Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

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

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

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Transcript of David Rivkin’s appearance on Bill Bennett’s Morning in America radio show on November 18, 2013.

BILL BENNETT: David, it looks like the President lied [when he said], “if you like your plan you can keep it.” Is there any way to take legal action against the President’s administration or HHS [Dept. of Health and Human Services] for this deception?

DAVID RIVKIN: Well no, if somebody in the private sector has done that, there will be all sorts of criminal and civil options, but you cannot prosecute the President under any of those statutes. The price that he has to pay is the political price and, unfortunately, he’s not going to pay the full price, given the way the media and national Democrats are looking at it. It also, frankly, further undermines the trust of the American people in the government.
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By Michael B. Mukasey, Steven G. Bradbury and David B. Rivkin Jr.

A federal judge’s ruling Monday that the National Security Agency’s (NSA’s) bulk telephone metadata collection is “likely” unconstitutional is wrong on the law and the facts. It conflicts with the opinions of 15 other federal judges who have sat on the Foreign Intelligence Surveillance Court and approved the NSA’s metadata collection 35 times since 2006.

U.S. District Judge Richard Leon has stayed his order to give the U.S. Court of Appeals for the D.C. Circuit the opportunity to reach its own judgment. But in the post-Snowden, anti-NSA climate pervading Washington, there is reason for concern that this opinion will amplify the caterwaul of those seeking to dismantle vital U.S. counterterrorism capabilities.

The telephone metadata collected by the NSA consists of transactional business records revealing only which phone numbers have called which numbers, when and for how long. It includes no other subscriber information, and it doesn’t enable the government to listen to anyone’s calls. This database enables intelligence agencies to discover quickly whether any phone numbers of known foreign terrorists have been in contact with numbers in the United States, a vital input in counterterrorism investigations. It is informative even when it reveals a lack of contacts.
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Did you know that you cannot be trusted with knowledge of your own genetic background? That’s what the Food and Drug Administration decreed late last month when it ordered 23andMe to stop marketing its Personal Genome Service.

23andMe is at the cutting edge of mass-market genomics. For $99 the company tests a saliva sample to identify genetic markers that correspond to various conditions and predispositions, as well as ancestry. Based on these markers, the company produces a report describing genetic health risks and inherited traits, along with citations to the research that backs up its analysis and the current scientific “confidence” for each point.

The FDA does not claim that 23andMe is a scam or could cause direct injury. Instead, its concern is that people using the genome service may begin to self-manage their treatments. Essentially, the agency wants to “protect” patients from knowing about their own health.
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The National Security Agency’s surveillance hasn’t changed. Washington has.

By Mike Pompeo and David B. Rivkin Jr.

Former National Security Agency contractor Edward Snowden’s leaks have subjected the NSA’s surveillance programs to unprecedented attack, raising the possibility that Congress will not be able to pass the 2014 Intelligence Authorization bill needed to provide congressional guidance on a host of crucial national-security issues. It would be lamentable if the entirely legal and invaluable NSA surveillance program became more of a political football than it already is.

Some proposals would hamstring the NSA’s ability to obtain, store and analyze information, while forcing disclosures of now-classified operations. Balancing the intelligence community’s need for secrecy with the public’s appetite for disclosure is always difficult in a democracy. But the NSA’s programs have from the start been tailored to balance constitutional requirements, statutory authorizations and operational needs. What’s different today is not how we collect intelligence, but the new and extreme legal and policy arguments against doing so.
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The D.C. Circuit is the nation’s top regulatory court, responsible for scrutinizing many of the federal government’s most expensive and far-reaching actions. No wonder, then, that President Barack Obama is now trying to push three new judges onto the court and tilt it decisively in his favor. A great deal is at stake here for the U.S. economy, and it is high time for the Senate to have its say.

For a president with an aggressive second-term regulatory agenda, the D.C. Circuit may be a greater impediment than the Supreme Court. By statute, the court hears all challenges to nationwide rules under the Clean Air Act, as well as many major challenges to regulations affecting water, labor relations, securities law, and other fields. It vets agencies’ compliance with constitutional requirements. More than a third of cases in the D.C. Circuit are administrative appeals, compared to 16 percent in other appeals courts. And because the Supreme Court takes so few cases each year, the D.C. Circuit’s word is typically the last when it comes to regulatory challenges.

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