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

7 December 2021 in the Wall Street Journal

Congress is about to begin another debt-ceiling fight, and it threatens the Constitution as well as America’s solvency.

Over the past two years, Uncle Sam has borrowed and spent trillions of dollars to address Covid-19. Coronavirus spending added nearly $3 trillion to the national debt this year alone—and that doesn’t count the recently passed infrastructure bill and the pending Build Back Better Act. The unprecedented growth in federal outlays has contributed to inflation, which has reached a 30-year high, and caused annual budget deficits to soar.

The government is about to reach its statutory federal borrowing limit of $28.4 billion. If Congress doesn’t increase the limit, Washington will run out of money to meet its legal obligations. Republicans and Democrats are at loggerheads over how much to spend and whether to enact what the Democrats call “transformational” legislation—measures that would reshape the American economy and increase government’s role in nearly all aspects of life.

The threat to the Constitution comes from one of the options lawmakers are considering: suspending rather than raising the statutory debt ceiling, thereby authorizing the executive branch to borrow an unlimited amount of money for a limited time. Suspending the debt ceiling would undermine the structure of American democracy—particularly when government spending obligations are in flux, and the future direction of key policies is being fiercely contested.

Senate Minority Leader Mitch McConnell has warned Democrats that if they insist on enacting major and costly policy changes on a partisan basis, they will have to increase the debt ceiling without votes from Republicans. That could be accomplished through budget reconciliation, the means by which the Democrats intend to pass the Build Back Better Act with a simple majority. But Democrats are wary of unilaterally raising the debt ceiling, which isn’t popular.

In October, facing a debt-ceiling stalemate and a possible government shutdown, Republicans reluctantly supplied the votes necessary to increase the debt ceiling by $480 billion. That was constitutionally proper, but it bought only a little time. The increase will be exhausted this month, and Mr. McConnell and Majority Leader Chuck Schumer have again started negotiations on the debt ceiling.

Congress usually raises the statutory debt ceiling to a new specific dollar amount, a core part of its constitutional power of the purse. Occasionally, however, Congress (with both parties in the majority) has “suspended” the debt ceiling. As we argued in these pages during the last debt-ceiling crisis, such delegations of power are constitutional only if, as Justice Elena Kagan put it in Gundy v. U.S. (2019), “Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.”

The current unsettled budgetary environment makes the constitutional infirmity of suspending the debt ceiling acute. When suspensions were adopted in the past, there was at least a shared understanding between Congress and the executive about where the dollars were to go and how much spending there would be. Previous suspensions weren’t coupled with open attempts to transform the country’s economy and society—to upend the fundamental relationship of government to the governed.

Today’s spending plans are opaque and unpredictable. The estimated cost of Build Back Better alone ranges from $1.75 trillion to more than $5 trillion. That lack of clarity could also dramatically alter the terms upon which the Treasury can find willing buyers for new U.S. debt, greatly increasing debt-servicing costs. Suspending the debt ceiling in these circumstances would mean the executive branch is entirely unbound.

As another debt-ceiling cliff-hanger emerges, Democratic leaders appear committed to a suspension, which again would require Republican support. Giving bipartisan cover to another unconstitutional suspension would be disastrous. Decisions about the levels of spending, borrowing and taxation now under consideration require democratic accountability. Congress is almost evenly divided between the two major parties, a situation that counsels against transformative political and economic changes negotiated in back rooms.

If Democrats believe their programs are meritorious enough to burden the country with trillions of dollars in additional debt, they should accept the political risk of raising the debt ceiling without Republican votes. If Democrats are right, they’ll benefit and Republicans will pay the political price for intransigence. That’s how American democracy works, and why so many of the Constitution’s most fundamental provisions, such as Congress’s power of the purse, were adopted—to ensure accountability and the consent of the people.

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/debt-ceiling-crisis-threatens-democracy-budget-limit-build-back-better-mcconnell-schumer-11638718728

OSHA’s job is to promote safe workplaces, not to dictate medical decisions to employees.

By David B. Rivkin Jr. and Robert Alt

Sept. 28, 2021, in the Wall Street Journal

President Biden told unvaccinated Americans this month: “We’ve been patient, but our patience is wearing thin. . . So, please, do the right thing.” He backed up this request with a series of new regulatory mandates, including one from the Occupational Safety and Health Administration, which directs businesses with 100 or more employees to make vaccination a condition of employment.

