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Wednesday, 07 October 2009 15:25
David Rivkin debates on judicial activism at Yale Law School
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Unconstitutional extension of judicial power an issue in Kiyemba v. Obama case
David Rivkin announced today that he debated at Yale Law School yesterday regarding the permissible scope of judicial power. The debate subject was the Kiyemba v. Obama case, in which a district court order that President Obama release Chinese Uighurs into the United States was overturned in the appellate court. Mr. Rivkin debated Bingham & McCutchen Partner Sabin Willett, representing the Uighurs, at the event on September 23, 2009. The Federalist Society sponsored the debate.
While on one level the debate was about a single case, Kiyemba v. Obama, the broader issue concerned the constitutionally permissible scope of judicial power. Ms. Willett, who represents the Uighurs, argued that because their habeas petitions were granted and the government has, therefore, no legal right to detain them, bringing them to the U.S. was the only proper and just thing to do.  A number of Uighurs have been resettled in third countries, for example, Albania and Bermuda, a few still remain in Guantanamo Bay and efforts to resettle them are still underway. While any Uighur can return to China, the United States is reluctant to return them to China against their will because of human rights concerns.Â
Mr. Rivkin argued that, because the Constitution vests into the two political branches power to control our borders and determine which alien can and cannot be admitted into the United States, with Congress playing the primary role, and because, in this instance, both political branches have indicated clearly that the Uighurs should not be admitted, the Judiciary lacks the power to order such an action. Changing the constitutional framework and allowing any branch of government to exercise powers beyond those assigned to it by the Constitution would effect a fundamental and lasting blow to the U.S. system of ordered liberty.Â
About the Federalist Society
The Federalist Society for Law and Public Policy Studies is a Washington, DC-based organization of conservatives and libertarians interested in the current state of the legal order. The Federalist Society has chapters in nearly 65 cities across the country and in cities in Europe. The Society was founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is in the province and duty of the judiciary to state what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities. For more information, visit www.thefederalistsociety.org.
About David Rivkin
David Rivkin, an attorney in private practice and partner at Baker & Hostetler in Washington, D.C., has had a lengthy career distinguished by service in the White House during two presidents’ terms, in the U.S. Department of Justice, and in the U.S. Department of Energy. He is a well-known writer and media commentator on matters of constitutional and international law, as well as foreign and defense policy. He is a Visiting Fellow at the Nixon Center, Contributing Editor at the National Review, and a member of the Advisory Council at National Interest magazine. He currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies. He currently represents foreign governments and corporate entities on legal, political, economic, defense, and public relations matters.
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