Congress’s power to regulate interstate commerce is broad but not limitless.

(published in The Wall Street Journal, March 21, 2012)

By DAVID B. RIVKIN JR. AND LEE A. CASEY

On Monday, the Supreme Court will begin an extraordinary three-day hearing on the constitutionality of ObamaCare. At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities. Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty. The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.

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A court case that could invite specious international damage claims to the U.S.

(published in The Wall Street Journal, Feburary 28, 2012)

By DAVID B. RIVKIN JR. And LEE A. CASEY

This Tuesday the Supreme Court will hear arguments in two cases that should interest every U.S. company doing business overseas, and especially those operating in the developing world. Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority raise the issue of whether corporations can be sued for violations of international law under U.S. statutes, including the Alien Tort Statute.

The ATS was adopted in 1789 by the first U.S. Congress. The statute permits suits by aliens in federal courts for certain alleged international-law violations, but it was moribund for nearly 200 years and its purpose remains opaque. The best guess is that Congress wanted to provide a means by which the U.S. could fulfill its international obligations to vindicate a very discrete set of damage claims by diplomats and other foreign nationals injured or abused by Americans.

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No president has resorted to recess appointments when Congress is in session. Expect serious legal challenges to new financial regulations.

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

President Obama’s appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.

Each of these jobs requires Senate confirmation. The president’s ability to fill them without that confirmation, using his constitutional power to “fill up vacancies that may happen during the recess of the Senate,” depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

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