The Covid vaccine has been widely hailed as a modern scientific miracle. Yet as a means to increase nationwide vaccination rates, the OSHA mandate far exceeds the authority Congress granted the agency, and if the president can order private companies to dictate such terms of employment, his power to coerce citizens in the name of public health might as well be unlimited. This would both be profoundly unconstitutional and fundamentally transform the relationship between the government and the people.

The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site.

It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement. Natural immunity tends to be more robust and longer-lasting than vaccinated immunity, according to Marty Makary of the Johns Hopkins University School of Medicine. Worse, Dr. Makary says, there is evidence that people who already have natural immunity are at heightened risk of vaccine side effects caused by an augmented inflammatory response. For these reasons, lawsuits have already been filed challenging employer vaccine mandates as applied to employees with natural immunity.

Another concern is that the administration’s interpretation of the OSHA statutory language presents a “delegation” problem. If Congress delegates discretion to an agency without a proper limiting principle, it violates the separation of powers. To avoid this constitutional problem, the courts will have to give the statute a more restrictive reading. Coming up with a meaningful judicially enforceable principle would not be easy.

Additional problems arise from the administration’s urgency. In imposing the vaccination requirement immediately, OSHA will bypass the ordinary notice-and-comment rule-making process and issue what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only 10 times in 50 years. Courts have decided challenges to six of those standards, nixing five and upholding only one.

The OSH Act imposes stringent limits on emergency standards precisely so OSHA can’t easily circumvent the ordinary rule-making process. The government has to prove that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that using the emergency process is “necessary to protect employees from such danger.” Courts subject emergency standards to a what appellate courts call a “hard look” review, a more stringent standard than for ordinary economic regulations.

The White House justifies the mandate as a proportional response to the spread of Covid’s Delta variant, which is straining hospital capacity in some states. But the mandate is nationwide and indefinite, not tied to Covid rates. The administration’s vaccine rhetoric is therefore another reason to regard the standard as legally suspect. In addition to Mr. Biden’s remark about his patience wearing thin, White House chief of staff Ron Klain retweeted a journalist’s comment that “OSHA doing this vaxx mandate as an emergency safety rule is the ultimate work around for the Federal govt to require vaccinations.”

All this suggests that the administration’s statutory reliance on workplace safety is pretextual. OSHA was established to ensure workplace safety, not to act as a “work around” for achieving other political or policy objectives. In Department of Commerce v. New York (2019), the Supreme Court struck down an otherwise defensible census regulation because the Trump administration’s grounds for instituting it were pretextual.

Beyond these statutory issues lie constitutional concerns. Many commentators are under the impression that Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a vaccine mandate, settles all such questions. But that case involved a state law and a local regulation, not any federal action—a crucial distinction. The states have plenary police power to regulate health and safety. Congress has only those limited powers enumerated in the Constitution. That wouldn’t include the authority to impose a $155 fine (today’s equivalent of the $5 at stake in Jacobson) on an individual who declines to be vaccinated, much less to prevent him from earning a livelihood.

Defenders of the Biden mandate surely will justify it as a delegation pursuant to Congress’s power to regulate interstate commerce. But the actual target of the rule is individual medical choices, not commercial ones. If a personal decision not to buy medical insurance can’t be characterized as “commerce”—as the Supreme Court held in NFIB v. Sebelius (2012), the ObamaCare case—how can the decision not to be vaccinated?

Further, if public-health benefits are sufficient to justify an OSHA vaccine mandate, what principle would limit the agency’s authority? Could it ban employees from smoking or consuming foods containing trans fats while working at home? The public-health profession has already characterized everything from gun ownership to social-media use as posing a serious public-health issue. Could OSHA legitimately police these, too, even away from the workplace?

Higher vaccination rates would be a public good. But our nation’s Founders understood that much mischief can be done under the theory of being “for your own good” and provided limits to government authorities accordingly. Even during a pandemic, the Biden administration would do well to respect those limits.

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Alt is president and CEO of the Buckeye Institute, a think tank engaged in public-interest litigation and policy.

