The Ninth Circuit Ignores Precedent and Threatens National Security

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

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Trump doesn’t need to divest

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

December 26, 2016, in USA Today

President-elect Donald Trump is perfectly entitled to retain his business holdings, and to permit his adult children to run those businesses, as a means of avoiding conflicts-of-interest during his presidency. The Constitution does not require him to divest his holdings, nor do other federal laws.

Although many previous presidents have chosen to put their personal holdings in a “blind trust,” this was not required and in Trump’s case such a requirement would be particularly iniquitous. Trump could not simply liquidate his holdings in the public securities markets at market prices. He would have to find buyers for a vast array of real estate holdings and ongoing businesses. Each of those potential buyers would be well aware of his need to sell, and to sell quickly, and the value of his holdings would be discounted.

In addition, of course, the Trump Organization is a family business, as it has been since the time of Trump’s father. Most of his children are employed in that business. Neither law nor logic require Trump to pull the rug out from under them. A newly elected president is simply not required to make such personal sacrifices as the price of assuming an office to which he was constitutionally elected.

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Hold On Jasta Minute!

Legal tradition says that hard cases make bad law. Few cases are harder than those having to do with the plight of the families of 9/11 victims.

This led Congress to adopt the Justice Against Sponsors of Terrorism Act. Jasta, as it is known, gives federal courts the power to determine whether a foreign state has intentionally sponsored terror against American citizens. This power, however, belongs to the president and cannot be constitutionally wielded by the judiciary.

Jasta was enacted in September over President Obama’s veto. Although the law mentions no particular state, its target is clearly Saudi Arabia. The families of 9/11 victims have long sought money damages from the kingdom, based on the Saudi citizenship of most of the 9/11 attackers and planners.

The Foreign Sovereign Immunities Act of 1976 gives countries immunity from being sued in federal courts. Jasta strips that immunity from any country the court finds acted with a culpable level of intent in sponsoring a terrorist attack on American soil. Mere negligence is insufficient under the law. In making this determination, the courts will also inevitably be branding the relevant state as a sponsor of terrorism.

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It’s unrealistic and unfair to make Trump use a blind trust

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

November 22, 2016, in the Washington Post

Suggestions that President-elect Donald Trump put his business holdings in a “blind trust” to avoid potential conflicts of interest are unrealistic and unfair. Such a trust would not eliminate the virtual certainty that actions Trump takes as president will affect his personal wealth, for good or ill. The step is not required by law. And presidents who have chosen to use this device held very different assets than Trump’s. He can keep his holdings and adopt a reasonable system to avoid conflicts and reassure the American people that the Trump administration is acting ethically.

To establish a blind trust of the sort used by his predecessors, Trump would not merely have to liquidate a securities portfolio and permit an independent trustee to manage those assets. He would have to sell off business holdings that he has built and managed most of his life, and with which he is personally identified in a way that few other business magnates are.

These businesses also provide employment for many thousands of people, including his children. All of it would have to go. This liquidation would by definition take place in the context of a “buyer’s market,” and so Trump would also be required to accept a vast personal loss in financial worth. Those suggesting the blind trust model must understand that their proposal is a poison pill Trump will not swallow.

Moreover, requiring Trump to liquidate his holdings would discourage other entrepreneurs from seeking the presidency, leaving the field clear for professional politicians and investors. Given that the American people have made clear their disgust with Washington’s elite, creating a disincentive for businesspeople to seek the presidency is not in the public interest. Read more »

Don’t bring Garland into 2016 presidential circus

by David B. Rivkin, Jr., and Lee A. Casey, USA Today, March 16th, 2016

President Obama has announced Judge Merrick Garland, of the United States Circuit Court for the District of Columbia, as his choice to replace the late Justice Antonin Scalia on the Supreme Court. Although Judge Garland is certainly a credible candidate for the court, the Senate should postpone consideration of his nomination until after the new president takes office in January 2017. This has nothing to do with Judge Garland, but is the indispensable measure to protect the Supreme Court’s institutional legitimacy.

Scalia’s seat must be filled, but there is emphatically no constitutional timeline that either the president or the Senate must follow in making a new appointment. If that process is undertaken now, the nominee will for all intents and purposes become a “candidate” in this election and the Supreme Court — and by extension the federal judiciary in general — will be further politicized with concomitant damage to the legitimacy of the only unelected, and emphatically non-political, branch of the federal government.

There is little doubt that the electorate, left, right and center, already harbors deep doubts about the efficacy, legitimacy and even good will of all governmental institutions and that the Supreme Court’s own standing has been steadily undermined by relentless attacks on its decisions from all parts of the ideological spectrum. Although the court remains more popular than Congress and about as popular as the president, at the same time it is a counter-majoritarian institution and, as a result, its legitimacy is inherently far more brittle than that of the elected branches of government. Read more »

Justice Scalia kept constitutional originalism in the conversation — no small legacy

by David B. Rivkin Jr. & Lee A. Casey, in the Los Angeles Times

“I’m Scalia.” That’s how Justice Antonin Scalia began to question a nervous lawyer, who was mixing up the names of the nine Supreme Court justices during oral arguments on the controversial 2000 case Bush vs. Gore. His introduction should have been unnecessary, because if any justice dominated the contemporary Supreme Court stage, it was Scalia.

By turns combative, argumentative and thoughtful, Scalia was a stout conservative who transformed American jurisprudence in 34 years on the bench. He was also charming, witty and cordial, able to maintain a close friendship with Justice Ruth Bader Ginsburg, perhaps his leading intellectual rival on the Supreme Court’s left wing.

Appointed to the federal appeals court in Washington, D.C., by President Reagan in 1982, Scalia was elevated by Reagan to the Supreme Court in 1986. Scalia was, first and foremost, an “Originalist” — the title of a popular play about the justice that premiered last year in the capital. Scalia was not the first to argue that the Constitution must be applied based on the original meaning of its words — that is, the general, public meaning those words had when that document was drafted, rather than any assumed or secret intent of its framers. He did, however, supply much of the intellectual power behind the movement to reestablish the primacy of the Constitution’s actual text in judging.

With Scalia on the bench, academics, lawyers and jurists left, right and center were forced to confront originalist theory, which many had previously dismissed as hopelessly simplistic. Read more »