The Vaccine Mandate Case May Mark the End of the ‘Work-Around’ Era

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

Jan. 6, 2022, in the Wall Street Journal

Hours after President Biden’s Sept. 9 speech announcing a series of vaccine mandates for private-sector employees, his chief of staff, Ron Klain, retweeted an MSNBC anchor’s quip that wielding workplace-safety regulation to force vaccinations was “the ultimate work-around.” Congress has never enacted a law requiring American civilians to be vaccinated—assuming it even has the constitutional authority to do so, which is doubtful. The Supreme Court hears arguments Friday on two of the mandates, which are likely to meet the same fate as other recent attempts to circumvent Congress that the courts have rejected.

The Constitution vests the power to make laws in Congress and charges the president with the duty to execute them. That’s what many in Washington derisively call the “high school civics class” model of government. It’s slow, it’s cumbersome, it rarely approves measures that don’t enjoy widespread public support, and it forces compromise, moderation and tailoring of policies to address the circumstances of a vast and varied nation. The temptation of avoiding it via executive fiat is obvious.

All it seems to take is clever lawyering. The U.S. Code is littered with broadly worded laws, made all the more capacious by judicial deference to agencies’ interpretations of them. Rather than dutifully carry out Congress’s design, a president can set his own policy and then scour the statute books for language that can be contorted to authorize it. In a 2001 Harvard Law Review article, then- Prof. Elena Kagan called the practice “presidential administration.” President Obama put it more plainly when he faced congressional resistance to his agenda: “I’ve got a pen to take executive actions where Congress won’t.”

But it isn’t quite that easy. The Clean Power Plan, Mr. Obama’s signature climate policy, set rigid and unattainable emission limitations for fossil-fuel power plants to force them out of operation and transform the energy market. It relied on an adventuresome interpretation of an obscure provision of the Clean Air Act. In 2016 the Supreme Court blocked it from taking effect, and the Trump administration later repealed it. (We represented Oklahoma in the litigation.)

Mr. Obama’s immigration-reform measures—also taken in the face of congressional opposition—suffered a similar fate. Deferred Action for Childhood Arrivals—which allows illegal aliens who were brought to the U.S. as children to work and avoid deportation—remains in legal limbo nearly a decade after it was established, following setbacks in the courts. Its counterpart for parents of U.S. citizens and permanent residents was enjoined before it took force.

Mr. Biden has had a taste of defeat himself, in a case that prefigures the mandate challenges. After Congress declined to extend the Trump administration’s nationwide eviction moratorium, the Biden administration acted on its own, relying on a 1944 statute authorizing the Centers for Disease Control and Prevention to undertake clearly delineated disease-prevention measures like fumigation and pest extermination. The justices, however, found it unthinkable that Congress had intended to confer on CDC so “breathtaking” an authority: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

In other words, loose language in old laws isn’t enough to support a presidential power grab. Yet that’s all the support the administration has been able to muster for the vaccination mandates. The Occupational Safety and Health Administration mandate forcibly enlists all companies with 100 or more employees to administer a vaccination-or-testing requirement that reaches nearly 85 million employees. It relies on a narrow provision addressing workplace-specific hazards that has never been used to require vaccination. The mandate for Medicare and Medicaid providers (covering 10.3 million workers) rests on general provisions authorizing regulations necessary to administer those programs—which, again, have never been used to require vaccinations. None of these statutes contain even a hint that Congress authorized any agency to administer broad-based vaccination mandates touching millions of Americans.

Although the mandates are flawed in other ways, their lack of clear congressional authorization is the most striking defect. Excessive judicial deference to agencies’ statutory interpretations is what enabled Mr. Obama’s “I’ve got a pen” agenda and its revival under Mr. Biden. The result has been to distort the entire federal lawmaking apparatus. Members of Congress now lobby the executive branch to make law through regulation rather than legislate themselves. Agencies enact major policies that have the durability of a presidential term before they’re reversed. And the president would sooner blame the courts for legal defeats than admit he lacks the power to do his allies’ bidding.

The courts share blame for this state of affairs, having lost sight of the basic separation-of-powers principles that should guide questions of agencies’ statutory authority. A decision rejecting the vaccination mandates because they weren’t clearly authorized by Congress would serve as a shot across the bow signaling that the work-around era is over.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/end-of-work-arounds-biden-executive-order-vaccine-mandate-covid-omicron-supreme-court-11641505106

This Debt-Ceiling Crisis Threatens Democracy as Well as Solvency

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

7 December 2021 in the Wall Street Journal

Congress is about to begin another debt-ceiling fight, and it threatens the Constitution as well as America’s solvency.