Source: https://www.wsj.com/articles/biden-lawless-vaccine-mandate-constitution-occupational-safety-11632841737

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

Nov. 27, 2020, in the Wall Street Journal

The Covid-19 pandemic “has served as a sort of constitutional stress test,” Justice Samuel Alito observed this month. “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” The setting underscored the point: Justice Alito made his remarks in an online speech that ordinarily would have been delivered in a cavernous hall, before a crowd of hundreds gathered for the Federalist Society’s annual dinner.

A public-health emergency may justify curtailments of liberty that would be unacceptable in normal times. But even in an emergency, America’s government doesn’t wield unlimited powers. Measures taken to deal with this pandemic have imposed severe restrictions on the most basic rights and liberties, often with little consideration of their legal basis. The U.S. Constitution prohibits many of the most draconian measures taken or under consideration.

Joe Biden has implicitly acknowledged the point. Accepting the Democratic presidential nomination in August, the former vice president declared: “We’ll have a national mandate to wear a mask—not as a burden, but to protect each other. It’s a patriotic duty.” But his transition website promises only to “implement mask mandates nationwide by working with governors and mayors.”

A federal mask mandate is a nonstarter because it would have to be grounded in one of Congress’s constitutionally enumerated powers, all of which have limits. The go-to section to justify federal regulation is the clause granting lawmakers the power “to regulate commerce . . . among the several states.” As the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), which involved the ObamaCare mandate to buy medical insurance, individuals must be engaged in commercial activity before Congress can regulate them. Congress cannot impose requirements on the citizenry “precisely because they are doing nothing,” Chief Justice John Roberts wrote.

The same is true of other prospective federal anti-Covid measures, such as a national “stay at home” order or an overall economic lockdown. Congress does have broad authority to regulate business, which it could use to impose workplace safety rules, including mask mandates. But nationwide lockdowns are a dubious legal proposition. Congress has never attempted to eliminate all or most economic activity. Any such requirement, even if supportable under the Commerce Clause, would raise significant concerns about the constitutional rights of people prevented from earning a living.

State and local mandates pose a more complicated question. Unlike the federal government, states have a general “police power” that permits them to enact public-health regulations. State and local mask mandates will likely survive judicial scrutiny, as the burden is relatively small. But quarantine requirements imposed on otherwise healthy people, and especially stay-at-home orders and shutdowns of economic activity, are another matter.

Courts have generally upheld quarantines as proper exercises of state police power. But they have traditionally required the involuntary seclusion only of infected individuals and those exposed to them. Quarantines for travelers may survive constitutional challenges. They are generally limited to 14 days or less and arguably supported by the states’ interest in limiting the potential to spread the infection from viral “hot spots.”

But states have no constitutional authority to discriminate against out-of-state persons, goods or services or to burden interstate commerce unduly. It would be hard to justify restrictions that draw arbitrary distinctions between intra- and interstate travelers or among states. New York’s current rules, for instance, exempt travelers within New York and from adjacent states while ordering quarantine for those from distant states with lower Covid rates.

Universal, open-ended stay-at-home mandates and general economic shutdowns are unprecedented in America. The former amount to the imposition of house arrest on vast numbers of people without due process or any provision for basic needs. They raise important constitutional issues involving freedom of assembly, due process and equal protection.

Mandating how many individuals can meet in one’s home, as some states did in time for Thanksgiving, is particularly difficult to justify. If the government can regulate your dinner guests, what can’t it do? Although the government has imposed location-specific curfews in times of war and civil disorder to address specific public-safety concerns, protracted populationwide curfews directed at more-nebulous threats will be difficult to justify.

Some of these issues will doubtless reach the Supreme Court, but lower courts are already wrestling with them. In County of Butler v. Wolf, William S. Stickman IV, a federal district judge in Pittsburgh, struck down Pennsylvania’s most draconian anti-Covid-19 measures. These included strict limits on indoor and outdoor gatherings, stay-at-home requirements, and the lockdown of businesses that aren’t “life-sustaining.” Judge Stickman found these measures wanting on First Amendment, due-process and equal-protection grounds, even under an “intermediate” level of scrutiny.

