David Rivkin, Constitutional Attorney and Media Commentator

Presidential Power Is Limited but Vast

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

15 April 2020 in the Wall Street Journal

President Trump has come under attack this week for saying he has “absolute authority” to reopen the economy. He doesn’t – his authority is limited. But while the president can’t simply order the entire economy to reopen on his signature, neither is the matter entirely up to states and their governors. The two sides of this debate are mostly talking past each other.

The federal government’s powers are limited and enumerated and don’t include a “general police power” to regulate community health and welfare. That authority rests principally with the states and includes the power to impose coercive measures such as mandatory vaccination, as the Supreme Court held in Jacobson v. Massachusetts (1905). Nor may the federal government commandeer state personnel and resources to achieve its ends or otherwise coerce the states into a particular course of conduct. There is no dispute about these respective state and federal powers.

In most federal-state disputes, the question is what happens when authorities at both levels exercise their legitimate constitutional powers and cross-purposes. Here, the president has the edge. The Constitution’s Supremacy Clause requires that when the federal government acts within its proper sphere of constitutional authority, state law and state officials must give way to the extent that federal requirements conflict with their own. Federal power encompasses a broad power to regulate the national economy. Thus although the president lacks plenary power to “restart” the economy, he has formidable authority to eliminate restraints states have imposed on certain types of critical commercial activity.

Much of this authority was established by Congress in the Defense Production Act of 1950, which Mr. Trump has invoked on a limited basis to require American manufacturers to make personal protective equipment and ventilators. Most of his current critics lauded these actions and urged him to do more.

The DPA was enacted principally to assures U.S. military preparedness. But it defines “national defense” broadly to include “emergency preparedness” and “critical infrastructure protection and restoration.” The law “provides the President with an array of authorities to shape national defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base.” It authorizes him to prioritize the production of certain products and to “allocate materials, services, and facilities in such a manner, upon such conditions, and to such an extent as he shall deem necessary or appropriate to promote the national defense.”

The DPA isn’t a bank check. The president cannot, for example, impose wage and price controls without additional congressional action, and he is often required to use carrots rather than stisk to achieve the law’s purposes. Nevertheless, because he is acting under an express congressional grant of authority, he is operating, as Justice Robert Jackson explained in his iconic concurring opinion in the “steel seizure” case Youngstown v. Sawyer (1952), at the apex of his legal and constitutional power.

Any state restrictions on commerce or personal behavior would have to yield to the federal imperative. “The states have now power, by taxation or otherwise, to retard, impede, burden, or in any other manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government,”, the Supreme Court explained in McCulloch v. Maryland (1819). States, whether acting alone or in coordination, would be barred, for example, from forbidding their residents to return to work in critical industries, or from restraining industrial, agricultural, or transportation facilities in ways that impede the federal mandate.

That said, even the most expansive interpretation of the DPA, and other federal statutes regulating interstate commerce, wouldn’t permit President Trump to reopen all aspects of the American economy on his own authority. The reopening of many local businesses, such as restaurants and nonessential retailers, would be up to the states.

Thus state governors and lawmakers are as vital a part of this effort as the president and Congress. Federal and state officials have to work together, however much they may dislike each other politically or personally to get America back on its feet.

The truly difficult legal issues coming out of the Covid-19 crisis are whether government at all levels has sufficiently protected individual rights. All exercises of federal and state power, emergency or not, are subject to the overriding limitations of the Bill of Rights. The courts have traditionally taken the nature and extent of national emergencies into account in construing and applying these rights, but they cannot be ignored entirely.

So far the American people have largely accepted temporary restrictions on their liberty – especially freedom of assembly and religion – that may not stand up to court challenges. It would serve the president and governors well to make a priority of easing these restrictions and others as soon as possible after the worst of the danger has passed.

Mssrs. 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 and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://www.wsj.com/articles/presidential-power-is-limited-but-vast-11586988414

April 16, 2020
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A Constitutional Guide to Emergency Powers

Federal leadership is crucial, but there are measures only states have the authority to take.

