(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

Read more »

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.

By DAVID B. RIVKIN JR. And LEE A. CASEY

Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

Read more »

On January 4, 2012 President Barack Obama made four recess appointments. On that day, he appointed three people to serve on the National Labor Relations Board (NLRB) and installed Richard Cordray as the director of the Consumer Financial Protection Bureau (CRPB).

These “recess appointments” were immediately challenged as unconstitutional since the House was not officially in recess.

On February 1, 2012 Chairman of the House Oversight and Government Reform Committee Rep. Darrell Issa (R-CA) held a hearing on the recess appointments. Legal experts disagreed sharply on their legality.

Read more »

(Part I of II) David Rivkin goes live on the second hour on Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.

(Part II of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.

The Affordable Care Act claims federal power is unlimited. Now the High Court must decide.

(Published in The Wall Street Journal, March 22, 2012)

Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble.

Read more »