“A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,” Judge Stickman concluded in his September decision. He took particular note of Pennsylvania’s diversity of communities—and hence of Covid risks—as against the state’s “one-size fits all approach” to stay-at-home orders, which were not in any way tailored to minimize the burden while achieving the government’s legitimate ends.

Judge Stickman concluded that Pennsylvania’s business lockdown requirements failed to meet even the lowest level of constitutional scrutiny—being rationally related to a proper state purpose. He noted that the state had not articulated “a set, objective and measurable definition” of “life-sustaining” businesses, and that its requirements arbitrarily favored large retailers over small ones. Pennsylvania has appealed Judge Stickman’s decision, but it is difficult to see how the state can defend such capricious and comprehensive restrictions. The same goes for other states: Such details as closing health clubs but not beauty salons (New York), or imposing restrictions on the use of sailboats but not motorboats (Michigan), appear driven not by any rational basis but by government officials’ aesthetic and ideological preferences.

No doubt some judges will be inclined to defer to government officials in an emergency. Five Supreme Court justices did so earlier this year when churches in California and Nevada sought to enjoin state orders limiting the number of worshipers at services. In both cases, Chief Justice Roberts voted with the court’s four Democratic appointees to deny immediate relief.

But the other four justices dissented in both cases on the grounds that the orders violate freedom of religion by imposing greater limits on religious activities than comparable secular businesses, including casinos. As Justice Alito quipped during his Federalist Society speech: “Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment, which protects religious liberty. You will not find a craps clause.”

This Wednesday the court granted injunctive relief to the Roman Catholic Diocese of Brooklyn and an Orthodox synagogue, which are challenging New York Gov. Andrew Cuomo’s occupancy limits. Justice Amy Coney Barrett joined the new 5-4 majority. In a concurring opinion, Justice Neil Gorsuch observed that the state had ignored “long-settled principles” that almost always prohibit government officials “from treating religious exercises worse than comparable secular activities.”

One area in which the states clearly can impose anti-Covid mandates is vaccinations. In Jacobson v. Massachusetts (1905), the Supreme court upheld the city of Cambridge’s authority to respond to a smallpox outbreak by mandating vaccines for all inhabitants. The justices affirmed that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Congress may also be able to impose vaccination or testing on employees or others engaged in commerce. But proponents of economic lockdowns overreach when they cite Jacobson in support. The case was modest in scope and dealt with a far surer remedy for a deadlier virus than Covid-19.

Federal and state officials have every right to urge Americans to take precautions against viral spread, though it would help if they consistently followed their own advice. But when the government moves beyond persuasion to coercion, its requirements must meet constitutional muster.

Some of them will, such as well-tailored state-level mask and vaccination mandates. Others probably won’t, including broad curfews, stay-at-home orders, economic lockdown mandates and measures that target protected First Amendment activities. There may be a “judicial impulse to stay out of the way in times of crisis,” Justice Gorsuch wrote in the New York case. “But . . . we may not shelter in place when the Constitution is under attack.”

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-constitution-will-survive-covid-19-11606502792

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

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

Oct. 19, 2020, in the Wall Street Journal

As Donald Trump and Joe Biden debate how to deal with malign Chinese behavior, Beijing’s National Bureau of Statistics reports its economy has largely recovered from the Covid-19 pandemic, growing 4.9% year-on-year in the third quarter. Meanwhile American class-action lawyers and the attorneys general of Mississippi and Missouri are suing the Chinese government over the novel coronavirus. Plaintiffs accuse Beijing of various forms of misconduct, ranging from negligence in handling the original infections in Wuhan to the reckless operation of biolabs and even perpetrating bioterrorism against the U.S.

Some of these claims are more plausible than others, but all face an insurmountable obstacle in court: the Foreign Sovereign Immunities Act of 1976, which prevents most lawsuits against foreign countries in U.S. courts. Litigation could be a way of holding China accountable, but only if Congress changes the law.

FSIA makes a few limited exceptions to immunity. Although lawyers in these cases have cited them, all seem clearly inapplicable. One permits suits against foreign governments based on their commercial activities in the U.S., or elsewhere if there is a direct effect in America. But these complaints allege governmental, not commercial, negligence or duplicity in handling the epidemic.

