case-president-supreme-court-1f00dc9c

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

20 February 2023 in the Wall Street Journal

Headlines last week claimed that the Congressional Budget Office had warned the U.S. “could default on its debt” as early as July if Congress didn’t raise the statutory debt limit. What the CBO director actually said was that “the government would have to delay making payments for some activities, default on its debt obligations, or both.” In reality, the U.S. can’t default on its debt.

Section 4 of the 14th Amendment is unequivocal on that point: “The validity of the public debt of the United States, authorized by law, . . . shall not be questioned.” This provision was adopted to ensure that the federal debts incurred to fight the Civil War couldn’t be dishonored by a Congress that included members from the former Confederate states.

The Public Debt Clause isn’t limited to Civil War debts. As the Supreme Court held in Perry v. U.S. (1935), it covers all sovereign federal debt, past, present and future. The case resulted from Congress’s decision during the Great Depression to begin paying federal bonds in currency, including those that promised payment in gold. Bondholders brought an action in the Court of Claims demanding payment in currency equal to the current gold value of the notes. The justices concluded that Congress had violated the Public Debt Clause and that its reference to “the validity of the public debt” was broad enough that it “embraces whatever concerns the integrity of the public obligations.”

That means the federal government can’t legally default. The Constitution commands that creditors be paid. If they aren’t, they can sue for relief, and the government will lose and pay up.

Those who warn of default confuse debt payments with other spending obligations. “A failure on the part of the United States to meet any obligation, whether it’s to debt holders, to members of our military or to Social Security recipients, is effectively a default,” Treasury Secretary Janet Yellen said in January.

That’s nonsense. Authorized and even appropriated spending isn’t “the public debt.” For constitutional purposes, promised benefits from Social Security, Medicare and other entitlements aren’t even property, as the Supreme Court held in Flemming v. Nestor (1960), and Congress has as much authority to reduce them as to increase them. When lawmakers were drafting the 14th Amendment, they revised Section 4’s language to replace the term “obligations” with “debts.” If the Treasury ran out of money, the constitutional obligation to pay bondholders would trump all statutory obligations to spend.

Ms. Yellen also said that “Treasury’s systems have all been built to pay all of our bills when they’re due and on time, and not to prioritize one form of spending over another.” But as the Journal has reported, department officials conceded in 2011 that the government’s fiscal machinery certainly could prioritize payments to bondholders, and the Federal Reserve prepared for such a contingency. There’s no question enough money would be available: The government collects roughly $450 billion a month in tax revenue, more than enough to cover the $55 billion or so in monthly debt service.

These basic facts should inform decisions by credit-rating agencies in establishing the U.S. government’s creditworthiness. Those agencies have traditionally acted favorably when heavily indebted countries have significantly cut public spending rather than default on their debt.

Like Ulysses binding himself to the mast, the Public Debt Clause ties the government’s hands in a way that ultimately serves its interests. Around the world, public defaults are ubiquitous. Since 1960, 147 governments, including some Western democracies, have defaulted—many repeatedly—on their sovereign debt. The U.S. isn’t among them, in large part because of the Constitution’s restriction, buttressed by the rule of law. That’s why the nation is able to borrow so easily, and so much, at such favorable rates. If the Biden administration and other default doomsayers convince the world that U.S. debt isn’t secure, they will drive up the cost of borrowing—at least until the courts set things straight.

Rather than issue baseless warnings of default, the Treasury should tout the Public Debt Clause as a reason why investments in U.S. bonds are rock solid and entail no meaningful risk of default. That could help secure more-favorable credit terms for Treasury instruments than those paid by other Western countries. The strategy is well worth pursuing, given the sharp increase in rates at which Treasury is currently selling its benchmark 10-year notes—from 2% to 3.6% over a single year—resulting in a major escalation in U.S. debt-servicing obligations.

The real risk we face is out-of-control federal spending, not default. But spending cuts and tax hikes are politically unpopular. That leaves borrowing, which explains the recurring tumult over the debt ceiling. How the U.S. covers its spending tab is a debate worth having, as is whether that tab should be so high. Fear-mongering about default is a way to avoid these debates and avoid confronting the hard choices we face as a result of decades’ worth of overspending.

Those who vote against raising the debt ceiling will take a political risk, perhaps a substantial one, as payments many Americans reasonably anticipate may not arrive. Whether to proceed with this strategy if the Biden administration persists in refusing to accept any deal on future federal spending is a difficult question. But it should be debated honestly, unclouded by specious warnings of default.

