Five Ways to Restore the Separation of Powers

The Constitution separates power in two ways: among the three branches of the federal government and between the federal government and states. As James Madison wrote in the Federalist Papers, separation creates “a double security” for liberty because “different governments will control each other, at the same time that each will be controlled by itself.”

The Obama administration has spurned this core constitutional principle, aggrandizing executive power at the expense of Congress and states. It has rewritten laws, disregarding its constitutional duty to faithfully execute them.

ObamaCare’s implementation provides multiple examples: delaying statutory deadlines, extending tax credits to groups Congress never included, exempting unions from fees, expanding hardship waivers beyond recognition and granting “transition relief” for preferred employers. 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 »

Pulling the Plug on Obama’s Power Plan

President Obama’s Clean Power Plan is dead and will not be resurrected. The cause of death was hubris. As a result, the plan’s intended victims—including the national coal industry, the rule of law and state sovereignty—will live to fight another day.

On Tuesday the Supreme Court put President Obama’s signature climate initiative on hold while a lower court considers challenges brought by industry opponents and 27 states. That stay will remain in effect through the end of Mr. Obama’s presidency, until the Supreme Court has a chance to hear the case—in 2017 at the earliest. The stay sends the strongest possible signal that the court is prepared to strike down the Clean Power Plan on the merits, assuming the next president doesn’t revoke it.

Not since the court blocked President Harry Truman’s seizure of the steel industry has it so severely rebuked a president’s abuse of power. Read more »

Time for a Rigorous National Debate About Surveillance

America is in a long war against a resilient enemy capable of striking the homeland, but U.S. intelligence capabilities are falling short of meeting the threat. The San Bernardino attackers were not flagged, despite their repeated visits to jihadist websites, alarming posts on social media, and suspicious financial transactions. The Boston Marathon bombers evaded timely detection, as did the would-be shooters in Garland, Texas, who had exchanged dozens of messages with a known terrorist overseas.

Paris and San Bernardino exemplify the two types of threats: overseas-trained terrorists, and online-radicalized lone wolves. Both exhibit distinctive behavioral and communications patterns that can be detected—but only if intelligence agencies have the right data and tools to analyze it.

Yet Washington is blunting its surveillance powers. Collection of phone metadata under the Patriot Act was banned by Congress and finally ceased at the end of November. Collection of the contents of specific targets’ communications under the Foreign Intelligence Surveillance Act has been dumbed down, with onerous requirements to secure the authorizing court order. The intelligence community feels beleaguered and bereft of political support. What’s needed is a fundamental upgrade to America’s surveillance capabilities.

Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection. Read more »

Obama’s Empty Climate Agreement

Paris is Copenhagen all over again — more presidential climate change grandstanding without concrete results.

By DAVID B. RIVKIN JR. & ANDREW M. GROSSMAN, 10 December 2015 in USA Today

The world is watching as diplomats in Paris hammer out the final details of a new climate agreement involving over 150 countries. The goal, said President Barack Obama, is “an agreement where … each nation has the confidence that other nations are meeting their commitments.”

But the world’s attention may be misplaced. There is no reason to believe that this agreement will conclude any differently from the last three, with nations reneging on commitments to drive down greenhouse gas emissions and to provide billions of dollars in foreign aid to finance reductions in the developing world.

That’s a big problem for the president: reciprocity has always been Congress’s chief concern when it comes to climate-related measures that threaten to drive up energy prices and sap the United States’ international competitiveness. The lack of binding commitments for developing nations like China and India is a big part of what killed consideration of one previous agreement, the Kyoto Protocol, in the Senate. And that, as well as general opposition to new greenhouse emissions regulations by congressional Republicans, presages the same result in Congress this time around.

Despite the messaging coming from the White House, as a legal matter, the president actually does need Congress’s support to complete any kind of meaningful deal. That legal reality is having serious consequences in Paris, where U.S. participation in the final deal is an overriding imperative. For one, it rules out any firm financial commitments. The Constitution, after all, assigns the power of the purse to Congress, and so the president cannot, on his own, set the U.S. foreign aid budget for years into the future. Read more »

Obama’s Illegal Guantanamo Power Play

By DAVID B. RIVKIN JR. and LEE A. CASEY, in the Wall Street Journal

Dec. 2, 2015 6:51 p.m. ET

Two days after terrorists rampaged in Paris, the Obama administration announced that it had transferred five prisoners—including a former Osama bin Laden bodyguard—from the U.S. prison facility at Guantanamo Bay, Cuba, to the United Arab Emirates.

In the past several days, the White House has signaled that a more significant step is coming soon: the complete shutdown of the facility and the transfer of the remaining detainees—there are 107 at the moment—to sites on the U.S. mainland. Obama-administration surrogates say the president will effect the change by using his favorite tool, an executive order. But this would be utterly illegal, since Congress has specifically prohibited the transfer of Guantanamo detainees to U.S. soil.

Although the president’s war powers are broad and formidable, so are those of Congress. In particular, the Constitution specifically vests the legislative branch with the powers to “declare War”; to “raise and support Armies”; to “make Rules concerning Captures on Land and Water”; to “make Rules for the Government and Regulation of the land and naval Forces”; and to appropriate funds for all of these purposes. Read more »