By David B. Rivkin Jr. and Charles Stimson

March 19, 2020, in the Wall Street Journal

The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.

All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.

Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.

The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.

The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.

To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.

Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domesti law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.

Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.

Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.

Source: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429

March 22, 2020
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Shut up, they advised

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

4 February 2019 in the Wall Street Journal

At a time the First Amendment rights of free speech and association are under assault, it’s disheartening to see the judiciary getting in on the act. At issue are the judge-made rules governing judges themselves. A draft advisory opinion circulated last month by the Committee on Codes of Conduct of the U.S. Judicial Conference recommends new restrictions on the First Amendment rights of federal judges as well as their law clerks and staff attorneys. The opinion is unconstitutional, and a sloppy bit of judging to boot.

The committee, made up of 15 jurists, proposes to bar judges and their staffers from membership in the Federalist Society and the liberal American Constitution Society. The opinion reasons that a judge’s impartiality and independence could reasonably be called into question if he belongs to what the committee deems ideological “advocacy groups.” But the committee provides no clear guidance as to which other groups are forbidden. It says only that judges remain free to join the American Bar Association but must avoid the Federalist Society and the ACS.

Federal judges aren’t stripped of their constitutional rights before donning their robes. Yet the opinion takes no account of the First Amendment at all. If it did, its authors would have been obliged to subject their ruling to “heightened scrutiny”—which means, among other things, that the government may impose limits only to achieve a compelling interest. Safeguarding public confidence in the fairness and integrity of the judiciary qualifies—but that’s not the end of the test.

Inconsistent restrictions, as the Supreme Court has put it, invariably raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” And inconsistency abounds in the draft opinion.

The Committee gives a pass to the ABA even though it advocates positions that line up consistently with those of the Democratic Party through its official resolutions, lobbying, grass-roots advocacy and friend-of-the-court briefs.

The basis for that approval appears to be that the ABA has a “judicial division,” whose members, its bylaws assert, “will not be deemed to endorse” the association’s “positions and policies.” Perhaps the Federalist Society or ACS could overcome the ban by creating a similar judicial division—though the committee doesn’t say. But that would be meaningless for the Federalist Society, which doesn’t lobby or take positions on policy or political candidates. Its purpose is to facilitate open debate, allowing voices and perspectives often shut out of legal academia to be heard. For the society to adopt a special disclaimer for judicial members would be tantamount to confessing falsely that it has been misrepresenting its true purpose.

The committee also asserts that the ABA “is concerned with the improvement of the law in general and advocacy for the legal profession as a whole,” while the Federalist Society and ACS are not. Such favoritism should raise a red flag. Decades of case law condemns viewpoint-based discrimination by the government that favors one group over others.

The Supreme Court stated the rule plainly in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The rule’s application here is clear: The committee may not play favorites, approving organizations because it thinks their views foster “improvement.” To avoid viewpoint discrimination while banning the Federalist Society and ACS, the committee would have to paint with a much broader brush, proscribing not only the ABA but also state bar associations (membership in which is often mandatory for those practicing law), affinity bars like the National Association of Women Lawyers and the Hispanic National Bar Association, and perhaps even churches—all of which take positions on issues that come before federal judges.

That would be foolish as well as unconstitutional. The Judicial Code of Conduct recognizes that “a judge should not become isolated from the society in which the judge lives” and that blocking judges from participation in civil society “is neither possible nor wise,” given their “unique position to contribute to the law, the legal system, and the administration of justice.” A viewpoint-neutral ban would run afoul of First Amendment tailoring requirements, which demand that a restriction’s scope be the minimum required to fulfill the government’s stated interest. Requiring judges to be monks is a step too far.

The Committee’s speech- and association-censoring approach simply cannot be reconciled with the First Amendment. So why not stick with the status quo, which focuses on impartiality? Its virtues include neutrality, familiarity, and appropriate deference to a federal judiciary that has proven its integrity and good sense through its conduct and the esteem in which it is held.

