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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News show to discuss legal implications of recent ACORN revelations

David Rivkin announced today that he will appear on the Fox News on Saturday, September 19, 2009 between at approximately 5:40 pm. Mr. Rivkin’s appearance follows a series of articles he has authored for the The Wall Street Journal and the Washington Post on the constitutionality of President Barack Obama’s appointments of controversial “czars,” health care reform, and the national security implications of climate change.

Mr. Rivkin is expected to discuss his evaluation of issues surrounding the recent revelations about the community organizing and activism organization, ACORN.  Recent videotaped footage released on cable television has shown ACORN employees advocating and offering to aid people in breaking laws and evading taxes. Mr. Rivkin is expected to discuss the difficulties when charities and government contracting companies become intertwined.

Fox News has broken the story about amateur undercover reporters requesting assistance from ACORN offices in Baltimore, Washington, DC, New York City, and San Diego.   For more information, visit www.foxnews.com.

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.

For more information, visit www.davidrivkin.com.

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Popular news magazine show to discuss consitutionality of healthcare reform

David Rivkin announced today that he will appear on the Fox and Friends Weekend show on Saturday, September 19, 2009 between 9:00 and 10:00 am. Mr. Rivkin’s appearance follows a series of articles he has authored for the The Wall Street Journal and the Washington Post on health care reform.

Mr. Rivkin is expected to discuss his evaluation of the “individual mandate”—the provision in the current reform bill in which the federal government requires every individual to purchase health insurance. The Constitution’s powers over individuals are specific and enumerated. Its authority to compel individual behavior is limited to economic activity and to interstate commerce. It specifically limits the powers of the federal government, and it has had only 27 amendments since its adoption in 1787.  Mr. Rivkin has repeatedly expressed concern about the extension of federal powers beyond the limited powers granted in the U.S. Constitution.Â

About Fox and Friends Weekend

Fox and Friends is a popular morning news and feature cable television show, with both weekday and weekend editions.  The show format includes national news, discussions about current events, and guest commentary.  For more information, visit www.foxnews.com/foxfriends/.

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.

For more information, visit www.davidrivkin.com.

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Federalist Society sponsors timely discussion on pending legislation

David Rivkin announced today that he will speak at the Federalist Society at the Capitol Visitor Center in Washington, DC, on September 24, 2009 to discuss the constitutionality of health care reform as currently being considered in Congress. Mr. Rivkin’s appearance follows a series of articles in the Washington Post and The Wall Street Journal on the health care reform issue. Jonathan R. Turley, Professor of Public Interest Law at George Washington Law School, will be joining Rivkin in the discussion.  Both Mr. Rivkin and Prof. Turley are frequent witnesses before the House and Senate on constitutional matters.

Mr. Rivkin will discuss his evaluation of the “individual mandate” to purchase health insurance, as well as specific, related Supreme Court rulings. The Constitution’s authority is limited to economic activity and to interstate commerce. It specifically limits the powers of the federal government, and it has had only 27 amendments since its adoption in 1787.  Mr. Rivkin has repeatedly expressed concern about the extension of federal powers beyond the limited powers granted in the U.S. Constitution.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.

For more information, visit www.davidrivkin.com.

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Former White House Legal Advisor to Comment on Illegal Health Care Reform during Interview with Laura Ingraham

David Rivkin announced today that he will be appearing on the live radio broadcast of The Laura Ingraham Show on August 26, 2009 to discuss the constitutionality of the current health care  reform bill, now in committee in Congress. David Rivkin and Lee A. Casey, prolific political commentators and attorneys in Washington, DC, stated in a August 22, 2009 Washington Post article that the plan as presented in the House bill 3200 is unconstitutional.  Mr. Rivkin is a frequent political commentator on policy and legislative matters related to the Constitution, national security, and energy. He currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies.

Mr. Rivkin will discuss his evaluation of the “individual mandate” to purchase health insurance, as well as specific, related Supreme Court rulings. The Constitution’s authority is limited to economic activity and to interstate commerce. It specifically limits the powers of the federal government, and it has had only 27 amendments since its adoption in 1787. Rivkin has expressed an underlying concern about growth of federal powers beyond the limited powers granted to the government in the U.S. Constitution.Â

About the Laura Ingraham Show
"The Laura Ingraham Show," a radio broadcast on more than 340 radio stations, has attracted a large body of listeners since her launch into national syndication in 2001. Politics, Hollywood, and culture are Laura’s primary topics.  Her legal, political, writing, and television background distinguishes Laura in the field of increasingly homogeneous radio syndication.  More information, including radio stations that syndicate the show, is available at www.lauraingraham.com.

