Podcast of panel discussion hosted by the National Review Institute, August 5th, 2020.

The “Trump Resistance” claims the President is guilty of many crimes, regularly abuses his power, and is a threat to democracy. To bolster their case and support their resistance, the President’s critics have invented a new body of “Trump Law,” rewriting legal norms, standards and definitions across the legal landscape – spanning impeachment, obstruction of justice, “collusion,” executive privilege, management of the executive branch, national injunctions, foreign relations, and more. David Rivkin joins John Yoo, Curt Levey, and Andrew McCarthy to analyze the many areas of law affected by this effort, highlighting the threat it poses to the rule of law and speculating on the long-term impact.

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

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

15 April 2020 in the Wall Street Journal

President Trump has come under attack this week for saying he has “absolute authority” to reopen the economy. He doesn’t – his authority is limited. But while the president can’t simply order the entire economy to reopen on his signature, neither is the matter entirely up to states and their governors. The two sides of this debate are mostly talking past each other.

The federal government’s powers are limited and enumerated and don’t include a “general police power” to regulate community health and welfare. That authority rests principally with the states and includes the power to impose coercive measures such as mandatory vaccination, as the Supreme Court held in Jacobson v. Massachusetts (1905). Nor may the federal government commandeer state personnel and resources to achieve its ends or otherwise coerce the states into a particular course of conduct. There is no dispute about these respective state and federal powers.

In most federal-state disputes, the question is what happens when authorities at both levels exercise their legitimate constitutional powers and cross-purposes. Here, the president has the edge. The Constitution’s Supremacy Clause requires that when the federal government acts within its proper sphere of constitutional authority, state law and state officials must give way to the extent that federal requirements conflict with their own. Federal power encompasses a broad power to regulate the national economy. Thus although the president lacks plenary power to “restart” the economy, he has formidable authority to eliminate restraints states have imposed on certain types of critical commercial activity.

Much of this authority was established by Congress in the Defense Production Act of 1950, which Mr. Trump has invoked on a limited basis to require American manufacturers to make personal protective equipment and ventilators. Most of his current critics lauded these actions and urged him to do more.

The DPA was enacted principally to assures U.S. military preparedness. But it defines “national defense” broadly to include “emergency preparedness” and “critical infrastructure protection and restoration.” The law “provides the President with an array of authorities to shape national defense preparedness programs and to take appropriate steps to maintain and enhance the domestic industrial base.” It authorizes him to prioritize the production of certain products and to “allocate materials, services, and facilities in such a manner, upon such conditions, and to such an extent as he shall deem necessary or appropriate to promote the national defense.”

The DPA isn’t a bank check. The president cannot, for example, impose wage and price controls without additional congressional action, and he is often required to use carrots rather than stisk to achieve the law’s purposes. Nevertheless, because he is acting under an express congressional grant of authority, he is operating, as Justice Robert Jackson explained in his iconic concurring opinion in the “steel seizure” case Youngstown v. Sawyer (1952), at the apex of his legal and constitutional power.

Any state restrictions on commerce or personal behavior would have to yield to the federal imperative. “The states have now power, by taxation or otherwise, to retard, impede, burden, or in any other manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government,”, the Supreme Court explained in McCulloch v. Maryland (1819). States, whether acting alone or in coordination, would be barred, for example, from forbidding their residents to return to work in critical industries, or from restraining industrial, agricultural, or transportation facilities in ways that impede the federal mandate.

That said, even the most expansive interpretation of the DPA, and other federal statutes regulating interstate commerce, wouldn’t permit President Trump to reopen all aspects of the American economy on his own authority. The reopening of many local businesses, such as restaurants and nonessential retailers, would be up to the states.

Thus state governors and lawmakers are as vital a part of this effort as the president and Congress. Federal and state officials have to work together, however much they may dislike each other politically or personally to get America back on its feet.

The truly difficult legal issues coming out of the Covid-19 crisis are whether government at all levels has sufficiently protected individual rights. All exercises of federal and state power, emergency or not, are subject to the overriding limitations of the Bill of Rights. The courts have traditionally taken the nature and extent of national emergencies into account in construing and applying these rights, but they cannot be ignored entirely.

So far the American people have largely accepted temporary restrictions on their liberty – especially freedom of assembly and religion – that may not stand up to court challenges. It would serve the president and governors well to make a priority of easing these restrictions and others as soon as possible after the worst of the danger has passed.

Mssrs. 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 and have litigated separation-of-powers cases, representing states in challenges to ObamaCare and the federal Clean Power Plan.

