Madison Warned About ‘Sanctuary’ States

By David B. Rivkin Jr. and John S. Baker Jr.

Aug. 2, 2020, in the Wall Street Journal

President Trump met wide derision last month when he issued an executive order excluding illegal aliens from the census numbers used for apportioning House seats. “Persons means persons,” Thomas Wolf of the Brennan Center for Justice told a reporter. “Everyone must be counted.” But counting is different from allocating political power, and Mr. Trump has the better constitutional argument.

Section 2 of the 14th Amendment provides: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” This revises a provision in Article I that uses similar language but also includes the infamous Three Fifths Clause.

When voting on the latter provision, the Constitutional Convention used the term “number of inhabitants.” The Committee on Style shortened that to “numbers,” but that linguistic change was of no import. As Chief Justice Earl Warren noted in Powell v. McCormack (1969), the committee wasn’t authorized to make substantive changes to previously voted provisions. In Wesberry v. Sanders (1964), Justice Hugo Black wrote for the court that “the debates at the Convention make at least one fact abundantly clear: that . . . in allocating Congressmen, the number assigned to each State should be determined solely by the number of the State’s inhabitants.”

The administration argues that illegal aliens don’t qualify as inhabitants, and it’s right. The definition of “inhabitant” at the time of the Founding had an important political and economic context because of the legal responsibility of localities to care for the destitute under the 1601 Act for the Relief of the Poor. An inhabitant was a person who rightfully resided in a jurisdiction, contributing to and qualifying for available benefits. Like illegal aliens today, those whose presence was unlawful were not considered inhabitants and were subject to removal.

According to the 2018 Yale study, there are at least 16.7 million, and more likely around 22.1 million, illegal aliens in the U.S. The apportionment following the 2010 census yielded congressional districts containing roughly 710,000 people each. That means the illegal-alien population is the equivalent of around 30 districts, more than any state except California (53) or Texas (36).

States inflating census numbers has been a ever-present danger to the proper functioning of America’s federalist system. In Federalist No. 54, James Madison addressed what he called states’ “interest in exaggerating their inhabitants” to bolster their representation in Congress: “It is of great importance that the States should feel as little bias as possible, to swell or to reduce the amount of their numbers.”

Millions of illegal aliens are distributed disproportionately throughout the U.S., more than enough to cause shifts in apportionment of congressional seats, which also affect the Electoral College. In an example of the kind of swelling Madison warned about, some states and localities entice illegal aliens with “sanctuary” laws promising to shield them from federal law enforcement and provide them free health care and other benefits. In the years ahead, that could make the illegal alien population become larger and more concentrated in these states.

Yet this is not simply a blue vs. red state conflict over political power. Sanctuary state California will lose representatives if illegal aliens are excluded from apportionment, but so will Texas and Florida. It is also a Sun Belt vs. Rust Belt conflict. States like Indiana, Michigan, Pennsylvania and Ohio are the ones that stand to gain (or at least not lose) in apportionment under the president’s plan.

Since only a few states lose representation after each decennial census, this gradual erosion of political power has rarely been challenged. The Supreme Court has never addressed the constitutionality of including illegal aliens in congressional apportionment and has only occasionally been asked to do so (including in a 2011 case in which we represented Louisiana). When the court rejected Mr. Trump’s proposed citizenship question on the census, it was on technical administrative procedure ground, not the merits.

That leaves it to the political branches to carry out the constitutional mandate of counting only inhabitants for reapportionment. Congress has done so, by enacting statutes giving the president wide discretion on reapportionment decisions. Mr. Trump is right to take the next step.

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. Baker is a visiting professor at Georgetown’s Center for the Constitution and a professor emeritus at Louisiana State University Law Center.

Source: https://www.wsj.com/articles/madison-warned-about-sanctuary-states-11596396761

A Way to Curb Chinese Intimidation

By David B. Rivkin Jr. and Anastasia Lin

July 13, 2020, in the Wall Street Journal

Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.

Corporations typically kowtow, fearful of losing access to China’s massive market. International airlines, including American, Delta and United, changed their websites so that Taipei isn’t listed as being in Taiwan. The general manager of the National Basketball Association’s Houston Rockets apologized for tweeting an image that read “Fight for Freedom. Stand with Hong Kong.” Mercedes-Benz apologized for an English-language Instagram post that included an innocuous quote from the Dalai Lama. The Big Four accounting firms issued statements criticizing Hong Kong protests after some of their employees took out an ad supporting them.

Using its economic power to pressure Western corporations is a key element of Chinese statecraft. The Communist Party keenly appreciates that Western entities are far more credible than Chinese government or media. China scrutinizes statements by Western companies, focuses on those that are even mildly critical of its behavior, and threatens them on social media with economic retaliation and blacklisting.

Such threats often appear to emanate from private Chinese citizens. But given the government’s heavy censorship of Chinese social-media platforms, they inevitably bear the party’s imprimatur. Moreover, the Chinese government almost always backs up the statements attributed to its citizens, waging a joint campaign, so that the language of these “private” complaints tracks Communist Party propaganda.

Beijing also attempts to suppress authentic Chinese voices critical of its human-rights abuses. One of us (Ms. Lin) represented Canada in the Miss World 2016 finals in Washington. The London-based Miss World Organization—most of whose sponsors are Chinese companies—isolated her from the media during the pageant and threatened to disqualify her after she was seen speaking informally to a Boston Globe columnist. The ban on her contact with journalists was ameliorated only after intense public pressure.

It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines. In response to the Arab League boycott of Israel, Congress in 1977 made it illegal for U.S. companies to cooperate with any unsanctioned foreign boycott and imposed civil and criminal penalties against violators. That legislation and the implementing regulations “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy,” according to the Commerce Department.

Antiboycott regulations forbid U.S. companies to “agree” to eschew doing business in Israel or with a company already blacklisted by the Arab League, or to cooperate with the boycott’s enforcement by providing information about business relationships with Israel or blacklisted companies. All requests for such cooperation must be reported to the Commerce Department. The regulations presume that any action taken in response to boycott-related requests violates the law. It isn’t sufficient to claim that one’s boycott-related speech or activity is based on one’s own views.

These regulations survived legal challenges from companies that claimed violations of their First Amendment right to free speech. Federal courts upheld the rules as narrowly tailored restrictions on commercial speech driven by a compelling government interest. American companies eventually grasped that the rules protected them from foreign pressure. In time, antiboycott compliance became part of American corporate culture and didn’t require much enforcement.

Beijing’s efforts to force American companies to support and comply with its propaganda and deception campaigns and furnish information on Chinese dissidents are similarly inimical to vital American interests. Preventing Western companies from participating in Chinese propaganda campaigns would diminish China’s soft power and impair its ability to use economic blackmail as a tool of statecraft.

Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents. In particular, they would be barred from changing their public statements and social-media presence in response to Chinese pressure or from taking other steps to placate Beijing, whether its demands are communicated directly or indirectly. Any such Chinese demands would have to be reported to the U.S. government.

With most Americans—91%, according to a March Pew Research Center report—agreeing that Beijing threatens American interests, such legislation should be able to win bipartisan support. It would also be constitutionally defensible as a narrowly tailored regulation of commercial speech supported by a compelling government interest—countering Beijing’s push for global dominance.

The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech. Like the antiboycott laws, such a statute would protect Western companies, enabling them to tell Beijing that they are unable to comply with its demands. The U.S. can’t stop Chinese state institutions from spreading propaganda, but it can use the law to shield Western companies from the Communist Party’s intimidation.

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. Ms. Lin, an actress, was Miss World Canada 2015 and 2016. She is the Macdonald-Laurier Institute’s ambassador for China policy and a senior fellow at the Raoul Wallenberg Centre for Human Rights. She is the wife of James Taranto, the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/a-way-to-curb-chinese-intimidation-11594680594

RFK vs. D.C. Statehood

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

July 2, 2020, in the Wall Street Journal

Voting along party lines except for one Democratic dissent, the House last week approved a bill to grant statehood to almost all of the District of Columbia – and create two safe Democratic Senate seats in a city that typically votes 90% Democratic in presidential elections. But while Congress has the power to admit new states, changing the district’s status would require a constitutional amendment.