Over the past two years, Uncle Sam has borrowed and spent trillions of dollars to address Covid-19. Coronavirus spending added nearly $3 trillion to the national debt this year alone—and that doesn’t count the recently passed infrastructure bill and the pending Build Back Better Act. The unprecedented growth in federal outlays has contributed to inflation, which has reached a 30-year high, and caused annual budget deficits to soar.

The government is about to reach its statutory federal borrowing limit of $28.4 billion. If Congress doesn’t increase the limit, Washington will run out of money to meet its legal obligations. Republicans and Democrats are at loggerheads over how much to spend and whether to enact what the Democrats call “transformational” legislation—measures that would reshape the American economy and increase government’s role in nearly all aspects of life.

The threat to the Constitution comes from one of the options lawmakers are considering: suspending rather than raising the statutory debt ceiling, thereby authorizing the executive branch to borrow an unlimited amount of money for a limited time. Suspending the debt ceiling would undermine the structure of American democracy—particularly when government spending obligations are in flux, and the future direction of key policies is being fiercely contested.

Senate Minority Leader Mitch McConnell has warned Democrats that if they insist on enacting major and costly policy changes on a partisan basis, they will have to increase the debt ceiling without votes from Republicans. That could be accomplished through budget reconciliation, the means by which the Democrats intend to pass the Build Back Better Act with a simple majority. But Democrats are wary of unilaterally raising the debt ceiling, which isn’t popular.

In October, facing a debt-ceiling stalemate and a possible government shutdown, Republicans reluctantly supplied the votes necessary to increase the debt ceiling by $480 billion. That was constitutionally proper, but it bought only a little time. The increase will be exhausted this month, and Mr. McConnell and Majority Leader Chuck Schumer have again started negotiations on the debt ceiling.

Congress usually raises the statutory debt ceiling to a new specific dollar amount, a core part of its constitutional power of the purse. Occasionally, however, Congress (with both parties in the majority) has “suspended” the debt ceiling. As we argued in these pages during the last debt-ceiling crisis, such delegations of power are constitutional only if, as Justice Elena Kagan put it in Gundy v. U.S. (2019), “Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.”

The current unsettled budgetary environment makes the constitutional infirmity of suspending the debt ceiling acute. When suspensions were adopted in the past, there was at least a shared understanding between Congress and the executive about where the dollars were to go and how much spending there would be. Previous suspensions weren’t coupled with open attempts to transform the country’s economy and society—to upend the fundamental relationship of government to the governed.

Today’s spending plans are opaque and unpredictable. The estimated cost of Build Back Better alone ranges from $1.75 trillion to more than $5 trillion. That lack of clarity could also dramatically alter the terms upon which the Treasury can find willing buyers for new U.S. debt, greatly increasing debt-servicing costs. Suspending the debt ceiling in these circumstances would mean the executive branch is entirely unbound.

As another debt-ceiling cliff-hanger emerges, Democratic leaders appear committed to a suspension, which again would require Republican support. Giving bipartisan cover to another unconstitutional suspension would be disastrous. Decisions about the levels of spending, borrowing and taxation now under consideration require democratic accountability. Congress is almost evenly divided between the two major parties, a situation that counsels against transformative political and economic changes negotiated in back rooms.

If Democrats believe their programs are meritorious enough to burden the country with trillions of dollars in additional debt, they should accept the political risk of raising the debt ceiling without Republican votes. If Democrats are right, they’ll benefit and Republicans will pay the political price for intransigence. That’s how American democracy works, and why so many of the Constitution’s most fundamental provisions, such as Congress’s power of the purse, were adopted—to ensure accountability and the consent of the people.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush Administrations.

Source: https://www.wsj.com/articles/debt-ceiling-crisis-threatens-democracy-budget-limit-build-back-better-mcconnell-schumer-11638718728

Let Lawyers Hunt for Covid’s Origin

By Mike Pompeo and David B. Rivkin Jr.

Aug. 26, 2021, in the Wall Street Journal

Will we ever know where Covid-19 came from? Not if the last word comes from the U.S. intelligence community, which reported to the White House this week that China’s fault is plausible but unprovable. Beijing has refused to cooperate with inquiries, which it has characterized as “origin tracing terrorism.” The Chinese Foreign Ministry even denounced the equivocal intelligence report: “If they want to baselessly accuse China, so they better be prepared to accept the counterattack from China.”

For the rest of the world, getting to the bottom of the question is essential to assigning blame and preventing pandemics. Fortunately, we have an institution dedicated to getting to the bottom of thorny factual disputes: the U.S. judicial system. Our judiciary is respected globally for its impartiality and scrupulous adherence to due process. Civil discovery gives litigants the tools to compel production of evidence, backed by the threat of sanctions or even default judgment, so Beijing would be unable to stonewall. With so many losses caused by the pandemic, U.S. litigants have a powerful incentive to bring cases, prosecute them aggressively, and test liability through adversarial presentation. Several such cases have already been filed.

But those suits and others like them face a high hurdle: the Foreign Sovereign Immunities Act. The FSIA is the reason at least eight lawsuits were dismissed or withdrawn on grounds that foreign states are generally shielded from litigation in U.S. courts. Yet that immunity isn’t a constitutional mandate, only a matter of congressional discretion. Congress can legislate exceptions, and has done so.

Lawmakers should enact a new FSIA exception denying sovereign immunity to nations that fail to inform, or deliberately misinform, the global community of the nature and scope of a local epidemic that becomes a global pandemic. Beijing’s failure in December 2019 to comply with the 24-hour notification requirement of the 2005 International Health Regulations, which China joined, should be a sufficient trigger. This would permit lawsuits to proceed so China’s culpability for the Covid-19 outbreak can be openly adjudicated.

Congress should also withdraw immunity from international organizations that aided and abetted China’s efforts to play down the virus’s transmission and health risks. Western intelligence services have suggested that Beijing instructed the World Health Organization early in the pandemic on what it should say about Covid-19. Plaintiffs could use discovery to identify other governmental and private entities that collaborated with Beijing and hold them accountable. This litigation would have an added benefit of unmasking much of the pro-China infrastructure within international organizations and Western companies, think tanks and other institutions.

To ensure that China can’t delay proceedings, the FSIA amendment should also either create a new federal tort action or give federal courts jurisdiction over Covid-related claims under state law.

Some may object that these measures could interfere with U.S. diplomacy. But Congress can address that concern. The Justice Against Sponsors of Terrorism Act of 2016—which withdrew sovereign immunity from nations that provided material support to terrorist attacks on American soil—authorized the federal government to intervene in litigation to secure a diplomatic resolution that compensates plaintiffs and mitigates future harm. It makes sense to follow that model here. That would provide the Biden administration with the impetus to declassify and make available to Covid-19 litigants intelligence relating to the virus’s origin. Here, too, there is precedent, stemming from civil cases over the Iran-contra affair and the 9/11 terrorist attacks.

Defendants in U.S. legal proceedings are ordinarily entitled to bring counterclaims and spread liability to other potential defendants. Beijing has accused the U.S. military of creating the Covid-19 virus at the Army’s Fort Detrick, Md., lab and introducing it during the 2019 Military World Games in Wuhan, in which a U.S. team participated. To ensure that Beijing is accorded every opportunity to defend itself, including bringing counterclaims against the U.S., the Biden administration should waive governmental immunity, a step it can take unilaterally without statutory changes. Let Beijing test its implausible theory in court.

China wouldn’t be able to ignore lawsuits in American courts, given its close commercial ties with the U.S. If it refused to participate, courts would enter enforceable default judgments. China would be hard-pressed to avoid complying with any court-ordered damages and injunctions. Successful plaintiffs could pursue collection actions against Chinese government-owned commercial property around the world. Corporations are not normally liable for their owners’ debts, but there is an exception when the owner is involved on a day-to-day basis in running the company. Given the Chinese Communist Party’s pervasive control over formally private Chinese companies, this shouldn’t be difficult to prove.

It should be possible to secure broad bipartisan support for these measures. Republicans and Democrats have expressed a keen desire to hold Beijing accountable, and the Biden administration has made a priority of defending and strengthening the rules-based international order. The president has repeatedly said he wants to make sure China plays by the rules.

Chinese military publications have run articles expressing interest in developing biological weapons. China understands that bioweapons are particularly effective against open societies, where stringent isolation and quarantine measures spur resistance, and could be used to incapacitate aircraft carriers and military bases, which are crucial to the U.S. ability to project power in the Indo-Pacific. Pandemics aside, upholding international norms is essential to deterring China from other malevolent acts, including against Taiwan.

Permitting Covid-19 suits would have additional strategic benefits. In its propaganda, Beijing has sought to capitalize on its supposedly superior handling of Covid-19, claiming it demonstrates the superiority of its totalitarian political system over open, democratic society. Legal discovery could unearth information puncturing these claims.

Holding Beijing accountable would also do much to dispel its assertions that the U.S. is a declining power. While Beijing still respects U.S. military power, it routinely talks down U.S. political will and economic strength. It would face a formidable foe in an army of lawyers on an honest judicial battlefield.

Mr. Pompeo is a distinguished fellow at the Hudson Institute. He served as director of the Central Intelligence Agency (2017-18) and secretary of state (2018-21). Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/articles/covid-19-coronavirus-origin-fsia-foreign-sovereign-immunities-act-china-lab-leak-wet-market-11629990917

The Temptation of Judging for ‘Common Good’

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

July 23, 2021, in the Wall Street Journal

As liberals lick their wounds from the recent Supreme Court term, a small but noisy band on the right has launched a dissent against the conservative legal movement that produced the court’s majority. They want a new jurisprudence of “moral substance” that elevates conservative results over legalistic or procedural questions such as individual rights, limited government and separation of powers. Some advocates call this idea “common good originalism,” but it isn’t originalism. It’s no different from the raw-power judicial activism conservatives have railed against for decades as unaccountable, unwise and dangerous.

The “common good” pitch arrived nearly full-born in a 2020 essay by Harvard law professor Adrian Vermeule. A brilliant eccentric, Mr. Vermeule is best known for his advocacy of unchecked presidential and administrative supremacy and for the incorporation of Catholicism into civil law, which he calls integralism and critics call theocracy.

Mr. Vermeule is skeptical of law, restraints on government and the Enlightenment generally. He describes originalism as “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” To that end, he would give less emphasis to “particular written instruments” like the Constitution and more to “moral principles that conduce to the common good.” A web link to Thomas Aquinas ’ “Summa Theologica” suggests what he has in mind.

A handful of populist conservatives— Hadley Arkes, Josh Hammer, Matthew Peterson and Garrett Snedeker —took up the “common good” banner in an essay published in March. Frustrated that conservatives can’t seem to win the culture war no matter how many judges they appoint, they fault the conservative justices’ legal formalism as morally denuded and counterproductive to conservative ends. But they part with Mr. Vermeule by avoiding sectarianism in favor of vague references to “moral truth” and in branding their enterprise as a variant of originalism, one centered on the Constitution’s preamble and its reference to “the general welfare.”

As with liberal talk about the “living Constitution,” the high-minded rhetoric conceals an assertion of unbridled power. Liberals, the quartet justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

As in theory, so too in practice. Moral truth isn’t the output of any government program or court decision. It is cultivated by families, communities and civil society. It has long been the progressive tendency to seek a governmental mandate for the perfection of man and the conservative tendency to resist. The court decisions that social conservatives bemoan—from Roe v. Wade on down—can’t be criticized for failing to take a position on moral truth, only for imposing a progressive vision by judicial fiat. A jurisprudence of restraint, one that recognizes the proper limits of government, preserves the space necessary to practice moral values—ask the Little Sisters of the Poor or Catholic Social Services of Philadelphia.

There is no contradiction between the conservative legal movement’s pursuit of limited government and the common-gooders’ substantive ends. Genuine limits on government power protect the dignity and worth of the human person. The court’s history proves the point. When it has traded away constitutional command for popular notions of the common good, the result has been moral tragedy. Buck v. Bell (1927) approved compulsory sterilization of the “manifestly unfit” as a “benefit . . . to society.” Kelo v. New London (2005) regarded government’s taking homes from families for the benefit of a private corporation as “the achievement of a public good.” Yet the common-good quartet deride “the pursuit of limited government” as amoral, a hobbyhorse of the “individual liberty-obsessed.”

One might excuse these objections if a results-oriented jurisprudence promised some practical benefit, but it doesn’t. The success of the conservative legal movement is evident in the five Supreme Court justices, and scores of lower-court judges, who have described themselves as originalists. No jurist to date has claimed the “common good” mantle.

And originalism delivers results. In the past several months, self-consciously originalist decisions have fortified property rights, limited unaccountable bureaucracy, strengthened protections for freedom of association, recognized young adults’ Second Amendment rights, and expanded the freedom of religious practice. What is to be gained from abandoning originalism now, at the apex (at least to date) of its influence?

