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

July 2, 2020, in the Wall Street Journal

Voting along party lines except for one Democratic dissent, the House last week approved a bill to grant statehood to almost all of the District of Columbia – and create two safe Democratic Senate seats in a city that typically votes 90% Democratic in presidential elections. But while Congress has the power to admit new states, changing the district’s status would require a constitutional amendment.

The Framers had good reason to put the capital outside the borders or control of any state. Attorney General Robert F. Kennedy, writing in opposition to a 1964 statehood bill, summed up their view: “It was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State.”

In 1783, a mutinous band of Continental solders drove Congress out of Philadelphia after Pennsylvania’s government refused assistance. The recent protests and riots in Washington’s streets make it easy to imagine a similar clash if the federal government lacked sovereignty over the city. To prevent such a situation, the Constitution’s Framers wrote a provision giving Congress the power “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States.” Congress took over 100 square miles of Maryland and Virginia with the District of Columbia Organic Act of 1801.

In 1846, Congress retroceded Virginia’s portion, now Arlington County and a portion of the city of Alexandria. Was that constitutional? We think not. While the retrocession didn’t alter the configuration of the district in as fundamental a way as the House is now trying to do, the most logical reading of the Constitution is that no change in the district’s boundaries is permissible and that the original cession is irrevocable.

The Supreme Court has never ruled on the question. When it reached the justices, in Phillips v. Payne (1875), they dismissed the case, holding that the plaintiffs – taxpayers seeking reunion with the District of Columbia, which had lower taxes than Virginia – lacked standing. But if Congress approves statehood, other states would clearly have standing to challenge the dilution of their voting rights by the addition of two senators from an area ineligible for admission as a state.

The House bill attempts to hew to the Constitution’s design by excluding a small area of the district – including the White House, other federal buildings and the National Mall – and leave it as a federal district. RFK rejected a similar proposal in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings … clearly does not meet the concept of ‘the permanent seat of government’ which the framers held.”

There’s an additional problem: The bill violates the 23^rd Amendment, ratified in 1961, which enfranchised the district’s residents in presidential elections. The amendment allocates three electoral votes to “the district constituting the seat of government of the United States.” Under the House bill, that would not be the new state (which would get three electors of its own), but the rump federal district, which lots of structures but few or no inhabitants.

The bill provides for “expedited procedures” in both congressional chambers to propose an amendment repealing the 23^rd. But doing so would require two-thirds majorities, and ratification needs approval from 38 state legislatures. That would require broad bipartisan cooperation – a tall order in today’s political climate, especially if one party sees an advantage in leaving the problem unsolved.

There are strong arguments for granting Washington residents representation in Congress. The Framers understood and were troubled by the undemocratic contradiction of denying capital residents the vote. Alexander Hamilton believed the federal district should have representation in the House but not the Senate (whose members were chosen by state legislatures until 1913). James Madison countered that the new capital’s residents would have an elected local government and “find sufficient inducement of interests to become willing parties to the cession” to justify their lack of congressional representation.

The District of Columbia has always been an imperfect solution to a constitutional problem. The debate over its role and status will and should continue. But abolishing the permanent seat of the federal government would be a profound change – the sort that can be accomplished only with a national consensus implemented through a constitutional amendment, not by a law pushed through for partisan advantage.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/rfk-vs-d-c-statehood-11593709155

By David B. Rivkin Jr. and Andrew M. Grossman

June 17, 2020, in the Wall Street Journal

Senate Republicans have an opportunity to reverse one of Chief Justice Earl Warren’s most pernicious legacies—but they seem determined to blow it. Sen. Tim Scott, who is leading the majority’s police-reform effort, said Sunday that abolishing “qualified immunity,” which protects law-enforcement officers from lawsuits under a law known as Section 1983, is “off the table.” Police unions, Mr. Scott said, view it as a “poison pill.”

