David Rivkin transcript from Fox & Friends appearance on Tuesday, July 13, 2010:

Host: How can states limits the federal government’s power? … the justice department says our best case is the supremacy clause in the Constitution that says no state law should eclipse the federal law. You realize that for instance, Maryland, one of a dozen states, is trying to rewrite the Constitution. How so?

David Rivkin: Well they are seriously considering having a Constitutional Convention, a constitution which, by the way has been amended for a number of times, to see if they can come up with more parliamentary revisions.

The point, Steve, is that it reflects a sentiment we see around the country which says, in addition to passing statutes, it pays from time to time to look at the most fundamental set-up which is the state constitution or the federal constitution and come up with things that really cure the problems that have arisen—including the one you mention which is a lack of balance between federal and state authority.

David, you suggest they change things so that if two thirds of states agree, they can suggest their own amendments to the Constitution, right? How would that work?

Yes, that is correct. In order to get there you would need to have a very targeted state convention or you need Congress to propose that amendment. The idea is to put states on the same level plane as Congress in coming up with specific targeted amendments.

To emphasize, this is very important, if states had this power today, you would put a real check, deterrence if you will, on the political class. I think, for example, Congress would have been less willing to push for unconstitutional health care reform if there was a way the states could come back and revist, for example, the commerce clause. Arizona would’ve been played very differently. It’s really a way of restoring the balance that has been unfortunately lost over the last several decades.

Well, David, what’s the chance that this might actually happen?

I believe it is going to actually happen. Its something that states ought to be taking seriously. This is a cause that everybody who is concerned about expansion of federal power should endorse including the Tea Party movement, independents.

To me this is nothing more than restoring the regional balance between the federal and states governments that the framers had in mind. And very important, it’s not just about states rights, because that word has acquired bad currency in some quarters. It’s about restoring individual liberty. Because remember individual liberty is to be protected by balancing federal and state power, not just from the Bill of Rights.

Republican Governor Christie of New Jersey has not decided whether to sign on to the 20-state lawsuit challenging the constitutionality of Obamacare.

David Rivkin was quoted in an article about Christie for the Philadelphia Inquirer. It would be a "good thing" to have New Jersey aboard, said Rivkin, lead outside counsel representing the 20 state plaintiffs.

"As a matter of law, it does not matter how many states you have," Rivkin said. "As a matter of symbolism and gravitas, it's quite important."

July 2, 2010

by Carrie Johnson, NPR

The Obama administration's biggest domestic policy accomplishment — the new health care law — is under steady legal attack.

On Thursday, lawyers argued the first case to hit the courts, filed by the attorney general of Virginia, which doesn't want to participate in the new federal health care plan. More than a dozen other state challenges are in the pipeline.

In a Richmond courtroom, Justice Department lawyers spent two hours squaring off against the state. The arguments represent the first stage of what could be a long fight.

"It is our position that the individual mandate is unconstitutionally overbroad under the commerce clause," Virginia Attorney General Ken Cuccinelli, a Republican, told NPR earlier this year. "You cannot compel someone to buy something from someone else."

The federal law requires people to have health insurance or pay a penalty, as a way of keeping down costs.

Rob Weiner, the Justice Department's point man for defending the health care statute, says states just can't have it both ways. "The states cannot say we're entitled to take the money and disregard the conditions. That's not the way it works," he says.

Competing Views

A group of 20 states, led by Florida, is using even broader arguments to test the federal health care statute. The legal challenges center on two main ideas:

First, that the federal government is engaging in a power grab and going far beyond its authority to direct the states to action. The conflict between states' rights and federal authority goes all the way back to the Civil War.

Second, states argue that Congress is imposing an unfunded mandate by misusing the commerce clause to regulate financial activity.

Florida's lawsuit is the next-biggest case in line in the courts.

David Rivkin, a lawyer working with Florida, says that Congress and the Obama White House take his breath away. "This is an unbelievable, unprecedented, utterly arrogant exertion of congressional power," he says. "It is just impossible for me to overstate about how revolutionary, in a bad sense, this bill is."

The view is far different from Weiner's sunny office at Justice Department headquarters. Weiner is coordinating with a group of four key units, including the solicitor general's office, to keep tabs on all of the cases.

He says Congress is entitled to something for its money.

"Congress is appropriating billions of dollars that it's providing to the states for Medicaid, and it's entitled to attach conditions to the billions of dollars that it provides," he says.

Weiner says there's a clear federal interest in health care because it costs so much for taxpayers — $43 billion for people who didn't have insurance and didn't have an ability to pay.

"This is a very important piece of legislation, but it is not an extraordinary exercise of congressional power," he says.

Bound For The High Court

The cases are resonating far beyond the courts.

Republicans raised the state lawsuits repeatedly this week in hearings for Supreme Court nominee Elena Kagan. And early decisions in at least a few of the cases could come before the November elections.

The Virginia judge says he will rule on the first step in that state's lawsuit within a month. Early arguments in the bigger lawsuit filed by Florida and other states are scheduled for September.

Eventually, legal experts say this is the kind of dispute that's destined to wind up at the Supreme Court.

A federal court slaps down a novel claim from a Sudanese business bombed by the U.S. in 1998.

By: David B. Rivkin Jr. and Bruce D. Brown |  Published in The Wall Street Journal  | June 24, 2010

America's war on terror is being fought on some unlikely fronts. This month, the D.C. Circuit Court of Appeals, in a first-of-its-kind ruling, threw out a libel claim brought by El-Shifa pharmaceutical plant, the Sudanese factory bombed by the Clinton administration in 1998 in response to al Qaeda attacks on the American Embassies in Kenya and Tanzania. The U.S. claimed that the plant was connected to Osama bin Laden and involved in chemical weapons production.

Insisting they are medicine makers and not terrorists, the plant owners initially sued the U.S. government for millions of dollars in damages for destroyed property. With these claims rejected, they advanced a novel legal theory—alleging that U.S. military action, predicated upon the government's portrayal of them as terrorist supporters, ruined their reputation. Aware that money damages are not available against the federal government for defamation, the plaintiffs asked the courts to declare the statements about them false and force a retraction from the U.S. government.

In the post-9/11 era—where lawfare has become an integral part of warfare—El-Shifa's defamation suit ought to be taken seriously. The plaintiffs sought to pull the judiciary even more deeply into reviewing government decisions about the use of force that lie at the very core of the president's constitutional authority.

Sitting as a full court, the D.C. Circuit properly ruled that the case presented a non-justiciable "political question." Under this venerable doctrine, the courts have no authority to review discretionary policy choices assigned by the Constitution to the government's political branches. Determining whether the Clinton administration's statements about the Sudanese factory were true is such an issue, the court ruled, because it would require judges to assess the wisdom of military action, a responsibility vested exclusively with the president. Though the plaintiffs argued that a libel judgment could not impair the president's national security-related powers, the judges understood that, were they to rule in El-Shifa's favor, they would violate the separation of powers by contradicting the president's justification for the attack.

The court could have stopped here. However, recognizing that future libel suits against the federal government might not present "political questions," a block of concurring judges suggested another compelling way to reject El-Shifa's suit and other cases like it. The federal government is immune from most tort liability, including defamation, ensuring that individuals cannot sue the government for damages based on alleged libel. Nor can government officials be sued personally for statements made on the job, preventing fear of large judgments from deterring officials from speaking freely about controversial subjects. The concurring judges concluded that because Congress has not authorized defamation lawsuits against the government, El-Shifa owners could not obtain any kind of relief.

The El-Shifa case posed a provocative question: Whether, when damages are off the table, a claim seeking only to correct the record should be permitted in the future. The answer is emphatically no. Turning the courts into mini "truth commissions" would both force the judiciary into conflict with its co-equal branches and hurt free speech.

American libel law, which operates in the context of constitutional protection for free speech that is unique even among the world's democracies, is built around the sound premise that only those plaintiffs who can prove all the elements of a defamation claim should be compensated. Falsity is but one of those required elements. We have never had a tradition of skipping the other necessary elements of the claim—with the extent of "actual malice" of defendants being the key—even if plaintiffs are only chasing a retraction.

The rules of evidence are designed to produce fairness in court, not "truth" in any abstract sense. In libel cases, particularly where national security is at issue, significant amounts of testimony will not be available because of privileges and claims of state secrets. The El-Shifa suit should be the first and last of its kind. War is no place for libel law.

Messrs. Rivkin and Brown are partners in the Washington, D.C., office of Baker Hostetler. Mr. Rivkin served in the Justice Department under Presidents Reagan and George H.W. Bush

Taken from USA Today June 16, 2010.

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

Our perennial national debate over how to interpret the Constitution will soon be renewed, as the Senate considers the Supreme Court nomination of Solicitor General Elena Kagan.

In fact, former Justice David Souter set the discussion in motion last month in a Harvard commencement address— arguing that seeking to resolve difficult constitutional questions based on an honest effort to construe that document's words (whether broadly or narrowly) "has only a tenuous connection to reality" and leads to bad decisions.

Souter's candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses. Even judges who quietly believe that the Constitution is an irredeemably reactionary document, which they must pull and push into the 21st century, are not generally so bold, preferring instead to cloak their innovations with references to the Constitution's text.
Souter, however, argues that the Constitution is too full of ambiguous language and competing imperatives to sustain a textual approach to its interpretation. Like the people it serves — who throughout their history have demanded security and liberty, liberty and equality — the Constitution tries to have it both ways and is too often irreconcilable.