The Framers had good reason to put the capital outside the borders or control of any state. Attorney General Robert F. Kennedy, writing in opposition to a 1964 statehood bill, summed up their view: “It was indispensably necessary to the independence and the very existence of the new Federal Government to have a seat of government which was not subject to the jurisdiction or control of any State.”

In 1783, a mutinous band of Continental solders drove Congress out of Philadelphia after Pennsylvania’s government refused assistance. The recent protests and riots in Washington’s streets make it easy to imagine a similar clash if the federal government lacked sovereignty over the city. To prevent such a situation, the Constitution’s Framers wrote a provision giving Congress the power “to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of government of the United States.” Congress took over 100 square miles of Maryland and Virginia with the District of Columbia Organic Act of 1801.

In 1846, Congress retroceded Virginia’s portion, now Arlington County and a portion of the city of Alexandria. Was that constitutional? We think not. While the retrocession didn’t alter the configuration of the district in as fundamental a way as the House is now trying to do, the most logical reading of the Constitution is that no change in the district’s boundaries is permissible and that the original cession is irrevocable.

The Supreme Court has never ruled on the question. When it reached the justices, in Phillips v. Payne (1875), they dismissed the case, holding that the plaintiffs – taxpayers seeking reunion with the District of Columbia, which had lower taxes than Virginia – lacked standing. But if Congress approves statehood, other states would clearly have standing to challenge the dilution of their voting rights by the addition of two senators from an area ineligible for admission as a state.

The House bill attempts to hew to the Constitution’s design by excluding a small area of the district – including the White House, other federal buildings and the National Mall – and leave it as a federal district. RFK rejected a similar proposal in 1964: “A small Federal enclave comprised primarily of parks and Federal buildings … clearly does not meet the concept of ‘the permanent seat of government’ which the framers held.”

There’s an additional problem: The bill violates the 23rd Amendment, ratified in 1961, which enfranchised the district’s residents in presidential elections. The amendment allocates three electoral votes to “the district constituting the seat of government of the United States.” Under the House bill, that would not be the new state (which would get three electors of its own), but the rump federal district, which lots of structures but few or no inhabitants.

The bill provides for “expedited procedures” in both congressional chambers to propose an amendment repealing the 23rd. But doing so would require two-thirds majorities, and ratification needs approval from 38 state legislatures. That would require broad bipartisan cooperation – a tall order in today’s political climate, especially if one party sees an advantage in leaving the problem unsolved.

There are strong arguments for granting Washington residents representation in Congress. The Framers understood and were troubled by the undemocratic contradiction of denying capital residents the vote. Alexander Hamilton believed the federal district should have representation in the House but not the Senate (whose members were chosen by state legislatures until 1913). James Madison countered that the new capital’s residents would have an elected local government and “find sufficient inducement of interests to become willing parties to the cession” to justify their lack of congressional representation.

The District of Columbia has always been an imperfect solution to a constitutional problem. The debate over its role and status will and should continue. But abolishing the permanent seat of the federal government would be a profound change – the sort that can be accomplished only with a national consensus implemented through a constitutional amendment, not by a law pushed through for partisan advantage.

Messrs. 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.

Source: https://www.wsj.com/articles/rfk-vs-d-c-statehood-11593709155

Lawsuits Needn’t Block Recovery

Congress has the power to limit coronavirus liability while regulators develop rules to control contagion.

By J. Michael Luttig and David B. Rivkin, Jr.

20 May 2020 in the Wall Street Journal

As Congress considers another Covid-19 rescue bill, the usual partisan divide has opened over limiting pandemic-related tort liabilities. Republicans and business owners argue that litigation will hamstring recovery. Trial lawyers, unions and Democrats counter that liability limits would encourage businesses to endanger employees and consumers. The Senate Republican leadership proposes immunity for all businesses that comply with public-health guidelines except in cases of “gross negligence” and willful misconduct.

Republicans’ approach is appealing in theory, but in practice it can’t be implemented without detailed regulatory standards—which in the case of Covid-19 won’t be written for some time. Rather than permanently change liability standards based on incomplete information about the virus, it would be wiser to enact an immediate but temporary immunity. That would permit the economy to begin reopening while allowing time for federal regulators to promulgate standards on which long-term immunity could be conditioned.

The existing tort liability system, which rests mostly on state statutory and common law, has few virtues and many flaws. It is inefficient and often arbitrarily imposes liability. Tort litigation, unlike regulatory standards and enforcement, is largely unconstrained by due process and other constitutional limits. The results can be crippling for small businesses, which can’t afford protracted litigation, and even large companies have to settle meritless or frivolous lawsuits. The system is driven by jackpot-justice incentives.

This system is particularly ill-equipped for dealing with Covid-19, which affects the whole economy. Yet hundreds of lawsuits are already pending against universities, processing plants, manufacturing, mass-transportation companies and other businesses. Plaintiff lawyers are petitioning legislatures to rewrite or courts to reinterpret insurance policies, which specifically exclude pandemic-related liabilities, in an effort to obtain large recoveries. While such efforts are constitutionally suspect, these lawsuits won’t die easily.

The notion that businesses will act recklessly if Congress affords liability relief ignores the good-faith compliance culture of American enterprises and the regulatory environment in which they operate. Businesses have strong incentives against even negligent behavior, which would cause bad publicity and customer distrust. We’ve seen many announcements in recent weeks about what businesses are doing to keep customers and employees safe. Bad actors can and will be held to account by states and municipalities using police and regulatory powers to fine, close or even prosecute those that operate dangerously. An elaborate system of federal and state workmen’s compensation provides additional protection.

Tort law is primarily a state matter, but it’s well-established that Congress can intervene via its power to regulate interstate commerce. Federal law has provided tort liability protections to firearms makers and for nuclear power. Congress also enacted laws to limit liabilities arising out of Y2K—like Covid-19, a specific event that was thought to have potentially calamitous economic consequences.

The Supreme Court has sustained congressional authority to sweep aside state policies, statutes and procedures that impair interstate commerce, beginning with Gibbons v. Ogden (1824), which affirmed federal pre-eminence in regulating interstate navigation. In New York v. Beretta (2008), which upheld the limitations on liability for firearms makers, the Second U.S. Circuit Court of Appeals held that Congress’s authority includes the power to ban state tort lawsuits that “are a direct threat” to specific industries.

While there are legitimate doubts—which we share—that the Commerce Clause’s original meaning encompasses intrastate economic activities, the high court has embraced this view since 1942, when it held in Wickard v. Filburn that the federal government could ban growing wheat for personal consumption because it impaired a wheat-production scheme created by federal statute. The justices also asserted in Gonzales v. Raich (2005) that the Commerce Clause allows Congress to regulate intrastate activities that “substantially affect interstate commerce.” Those precedents are enough to allow Congress to protect businesses with local footprints, such as beauty salons or restaurants, that buy products or supplies in interstate commerce.

Senate Republicans should also propose to make protection against tort liability a precondition for states and localities to receive nearly $1 trillion in the new Covid-19 rescue bill. In National Federation of Independent Business v. Sebelius (2012), the ObamaCare case, the Supreme Court limited Congress’s ability to coerce states into adopting new policies by threatening to withdraw money for existing programs. Since this money is new, that won’t pose an obstacle. Using its spending and Commerce Clause powers, Congress can promulgate a variety of regulatory schemes that would replace current federal and state statutory and common-law liabilities for Covid-19 and that would survive litigation challenges.

Making liability protection work will require regulation to evolve along with scientific understanding of Covid-19. Current federal, state and local guidelines, including those published by the Centers for Disease Control and Prevention, are informed exclusively by medical considerations and do not reflect traditional regulatory criteria such as cost and feasibility of implementation, and are too ambiguous and inconclusive to be a proper basis for imposing or limiting Covid-19-related liabilities. New, industry-specific guidelines will have to be developed by agencies such as the Occupational Safety and Health Administration.

OSHA and other federal agencies have the expertise to evaluate scientific, practical and cost-effective standards governing operations of a wide range of businesses. What they need is new statutory authority to issue safe-harbor guidelines for businesses that pre-empt tort liability under state law. Companies and trade associations would work with OSHA and propose industry- or business-specific guidelines to the agency, such as for meat packing plants or package sorting facilities. OSHA would promptly review each proposal, make necessary modifications, and then issue it as an immediately effective regulation with the legal force to override lawsuit liability. Businesses that comply with these regulations can rest assured that they’ve met their legal obligations.

Such considered Covid-19 liability reform—temporary immunity while businesses reopen, followed by promulgation of comprehensive federal regulatory guidelines—would be constitutional and consistent with federalist values. It would protect public health while enabling a prompt and full economic recovery.

Mr. Luttig is a former general counsel of the Boeing Co. He served as a judge on the Fourth U.S. Circuit Court of Appeals, 1991-2006. 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.

Source: https://www.wsj.com/articles/lawsuits-neednt-block-recovery-11589993211

Bailing out states violates the Constitution’s ‘general welfare’ clause

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

6 May 2020 in The Hill

Republican senators, led by Majority Leader Mitch McConnell (R-Ky.), are right to oppose legislation that would provide a broad federal bailout of highly indebted states. Gov. Andrew Cuomo of New York calls this legislative stance “toxic and poison,” but it is constitutionally required.  

As senators, including Florida’s Rick Scott and Texas’s Ted Cruz, made clear in a recent letter to President Trump, no one doubts that the federal government can and should assist states in meeting the coronavirus emergency. Nor can there be any reasonable objection that this aid will benefit certain states — especially New York, which has the majority of coronavirus cases — more than others. There is, however, a profound objection to any plan that would use federal resources to ensure that heavily indebted states need not reassess their policy priorities. These states find themselves in dire fiscal straits primarily because of underfunded pension plans for their public employees. Virtually all of these states are Democrat-run and three of them — Illinois, New Jersey and Connecticut — are facing a particularly calamitous fiscal situation.

Politics aside, bailing out unfunded state pension plans with federal dollars would violate the Constitution’s often ignored, but nevertheless binding, “general welfare” clause. Congress does not, in fact, have unfettered power to spend money as it sees fit. The Constitution permits it to tax, and by implication spend, “to pay the Debts and provide for the common Defense and general Welfare of the United States.” (Art. I, § 8, cl. 1) This language was neither puffery nor surplusage, but was added by the Constitution’s Framers for a compelling purpose.

The Framers were determined to vest the federal government with sufficient authority to carry out its national purpose, but also to limit that power. These principles are reflected in numerous constitutional provisions and that document’s overall architecture. Thus, all congressional powers have some limit, some cabining principle. Just as the commerce clause is limited to the regulation of economic activities and does not permit Congress to exercise a general “police power” regulating people simply because they are here, so Congress’s ability to tax and spend is limited by the requirement that this must be for the general welfare.

This requirement stems from the Framers’ concern that large, powerful states would dominate the federal government and would use federal institutions to benefit their own interests, rather than the Union as a whole. Indeed, the question of how to ensure that a cabal of large states would not run roughshod over small states dominated much of the Constitutional Convention. It shaped many key constitutional provisions, including the bicameral federal legislature, with all states having equal representation in the Senate, the apportionment requirement for direct federal taxes, and the language mandating that “all Duties, Imposts and Excises shall be uniform throughout the United States.”  

Even such an ardent proponent of a strong federal government as Alexander Hamilton was sufficiently concerned about states acting selfishly that he argued initially for abolishing the states as independent sovereigns altogether because “states will prefer their particular concerns to the general welfare.” Eventually, this concern resulted in the constitutional language that required the federal government to operate for the general welfare of the entire nation. Notably, this language is found both in the Constitution’s preamble and Article I, Section 8, which enumerates Congress’s powers. And, as is made clear in an early draft of the general welfare clause, the Framers understood the phrase to mean that “which may concern the common interests of the Union.”