Section 1983 originated in the Civil Rights Act of 1871, which opened federal courts to lawsuits challenging civil-rights violations by defendants acting “under color” of state and local law. It provides that violators “shall be liable” to their victims. The idea was that freed slaves could go to court to enforce their newly won constitutional rights.

It didn’t work out that way, and much of the blame lies with the Supreme Court, which in the late 19^th century defanged the 14th Amendment, relieving states of their obligation to honor all citizens’ federal rights. The court only began to correct that error in the mid-20th century, proceeding on a right-by-right basis under a doctrine known as incorporation.

What the court gave with one hand, it took away with the other. In Mapp v. Ohio (1961), the justices held that states were obligated to observe the Fourth Amendment right against unreasonable searches and seizures. But in Pierson v. Ray (1967), they relieved state officials from civil-rights liability unless their actions violated “clearly established law.” That’s “qualified immunity.”

The results can be infuriating. In one recent case, police officers escaped liability for siccing an attack dog on a suspect who was sitting with his hands up. A previous case had found a Fourth Amendment violation, but the court held the precedent didn’t apply because the suspect in the earlier case was lying on the ground. In another case, cops shot a fleeing driver who posed no threat. In another, police stole a collection of rare coins while executing a search warrant. Because such larceny by officers hadn’t arisen in a previous case, the court reasoned, the plaintiff’s right not to have his property stolen by police was not “clearly established.”

To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.

Warren’s rationale for qualified immunity was that officials had historically enjoyed immunity for acts taken in “good faith.” He concluded that unless a court had already established that a particular act violated the law, it couldn’t be presumed that Congress intended to impose liability.

But Will Baude of the University of Chicago has demonstrated that there was no general “good-faith defense” for public officials and that qualified immunity can apply even to violations committed in bad faith. Further, Warren’s conclusion about Congress’s intent is at odds with the statute’s language; the words “shall be liable” brook no exception.

The Warren court established qualified immunity at a time when it was rewriting the Constitution by discovering new rights at an astonishing clip. It’s possible the justices worried that imposing liability for violations of the new rights would encourage resistance and stymie the rights revolution.

Yet as the Warren court relieved itself from the strictures of the Constitution, it did the same for state officials. Qualified immunity has made civil-rights litigation such a crapshoot that it does little to deter misconduct, particularly rights violations by police, which can be remedied only after the fact with money damages.

Some conservatives fear that correcting the error of qualified immunity could alter incentives for the worse, by putting police officers at risk of liability for doing their best to protect the public. That concern is misplaced. Other professionals face tort liability irrespective of whether the law on some point was “clearly established” by a prior court decision. No one argues that hinders the practice of law or engineering.

Besides, unlike most other professionals, police are almost always indemnified by their departments. Police departments take advantage of qualified immunity rather than make difficult choices like confronting or firing bad cops, standing up to police unions, or insisting on use-of-force rules that could deter abuses. In these ways, qualified immunity does a disservice to the overwhelming majority of police who take their duties to their communities seriously.

The Roberts court appears disinclined to correct its predecessor’s error, denying review this week in a score of cases asking it to reconsider the doctrine. That means it’s up to Congress. House Democrats are promoting legislation that would eliminate immunity for police officers. The only sound objection is that the Democratic plan stops short of ending the failed experiment of qualified immunity altogether.

Limited to police officers, it would leave the doctrine on the books for other state officials, making the Supreme Court less likely to correct its original error. And it would arbitrarily deny recourse to victims of, say religious discrimination by a mayor or racial discrimination by a licensing officer. All state officials, including the police, should be accountable for respecting constitutional rights.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/how-the-warren-court-enabled-police-abuse-11592410930

In this interview on War-room, I take listeners through the arguments why immunity (even if temporary) from Covid liability is needed now to kickstart an economic recovery. This will allow time for comprehensive federal regulatory guidelines to follow. The interview follows my recent op-ed in the Wall Street Journal with Michael Luttig (see below).

Congress has the power to limit coronavirus liability while regulators develop rules to control contagion.

By J. Michael Luttig and David B. Rivkin, Jr.

