Release the GOP Delegates

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 »

Punishing Climate-Change Skeptics

Some in Washington want to unleash government to harass heretics who don’t accept the ‘consensus.’

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

March 23, 2016 6:29 p.m. in the Wall Street Journal

Galileo Galilei was tried in 1633 for spreading the heretical view that the Earth orbits the sun, convicted by the Roman Catholic Inquisition, and remained under house arrest until his death. Today’s inquisitors seek their quarry’s imprisonment and financial ruin. As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted “consensus” view that the only way to address global warming is to restructure society—how it harnesses and uses energy. That we might muddle through a couple degrees’ of global warming over decades or even centuries, without any major disruption, is the new heresy and must be suppressed.

The Climate Inquisition began with Michael Mann ’s 2012 lawsuit against critics of his “hockey stick” research—a holy text to climate alarmists. The suggestion that Prof. Mann’s famous diagram showing rapid recent warming was an artifact of his statistical methods, rather than an accurate representation of historical reality, was too much for the Penn State climatologist and his acolytes to bear.

Among their targets (and our client in his lawsuit) was the Competitive Enterprise Institute, a think tank prominent for its skeptical viewpoint in climate-policy debates. Mr. Mann’s lawsuit seeks to put it, along with National Review magazine, out of business. Four years on, the courts are still pondering the First Amendment values at stake. In the meantime, the lawsuit has had its intended effect, fostering legal uncertainty that chills speech challenging the “consensus” view. 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 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 »

A Win for Congress and a Setback for ObamaCare

A court rules that the House can sue the administration for its end-run on spending.

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Sept. 10, 2015 7:46 p.m. ET

When the House of Representatives filed a lawsuit last year contesting President Obama’s implementation of ObamaCare, critics variously labeled it as “ridiculous,” “frivolous” and certain to be dismissed. Federal District Judge Rosemary Collyer apparently doesn’t agree. On Wednesday she ruled against the Obama administration, concluding that the House has standing to assert an injury to its institutional power, and that its lawsuit doesn’t involve—as the administration had asserted—a “political question” incapable of judicial resolution.

The House lawsuit involves two core allegations. First, the House contends that the executive branch has spent billions of dollars on ObamaCare’s “cost-sharing” subsidy, even though Congress hasn’t appropriated money for it. The House says the administration violated Article I, Section nine of the Constitution, which declares: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations Made by Law.”

Second, the House asserts that the administration has failed to faithfully execute ObamaCare’s employer mandate by issuing regulations lowering the percentage of employees who must be offered insurance and delaying the mandate’s effective date for two years. Read more »