Federalist Society members have served as federal judges and law clerks for nearly 40 years without a serious suggestion of ethical impropriety. During that period nothing has changed about the organization’s activities or its purpose. What has changed is that it now faces regular attacks from political actors seeking to achieve their own ends by spreading falsehoods about a public-spirited organization. It is dismaying enough to see a committee of federal judges accept those falsehoods. Their willingness to disregard basic constitutional principles in the process is a dereliction.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. They are members of the Federalist Society, and Mr. Grossman serves on its Free Speech and Election Law Executive Committee.

Source: https://www.wsj.com/articles/shut-up-they-advised-11580773557

February 4, 2020
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This Impeachment Subverts the Constitution

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 25, 2019, in the Wall Street Journal

Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president. Read more »

October 26, 2019
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An originalist libel defense

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

31 July 2019 in the Wall Street Journal

A federal judge in Kentucky dismissed high-school student Nicholas Sandmann’s libel suit against the Washington Post last week. That’s no vindication of the newspaper’s skewed reporting on the teen’s run-in with American Indian activist Nathan Phillips on the National Mall in January. But it’s a vindication of the First Amendment’s limitations on state libel law, which have come under scrutiny of late, including from President Trump and Justice Clarence Thomas.

Mr. Sandmann and his peers were targeted by a Twitter mob, and the Post joined in portraying him as the villain in a “white privilege” morality play. Mr. Sandmann claimed the Post had defamed him by repeating Mr. Phillips’s claim that Mr. Sandmann had physically “blocked” him. That judge held that was an opinion, not a factual claim, and therefore shielded by the First Amendment.

That conclusion may be debatable, but the First Amendment’s protection of opinion shouldn’t be. It is the legal expression of America’s “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” as Justice William Brennan put it in New York Times Co. v. Sullivan (1964), which established that the Constitution imposes limits on state libel law.

Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that Sullivan departs from the Constitution’s original meaning. He has a point: Brennan’s reasoning is all policy. For decades, originalists like Justice Antonin Scalia have criticized it as an exercise of raw judicial power. Yet there’s a good originalist case for limits on libel law.

Sullivan established that government officials suing for defamation must demonstrate that the defendant either knew that the defamatory statements were false or acted with “reckless disregard” for their accuracy—a standard confusingly known as “actual malice.” Later decisions extended the requirement to all “public figures,” whether or not they hold office.

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August 1, 2019
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How to put citizenship back in the census

By David B. Rivkin Jr. and Gilson B. Gray

5 July 2019 in the Wall Street Journal

The Trump administration said Wednesday it will attempt to add a citizenship question on the 2020 census while complying with the Supreme Court’s ruling in Department of Commerce v. New York. Five justices held that the Census Act allows the question, but a separate five-justice majority found the rulemaking that added the question was procedurally deficient. There is a way forward. The Constitution itself requires the collection of citizenship information.

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The 14th Amendment was adopted in 1868, and this provision meant to secure the voting rights of newly freed slaves. But it wasn’t limited to that purpose. An earlier version of Section 2, introduced in 1865, specifically referred to limits on suffrage based on “race or color,” but the Senate rejected that limitation. The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).

Section 2 also applies to every state, a point Rep. John Bingham, the amendment’s principal drafter, emphasized during the floor debate: “The second section . . . simply provides for the equalization of representation among all the States in the Union, North, South, East, and West. It makes no discrimination.”

Congress has dealt with suffrage-abridgement problems through other constitutional and statutory means, especially the Voting Rights Act. But that doesn’t change the constitutional obligation to obtain citizenship data. A future Congress could decide to rely on Section 2 to enforce voting rights, particularly as the VRA’s core provision, requiring Justice Department approval when certain states change voting procedures, becomes irrelevant because of changing attitudes and Supreme Court precedent.

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July 6, 2019
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