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/default-on-u-s-debt-is-impossible-deficit-treasury-cbo-janet-yellen-supreme-court-constitution-public-debt-clause-federal-reserve-328dafe5

By David B. Rivkin, Jr., and Eric Schmitt

March 3, 2022, in The Hill

Russia’s invasion of Ukraine has crystalized the critical importance of America’s energy security, as our European allies — increasingly dependent on Russian fossil fuels to keep the lights on when “renewable” power sources fail to meet demand — balance their need to confront Vladimir Putin with maintaining their access to Russian oil and gas. These events make all the more important the pending ruling by the U.S. Supreme Court in West Virginia v. EPA, a landmark case challenging the Environmental Protection Agency’s Obama-era Clean Power Plan — which could drive the U.S. itself toward inadequate, unreliable domestic energy sources and inevitable dependence on foreign countries.

The case was argued this week before justices who appeared clearly skeptical of EPA’s power to impose radical transformation of our energy sector through presidential fiat. Much of the argument focused on the “major questions doctrine.” This doctrine bars regulatory agency interpretations of federal statutes that would give those agencies the power to answer contentious and far-reaching policy questions that are properly handled by Congress itself, without a clear, explicit grant of statutory authority from Congress delegating its resolution to the agency.

The major questions doctrine is a firewall for democracy against the never-ending efforts by American progressives to impose policies, such as the Green New Deal, which they have been unable to achieve through the ballot box. But, whenever progressives hold the levers of executive authority, as they did during President Obama’s administration and do again under President Biden, they have turned to executive action and contorted constructions of existing statutes to accomplish their dreams.

Look no further than Biden’s all-out assault on domestic energy production, with a goal of fully decarbonizing the U.S. power sector by 2035. He unilaterally canceled the Keystone XL pipeline on the first day of his administration and froze the oil and gas leasing process for federal lands, stopping future oil and gas projects in their tracks. Biden’s administration has worked to impose crippling restrictions on ever broader swaths of the domestic energy industry through the president’s social cost of carbon edict (seeking to measure domestic benefits of energy production against the supposed worldwide costs of climate change), a new methane rule that will subject for the first time thousands of existing oil and gas facilities to costly air regulations, and other administrative assaults.

Biden barged ahead with these efforts, despite proper statutory authority. Instead, his administration has dealt with the lack of proper statutory authority through “work-arounds” that rely on aggressive over-readings of existing statutes.

Conservatives, including the nation’s Republican state attorneys general, have fought back, suing to protect America’s energy security and hold the president to the statutory and constitutional limits that constrain his power. State attorneys general have scored major wins on this front, blocking Biden’s social cost of carbon effort and winning an order compelling the restart of the oil and gas leasing process for federal lands.

If the oral argument on the Clean Power Plan is any indication, the tide is set to turn against the relentless push to find unheard-of-authority on major policy issues hidden in existing statutory schemes. And, aside from the constitutional imperative of preventing the executive branch from poaching on congressional authority by running afoul of the major questions doctrine, the policy consequences of allowing Biden to twist his statutory authority beyond recognition are dire. They are illuminated when one looks across the Atlantic, where Russia is waging the first open war of aggression by a major power in Europe since World War II.

Energy is the foundation of Russia’s power and influence. Large swaths of Western Europe rely on Russian oil, natural gas and the energy infrastructure that Russia has built. This dependence is in no small part because countries such as Germany have ceded their energy security. Late last year, Germany announced the closure of three of its six remaining nuclear power plants, with a commitment to close the last three by the end of 2022. Berlin did this, giving up 12 percent of its 2021 electricity production capacity, despite an energy crisis that was spiraling out of control, with energy prices in Europe repeatedly breaking records and the prospect of blackouts.

In pursuing an unyielding climate agenda — for example, a goal of making renewables such as wind and solar meet 80 percent of power demand by 2030 — Germany laid siege to its own power grid and now relies on Russia to fill the gaps. To be sure, in the past several days, German Chancellor Olaf Scholz announced that these commitments will be reconsidered; it remains to be seen what Germany ultimately does.

The fight against executive overreach and the relentless progressive campaign against our energy security couldn’t be more important. America isn’t immune to Europe’s reality. The United States is projected to lose its net oil exporter status this year. When domestic gas prices started to skyrocket during the summer, the Biden administration turned to the OPEC and its allies such as Russia — the OPEC+ group of countries — to pump more oil to help the American consumer and the world economy. That is unacceptable — especially since OPEC+ rebuffed Biden.

A Supreme Court decision in West Virginia v. EPA that builds on the major questions doctrine and acknowledges the clear statutory and constitutional limits on abuses of executive power is essential. Coming on the heels of Biden’s Supreme Court losses on his administration’s eviction moratorium and vaccine mandate, it would be dispositive in the fight against executive overreach and would neutralize the president’s ability to remake America’s production and consumption of energy without Congress’s consent.

