The ‘death panel’ is a new beast, with god-like powers. Congress should repeal it or test its constitutionality.

By David B. Rivkin Jr. and Elizabeth P. Foley

Signs of ObamaCare’s failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law’s most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a “death panel,” threatens both the Medicare program and the Constitution’s separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.

For a vivid illustration of the extent to which life-and-death medical decisions have already been usurped by government bureaucrats, consider the recent refusal by Health and Human Services Secretary Kathleen Sebelius to waive the rules barring access by 10-year old Sarah Murnaghan to the adult lung-transplant list. A judge ultimately intervened and Sarah received a lifesaving transplant June 12. But the grip of the bureaucracy will clamp much harder once the Independent Payment Advisory Board gets going in the next two years.

Read more »

Judges should be unafraid to review government actions

By David B. Rivkin Jr. and Elizabeth Price Foley

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

Read more »

News must often be gathered by confidential sources, or not at all. That confidentiality must be uniformly protected.

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

A Colorado judge’s threatened contempt sanctions against Fox News investigative reporter Jana Winter—who refuses to reveal a confidential news source—has refocused public attention on how journalists operate.

News must often be gathered from confidential sources, or not at all. Given how vital is the freedom of the press in a democracy, that confidentiality must be maintained. It is time that Congress recognize this and enact legislation that enables journalists to protect their confidential sources and newsgathering materials.

Read more »

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

Those who support stricter gun control fear that the passage of time since the Dec. 14 shootings at Sandy Hook Elementary School will result in further watering-down of measures. They should not, however, discount the risk that attempts to shave a few weeks or months off the usual legislative process will result in bad laws, with unintended and lasting consequences.

While pro-gun forces may overstate the case against expanded background checks — they are not, for example, a prelude to disarming the citizenry — President Obama and his allies have understated the difficult legal questions posed by extending the background-check system to cover more sales and transfers.

Read more »

Noel Canning v. NLRB: DC Circuit Court of Appeals Rules President Obama’s Recess Appointments were Invalid

On Friday, January 25, 2013, the U.S. Court of Appeals, District of Columbia Circuit, ruled that  President Obama’s “recess appointments” of three National Labor Relations Board (NLRB) members was unconstitutional.  At issue was whether the President illegally invoked the Recess Appointments clause of Article II, Section 2 of the U.S. Constitution when he filled three existing vacancies on the NLRB during pro forma sessions of Congress (President Obama had maintained that Congress was actually not in session).  Attorneys for Noel Canning argued that, since the recess appointments were illegal, the NLRB lacked a quorum when it ruled that the company violated various provisions of the National Labor Relations Act, and, therefore, the NLRB ruling was invalid and unenforceable. A three-member panel consisting of Chief Judge David Santelle, and Circuit Judges Thomas Griffith and Karen Henderson concurred.

For additional analysis, read this alert.

Read more »

Democrats regard federalism as quaint, Republicans at least pay lip service to it

By David B. Rivkin Jr. and Elizabeth Price Foley

In the presidential debates, Barack Obama and Mitt Romney ranged across dozens of topics, but an important one didn’t come up: federalism. And no wonder.

The idea that the Constitution grants only limited and enumerated powers and leaves the remainder to the states is foreign to those who believe that the national government should or even could address voters’ every concern. But contrary to the view widely shared by the political class, Washington—in particular, Congress—does not have the power to pass any law it wants in the name of the “general welfare.”

Politicians should take heed. Voters are increasingly focused on the proper role of government in society: Witness the rise of the tea party and unease over the massive debt caused by entitlements and other government handouts. The continuing loud objection to ObamaCare’s takeover of health care shows that voters want to preserve the Constitution’s architecture of limited federal power.

Read more »