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 »

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 »

By David Rivkin and Andrew Grossman, 27 August 2015 in SCOTUSblog

Whatever the fate of mandatory “fair share” payments that nonmembers are often required to make to fund public-sector unions’ collective bargaining activities, Friedrichs will likely mark the end of requirements that dissenting workers take action to “opt out” of funding public-sector unions’ political and ideological activities, the subject of the second question that the Court agreed to consider. Although less prominent than the forced-payments issue, ending opt-out requirements would correct a serious anomaly in the Court’s First Amendment jurisprudence, one that facilitates tens of millions of dollars annually in union political spending of funds obtained through inertia, trickery, and coercion.

If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights – and the Court has been unanimous on that point for decades – then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year? Put differently, why not allow workers who support a union’s political activities to opt in to funding them, rather than require dissenting workers to play a game of cat and mouse to stop the union from taking their money to fund ideological causes they likely oppose? We’ve never heard a compelling justification for the current “opt out” regime and, like the majority in Knox v. SEIU, suspect that there isn’t one.

Instead, as the Court recounted in Knox, “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” In early cases, workers subject to the Railway Labor Act sought relief from being forced to fund unions’ political activities, and the Court assumed (the statute saying nothing one way or the other) that allowing them to affirmatively object to funding such expenditures would be sufficient to protect their rights. Without any reasoning or analysis, the Court in Abood further assumed that the opt-out approach discussed in those prior statutory cases was sufficient to remedy the First Amendment violation when a public employee is coerced into subsidizing political or ideological speech by the threat of loss of governmental employment. Read more »

By David B. Rivkin, Jr., and Andrew M. Grossman — 22 June 2015 in USA Today

Constitutional law isn’t all conflict. It may seem that way as the Supreme Court barrels along to the conclusion of another term, with contentious cases concerning same-sex marriage, Obamacare, and seemingly every other issue plucked from the headlines. But the high-profile controversies obscure that, as much as the Supreme Court may be divided, the justices are able to come together on a great many important issues.

For example, raisins. Yes, those tiny wrinkled morsels. The tiny snacks are also the subject of a major challenge to government power — one that has revealed surprising agreement on the Court.

Marvin and Laura Horne have been growing raisins for 40 years on their family’s California farmland. After they decided to dry the raisins for themselves, rather than sell their grapes to a processor, they found themselves in the cross hairs of the federal government, facing fines of nearly a million dollars.

Their crime? Refusing to allow the government to seize over a million pounds​ of the raisins they had grown and processed themselves.

It is the dirty little secret of American agriculture that raisins and other crops, despite being produced by private parties, are actually under the control of the federal government, which colludes with major producers to fix prices and control the market.

These so-called “marketing programs” are a relic of the New Deal, a time when the U.S. response to the threat of Soviet five-year plans was to adopt our own, but better. The rest of the economy that was once subject to central planning has since embraced the free market. Farming is among the last holdouts.
Read more »

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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By David B. Rivkin Jr. and Andrew M. Grossman — Sunday, April 19, 2015

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

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