The critics’ main answer is to assail the court’s decision in Bostock v. Clayton County (2020), which interpreted the Civil Rights Act of 1964 to permit employment-discrimination claims based on sexual orientation or transgender status. Yet the Bostock dissenters, led by Justice Samuel Alito, faulted Justice Neil Gorsuch’s decision not for its embrace of textualism but for doing textualism badly. As Ed Whalen of the Ethics & Public Policy Center observed: “A bungling carpenter should not lead you to condemn the craft of carpentry.”

The high court in recent years has moved away from approaches that often sacrificed the principles of limited government to popular fashion or expert opinion. Fostering division among conservatives threatens that project at a time of special peril, as progressives march through the institutions of power. The chief obstacles to the left’s ambitions are the Constitution and a judiciary that withstands the pressure to read the enthusiasms of the elite into the law. If conservatives seeking easy victories succumb to the allure of facile judicial activism, those barriers will be breached.

For his part, Mr. Vermeule takes inspiration from an 1892 encyclical in which Pope Leo XIII “urged French Catholics to rally to the Third French Republic in order to transform it from within.” He imagines American Catholics will eventually co-opt “executive-type bureaucracies” to effect a “restoration of Christendom.” Such a ralliement seems far less likely in the U.S. than in France, but it failed there too.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/supreme-court-conservative-liberal-originalist-vermeule-11627046671

A Cautiously Conservative Supreme Court

Ideological lines turn out to be more fluid than partisans had imagined when Barrett was named.

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

July 1, 2021, in the Wall Street Journal

‘Every time a new justice comes to the Supreme Court,” Justice Byron White used to say, “it’s a different court.” Activists expected that to be especially true when Justice Amy Coney Barrett arrived last year. The leftist pressure group Demand Justice denounced the nominee to succeed Justice Ruth Bader Ginsburg as “a far-right, activist judge whose confirmation would threaten to upend the lives of millions of Americans” and predicted her vote would doom ObamaCare.

Reality is seldom so simplistic. ObamaCare survived California v. Texas with a 7-2 majority, including Justice Barrett. Of the 65 cases the court reviewed this term, it decided only nine by 6-3 votes along conventional ideological lines, and only three of those could fairly be described as involving hot-button political controversies. One was Cedar Point Nursery v. Hassid, which held that a California labor regulation requiring agricultural employers to allow labor organizers on their property constituted “a per se physical taking” for which the employers were entitled to just compensation. The others were decided on Thursday as the term ended: Brnovich v. Democratic National Committee on election regulation and Americans for Prosperity Foundation v. Bonta on forced disclosure of nonprofit donors.

Yet it’s true the court has entered a new phase—one characterized by modest conservative victories, unpredictable alignments of justices, and surprising unanimous judgments. The driving forces are doctrinal differences among the court’s six conservatives, Chief Justice John Roberts’s preference for incremental rather than sweeping change, and the embrace across ideological lines of the principle that judges should follow the language of the law. As Justice Elena Kagan said in 2015, “We’re all textualists now.”

The same day the court ruled in favor of ObamaCare, it unanimously held that Philadelphia had violated the First Amendment by decreeing that a Catholic foster-care agency couldn’t operate in the city unless it certified gay couples. The deeper issue was the fate of Employment Division v. Smith (1990), a landmark decision holding that generally applicable laws burdening religious practice don’t violate free exercise, no matter that the burden may be great and the government’s interest slight.

In Fulton v. Philadelphia, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch voted to overturn Smith. Chief Justice Roberts’s opinion for the other six justices didn’t go that far, but it remade the doctrine by holding that religious conduct must be treated no worse than equivalent secular conduct. That means a law isn’t “generally applicable” under Smith if it permits secular exceptions.

Fulton is a victory mainly for the chief justice’s incrementalism, which has its virtues—among them that it makes the court’s rulings easier for the losing side to accept. It’s no small matter that the court was able to rule unanimously for religious freedom in a case widely expected to be contentious. At the same time, Fulton makes Smith easier to overturn by weakening its rationale and reliance on its sweeping rule. In a concurrence, Justices Barrett and Brett Kavanaugh suggested they are open to doing so.