20 May 2020 in the Wall Street Journal

As Congress considers another Covid-19 rescue bill, the usual partisan divide has opened over limiting pandemic-related tort liabilities. Republicans and business owners argue that litigation will hamstring recovery. Trial lawyers, unions and Democrats counter that liability limits would encourage businesses to endanger employees and consumers. The Senate Republican leadership proposes immunity for all businesses that comply with public-health guidelines except in cases of “gross negligence” and willful misconduct.

Republicans’ approach is appealing in theory, but in practice it can’t be implemented without detailed regulatory standards—which in the case of Covid-19 won’t be written for some time. Rather than permanently change liability standards based on incomplete information about the virus, it would be wiser to enact an immediate but temporary immunity. That would permit the economy to begin reopening while allowing time for federal regulators to promulgate standards on which long-term immunity could be conditioned.

The existing tort liability system, which rests mostly on state statutory and common law, has few virtues and many flaws. It is inefficient and often arbitrarily imposes liability. Tort litigation, unlike regulatory standards and enforcement, is largely unconstrained by due process and other constitutional limits. The results can be crippling for small businesses, which can’t afford protracted litigation, and even large companies have to settle meritless or frivolous lawsuits. The system is driven by jackpot-justice incentives.

This system is particularly ill-equipped for dealing with Covid-19, which affects the whole economy. Yet hundreds of lawsuits are already pending against universities, processing plants, manufacturing, mass-transportation companies and other businesses. Plaintiff lawyers are petitioning legislatures to rewrite or courts to reinterpret insurance policies, which specifically exclude pandemic-related liabilities, in an effort to obtain large recoveries. While such efforts are constitutionally suspect, these lawsuits won’t die easily.

The notion that businesses will act recklessly if Congress affords liability relief ignores the good-faith compliance culture of American enterprises and the regulatory environment in which they operate. Businesses have strong incentives against even negligent behavior, which would cause bad publicity and customer distrust. We’ve seen many announcements in recent weeks about what businesses are doing to keep customers and employees safe. Bad actors can and will be held to account by states and municipalities using police and regulatory powers to fine, close or even prosecute those that operate dangerously. An elaborate system of federal and state workmen’s compensation provides additional protection.

Tort law is primarily a state matter, but it’s well-established that Congress can intervene via its power to regulate interstate commerce. Federal law has provided tort liability protections to firearms makers and for nuclear power. Congress also enacted laws to limit liabilities arising out of Y2K—like Covid-19, a specific event that was thought to have potentially calamitous economic consequences.

The Supreme Court has sustained congressional authority to sweep aside state policies, statutes and procedures that impair interstate commerce, beginning with Gibbons v. Ogden (1824), which affirmed federal pre-eminence in regulating interstate navigation. In New York v. Beretta (2008), which upheld the limitations on liability for firearms makers, the Second U.S. Circuit Court of Appeals held that Congress’s authority includes the power to ban state tort lawsuits that “are a direct threat” to specific industries.

While there are legitimate doubts—which we share—that the Commerce Clause’s original meaning encompasses intrastate economic activities, the high court has embraced this view since 1942, when it held in Wickard v. Filburn that the federal government could ban growing wheat for personal consumption because it impaired a wheat-production scheme created by federal statute. The justices also asserted in Gonzales v. Raich (2005) that the Commerce Clause allows Congress to regulate intrastate activities that “substantially affect interstate commerce.” Those precedents are enough to allow Congress to protect businesses with local footprints, such as beauty salons or restaurants, that buy products or supplies in interstate commerce.

Senate Republicans should also propose to make protection against tort liability a precondition for states and localities to receive nearly $1 trillion in the new Covid-19 rescue bill. In National Federation of Independent Business v. Sebelius (2012), the ObamaCare case, the Supreme Court limited Congress’s ability to coerce states into adopting new policies by threatening to withdraw money for existing programs. Since this money is new, that won’t pose an obstacle. Using its spending and Commerce Clause powers, Congress can promulgate a variety of regulatory schemes that would replace current federal and state statutory and common-law liabilities for Covid-19 and that would survive litigation challenges.

