Constitutional defender and appellate attorney David Rivkin debates Vincent Warren of the Center for Constitutional Rights on the tenth anniversary of Guantanamo, how the U.S. treats its terror suspects, the U.S. Justice paradigm, and current legislation. “For the first time Congress has explicitly put its stamp of approval on what here to for has been done either based upon indirect congressional support and authorization to use military force, executive branch practices and judicial decisions.” – David Rivkin on not seeing the legislation as “new.”

No president has resorted to recess appointments when Congress is in session. Expect serious legal challenges to new financial regulations.

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

President Obama’s appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.

Each of these jobs requires Senate confirmation. The president’s ability to fill them without that confirmation, using his constitutional power to “fill up vacancies that may happen during the recess of the Senate,” depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

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(from WSJ.com, December 20, 2011)

Opinion Journal: Editorial board member Jason Riley interviews David Rivkin

WSJ: I wanted to talk to you about Newt Gingrich’s attacks on the judiciary.  He wants to subpoena judges to appear before Congress and explain their decisions, he wants to shut down entirely some appellate courts, and he says the executive branch should be free to ignore judicial decisions.  What’s your reaction to this rhetoric?

David Rivkin: Not a good one. Strong medicine, but the cure is worse than the disease. Let me say that judicial activism, defined as judges not construing the statutes in the Constitution in accordance with its original meaning, is a real problem.”

It’s been a problem, certainly going back to the 1980s. It was one of the pivotal points of Reagan’s elections in ‘80 and ’84, [and] a standard tenet of all of the Republican candidates. But the  proper cure is slow and steady: appoint good judges, fight to get them through the Senate, and, frankly, wage a public debate about the proper role of judges–delegitimize legislating from the bench.

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David Rivkin joins Frank Gaffney on Secure Freedom Radio to talk about Ali Musa Daqduq, a Hezbollah fighter that was dispatched to Iraq on behalf of the Iranian government and in 2007 he kidnapped, brutality tortured and killed five American soldiers. U.S. forces have since apprehended him and the Obama Administration is ready to hand him over to the Iraqi government who will undoubtedly give him to the Iranians where he will be hailed a hero. At first, Obama wanted to bring him to America and try him in a civilian court and when Congress denied that request, the president wanted to try him in a military court in South Carolina, but for obvious security reasons that was quickly dismissed. Obama will not send him to Guantanamo Bay and therefore is willing to release him instead of upsetting his liberal base. Where is the logic in releasing an enemy combatant instead of sending him to a military detention center? Obama is so against Guantanamo Bay that he is willing to release a man who tortured and killed five American servicemen, what are Obama’s priorities?