This understanding of the clause is similarly revealed in a debate that took place in September 1787, near the Convention’s end, after the general welfare language had taken its final form.  This debate concerned whether an additional provision should be included in the Constitution specifically vesting the federal government with the power to build canals, which would benefit some states more than others. Some thought yes; others argued that tasks such as canal-building should be the responsibility of the states that would directly benefit. Regardless of this disagreement, they all appeared to have shared the same view that such authority — which today we would take for granted as being well within Congress’s spending power — was not already present.

As in other areas, after the Constitution’s ratification, the Framers took different views of how far the spending power could go. Hamilton, always the preeminent Federalist, took the position that the power to tax and spend constituted a separate grant of authority to Congress, while James Madison believed it was merely a support for Congress’s otherwise enumerated powers.  Hamilton’s view prevailed and was endorsed by the Supreme Court in the 1936 case of United States v. Butler. The court did not, however, determine the meaning of “general welfare” in Butler, except to note that Hamilton understood it to mean “the purpose must be ‘general, and not local.’”

To be sure, the definition of what types of expenditures advance general welfare has been much debated throughout U.S. history. Prior to the Civil War, a stringent definition prevailed, with Congress vigorously debating expenditures for various types of infrastructure projects and presidents vetoing spending bills that they believed served local needs and did not sufficiently advance general welfare. Post-Civil War, and particularly following the New Deal, a far broader federal spending pattern emerged. This reflected the view that, using federal dollars to pay the costs of natural disasters and similar emergencies, or various infrastructure projects, while benefiting some states more than others at any given point in time, would benefit the nation as a whole in the long run. This practice broadened the understanding of what expenditures served the national interest, but it did not and could not abolish the general welfare requirement altogether.

Thus, however broad Congress’s power to tax and spend may be, this remains the fundamental limitation — expenditures must promote national, rather than local, interests. And it is difficult to imagine a more locally-oriented program than one designed to prop up the fiscal choices of a group of states — to benefit state and municipal government employees by establishing generous, underfunded pension systems — at the expense of other states. Significantly, numerous states repeatedly have rejected similar pension arrangements for themselves, vividly manifesting their view that this was not in their best interests or conducive to general welfare.  Indeed, by subsidizing a particular vision of what constitutes a proper state government, one of the basic justifications for our federalist system — that states can make their own choices as laboratories — would be discarded. True federalism requires that the federal government neither coerces states nor imposes on states’ fiscal burdens that properly belong to individual states that have incurred them.

Senate Republicans have every right, and all senators have an equal obligation, to ensure that any funding legislation meets the general welfare requirement, so that federal dollars cannot be used to pay, either directly or indirectly, for the repair of long-term fiscal liabilities of any recipient state.  

David B. Rivkin Jr. and Lee A. 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://thehill.com/opinion/judiciary/495961-bailing-out-states-violates-the-constitutions-general-welfare-clause

The Senate Knows Enough to Acquit Trump

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

5 January 2020 in the Wall Street Journal

Give Nancy Pelosi this: She has chutzpah. Senate Majority Leader Mitch McConnell responded Friday on the Senate floor to the House’s refusal to appoint managers and transmit its articles of impeachment against President Trump to the upper chamber. “For now,” Mr. McConnell said, “we are content to continue the ordinary business of the Senate while House Democrats continue to flounder. For now.”

Mrs. Pelosi’s response: “The GOP Senate must immediately proceed in a manner worthy of the Constitution.” Never mind that the hold-up is at her end.

Yet now that Mr. Trump has been impeached, the Senate is constitutionally obliged to address the matter. Neither Mrs. Pelosi’s intransigence nor Senate rules, dating from 1868, that peg the commencement of an impeachment trial to the House’s appointment of impeachment “managers” justify an indefinite delay.

As Mr. McConnell noted, the Constitution’s Framers emphasized the importance of a speedy trial in cases of impeachment. “The procrastinated determination of the charges,” Alexander Hamilton wrote in Federalist No. 65, would do “injury to the innocent,” work to “the advantage of the guilty,” and sometimes do “detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House.”