Making liability protection work will require regulation to evolve along with scientific understanding of Covid-19. Current federal, state and local guidelines, including those published by the Centers for Disease Control and Prevention, are informed exclusively by medical considerations and do not reflect traditional regulatory criteria such as cost and feasibility of implementation, and are too ambiguous and inconclusive to be a proper basis for imposing or limiting Covid-19-related liabilities. New, industry-specific guidelines will have to be developed by agencies such as the Occupational Safety and Health Administration.

OSHA and other federal agencies have the expertise to evaluate scientific, practical and cost-effective standards governing operations of a wide range of businesses. What they need is new statutory authority to issue safe-harbor guidelines for businesses that pre-empt tort liability under state law. Companies and trade associations would work with OSHA and propose industry- or business-specific guidelines to the agency, such as for meat packing plants or package sorting facilities. OSHA would promptly review each proposal, make necessary modifications, and then issue it as an immediately effective regulation with the legal force to override lawsuit liability. Businesses that comply with these regulations can rest assured that they’ve met their legal obligations.

Such considered Covid-19 liability reform—temporary immunity while businesses reopen, followed by promulgation of comprehensive federal regulatory guidelines—would be constitutional and consistent with federalist values. It would protect public health while enabling a prompt and full economic recovery.

Mr. Luttig is a former general counsel of the Boeing Co. He served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/lawsuits-neednt-block-recovery-11589993211

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

6 May 2020 in The Hill

Republican senators, led by Majority Leader Mitch McConnell (R-Ky.), are right to oppose legislation that would provide a broad federal bailout of highly indebted states. Gov. Andrew Cuomo of New York calls this legislative stance “toxic and poison,” but it is constitutionally required.  

As senators, including Florida’s Rick Scott and Texas’s Ted Cruz, made clear in a recent letter to President Trump, no one doubts that the federal government can and should assist states in meeting the coronavirus emergency. Nor can there be any reasonable objection that this aid will benefit certain states — especially New York, which has the majority of coronavirus cases — more than others. There is, however, a profound objection to any plan that would use federal resources to ensure that heavily indebted states need not reassess their policy priorities. These states find themselves in dire fiscal straits primarily because of underfunded pension plans for their public employees. Virtually all of these states are Democrat-run and three of them — Illinois, New Jersey and Connecticut — are facing a particularly calamitous fiscal situation.

Politics aside, bailing out unfunded state pension plans with federal dollars would violate the Constitution’s often ignored, but nevertheless binding, “general welfare” clause. Congress does not, in fact, have unfettered power to spend money as it sees fit. The Constitution permits it to tax, and by implication spend, “to pay the Debts and provide for the common Defense and general Welfare of the United States.” (Art. I, § 8, cl. 1) This language was neither puffery nor surplusage, but was added by the Constitution’s Framers for a compelling purpose.

The Framers were determined to vest the federal government with sufficient authority to carry out its national purpose, but also to limit that power. These principles are reflected in numerous constitutional provisions and that document’s overall architecture. Thus, all congressional powers have some limit, some cabining principle. Just as the commerce clause is limited to the regulation of economic activities and does not permit Congress to exercise a general “police power” regulating people simply because they are here, so Congress’s ability to tax and spend is limited by the requirement that this must be for the general welfare.

This requirement stems from the Framers’ concern that large, powerful states would dominate the federal government and would use federal institutions to benefit their own interests, rather than the Union as a whole. Indeed, the question of how to ensure that a cabal of large states would not run roughshod over small states dominated much of the Constitutional Convention. It shaped many key constitutional provisions, including the bicameral federal legislature, with all states having equal representation in the Senate, the apportionment requirement for direct federal taxes, and the language mandating that “all Duties, Imposts and Excises shall be uniform throughout the United States.”  

