By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Read more »

By DAVID B. RIVKIN JR. And LEE A. CASEY, Jan. 20, 2015

Nuclear talks between Iran and the U.S. recommenced Jan. 14, ahead of full international talks with senior officials from the U.S., U.K., France, Russia, China and Germany two days later. A final agreement is to be reached no later than June 30. Nothing less than Middle Eastern and global security hangs in the balance.

That security depends on verifiable elimination of Iran’s nuclear-weapons and ballistic-missile programs. Unfortunately, the Obama administration is likely to accept a deal leaving in place a substantial Iranian nuclear-weapons infrastructure, including uranium-enrichment capability, long-range ballistic missiles and the ability to deploy a rudimentary nuclear force on short notice. A course correction that only Congress can effect is urgently needed.

It is difficult for Congress to stop a president determined to sign an agreement with foreign leaders. And as this newspaper pointed out in a recent editorial, President Obama has threatened to veto any legislation to impose further sanctions on Iran if the June 30 deadline is not met. Still, Tehran’s insistence that existing U.S. sanctions be lifted as part of a nuclear-weapons agreement gives U.S. lawmakers substantial leverage. The collapse of oil prices, which dealt a heavy blow to the already weakened Iranian economy, has further increased this leverage. Here is what Congress should do:

First, Congress should insist that any Iranian agreement take the form of a treaty. The Constitution requires that treaties be made only with the advice and consent of the Senate. At the time it was adopted, and throughout most of U.S. history, agreements fundamentally ordering the relationship between the U.S. and foreign nations took the form of treaties, not executive orders. A mere executive agreement, which Mr. Obama may use to evade congressional constraints here, would be constitutionally insufficient. Read more »

David B. Rivkin Jr., and Andrew M. Grossman, January 18, 2015

For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech. Well, here’s a free-speech litmus test: Can a state block candidates from asking for campaign contributions that are themselves legal?

That’s the issue the Supreme Court will face Tuesday in Williams-Yulee v. The Florida Bar. Like most states, Florida elects or retains judges by popular vote. Many of those states prohibit judicial candidates from personally soliciting campaign contributions. This restriction, supporters say, prevents corruption, bias and the appearance of bias.

It’s hard to see how. Florida’s law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment. Florida’s law allows judicial candidates to learn who their contributors are and to ask for other kinds of campaign support, including volunteer work and service on their campaign committees.

But a judicial candidate cannot post a request for support on the campaign website, cannot appear before a local civic group to request contributions, and cannot sign a fundraising letter asking for support. In other words, a candidate can accept contributions, just cannot solicit them. But solicitation is just speech.

That last restriction is the one that bit Lanell Williams-Yulee, a public defender and first-time candidate seeking election to a county court. She made the mistake of signing a letter announcing her candidacy and asking friends to contribute whatever they could. For that, she was reprimanded and fined by the Florida Supreme Court. Read more »

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban. Read more »

By David B. Rivkin Jr. and Andrew Grossman

The quest for justice for Michael Brown and Eric Garner did not end with the decisions of grand juries not to indict the police officers whose actions led to those men’s deaths. Those frustrated by the grand juries’ dispositions can take comfort in knowing that victims of police violence, as well as their families, can get their day in court.

The family of Garner, who died after being placed in an apparent chokehold by a New York police officer, has already announced plans to sue the officer and the city for $75 million. Michael Brown’s family has not yet said whether they intend to bring a lawsuit against former Ferguson, Mo., police officer Darren Wilson or the city, but their lawyer has indicated the possibility is being considered.

These suits may succeed where criminal charges failed. To protect against wrongful conviction, criminal charges must be proved “beyond a reasonable doubt,” the highest standard in law. By contrast, civil plaintiffs need convince a jury only that their claims are supported by a “preponderance of the evidence” — a hair more than 50 percent.

Both families could bring claims for wrongful death, arguing that the officers failed to exercise appropriate care in the confrontations that resulted in the deaths of their family members. Such a claim by Garner’s family would be particularly strong, given that the New York Police Department long ago banned chokeholds precisely to prevent choking-related deaths. As for Brown, the circumstances of his death are less clear at this time, but a trial would provide an opportunity for all the facts to come out. If the “hands-up-don’t-shoot” narrative is correct, the Brown family should be able to prevail.

Read more »

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

Read more »