Source: https://www.wsj.com/articles/presidential-power-is-limited-but-vast-11586988414

The winner in this deepening struggle between the White House and the intelligence world is not yet clear. But the loser is already evident: American national security.

By David B. Rivkin, Jr., and George Beebe

28 February 2020 in The National Interest

What does one do when the country’s intelligence leadership is acting, well, not very intelligently? That is the inescapable question prompted by last week’s reports that a senior representative of the Office of the Director of National Intelligence (ODNI) told members of the House Permanent Select Committee on Intelligence (HPSCI) in an official briefing that Russia is interfering in the 2020 U.S. presidential election and hopes to see President Donald Trump re-elected.

According to the New York Times account, Trump learned of this briefing only after the fact. And if press reports are accurate, the briefer cited no direct evidence of meddling on Trump’s behalf or of Russia’s broader intentions regarding U.S. presidential elections. Rather, the case was apparently based on inferences from such inherently ambiguous evidence as Russian hacking of the Ukrainian energy firm Burisma, supposedly done to help Trump dig up dirt on Hunter Biden. Such inferences were evidently reinforced by an assessment, lacking in analytical merit but redolent with politics, that the Kremlin would somehow naturally favor Trump over other 2020 presidential candidates.

Republican HPSCI members reportedly erupted in response. They disputed the plausibility of an assessment that Russia would prefer a president who has built up the U.S. military, proved willing to use force in the Middle East, greatly stiffened sanctions on Moscow, fought Russia’s Nord Stream 2 gas pipeline project, and toughened other policies affecting Russia. Why would Russians not favor Democrats who would cut the U.S. defense budget, balk at using military force, and impose a ban on fracking that would drive up global oil and gas prices and benefit Russia’s energy export earnings? Trump, in turn, called the allegation of Russian support a “hoax.”

Should Intelligence Assessments Be Taken with a Grain of Salt?

Should intelligence overseers in Congress, the White House, and media subject the judgments of professional analysts to tough scrutiny? History says yes. Formulating intelligence assessments is an inherently uncertain and difficult business. Even establishing basic facts is a challenge when dealing with adversaries, who attempt to shroud their capabilities in secrecy. Intelligence assessments of the Soviet nuclear forces buildup, for example, were plagued by both over- and under-estimations, leading first to erroneous American concerns about a “missile gap” under Khrushchev, and later to surprise when the Soviets tried to put missiles in Cuba and then pushed well past nuclear parity in the 1970s.

In fact, one of the key reasons for the consistent underestimations of the Soviet nuclear force posture circa 1970s–1980s, was not a failure of the U.S. technical collection capabilities, but the CIA’s failure to accept that Moscow’s key strategic goal was to be able to fight and win a nuclear war. Ironically, Moscow was not trying to hide its thinking on this issue, as numerous Soviet military officials laid out their nuclear war-fighting ethos in published books and articles. However, U.S. intelligence analysts discounted this evidence, believing that Moscow, whatever it might have been publicly saying and doing, somehow subscribed to a mutually assured destruction theory as the best way to both maximize deterrence and minimize the risks of nuclear war.

By contrast, in earlier years, the CIA greatly overestimated the then-existing Soviet nuclear capabilities. By the late 1950s, the Soviet Union was locked in a strategic arms competition with the United States, and it was losing badly. America enjoyed a considerable and growing advantage in both long- and intermediate-range nuclear forces. Yet, having embarked on an ambitious foreign policy designed to test American resolve, and possibly drive U.S. forces out of Berlin, Khrushchev was not prepared to curtail his aspirations.

To enhance his military capabilities vis-à-vis the United States, he could have deployed a number of costly, inaccurate and vulnerable first-generation ICBMs. Alternatively, he could have chosen to invest the USSR’s large, but not unlimited, resources in the development of more advanced land-based missiles (with deployment many years in the future) and other, more reliable, strategic delivery systems that might tip the nuclear balance in his favor.

Sensibly enough, he chose the latter course. However, to maintain the highest quality deterrence against the West and, even more to the point, to support the enhanced Soviet prestige necessary for an ambitious foreign policy, Khrushchev also engaged in an elaborate deception designed to make the West believe that Moscow had already fielded strategically meaningful numbers of advanced ICBMs. The Soviet leader’s public statements were supported by a carefully tailored intelligence disinformation campaign that not only tried to hide Moscow’s actual capabilities but also masked Soviet insecurities by suggesting Khrushchev wanted to challenge directly the United States in building up nuclear forces.