Even such an ardent proponent of a strong federal government as Alexander Hamilton was sufficiently concerned about states acting selfishly that he argued initially for abolishing the states as independent sovereigns altogether because “states will prefer their particular concerns to the general welfare.” Eventually, this concern resulted in the constitutional language that required the federal government to operate for the general welfare of the entire nation. Notably, this language is found both in the Constitution’s preamble and Article I, Section 8, which enumerates Congress’s powers. And, as is made clear in an early draft of the general welfare clause, the Framers understood the phrase to mean that “which may concern the common interests of the Union.”

This understanding of the clause is similarly revealed in a debate that took place in September 1787, near the Convention’s end, after the general welfare language had taken its final form.  This debate concerned whether an additional provision should be included in the Constitution specifically vesting the federal government with the power to build canals, which would benefit some states more than others. Some thought yes; others argued that tasks such as canal-building should be the responsibility of the states that would directly benefit. Regardless of this disagreement, they all appeared to have shared the same view that such authority — which today we would take for granted as being well within Congress’s spending power — was not already present.

As in other areas, after the Constitution’s ratification, the Framers took different views of how far the spending power could go. Hamilton, always the preeminent Federalist, took the position that the power to tax and spend constituted a separate grant of authority to Congress, while James Madison believed it was merely a support for Congress’s otherwise enumerated powers.  Hamilton’s view prevailed and was endorsed by the Supreme Court in the 1936 case of United States v. Butler. The court did not, however, determine the meaning of “general welfare” in Butler, except to note that Hamilton understood it to mean “the purpose must be ‘general, and not local.’”

To be sure, the definition of what types of expenditures advance general welfare has been much debated throughout U.S. history. Prior to the Civil War, a stringent definition prevailed, with Congress vigorously debating expenditures for various types of infrastructure projects and presidents vetoing spending bills that they believed served local needs and did not sufficiently advance general welfare. Post-Civil War, and particularly following the New Deal, a far broader federal spending pattern emerged. This reflected the view that, using federal dollars to pay the costs of natural disasters and similar emergencies, or various infrastructure projects, while benefiting some states more than others at any given point in time, would benefit the nation as a whole in the long run. This practice broadened the understanding of what expenditures served the national interest, but it did not and could not abolish the general welfare requirement altogether.

Thus, however broad Congress’s power to tax and spend may be, this remains the fundamental limitation — expenditures must promote national, rather than local, interests. And it is difficult to imagine a more locally-oriented program than one designed to prop up the fiscal choices of a group of states — to benefit state and municipal government employees by establishing generous, underfunded pension systems — at the expense of other states. Significantly, numerous states repeatedly have rejected similar pension arrangements for themselves, vividly manifesting their view that this was not in their best interests or conducive to general welfare.  Indeed, by subsidizing a particular vision of what constitutes a proper state government, one of the basic justifications for our federalist system — that states can make their own choices as laboratories — would be discarded. True federalism requires that the federal government neither coerces states nor imposes on states’ fiscal burdens that properly belong to individual states that have incurred them.

Senate Republicans have every right, and all senators have an equal obligation, to ensure that any funding legislation meets the general welfare requirement, so that federal dollars cannot be used to pay, either directly or indirectly, for the repair of long-term fiscal liabilities of any recipient state.  

David B. Rivkin Jr. and Lee A. Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://thehill.com/opinion/judiciary/495961-bailing-out-states-violates-the-constitutions-general-welfare-clause

The coronavirus has cost the US thousands of lives and trillions of dollars. As it becomes increasingly apparent that the Chinese government’s negligence exacerbated the virus’ spread, legal scholars, politicians, and citizens alike have questioned whether America should hold Beijing financially liable.

David Rivkin joined Dany and Marc to outline the legal case for suing China for coronavirus damages. The three debate the merits of the case, whether it’s realistic to expect China to pay, and the legal precedent.

David Rivkin, a partner at Baker Hostetler LLP, is a member of the firm’s litigation, international and environmental groups and he co-chairs the firm’s appellate and major motions team. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations.