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

30 August 2020 in The Hill

The talking heads and pundits attacking President Trump for giving his Republican National Convention acceptance speech from the White House lawn need to actually read the law. The Hatch Act is a precisely written statute — as is appropriate for a law that limits the indisputable First Amendment rights of federal workers — and it supports the president.

First and foremost, the Hatch Act explicitly exempts the president and vice president from its strictures. It defines “employee,” to which the Hatch Act’s restrictions apply, as someone “other than the President or Vice President.” This is constitutionally required because the president is a co-equal branch of the federal government and Congress can no more limit or restrain his political activities than he could limit theirs.

As a result, President Trump was entirely within his legal rights to give his acceptance speech from the South Lawn of the White House. And any members of the White House staff who may have assisted and supported the president on Thursday night also were in compliance with the Hatch Act.

Although the Hatch Act prohibits a wide swath of federal workers — including many of the individuals who work in the White House — from engaging in political activities while on duty or “in any room or building occupied,” the White House lawn is not such a room or building.  Had Congress intended to extend Hatch Act restrictions to entire government installations or compounds, it could and would have said so.

In addition, there is a further exemption from the relevant Hatch Act restrictions for White House staff members whose work and responsibilities continue beyond normal working hours and while on travel — which includes many if not most of them. These individuals are permitted to engage in political activities while on duty and in a federal room or building, as long as “the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” The president has stated that the Republican National Committee would be picking up the tab for his White House event (and the fireworks afterwards).

Similarly, the attacks on Secretary of State Mike Pompeo for delivering a convention speech from Jerusalem, endorsing President Trump’s reelection, are similarly misplaced based on these same provisions.  In addition to exempting senior White House staff from Hatch Act restrictions on political activities while on duty or in a federal building, Section 7324(b) of the Hatch Act also exempts federal officials who are confirmed by the Senate and who “determine[] policies to be pursued by the United States in relations with foreign powers or in the nationwide administration of Federal laws.” This language includes, at a minimum, the Secretary of State, the Attorney General, and other members of the president’s cabinet.  

Such officials cannot, of course, use their “official authority or influence” to affect an election’s result, but the State Department has made clear that Secretary Pompeo spoke in his private capacity from Israel, not as secretary. Consequently, his speech was entirely consistent with his legal and ethical responsibilities.

Indeed, to the extent that Secretary Pompeo’s critics claim that he has somehow acted unethically or improperly, even if not illegally, it is significant that Congress itself made clear, in the Hatch Act’s first section, that federal employees — which includes cabinet members — “should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political processes of the Nation.” The Hatch Act is a technical law to be applied as far as it goes and no further.

Finally, using the White House as a campaigning site is far from unprecedented. Jimmy Carter is said to have coined the phrase “Rose Garden Campaign,” complaining in 1976 that President Ford was taking advantage of the White House as a backdrop for his campaign. Then, in 1980 — facing economic disaster, the Iran hostage crisis and candidate Ronald Reagan, President Carter fell into the same strategy. Of course, it is only fair to note that the Rose Garden strategy did not turn out well for either sitting president in 1976 or 1980. 

But, there was nothing unlawful or improper about Presidents Ford and Carter using the White House grounds to help their campaigns then, and there is nothing improper about President Trump using it now.  

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.

Source: https://thehill.com/opinion/judiciary/514192-there-was-nothing-unlawful-or-improper-about-trumps-acceptance-speech

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

25 August 2020 in the Wall Street Journal

If the 2000 election provoked a constitutional crisis, the 2020 one is flirting with disaster. Debate over voting by mail has focused mostly on the potential for fraud and logistical difficulties. But there are also legal problems with it, which carry the seeds of chaos before Inauguration Day and continuing instability after.

Under federal law, the presidential election must take place on Nov. 3, and the electors chosen on that day must vote on Dec. 14 to select the new president and vice president. These dates can’t be changed without an act of Congress, and the 20th Amendment sets Inauguration Day on Jan. 20.

Article II of the Constitution gives Congress the power to “determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Congress has done so by enacting laws mandating that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” and that the Electoral College must meet and vote on “the first Monday after the second Wednesday in December.” As the Supreme Court held in Foster v. Love (1997), taken together the relevant constitutional and statutory provisions mandate “holding all elections for Congress and the Presidency on a single day throughout the Union.”

It follows that although state statutes permit the use of certain mail-in ballots sent on or before Election Day, no ballot cast after Nov. 3 is constitutionally valid. That implies that counting unpostmarked mailed ballots that arrive after Election Day would be unconstitutional, as there would be no way to tell if they were cast in time. In addition, the winner of each state’s electoral votes must be determined by Dec. 14, or those votes cannot be cast.

These requirements create a six-week window during which the electors must be chosen and certified, leaving little time for errors or challenges to the results. The delays inevitable in widespread voting by mail would make it difficult or impossible for some states to meet the Dec. 14 deadline, even without challenges to the results—which are certain this year if the election is close.

The deadline is even tighter thanks to another federal statute, which requires that any controversy over the electors a state has appointed must be resolved, under pre-existing state law, at least six days before the Electoral College meets. If a dispute isn’t resolved by the Dec. 8 “safe harbor,” the state legislature has until Dec. 14 to determine how the electors are to be selected or forfeit its electoral votes. If a state meets the Dec. 8 deadline, the result is conclusive and Congress must accept it.

The U.S. Supreme Court stopped the biased Florida recount on Dec. 12, 2000—that year’s safe-harbor deadline. Time had run out to remedy the equal-protection and due-process violations in the recounts that the Florida Supreme Court had ordered. The state court had earlier concluded that the Florida Legislature intended its electors to “participate[e] fully in the federal electoral process.” Thus, the high court concluded, the safe harbor had to be met.

We can assume no state would want its electoral votes to go uncast. As a result, there is only a very short window for mail-in-ballots to be received and counted. State actions and litigation—which are already being pursued with gusto—establishing an overlong period for counting such ballots will endanger a state’s electoral votes, impeding the Constitution and federal election statutes. And, as the Supreme Court said in Ex parte Siebold (1880), Congress’s election regulations “are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.”

Proponents of universal mail-in-voting argue that reliance on traditional in-person voting will disenfranchise many Americans because of the Covid-19 pandemic. Even if that’s true, the established constitutional and statutory requirements must be met. Drawing out the tabulation of large numbers of ballots received after Election Day would make this nearly impossible.

At best, the result would be electors chosen by state legislatures. At worst, states would be disfranchised in the Electoral College—or send rival slates of electors to vote on Dec. 14, leading to a bitter dispute in Congress over which votes to recognize. Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability.

One of America’s greatest constitutional imperatives is the smooth and timely transition of power from one duly elected president to the next. That is now in doubt not because of the absurd notion that President Trump will refuse to leave office on Jan. 20 if the voters reject him on Nov. 3, but because the push for mail-in voting may overload the system, making an orderly election impossible.

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/mail-in-voting-could-deliver-chaos-11598376494

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

17 August 2020 in the Wall Street Journal

Plaintiff lawyers want insurance companies to absorb the cost to business of the Covid-19 pandemic—and they’ve had some early successes. A federal judge in Kansas City, Mo., last week allowed salon and restaurant owners to proceed with a lawsuit claiming that Covid shutdowns constituted “direct physical loss or damage” covered by business-interruption policies. California lawmakers introduced legislation in June that would establish a presumption that Covid-19 qualifies for such coverage.

Yet however sympathetic their clients, the lawyers’ efforts are unconstitutional and dangerous. They threaten to bankrupt the insurance industry, on which American businesses and consumers depend.

Most commercial policies include coverage for business interruption caused by physical damage to the business assets. If a car dealership suffers tornado damage to its roof, it can recover repair costs and losses incurred while the premises are closed. But disease isn’t “physical loss or damage,” as that phrase is ordinarily understood or typically intended in insurance contracts. Most such contracts expressly exclude such losses. That’s because losses associated with communicable diseases—like those from war or nuclear accident—aren’t insurable. The risks are unknowable, preventing the calculation of a premium sufficient to cover the losses if the event occurs.

As the Supreme Court observed in Los Angeles Department of Water and Power v. Manhart (1978), “drastic changes” in the legal rules governing insurance policies can “jeopardize the insurer’s solvency and, ultimately, the insureds’ benefits.” If the Kansas City lawsuit and hundreds like it succeed in redefining “direct physical loss” to include Covid-induced business closures, insurers would be forced to cover losses that were never underwritten. The industry has enough reserves to pay up to $800 billion for losses covered by home, auto and business policies. Uncovered Covid-19 losses are estimated in the trillions.

Fortunately, there are significant constitutional limits on the ability of either courts or legislatures to change private insurance contracts. The Constitution forbids the states to “impair the obligation of contracts.” As Chief Justice John Marshall observed in Ogden v. Saunders (1827), the power of contract impairment “had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society and destroy all confidence between man and man.” The effect was “not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith.”