Fulton wasn’t the only surprising show of unanimity. In Caniglia v. Strom, all nine justices rejected a “community caretaking” exception to the Fourth Amendment’s warrant requirements for home searches—a case that might have splintered on concerns about gun violence or the needs of law enforcement. Twice the court unanimously overruled immigration decisions from the Ninth U.S. Circuit Court of Appeals favoring aliens; one of those decisions was written by Justice Sonia Sotomayor.

Other unanimous decisions rejected expansion of recent sentencing reductions for crack offenders, authorized money damages against state officials who violate the Religious Freedom Restoration Act, limited human-rights suits premised on foreign conduct, recognized First Amendment protection for a public-school student’s out-of-school speech, and declined to tighten jurisdictional limits on suits against major corporations. (So much for claims that the Roberts Court is in thrall to big business.)

Behind much of this agreement is the court’s convergence on textualism, the method of interpretation Justice Antonin Scalia advocated as a corrective to judicial policy making. The two unanimous immigration cases, as well as the crack-sentencing one, elevated clear statutory text over policy arguments. Likely the court’s outnumbered liberals have come to realize that only textualist reasoning can achieve a majority on today’s court.

There’s an asymmetry to this. Liberal justices’ methodological flexibility enables them to vote strategically with whichever conservative colleagues favor the most congenial result. Conservatives justices tend to be exacting on questions of text and doctrine, which can split their votes even when they agree on central issues or approach. Yet political conservatives can take heart from the court’s actions this term—and look optimistically toward the next. The justices agreed to hear cases in the 2021-22 term that give them opportunities to scale back precedents on abortion and expand them on gun rights.

The clearest area of positive reform this term concerns Congress’s attempts to shield executive-branch agencies from presidential control and democratic accountability. In U.S. v. Arthrex, the court found a constitutional violation in a scheme authorizing patent judges to render decisions free from review by the head of the Patent and Trademark Office, an officer subject to presidential oversight. In Collins v. Yellen, it held unconstitutional a restriction on presidential removal of the head of the Federal Housing Finance Agency.

The court invalidated only the offensive restrictions. But that limited remedy overcomes the principal objection—“widespread disruption”—to restoring presidential control by overruling the entire line of cases that authorize the headless “fourth branch” of government. That has been a central goal of the conservative legal movement since the 1970s.

To be sure, incrementalism can go too far. Some of the chief justice’s opinions, including Arthrex, are so carefully hedged that the rules they announce are little more than that one party prevailed and the other lost. A similar complaint can be leveled at Justice Stephen Breyer’s 8-1 opinion in the student-speech case Mahanoy Area School District v. B.L., which provides little guidance for lower courts or school administrators. Justice Alito offered more in a concurrence, but only Justice Gorsuch joined it. Likewise, Justice Breyer’s opinion in the ObamaCare case declined to rule on the merits, holding instead the challenges lacked standing yet without addressing their central argument to the contrary.

All these opinions were assigned by the chief justice and joined in full by his most junior colleagues, Justices Kavanaugh and Barrett. They are rightly concerned about overreaching and appear resolved in each case to decide no more than need be decided. Judicial restraint is essential and admirable, but clarity about the law is necessary for the rule of law to function. As the new justices gain confidence, the court should strike a truer balance.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/a-cautiously-conservative-supreme-court-11625164373

H.R.1 Would Steamroll the Constitution

By David B. Rivkin, Jr., and Jason Snead

June 3, 2021, in the Wall Street Journal

President Biden and his media partisans are stepping up the pressure campaign on Joe Manchin. The West Virginia senator is the only Democrat in the upper chamber who hasn’t signed on to H.R.1, styled the For the People Act, an unprecedented federal takeover of U.S. election laws that the House passed in March and that the Senate plans to consider this month. The bill’s supporters describe it as a vital safeguard of democracy, but it’s the opposite: If enacted it would destroy the Constitution’s careful balance of federal and state powers, taking common election safeguards along with it.

H.R.1 plainly exceeds Congress’s power to regulate presidential elections, as we argued in these pages in February. That’s only the start of its constitutional infirmities.

The primary asserted constitutional basis of H.R.1 is Article I’s Elections Clause, which authorizes state legislatures to establish the “times, places and manner” of congressional elections, while providing that “Congress may at any time by law make or alter such regulations.” In Arizona v. Inter Tribal Council of Arizona (2013), the Supreme Court held that several state election-integrity measures were invalid because federal law pre-empted them.