David B. Rivkin Jr. served in the Justice Department and White House Counsel’s Office in the Ronald Reagan and George H.W. Bush administrations. He practices appellate and constitutional law in Washington and represented a coalition of states that challenged the Obama administration’s Clean Power Plan. Although he is not involved in West Virginia v. EPA, his law firm represents a petitioner in that case.

Eric Schmitt is attorney general of Missouri and a candidate for U.S. Senate. Missouri was one of the petitioners in West Virginia v. EPA.

Source: https://thehill.com/opinion/judiciary/596569-europes-quandary-buttresses-the-supreme-courts-answer-to-major-questions-on

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

February 28, 2021, in the Wall Street Journal

Judge Ketanji Brown Jackson is known as a capable, diligent and collegial jurist. Hers isn’t the straightforward ascent of most Supreme Court nominees. After a clerkship with Justice Stephen Breyer, she spent a decade as what she called a “professional vagabond”—a junior litigator at a Washington firm; an associate of Kenneth Feinberg, the lawyer known for administering compensation funds for victims of terrorism and other disasters; an assistant special counsel for the Sentencing Commission. She would be the first justice to have served as a public defender. One gets the reassuring sense that, like Clarence Thomas, Judge Jackson hasn’t had her sights trained on a Supreme Court nomination since law school.

The same could be said of Judge Jackson’s time on the bench. As a federal trial court judge in the District of Columbia (2013-21), she oversaw a docket consisting largely of run-of-the-mill employment disputes, contract cases, freedom-of-information actions, criminal prosecutions and the like. Her opinions are generally workmanlike, making it easy to discern the rare case that inspired her passion.

At the top of that list is her decision ordering then-President Trump’s former White House counsel Don McGahn to testify before a House committee investigating purported Russian interference with the 2016 election. Judge Jackson rejected out of hand Mr. Trump’s assertion of a kind of immunity from testimony recognized by the courts for well over a century. “Presidents are not kings,” she wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

The decision rejects—and describes as “strident”—the government’s argument that parties generally need authorization from Congress to bring suit in federal court. Congress did authorize suits over Senate subpoenas, but not House suits. What may seem an arcane procedural point speaks volumes: Much judicial mischief has involved courts appointing themselves to exercise power and impose liability in the absence of any law. Judge Jackson’s rationale, echoing those of many Warren and Burger court decisions, is that the Constitution empowers courts to vindicate “intrinsic rights.”

Also revealing is Judge Jackson’s decision blocking a Trump policy expanding eligibility for “expedited removal” to aliens who have been in the country illegally for up to two years. The statute gives the Homeland Security Department “sole and unreviewable discretion” over expedited removal, which should give the courts nothing to review. Judge Jackson asserted that although the policy itself was unreviewable, she could pass judgment on the “manner” in which the agency made it. She found it lacking based on the agency’s failure to engage in notice-and-comment rulemaking and its failure to consider adequately the “downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives in many substantial, tangible, and foreseeable ways”—which would seem to be a consideration of policy, not manner. The U.S. Court of Appeals for the D.C. Circuit reversed this ruling.

Judge Jackson was also reversed in a case in which she sided with federal-employee unions challenging presidential directives to streamline collective-bargaining terms, limit time spent on union business during work hours, and make it easier to fire employees for misconduct or unacceptable performance. Her decision bends over backward to excuse the unions from the requirement that they bring disputes to the Federal Labor Relations Authority before going to court, and the D.C. Circuit reversed it on that basis. But her take on the merits also raises concerns. In her view, the government’s general duty to bargain and negotiate “in good faith” precludes the government from taking topics off the bargaining table (like the availability of grievance proceedings for outright employee misconduct). She acknowledged that position went well beyond the governing precedent. While that would be a boon to the unions, it would disable presidential control of the federal workforce to account for changing circumstances.

Since joining the D.C. Circuit in June 2021, Judge Jackson has handed down only two opinions on the merits, both in the past month. The first, in another federal-union case, is notable. Siding again with the union, Judge Jackson rejected an FLRA decision holding that collective bargaining is required only for workplace changes that have a “substantial impact” on conditions of employment, as opposed to the much lower “de minimis” standard that had previously prevailed. The opinion concludes that the agency failed to explain adequately its adoption of the new standard—a holding that rests on what legal scholar Jonathan Adler called an “erroneous and unduly strict” application of Supreme Court precedent imposing a light burden on agencies changing their policy positions. They need merely “display awareness” of the change and identify “good reasons for the new policy.” To this, Judge Jackson’s opinion adds the requirement, which the Supreme Court had rejected, that the agency show the new policy to be better than the old one.