The Contracts Clause has been invoked less frequently since the ratification of the 14th Amendment, whose Due Process Clause has become the preferred vehicle for challenging state regulatory actions. But the justices made clear in Allied Structural Steel Co. v. Spannaus (1978) that it still “limits the power of a State to abridge existing contractual relationships.” In that case, Minnesota rewrote pensions, requiring an employer to pay $185,000 to nine employees who were terminated before their benefits vested under the company’s plan. The court struck down the law as a “severe” and “unreasonably conditioned” retroactive alteration of agreed-upon obligations. Sveen v. Melin (2018), another Minnesota case, upheld a state-mandated invalidation of life-insurance beneficiary designations on divorce—but only because the impairment of the parties’ contractual obligations was minimal. The policyholder could redesignate the former spouse and “reverse the effect of the . . . statute with the stroke of a pen.”

Even during the Depression, the high court was skeptical of state laws that impaired private contracts. Home Building & Loan Association v. Blaisdell (1934) upheld a state law that extended the time allowed for redeeming real property from foreclosure under existing mortgages, but only because the redemption extension was a reasonable temporary condition.

State legislatures that attempt to abridge commercial insurance contracts today may argue that they are meeting a Depression-caliber economic emergency. Yet although the court reaffirmed in Spannaus that states’ ability to impair contract obligations is greater during an emergency, it also held that such laws must be “tailored to the emergency that it is designed to meet” and impose only “reasonable” conditions. Legislative changes establishing liability for Covid-19 losses would completely abrogate existing contracts and impose immediate, permanently binding, ruinous contractual obligations that the parties specifically contracted not to cover. They would almost certainly be struck down under the Contracts Clause.

Federal efforts to impose new contracts on insurance companies would also be unlikely to survive a constitutional challenge. The Fifth Amendment’s Due Process Clause prohibits Congress from imposing retroactive liabilities that, as the court put it in Landgraf v. USI Film Productions (1994), “increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” In Eastern Enterprises v. Apfel (1998), the court struck down a law imposing new pension liabilities on employers based on decades-old contracts. The justices couldn’t agree on a rationale for their ruling: A plurality saw it as an unconstitutional taking without just compensation. But in a concurring opinion, Justice Anthony Kennedy argued that it violated due process. He noted that political pressures tempt lawmakers “to use retroactive legislation as a means of retribution against unpopular groups or individuals.”

Businesses, especially small ones, have suffered terribly because of the Covid-19 virus. Many likely won’t survive. But shifting the burden to the insurance industry by either judicial rewriting or legislatively abrogating insurance contracts would be unconstitutional, especially since the losses have been largely caused by government decrees. Congress has already provided enormous financial assistance to American businesses—the appropriate means of compensating losses suffered from the government’s shutdown of the economy.

Because the litigation threat is existential, the insurance industry should do more than defend specific lawsuits. It should seek declaratory judgments now, establishing the limits of their potential liability. It also should work to convince federal and state lawmakers that they neither should nor constitutionally could abrogate and rewrite private insurance contracts.

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. Mr. Luttig was general counsel of the Boeing Co., 2006-20. He served as a judge on the Fourth U.S. Circuit Court of Appeals. 1991-2006.

Source: https://www.wsj.com/articles/coronavirus-contracts-and-the-constitution-11597705464

Podcast of panel discussion hosted by the National Review Institute, August 5th, 2020.

The “Trump Resistance” claims the President is guilty of many crimes, regularly abuses his power, and is a threat to democracy. To bolster their case and support their resistance, the President’s critics have invented a new body of “Trump Law,” rewriting legal norms, standards and definitions across the legal landscape – spanning impeachment, obstruction of justice, “collusion,” executive privilege, management of the executive branch, national injunctions, foreign relations, and more. David Rivkin joins John Yoo, Curt Levey, and Andrew McCarthy to analyze the many areas of law affected by this effort, highlighting the threat it poses to the rule of law and speculating on the long-term impact.

Since taking office, President Trump has been derided by the mainstream media and his critics as running roughshod over constitutional norms, fueling the conviction of liberals and some moderate conservatives that the 45th President poses an ongoing threat to the Constitution. In a Heritage Foundation podcast, David Rivkin joins constitutional scholar John Yoo (author of Defender in Chief), who argues that Trump’s adversaries have things exactly backwards. Far from considering Trump an inherent danger to our nation’s founding principles, Yoo contends that the Framers would have seen Trump as restoring their vision of presidential power. It is instead liberal opponents who would overthrow existing constitutional norms in order to unseat Trump, thereby inflicting permanent damage on the presidency.

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