Yet H.R.1’s sponsors fail to recognize that the Elections Clause limits Congress’s authority to time, place and manner. “Prescribing voting qualifications,” Justice Antonin Scalia wrote for the court in 2013, “forms no part of the power to be conferred upon the national government by the Elections Clause.” Article I’s Qualifications Clause provides that “the electors”—that is, voters—“in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” Determining those qualifications is up to the states, except where the Constitution says otherwise—for instance in the 19th and 26th amendment, enfranchising women and 18-year-olds, respectively.

Yet H.R.1 purports to establish federal voter qualifications for congressional elections. A prime example is the section mandating “democracy restoration”—a euphemism for enfranchising felons except during imprisonment, a decision the Constitution leaves to the states. The bill’s provisions governing internet voter registration, automatic registration and same-day registration are also suspect. Justice Clarence Thomas, dissenting in Inter Tribal Council, argued that registration is a matter of qualifications, not manner. Scalia and the majority didn’t disagree, so that issue remains open for adjudication.

Other provisions would intrude into states’ efforts to ensure the integrity of elections—such a fundamental aspect of sovereignty that erasing it extinguishes states’ status as coequal sovereigns. H.R.1 would require states to accept a voter’s sworn statement attesting to his identity and eligibility in lieu of any other identification requirement. The Inter Tribal Council majority held that “the power to establish voting requirements is of little value without the power to enforce those requirements” and stated that a statute precluding “a State from obtaining the information necessary to enforce its voter qualifications” would “raise serious constitutional doubts.”

The constitutional problems with H.R.1 are more fundamental than its specific provisions. One arises from their sheer magnitude, which would effectively create a comprehensive federal elections code. The Constitution’s framers and early commentators were united in their rejection of a congressional takeover of federal elections.

Federalist 59 affirmed that the Elections Clause granted power, “in the first instance, to the local administrations” and merely “reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.” Justice Joseph Story’s “Commentaries on the Constitution of the United States” (1833) noted that Congress would pass election legislation only if “there has been some extraordinary abuse” and would provide merely “a check upon state legislation.”

H.R.1’s supporters claim the bill provides such a check against a supposed rash of “voter suppression” measures. That claim is flimsy given historic turnout and diversity in recent elections, as well as data showing that voter-ID laws don’t depress turnout. H.R.1 features provisions Democrats have long favored—further evidence that it isn’t a response to a new crisis.

H.R.1’s extreme federal election takeover raises the question of how far Congress can go to oust states from the entire field. Federalist 59 describes Congress’s role as regulating elections “in the last resort”; H.R.1 does so as the first resort. The Supreme Court has never had to address the outer limits of Congress’s power because nothing like H.R.1 has ever passed. But if it does, its comprehensiveness should be its undoing.

There’s another problem. H.R.1 would also compel states to administer and fund the new election regime through state-established and funded redistricting commissions and online registration schemes. Such requirements violate the Supreme Court’s anticommandeering and anticoercion doctrines, which prohibit Congress from mandating that states do its bidding or unduly burdening those that refuse.

Some courts have found the anticommandeering doctrine inapplicable to election laws, reasoning that Congress’s Elections Clause power authorizes it to regulate federal elections. That’s a non sequitur. The doctrine applies when Congress has constitutional authority to regulate the matter directly; it condemns the indirect manner of dictating “what a state legislature may and may not do,” as Justice Samuel Alito put it for the court in Murphy v. NCAA (2018). The high court has never endorsed a different view, and in Inter Tribal Council, it stated that the Elections Clause “is none other than the power to pre-empt”—implying it is not the power to commandeer.

The anticoercion doctrine also prohibits H.R.1’s proposed federal takeover of state authority, and no court has denied that it applies in the electoral context. As Chief Justice John Roberts stated in NFIB v. Sebelius (2012), the anticoercion doctrine requires Congress to afford states “a legitimate choice whether to accept . . . federal conditions” in choosing whether to administer a federal program.

H.R.1 would leave no choice at all. It isn’t a cooperative federalism program giving states benefits in exchange for implementing federal laws. Instead, it would force states to do what Congress can’t: administer national elections in every state.

The constitutional problems with H.R.1 are legion, and no new federal election legislation is necessary. States are exercising their constitutional authority, revising election laws to balance the imperatives of voter access and election integrity. Mr. Manchin should stick to his guns.

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. Snead is executive director of the Honest Elections Project.

Source: https://www.wsj.com/articles/h-r-1-would-steamroll-the-constitution-11622737590