The critics should look no further than the U.S. to see what consequences can ensue.

By DAVID B. RIVKIN JR. And KARL R. MOOR

While the Israeli political scene is no stranger to strident criticisms directed at senior government officials and their policies, the recent attacks on Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak over their policies toward Iran are a dangerous luxury.

Numerous retired security officials who do not lack a private voice or influence within a small nation. including former Shin Bet head, Yuval Diskin, ex- Mossad chief, Meir Dagan, and Former IDF Chief of General Staff Gabi Ashkenazi, have launched broadsides against the current Israeli government’s dire assessments of the Iranian threat and the best ways of dealing with it.

Read more »

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

Read more »

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.

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

Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

Read more »

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.

Read more »

(Published in The Washington Post, March 12, 2012)

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.

Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.

Read more »

(Published in The National Review Online, February 29, 2012)

By David B. Rivkin, Jr. and Andrew Grossman

Theresa Riffey provides help around the home for her brother, a quadriplegic, and receives a small stipend from Illinois’s Medicaid program for her efforts, saving the state the cost of providing full-time care. Illinois law requires her to pay a portion of her check every month to an affiliate of the Service Employees International Union (SEIU). The Supreme Court will soon decide whether to hear her case that asks on what basis, besides raw political power, a state may compel independent home-care workers and other similarly situated self-employed persons to support and associate with a labor union against their will. For the sake of workers’ First Amendment rights, it should take the case.

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone.

Read more »