From Khrushchev’s perspective, the plan worked like a charm, at least temporarily. The alleged “missile gap” between the United States and the USSR was seized upon by a young Democratic Senator from Massachusetts, John F. Kennedy, to discredit the Eisenhower Administration and to defeat then-Vice President Richard M. Nixon in the 1960 presidential election. Not only did the Soviet Union avoid wasting billions of rubles, but Khrushchev concluded that he could outmaneuver the inexperienced Kennedy.

To be sure, Moscow’s gambit ultimately failed, as the U.S. eventually discovered that Moscow was not “cranking out missiles like sausages,” in Khrushchev’s oft-used expression, and blocked the Soviets from installing medium and intermediate-range missiles in Cuba. This did not, however, negate the fact that for a considerable period of time U.S. intelligence estimates about Soviet capabilities were profoundly wrong.

Divining Intentions Is Extra Hard

Discerning adversary capabilities is difficult enough, particularly when dealing with closed societies with strict government controls on information. But divining an adversary’s intentions is an even more challenging task. In part, this is because capabilities, even when ascertained with the utmost precision, often lend themselves to multiple explanations of intent. Americans accurately recognized that Japan would have enormous disadvantages in an extended war with the United States, but they did not imagine that Tokyo might nonetheless attempt a knock-out blow of the Pacific Fleet at Pearl Harbor. Israelis correctly understood that Egypt could not hope to defeat their forces on the battlefield, but they failed to consider that Sadat might still see some advantage in launching a surprise offensive in the 1973 Yom Kippur War.

Moreover, decisions made by heads of state can often surprise even their closest aides. Intelligence reporting can accurately convey information from highly-placed foreign officials, yet still miss the mark when it comes to portraying foreign intentions. This problem can arise either because the officials just do not know enough about the intentions of their superiors, or because their superiors changed their minds, or simply because their superiors chose to lie to them. Saddam Hussein, for example, deceived his own generals in leading them to believe that, despite the international sanctions imposed in the aftermath of the first Gulf War, Iraq retained operational weapons of mass destruction

The difficulty in grasping intentions is particularly acute when it comes to foreign influence operations. Often, media operations are aimed at little more than reinforcing a state’s diplomatic messaging. The BBC and Voice of America have long broadcast content into countries dominated by state-controlled media, hoping to provide audiences with alternative perspectives on events. But sometimes media campaigns are not intended to persuade, but to deceive and even subvert—to tear the social and political fabric of their target audiences and undermine government authority.

The objectives of such subversion, however, can be agonizingly difficult to ascertain with much confidence. Sometimes the goal of subversion can be to topple a foreign authority—to so damage the operations of a regime so that it can no longer function effectively and crumbles from within. In other instances, the aim is less ambitious and more pragmatic—to force the target leadership to do things it would rather not do, such as refrain from behavior perceived as threatening. And when creating controversial online content also happens to be the most effective way to attract views, generate clicks, and bolster advertising revenues, separating subversive intent from other more mundane motivations in digital media campaigns becomes even more challenging.

More generally, given the past record of intelligence failures—particularly when it came to the analysis of intentions of various hostile powers, and the fact that there are still ongoing debates about such key Cold War episodes as the real Soviet motivations that drove a series of Berlin crises, and the Cuban Missile Crisis—the notion that the judgments of the Intelligence Community about Russian intentions virtually delivered in real-time today should be accepted without skepticism is nothing short of risible.

What Does Moscow Want?

In view of such inherent challenges, what can we say about the renewed controversy over Russian electoral meddling? There is no doubt that Russians are continuing to post digital news and social media content aimed at American audiences. It is also clear that Russian hackers have targeted American electoral databases and vote-counting systems in the past. What is less clear are the motivations that lie behind this activity.

That it is aimed at securing the victory or defeat of any particular candidate or party is an unproven hypothesis at best. The Kremlin cannot fail to realize that any significant pro-Trump meddling would be exposed and would hurt rather than help his electoral prospects. This being the case, one might plausibly argue that the real reason Moscow might unveil some footprint of a pro-Trump campaign is because it would expect this to be discovered and actually harm Trump. In fact, such a scenario illustrates perfectly how difficult it is to ascertain Putin’s intentions, even if one had perfect evidence of what Moscow was actually doing in U.S. elections.

Source: https://nationalinterest.org/feature/election-mirage-why-claims-russian-meddling-should-be-questioned-127992

In this clip from the Wall Street Journal’s “Journal Editorial Reports”, David Rivkin addresses the Constitutional question of whether a sitting president can credibly be accused of “obstructing Congress”. He concludes that there are severe legal deficiencies associated with this idea, and with the way the House Democrats have tried to advance their agenda.

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

15 January 2020 in the Wall Street Journal

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

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/congress-declares-war-but-only-the-president-can-make-it-11579133486