Hillary’s Unlawful Plan to Overrule Voter-ID Laws

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
June 11, 2015 7:26 p.m. ET

Declaring that Republican-controlled states have “systematically and deliberately” tried to “disempower and disenfranchise” voters, Hillary Clinton has called for a sweeping expansion of federal involvement in elections. In a speech last week in Houston, laying out what promises to be a major campaign theme, Mrs. Clinton called for automatic voter registration at age 18, a 20-day early-voting period and a maximum 30-minute wait period to vote.

She has also endorsed the idea of a federal law permitting convicted felons to vote and allowing individuals, such as students, who reside in one state to vote in another. All of these federal mandates would augment and make more onerous an unconstitutional election-regulating federal statute known as the “Motor Voter” law enacted during her husband’s White House tenure.

A federal takeover of election laws—and rolling back state voter-ID laws intended to discourage election fraud—is a high priority for progressives. The billionaire financier George Soros reportedly has pledged $5 million to bankroll legal challenges to laws like those that Mrs. Clinton decries. Part of the effort is intended simply to galvanize the Democratic base by stoking a sense of grievance, but the strategy should be taken seriously—and rebutted as unconstitutional.

The Constitution gives Congress the power to regulate federal elections, not state ones. It also distinguishes between the regulation of presidential versus congressional elections. Specifically, under Article I, Section 4—the Elections Clause—while the states have primary responsibility for regulating congressional elections, Congress can pre-empt their rules by regulating “times, places and manner of holding Elections for Senators and Representatives,” except that Congress cannot regulate the “places of chusing [sic] Senators.”

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A Legal Cure For the FDA’s Free Speech Malady

By DAVID B. RIVKIN JR. And ANDREW GROSSMAN, May 21, 2015

We are free to tell you that a clinical trial shows the drug Vascepa to be an effective treatment for persistently high triglyceride levels. But should the drug’s manufacturer, Amarin, tell you or your doctor the same thing, the company would face criminal prosecution and civil liability. Therein lies a First Amendment anomaly, one that may finally be resolved by a lawsuit that Amarin filed earlier this month against the Food and Drug Administration.

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions.

But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses.

But Amarin can’t say anything about the Vascepa trial. The drug is approved only as a treatment for “very high” triglyceride levels, not those that are merely persistently high. As a result, doctors and their patients are being kept in the dark about a treatment that, for some patients, has fewer side effects than other drugs.

The FDA claims its speech ban is a necessary part of its drug-approval process, which requires manufacturers to demonstrate efficacy for each intended use. The agency aggressively investigates and the government regularly prosecutes pharmaceutical companies and their representatives that promote off-label uses of their drugs. Yet once a drug is approved, doctors can prescribe it for any use—and the FDA recognizes, in its regulatory guidance—that such uses are essential to effectively translate medical research into improved health outcomes.

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Gay Rights, Religious Freedom & the Law

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY, April 9, 2015 6:53 p.m. ET

Debates about the Indiana and Arkansas Religious Freedom Restoration Acts, or RFRAs, have regrettably pitted religious freedom against gay rights. Critics claim the laws provide a license to discriminate against lesbian, gay, bisexual or transgender (LGBT) individuals. But this criticism shouldn’t be aimed at the religious-freedom laws, which don’t license discrimination based on sexual orientation or anything else.

Those wanting to advance LGBT rights should focus on enacting laws that bar discrimination. If there is a legal “license” to discriminate based on sexual orientation, it is because few jurisdictions today provide protection against such discrimination, or because the Constitution may immunize such behavior in certain circumstances.

There is no federal law prohibiting private discrimination based on sexual orientation. An executive order by President Obama in 2014 bans such discrimination only for federal workers and contractors. About 20 states and some municipalities prohibit sexual-orientation discrimination in workplaces and public accommodations. But the majority of states still don’t proscribe discrimination based on sexual orientation, though discrimination based on race, gender, ethnicity or national origin is banned.

The federal Religious Freedom Restoration Act was passed by overwhelming bipartisan majorities and signed by President Clinton in 1993. It represented a backlash against the Supreme Court’s 1990 decision in Employment Division v. Smith. That decision held that the First Amendment’s Free Exercise Clause doesn’t allow a religious exemption from laws of general applicability—e.g., compulsory military service, or prohibitions on drug use or animal cruelty—even if those laws substantially burden religious exercise.

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To Stop Obama’s Power Grabs, Kill the Senate Filibuster

Nevada’s Right Choice on Immigration

By DAVID B. RIVKIN JR. And LEE A. CASEY, Feb. 2, 2015 7:40 p.m. ET

A very public dispute broke out last week when Nevada Attorney General Adam Laxalt went against Gov. Brian Sandoval’s wishes and joined a lawsuit filed by 25 other states challenging President Obama’s imposition of his immigration reform policies by executive action.

Messrs. Sandoval and Laxalt are both Republicans who agree that the current immigration system is broken and that comprehensive reform is necessary. But Mr. Sandoval opposes litigation and has suggested that new immigration reform legislation is the best way to proceed.

Yet on Jan. 26 Mr. Laxalt announced that Nevada had joined the plaintiff states in Texas v. United States of America. “As Nevada’s chief legal officer,” he explained, “I am directed by Nevada’s Constitution and laws to take legal action whenever necessary ‘to protect and secure the interest of the state.’ ”

Mr. Laxalt was right to join the suit. Mr. Sandoval’s legislative path will neither solve America’s vexing immigration problems nor rein in a president who has ignored the Constitution’s limits on executive power.

Texas v. United States of America challenges the president’s use of an executive order to suspend federal immigration laws that require, among other things, deportation of undocumented immigrants and strict limits on who may lawfully work in the U.S. The Constitution requires that the president “Take care that the laws be faithfully executed,” and provides no exemption for laws with which the president disagrees.

As the Supreme Court stated in Youngstown Sheet & Tube Co. v. Sawyer (1952), ruling against President Harry Truman’s seizure of the nation’s steel industry during the Korean War, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” Read more »

Federal Antidrug Law Goes Up in Smoke

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban. Read more »