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.

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President Obama pledged to wield a pen and phone during his second term rather than engage with Congress. The slew of executive orders, enforcement memorandums, regulations and “Dear Colleague” letters comprised an unprecedented assertion of executive authority. Equally unparalleled is the ease with which the Obama agenda can be dismantled. Among the first actions on President Trump’s chopping block should be the Clean Power Plan.

In 2009 Congress rejected a cap-and-trade scheme to regulate greenhouse-gas emissions. The Environmental Protection Agency then devised a nearly identical scheme to mandate shifting electricity generation from disfavored facilities, like those powered by coal, to those the EPA prefers, like natural gas and renewables. No statute authorized the EPA to seize regulatory control of the nation’s energy sector. The agency instead discovered, in an all-but-forgotten 1970s-era provision of the Clean Air Act, that it had that power all along.

To support its preferred policy, the agency was compelled to “interpret” the statute in a way that contradicts what it acknowledges is the “literal” reading of the text and clashes with decades of its own regulations. It also nullifies language blocking regulation for power plants because they are already regulated under an alternative program. By mangling the Clean Air Act to intrude on areas it was never meant to, the regulation violates the constitutional bar on commandeering the states to carry out federal policy.

These defects are why the Supreme Court put the EPA’s plan on hold while an appeals court in Washington, D.C., considers challenges brought by the energy industry and 27 states. These legal challenges now appear to have been overtaken by events. President Trump can immediately issue an executive order to adopt a new energy policy that respects the states’ role in regulating energy markets and that prioritizes making electricity affordable and reliable. Such an order should direct the EPA to cease all efforts to enforce and implement the Clean Power Plan. The agency would then extend all of the regulation’s deadlines, enter an administrative stay and commence regulatory proceedings to rescind the previous order. Read more »

By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN

Sept. 25, 2016, in the Wall Street Journal

After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way. Read more »

By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN
September 7, 2016, in the Wall Street Journal

To those counting the days until Nov. 8 when the presidential election campaign will finally end, some bad news: The contest won’t truly be decided until the Electoral College’s vote on Dec. 19. Then again, this could be good news for Americans who still hope to escape the dilemma presented by the major parties’ nomination of two unpopular candidates, Hillary Clinton and Donald Trump—but only if the electors’ constitutionally guaranteed independence is observed in the face of state laws seeking to control their votes.

America’s method of presidential selection is as peculiar and clever as the federalism and separation-of-powers principles that fostered it. To guard against the passions of populism, the Framers interposed a college of state-based electors between voters and the actual presidential selection. To discourage political obligation and intrigue, they provided that the electors would meet just once, in their respective states, for the sole purpose of casting ballots for the next president and vice president.

And to prevent the presidency from being captured by regional interests, they required the winner to obtain a majority of the Electoral College votes. Failing that, the election is thrown to the House of Representatives, to choose among the top three vote-getters.

Today, the Electoral College vote is regarded as a nearly mechanical process: The parties nominate their slates, elector seats are awarded (in most states) to the popular vote winner’s party slate, and a few weeks later the electors certify what the people have already chosen. Read more »

July 5, 2016

The general counsel of the National Labor Relations Board, Richard F. Griffin Jr., recently launched another salvo in the board’s continuing assault on the rights of employers and employees. He aims to alter labor law by punishing employers who—following the publicly expressed wishes of their employees—withdraw recognition from unions.

Currently, employers can refuse to recognize or bargain with incumbent unions if most of their employees wish to free themselves from the union’s grasp. For example, if a majority of employees send signed petitions to an employer’s human-resources department, or voluntarily tell management that they want the union gone, the company can, and should, decline to bargain or acknowledge the legitimacy of the union.

Under the proposed new National Labor Relations Board policy, employers will be precluded from walking away from a union, and will be sanctioned by the NLRB, unless employees first vote to leave in an NLRB-conducted secret-ballot election.

Such elections tend to be costly and protracted affairs, which may be part of their appeal to the NLRB now. Unions have also long disfavored secret-ballot elections. Secret balloting reduces the chance of employees being intimidated. Such elections also subject union-organizing activities to government oversight. Read more »

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech. Read more »