The tort exception allows foreign governments to be sued for wrongful actions, whether negligent or intentional. But Supreme Court precedent limits the exception to torts that take place entirely within the U.S. It would cover, for instance, an auto accident in Washington but not in Beijing.

There’s also an exception for terrorism, but that requires either that the defendant be designated a “state sponsor of terrorism” by the U.S.—currently only Iran, North Korea, Sudan and Syria are—or a specific act of international terrorism within the U.S. A biological attack would surely qualify, but there’s no evidence of that here.

FSIA gives federal courts jurisdiction over all lawsuits against foreign governments, and it’s almost certain judges will dismiss these actions even if Beijing refuses to participate in the proceedings. Reinterpreting any of the FSIA exceptions to cover suits involving the pandemic would open the door to further attacks on sovereign immunity. The U.S., a sovereign state itself, should be careful about creating broad new exceptions, and judges should be especially cautious, since they have neither the authority nor the expertise to conduct foreign policy.

That said, Congress has the power to limit or withdraw a foreign state’s sovereign immunity, and it should consider doing so in response to Covid-19. Such changes to deal with novel problems are legitimate and well-recognized. In May the Supreme Court held unanimously in Optai v. Republic of Sudan that plaintiffs in a lawsuit over al Qaeda’s 1998 attacks on U.S. embassies in Africa could recover punitive damages under an amendment to FSIA enacted in 2008.

Congress could enact a new exception to FSIA for cases in which a foreign state has failed to inform, or deliberately misinformed, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December to comply with the 24-hour notification requirement of the 2005 International Health Regulations would be an important factor to consider.

Such a statute could either create a new federal tort or give federal courts jurisdiction over suits alleging injuries under state law. As with the Justice Against Sponsors of Terrorism Act of 2016, Congress should authorize the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harms.

The U.S. judiciary is respected around the world and would be a better venue than any governmental or international investigation for getting at the truth of Covid-19. Beijing has accused the U.S. military of creating the virus and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. Chinese nationals have filed several lawsuits in China against the U.S. military, the Centers for Disease Control and Prevention and other American government entities. In these pages in May, a senior Chinese official, Xie Feng, suggested that the virus might have originated outside China. If Chinese officials have evidence to support any of these assertions, they could introduce them in court. In any case, their claims underscore the need for an impartial inquiry.

Congress could also withdraw immunity from international organizations that allegedly aided and abetted China’s efforts to play down the virus’s transmission and the health risks. Western intelligence services have suggested that Beijing gave detailed instructions to World Health Organization on what it should say. Plaintiffs could use the discovery process to identify other governmental and private-sector collaborators and hold them accountable for their Covid-related activities and other likely offenses, such as garden-variety corruption, committed while collaborating with Beijing.

They could also explore evidence that Covid-19 stemmed from an accidental release from a Wuhan biolab.

Beijing wouldn’t be able to ignore U.S. lawsuits. If it refused to participate, U.S. courts would enter enforceable default judgments. If it did participate, it would have to submit to discovery. It may be tempted to cheat in this process, but modern discovery techniques make that exceedingly difficult, and cheating would entail further liability and judicial punishments.

The Chinese government could try to avoid complying with any court-ordered damages and injunctions. But that wouldn’t be easy. Successful plaintiffs could collect judgments against Beijing by seizing Chinese government-owned commercial property around the world and the proceeds of sales of government goods and services. Ignoring injunctions would lead to monetary fines and other punishments.

Several bills featuring some of these provisions have been introduced by Sens. Tom Cotton, Josh Hawley, Martha McSally and Marsha Blackburn. Congress should proceed with caution. The law is usually a blunt and inflexible policy tool, wielded by an unelected judiciary rather than the president and Congress, where the Constitution vests the power to run foreign affairs. The political branches are accountable for their decisions in a way that the judiciary is not.

Yet Covid-19 has taken a tremendous human and economic toll world-wide. Lawsuits may become a powerful instrument for changing China’s behavior and can aid U.S. diplomatic and economic efforts to accomplish the same goal. Deterring China from future aberrant behavior requires holding it accountable for its Covid-19-related misconduct.

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/china-deserves-a-day-in-court-11603148463