Democrats Abandon the Constitution

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

October 16, 2018, in the Wall Street Journal

Brett Kavanaugh’s appointment to the Supreme Court has sparked a firestorm of outrage and recrimination on the left. Some attacks seem aimed at intimidating the justices into supporting progressive causes. “The Court must now prove—through its work—that it is worthy of the nation’s trust,” Eric Holder, President Obama’s attorney general, tweeted Oct. 6.

Yet the attacks go beyond ideology. Detractors of Justice Kavanaugh and President Trump are denouncing the Constitution itself and the core elements of America’s governmental structure:

• The Electoral College. Mr. Trump’s opponents claim he is an illegitimate president because Hillary Clinton “won the popular vote.” One commentator even asked “what kind of nation allows the loser of a national election to become president.” The complaint that the Electoral College is undemocratic is nothing new. The Framers designed it that way. They created a republican form of government, not a pure democracy, and adopted various antimajoritarian measures to keep the “demos” in check.

The Electoral College could be eliminated by amending the Constitution. But proposing an amendment requires two-thirds votes in both houses of Congress, and the legislatures of three-fourths, or 38, of the states would have to ratify it.

• The Senate. The complaint here is that the 50 senators who voted in Justice Kavanaugh’s favor “represent” fewer people than the 48 who voted against him. But senators represent states, not people.

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The Rule of Law Prevails in the Travel-Ban Case

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

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Trump has the Constitution on his side

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

June 12, 2018 in the Washington Post

The Constitution vests all executive power in the president. He has the authority to determine what matters will, and will not, be investigated and prosecuted by the U.S. government. This is also a core part of the president’s obligation to “take care that the laws be faithfully executed” — and it remains so even if done through an unorthodox channel such as Twitter.

So it is puzzling to see so much criticism of President Trump’s demand that the Justice Department investigate allegations about his presidential campaign being improperly subjected to an FBI counterintelligence probe. Same goes for his instruction to the Justice Department and the FBI that they should grant congressional requests for information about that matter.

Indeed, Trump would have been well within his authority, and well within precedent, to order an investigation entirely independent of the Justice Department and the FBI, as President Lyndon B. Johnson did when he created, by executive order, the Warren Commission to investigate the circumstances of President John F. Kennedy’s death.

When critics claim that a president cannot direct federal law-enforcement activities, they are implying that subordinate executive-branch officials can both judge and act upon their own assessment of a president’s motivations. There is no basis in the Constitution’s language, statute or Supreme Court precedent for such a notion. Those who object to a president’s instructions may resign, but they cannot usurp executive authority and defy him.

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What’s at Stake in the Attack on Haspel

Trump Is Right to Pardon Scooter Libby, an Innocent Man

The Judicial ‘Resistance’ Is Futile

The U.S. Supreme Court does not act in haste, so the justices raised some eyebrows last month when they took only two weeks to agree to hear the government’s appeal of an immigration case. Normally it would have taken several months, and a ruling might not have come until 2019. Instead the court is expected to issue a decision in Trump v. Hawaii by the end of the current term, in June.

Why the rush? Because lower-court judges have been playing an extraordinary cat-and-mouse game with the Supreme Court over President Trump’s three executive orders limiting immigration from several terror-prone countries. Over the past year, numerous trial and appellate courts have enjoined those orders, only to have the high court stay their decisions.

The lower-court judges have defied precedent by holding that the president has neither constitutional nor statutory authority to issue these orders. They have improperly questioned Mr. Trump’s motives, even analyzing his campaign statements for evidence of bad intent. And they have responded to each reversal from the high court by spinning new theories to strike down the orders. The judges appear to have joined the “resistance,” and it wouldn’t be surprising if the justices concluded enough is enough.

The case the court will now review is the handiwork of the Ninth U.S. Circuit Court of Appeals, which engaged in an analysis that ignored key precedents and misapplied accepted canons of statutory interpretation. Read more »