About David Rivkin  
David Rivkin is an attorney and partner in the law firm of Baker and Hostetler LLP in Washington, DC.  Hecurrently represents foreign governments and corporate entities on legal, political, economic, defense, and public relations matters.

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Former White House legal advisor warns about expanding Federal powers

David Rivkin and Lee A. Casey, prolific political commentators and attorneys in Washington, DC, have analyzed provisions of the health reform bill and stated in a Washington Post article that it is unconstitutional.  More than 331 comments were posted on the article over the weekend. David Rivkin is an attorney and partner at Baker & Hostetler.  Rivkin currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies.  The full article can be found at http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html and on David Rivkin’s website.

The article evaluates the “individual mandate” and cites specific Supreme Court rulings to back the authors’ contention that the federal government cannot require universally that individuals purchase health insurance. The Constitution’s authority is limited to economic activity and to interstate commerce. The U.S. Constitution specifically limits the powers of the federal government, and it has had only 27 amendments since its adoption in 1787. Rivkin expresses an underlying concern about growth of federal powers beyond the limited powers granted to the government in the U.S. Constitution.

The full article in the Washington Post can be found at http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html.

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About David Rivkin

David Rivkin, an attorney in private practice 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. His extensive political commentary includes more than 350 articles and numerous guest appearances on radio, and network and cable televisions programs.  David Rivkin’s editorial contributions include constitutional law, international law, defense and national security, intelligence, foreign policy, energy policy, and healthcare reform.  He develops his positions on critical public and legal matters not from political ideology, but from a reasoned interpretation of the U.S. Constitution, legislation, judicial rulings, and legal opinions.

David Rivkin currently represents foreign governments and corporate entities on legal, political, economic, defense, and public relations matters. He contributes to bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities. He is a member of the District of Columbia Bar and the Council on Foreign Relations.

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Former White House Legal Advisor explains the dangers of the unprecedented power trip by the nation’s judiciary

David Rivkin and Lee A. Casey, prolific political writers and top attorneys in Washington, DC, released their first article on Slate.com, an online general-interest publication offering analysis and commentary about politics, news, and culture. The article centers on the writers’ fear of the “Judges Who Would Be King,” their belief that some of the nation’s top judges are attempting to control and seize too much power. David Rivkin is an attorney and partner at Baker & Hostetler.  Rivkin currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies.  The full article can be found at http://www.slate.com/id/2224943 and on David Rivkin’s website.

Testimony Summary on Climate Change and National Security

When a federal judge ordered 17 Chinese Uighurs, detained at Guantanamo Bay, released into the United States last October, he took to its logical conclusion the judiciary’s increasingly bold effort to supervise the president and Congress. Justifying his ruling in the face of Congress’ exclusive constitutional power over when, which, and how foreign nationals may enter the United States, Judge Ricardo Urbina reasoned that “our system of checks and balances is designed to preserve the fundamental right of liberty.” He saw his order as necessary to that end. But if he’s right, then the judiciary itself is the unchecked branch of government. And while judges have expanded their power before in our history, never have the claims to supremacy of some of them been so extreme.

Judge Urbina’s order, reversed on appeal and the subject of a pending petition for Supreme Court review, is one of an increasing number of rulings that have brought the federal judiciary deep into national-security territory that once was almost entirely reserved to the political branches. Another federal district judge recently ordered the release of Mohammed Jawad, originally detained at Guantanamo Bay for having maimed a U.S. solider in Afghanistan. And other judges have taken similar steps in habeas corpus actions brought by war-on-terror prisoners to obtain their release.

These rulings necessarily second-guess presidential decisions about who should be detained as an enemy fighter in wartime. The principle underlying them is summed up in Justice Anthony Kennedy’s oft-quoted statement that to free the president and Congress from judicial supervision would amount to a holding that “the political branches have the power to switch the Constitution on and off at will.”

The full article can be found at http://www.slate.com/id/2224943

About David Rivkin

David Rivkin, an attorney in private practice 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. His extensive political commentary includes more than 350 articles and numerous guest appearances on radio, and network and cable televisions programs.  David Rivkin’s editorial contributions include constitutional law, international law, defense and national security, intelligence, foreign policy, energy policy, and healthcare reform.  He develops his positions on critical public and legal matters not from political ideology, but from  a reasoned interpretation of the U.S. constitution, legislation, judicial rulings, and legal opinions.

David Rivkin currently represents foreign governments and corporate entities on legal, political, economic, defense, and public relations matters. He contributes to bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities. He is a member of the District of Columbia Bar and the Council on Foreign Relations.

