The organizing principle of the administration’s foreign policy is one of weakness and passivity, coupled with a conspicuous rhetorical abdication of American leadership, write David Rivkin and Lee Casey.

by David B. Rivkin and Lee A. Casey | September 21, 2012 4:45 AM EDT

A few days ago on The Daily Beast, Leslie Gelb praised President Obama’s handling of the unfolding crisis in the Middle East last week and evidently discerns no connection between the ensuing wave of anti-American violence and the broader parameters of American foreign policy. He is wrong on both counts. The administration’s crisis management has been mediocre. Even more fundamentally, the current assault on America’s position in the Middle East is attributable not to the trailer for an obscure anti-Muslim movie, but to Obama’s own foreign-policy failures.

The administration’s crisis-management strategy continues to emphasize its regret about that film, Innocence of Muslims. This was manifest not only in the original (and subsequently retracted) statement from our embassy in Cairo, but in all statements by Secretary of State Hillary Clinton and the president. But deploring efforts to denigrate Muslim religious beliefs is only the first half of the sentence. The administration should have also robustly propounded its commitment to the virtues and values of free expression in a free society, and why this must necessarily encompass offensive speech. Whenever the White House mentions the First Amendment these days, it is done mostly in a defensive mode, by way of explaining (almost in sorrow) to the Muslim world why the U.S. government cannot legally suppress anti-Muslim films rather than a compelling explanation of why such films should not be suppressed. As Clinton stated on Sept. 14, “I know it is hard for some people to understand why the United States cannot or does not just prevent these kinds of reprehensible videos from ever seeing the light of day.” But simply saying that free speech is enshrined in our Constitution “is not enough” the administration must explain why that is a good thing to which they too should aspire.

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

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

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President has taken a hatchet to welfare reform, the immigration laws, and ‘No Child Left Behind.’

(published in The Wall Street Journal, July 27, 2012)

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

On July 12, President Obama unilaterally gutted the Clinton administration’s signature achievement—welfare reform. The 1996 welfare-reform law, while passed with strong bipartisan support, has been the bane of progressives, who have never accepted its fundamental principle that those who can work must work. Over the last year, the Obama administration also took the hatchet to the immigration laws and to the Bush-era “No Child Left Behind” statute.

These actions have two things in common. First, they were announced with much fanfare and designed to appeal to the president’s liberal base. Second, and much worse, they were implemented by suspending enforcement or waiving applications of laws Mr. Obama does not like.

The president cannot write—or rewrite—the laws. The Constitution makes Congress the legislature, and the president cannot simply ignore its decisions.

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To uphold the individual mandate as an exercise of the taxing power, the majority overlooked the natural meaning of the statutory text.

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

The Supreme Court’s ObamaCare decision is both a triumph and a tragedy for our constitutional system. On the plus side, as we have long argued in these pages and in the courts, the justices held that Congress’s power to regulate interstate commerce cannot support federal requirements imposed on Americans simply because they exist. The court also ruled that there are limits to Congress’s ability to use federal spending to force the states to adopt its preferred policies.

However, in upholding ObamaCare’s mandate that all Americans buy health insurance as a kind of “tax,” the court itself engaged in a quintessentially legislative activity—redrafting the law’s unambiguous text. The court struck down ObamaCare as enacted by Congress and upheld a new ObamaCare of its own making.

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In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.

(published in The Wall Street Journal, August 29, 2012)

By DAVID B. RIVKIN JR.

For many years now, a debate has raged over how best to interpret the Constitution and other canonical legal texts. One way of grouping the warring parties is to divide them according to their views of writing itself—the words on the page. The textualists feel a strong loyalty, even a moral commitment, to the words themselves and the meanings they were intended to convey. The non-textualists have a very different approach, guided by a peculiar view of democratic society and the law.

Like the government in Anthony Burgess’s “A Clockwork Orange”—setting out to adjust the behavior of inherently flawed men and women—non-textualists see the American electorate as a collection of people in need of improvement and democracy as too error-prone to do the job. Their solution is to vest judges with the ability to “adjust” the law in order to ensure a more “progressive” direction, loosely interpreting the wording of statutes and the Constitution and sometimes disregarding the wording entirely. The result is a search for non-democratic shortcuts as the best way to promote fairness and social justice.

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By David B. Rivkin Jr.

Editor’s note: This op-ed was originally published on September 29, 1993.

The president has announced his health care plan, and congressional Republicans have announced theirs. Although the details are still murky, the plans seem to share one fundamental assumption — that every man, woman and child in the U.S. must participate in the system. The healthy must subsidize the sick; the young must subsidize the old; the not so old must subsidize the very young. If this redistribution of wealth is to work without new taxes (and no one wants to admit that new taxes might be necessary), then everyone must be in the plan.

Where, exactly, does the U.S. government get the power to require that every one of its citizens must participate in a government-sponsored health care plan? Ask this of a health care reformer and he, or she, will sniff, think a moment, and (if legally trained) will immediately utter the two most magic words in late 20th century constitutional jurisprudence—Commerce Clause.

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