After reviewing so many of Judge Jackson’s judicial opinions, we have no doubt of her capabilities. We can’t discern whether she has any cognizable judicial philosophy that would guide her approach to the sort of fraught legal questions that the Supreme Court confronts term after term. Her loudest advocates are confident that she’ll serve them well, and her record supports that view. With 50 Democratic senators, that may be enough.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/ketanji-brown-jackson-judicial-record-supreme-court-nominee-public-defender-dc-circuit-biden-11646001770

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

Jan. 6, 2022, in the Wall Street Journal

Hours after President Biden’s Sept. 9 speech announcing a series of vaccine mandates for private-sector employees, his chief of staff, Ron Klain, retweeted an MSNBC anchor’s quip that wielding workplace-safety regulation to force vaccinations was “the ultimate work-around.” Congress has never enacted a law requiring American civilians to be vaccinated—assuming it even has the constitutional authority to do so, which is doubtful. The Supreme Court hears arguments Friday on two of the mandates, which are likely to meet the same fate as other recent attempts to circumvent Congress that the courts have rejected.

The Constitution vests the power to make laws in Congress and charges the president with the duty to execute them. That’s what many in Washington derisively call the “high school civics class” model of government. It’s slow, it’s cumbersome, it rarely approves measures that don’t enjoy widespread public support, and it forces compromise, moderation and tailoring of policies to address the circumstances of a vast and varied nation. The temptation of avoiding it via executive fiat is obvious.

All it seems to take is clever lawyering. The U.S. Code is littered with broadly worded laws, made all the more capacious by judicial deference to agencies’ interpretations of them. Rather than dutifully carry out Congress’s design, a president can set his own policy and then scour the statute books for language that can be contorted to authorize it. In a 2001 Harvard Law Review article, then- Prof. Elena Kagan called the practice “presidential administration.” President Obama put it more plainly when he faced congressional resistance to his agenda: “I’ve got a pen to take executive actions where Congress won’t.”

But it isn’t quite that easy. The Clean Power Plan, Mr. Obama’s signature climate policy, set rigid and unattainable emission limitations for fossil-fuel power plants to force them out of operation and transform the energy market. It relied on an adventuresome interpretation of an obscure provision of the Clean Air Act. In 2016 the Supreme Court blocked it from taking effect, and the Trump administration later repealed it. (We represented Oklahoma in the litigation.)

Mr. Obama’s immigration-reform measures—also taken in the face of congressional opposition—suffered a similar fate. Deferred Action for Childhood Arrivals—which allows illegal aliens who were brought to the U.S. as children to work and avoid deportation—remains in legal limbo nearly a decade after it was established, following setbacks in the courts. Its counterpart for parents of U.S. citizens and permanent residents was enjoined before it took force.

Mr. Biden has had a taste of defeat himself, in a case that prefigures the mandate challenges. After Congress declined to extend the Trump administration’s nationwide eviction moratorium, the Biden administration acted on its own, relying on a 1944 statute authorizing the Centers for Disease Control and Prevention to undertake clearly delineated disease-prevention measures like fumigation and pest extermination. The justices, however, found it unthinkable that Congress had intended to confer on CDC so “breathtaking” an authority: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

In other words, loose language in old laws isn’t enough to support a presidential power grab. Yet that’s all the support the administration has been able to muster for the vaccination mandates. The Occupational Safety and Health Administration mandate forcibly enlists all companies with 100 or more employees to administer a vaccination-or-testing requirement that reaches nearly 85 million employees. It relies on a narrow provision addressing workplace-specific hazards that has never been used to require vaccination. The mandate for Medicare and Medicaid providers (covering 10.3 million workers) rests on general provisions authorizing regulations necessary to administer those programs—which, again, have never been used to require vaccinations. None of these statutes contain even a hint that Congress authorized any agency to administer broad-based vaccination mandates touching millions of Americans.

Although the mandates are flawed in other ways, their lack of clear congressional authorization is the most striking defect. Excessive judicial deference to agencies’ statutory interpretations is what enabled Mr. Obama’s “I’ve got a pen” agenda and its revival under Mr. Biden. The result has been to distort the entire federal lawmaking apparatus. Members of Congress now lobby the executive branch to make law through regulation rather than legislate themselves. Agencies enact major policies that have the durability of a presidential term before they’re reversed. And the president would sooner blame the courts for legal defeats than admit he lacks the power to do his allies’ bidding.

The courts share blame for this state of affairs, having lost sight of the basic separation-of-powers principles that should guide questions of agencies’ statutory authority. A decision rejecting the vaccination mandates because they weren’t clearly authorized by Congress would serve as a shot across the bow signaling that the work-around era is over.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/end-of-work-arounds-biden-executive-order-vaccine-mandate-covid-omicron-supreme-court-11641505106