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Former White House Legal Advisor says Unilateralism won't work

David Rivkin announced today he is testifying before the Senate Committee on the Environment and Public Works in hearings on climate change and national security.  Mr. Rivkin is an attorney and partner at Baker & Hostetler.  He currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies.  The full David Rivkin testimony before the Senate Committee on the Environment and Public Works in hearings on climate change and national security can be found on www.davidrivkin.com.

Testimony Summary on Climate Change and National Security

The EPA Administrator recently told this Committee that our unilateral adoption of a cap-and-trade program will have no impact on global climate.  The question is therefore whether the Waxman-Markey bill, which reflects the Administration’s preferred approach to dealing with carbon reductions,  will induce other nations – especially India and China – to follow suit.  This is a matter of foreign policy, not science.

 India and China have both refused outright to accept mandatory emissions caps.  During the last presidential campaign, we were told that if the U.S. only “set an example” through tough carbon-related mandates, other major emitting nations would swiftly follow.  This “leadership by example” argument was reinforced by the claim that it would be possible to use carbon tariffs to compel such countries as might be insufficiently inspired to adopt carbon-related mandates of their own.

 These claims have been swiftly disproven.  The results of the international climate talks in Bonn and the G8 Summit in Italy were not promising.  Bilateral exchanges have not budged China and India from their adamant refusal to cap emissions.  If anything, the developing world’s objections have only grown more vociferous as the U.S. commitment to impose unilateral emissions caps has become more credible.

To understand why unilateral cap-and-trade will not induce emissions reductions by other countries, we may call upon experiences in more traditional diplomatic contexts.  These teach that unilateral concessions are never a good idea.

For example, the arms limitations agreements of the interwar and Cold War eras all rested on the principle of reciprocity.  Carefully negotiated undertakings, through which the parties carefully exchange measured concessions, were the only fruitful approach.

These general negotiating lessons were reflected with particular clarity in the area of nuclear arms control.  The analogy to emissions reductions is an apt one for two reasons: first, because nuclear arms control was for decades one of the most pivotal aspects of American foreign and defense policy, and second, because many Americans came to believe that nuclear arms reductions were a moral obligation.

There is one further irony:  The previous Administration’s approach to arms control was harshly criticized for being too informal, for eschewing written agreements in favor of oral understandings.  The current Administration has returned to the traditional approach: negotiating detailed written agreements with Moscow, hundreds of pages long.  Yet, on the issue of carbon, we appear ready to settle for vague promises “to do something” eventually.  This is not a serious way to proceed.

Understanding linkage is key to success in international relations.  Even if we assume that Chinese, Brazilian, or Indian interlocutors are passionately concerned about ameliorating climate change, they would be practicing deficient statecraft if they did not seek to pursue this goal in a manner benefitting their other economic, political, and military interests.  Changing the world’s existing security and economic architecture, which they presently see as being unduly tilted in favor of the West in general and the United States, is a major strategic priority for the developing countries.  An asymmetrical carbon reduction regime, under which the U.S. makes the greatest sacrifice and the developing countries do not do much at all, would only advance this goal.  Waxman-Markey will therefore make emitter states even less willing to reduce emissions.

Attempting to enforce GHG emissions reductions through trade penalties would also be highly problematic: First, carbon tariffs are very likely illegal under WTO rules.  Numerous countries, as well as senior U.N. officials, have already denounced the possibility of carbon tariffs as a violation of WTO principles.  Legal or not, carbon tariffs would certainly be challenged before the WTO Dispute Resolution System.

Some argue that the mere threat of carbon tariffs will intimidate other countries into doing our bidding on carbon.  This is not credible.  Either we have the leverage to lead the rest of the world into a comprehensive global climate change accord or we don’t. This kind of naïve and unrealistic thinking permeates expectations about the Waxman-Markey Bill.  It should not drive the Senate’s decision-making on one of the most important foreign policy issues of our time.

The full David Rivkin testimony before the Senate Committee on the Environment and Public Works in hearings on climate change and national security can be found on www.davidrivkin.com.

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About David Rivkin

David B. Rivkin Jr., an attorney in private practice 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. His extensive political commentary includes more than 350 articles and numerous guest appearances on radio, and network and cable televisions programs.  David Rivkin’s editorial contributions include constitutional law, international law, defense and national security, intelligence, foreign policy, energy policy, and healthcare reform.  He develops his positions on critical public and legal matters not from political ideology, but from  a reasoned interpretation of the U.S. constitution, legislation, judicial rulings, and legal opinions.

David Rivkin currently represents foreign governments and corporate entities on legal, political, economic, defense, and public relations matters. He contributes to bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities. He is a member of the District of Columbia Bar and the Council on Foreign Relations.

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