Mrs. Pelosi is holding the impeachment articles hostage, she says, to ensure that the Senate holds what she regards as a “fair” trial. Her central demand is that the Senate permit House managers to call witnesses the House didn’t hear from before impeaching the president. Putting aside the rank hypocrisy of this demand, the Constitution provides that “the Senate shall have the sole power to try all impeachments.” The House has no say in how the trial is conducted.

Mr. McConnell appears to believe it is to his advantage to let Mrs. Pelosi fumble about “for now.” But the Constitution obliges the Senate to act at some point. If the House does not relent, the Senate has two options. It could take the position that because the House bears the normal prosecutorial burden of production and persuasion, Mrs. Pelosi’s refusal to engage with the Senate requires the summary dismissal of the articles. Alternatively, the Senate could take a page from the judiciary’s handbook and appoint outside counsel as managers to make the House’s case against Mr. Trump.

If managers are appointed by either the House or the Senate, the Senate should not conduct a trial on the facts. Instead it should dismiss the articles as a matter of law. The House has alleged no impeachable offense, and therefore no evidence can convict Mr. Trump.

The first article charges the president with “abuse of power” in his dealings with Ukrainian President Volodymyr Zelensky. There are two ways a president can abuse power: by doing something that exceeds his constitutional authority (such as unilaterally imposing a tax) or by failing to carry out a constitutional obligation (refusing to enforce a law). Neither is applicable here.

Mr. Trump had ample constitutional authority to ask Mr. Zelensky to investigate Ukrainian involvement in the alleged Democratic National Committee server hack, the related genesis of the Russia collusion narrative, and Joe and Hunter Biden’s potentially corrupt dealings in Ukraine. The Supreme Court stated in U.S. v. Curtiss-Wright Export Corp. (1936) that the president is the “sole organ of the federal government in the field of international relations,” with exclusive authority to conduct diplomatic relations.

House Democrats don’t dispute this, or claim Mr. Trump’s actions were illegal in themselves. Rather, they allege that he had “corrupt motives” for doing them.

The “corrupt motives” theory is inherently corrosive of democracy. Motives are often mixed, difficult to discern and, like beauty, generally in the eyes of the beholder—which in this case sees through partisan lenses. To Democrats, the transcript of the Trump-Zelensky call demonstrate the desire to harm Democrats; to Republicans, a desire to root out corruption.

Any investigation involving governmental malfeasance can damage the president’s political rivals or benefit allies. But the president has a constitutional duty to “take care that the laws be faithfully executed,” even if his political opponents may be violating them. To bar investigations of the president’s political opponents would effectively hand them a get-out-of-jail-free card and traduce the rule of law. And virtually everything elected officials do serves political ends. If a president’s pursuit of his political interests is impeachable, every president is removable at Congress’s whim.

The House Democrats’ theory will encourage impeachment whenever a President exercises his constitutional authority in a manner offensive to the party controlling the House. The Framers vehemently opposed impeachment for policy disagreements, as legal scholar Michael Gerhardt noted during President Clinton’s impeachment inquiry in 1998. He told the House Judiciary Committee that “one of the most often repeated pronouncements of the framers” was “that impeachment is not designed to address policy differences or opinion.” He referred the committee an “excellent study” by Peter Hoffer and N.E.H. Hull, which warned that “impeachable offenses are not simply political acts obnoxious to the government’s ruling faction.”

The second impeachment article charges Mr. Trump with “obstruction of Congress” for asserting executive privilege in response to subpoenas. But impeachment doesn’t abolish the separation of powers The president has ample constitutional basis to resist congressional demands of documentary and testimonial evidence, particularly when it involves his White House advisers and sensitive national-security issues. This article is not only legally baseless but outrageous, since the House didn’t bother asking a judge to compel White House aides to testify. Instead, Mrs. Pelosi insists Mr. McConnell make it happen.

The Senate must stop the madness. If the House chooses not to pursue its case, the Senate has the authority and the duty to move forward and acquit the president without hearing additional evidence. Both with respect to the timing of the impeachment trial and the actual trial procedures, the Senate must fulfill its constitutional duty as the ultimate check on the House majority’s partisan passions and abuse of its impeachment power.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/the-senate-knows-enough-to-acquit-trump-11578262402