It is, therefore, the courts (and the Supreme Court especially), that Souter believes must "decide which of our approved desires has the better claim," and this cannot be done simply by reading the Constitution's words. Put differently, we all must trust in the judges to find our way through the morass, to make the right choices between competing constitutional imperatives, and we cannot accuse them of making up the law when they make choices we do not like. It is their job, not ours.

When judges rule
It would be difficult to articulate a decision-making model more antithetical to American democracy and the Constitution's own design. It is often said — by the Supreme Court among others — that we have a "government of laws and not of men." Judges are people, not the living embodiment of the law. When a judge makes the choices Souter suggests, without regard to the Constitution's words and their original meaning, it is the judges who rule and not the law.

The Constitution's drafters understood this very well and, whatever mistakes they made along the way, they manifestly did not empower the courts to choose freestyle among constitutional values. Their judiciary was to be, as Alexander Hamilton explained at the time, the "weakest" branch of government that could exercise only "judgment," not the awesome congressional power of the purse or the president's control over the military.

Indeed, the Supreme Court itself did not claim the right to invalidate actions of Congress and the president as unconstitutional until 15 years after the Constitution was ratified.

This is not to say construing the Constitution is easy; it is not. To the extent there are competing values and ambiguous provisions in our founding document, the Constitution itself prescribes how choices ought to be made. To be sure, as human beings, every judge brings a lifetime of personal experiences, beliefs and prejudices (good and bad) to the task of judging. Wading into the Constitution may well seem like walking through a museum of medieval art, which speaks to us in fundamentally different ways than to our ancestors. But the judge's job, his or her sacred trust, requires disciplining these personal experiences and beliefs toward a faithful interpretation of the Constitution's text.
Moreover, it is possible to rise above personal preference to fairly interpret that text. No better example can be found than in one of the precedents Souter himself discussed at Harvard, to buttress his core claim that reliance on constitutional text causes bad decisions. In Plessy v. Ferguson (1896), the Supreme Court upheld the principle of "separate but equal," establishing the legal basis for generations of racial segregation. But there was a dissent.

The Harlan model

Justice John Marshall Harlan ("the Elder") was a man who passionately believed that the "white race" was superior to all others. Yet, as Justice Clarence Thomas likes to point out, Harlan looked into the Constitution and could not find there, in its words as fairly construed, any basis for separate but equal. The Constitution, Harlan wrote, says the government must guarantee the equal protection of the laws to all. That is what it said, and that is what it meant. Harlan was, of course, vindicated in 1954, when the Supreme Court overruled Plessy and rejected the notion of "separate but equal" in Brown v. Board of Education.

The bottom line is that bad constitutional decisions, far from being the result of the Constitution's frailty, are caused by the frailties of judges who depart from it. It is to be hoped that, if the Senate confirms Kagan's nomination, she will give an ear to Justice Harlan rather than Justice Souter.

The following is a transcript from David Rivkin's appearance as one of the panelist, "Obama's Nuclear Strategy: Less than Meets the Eye?" at The Nixon Center on Wednesday, May 5, 2010.

http://www.youtube.com/watch?v=L9LM7mbB2l0

"Nevertheless, the fact that the Russians are making such a big deal about the preeminent language and their dissipating loyal statement is important, I think, in informing us how they will behave in the future, relative to the treaty itself and the broader strategic relationship. For example, we can expect Moscow to continue to protest vociferously every U.S. missile defense effort--strategic, tactical--in fear, arguing that it is inconsistent with the treaty. And in fact, judging by my own practice in this area, we are going to scrub every effort we make at the government level--and even the contractor level--to be in compliance."

Published in The Washington Post June 4, 2010.  By William A. Burck and David B. Rivkin Jr.

Without knowing all of the facts, and particularly whether firm promises of government jobs were made, it cannot be ascertained at the moment whether dealings among Obama White House officials, former president Bill Clinton and Pennsylvania Rep. Joe Sestak and Colorado House speaker Andrew Romanoff broke the law. What is clear, however, is that White House Counsel Robert Bauer has engaged in an unprecedented "investigation" of the Sestak affair, culminating in the issuance of his May 28 report.

This effort was, at best, misguided. At worst, it impeded any legitimate Justice Department investigation, harmed the cause of justice and further reinforced public disgust with Washington.

The White House counsel is the president's principal legal adviser, but the role is not independent of the president or the White House. Unlike the attorney general, who is the nation's top law enforcement officer, the White House counsel is not confirmed by the Senate and does not supervise career lawyers charged with impartially investigating and prosecuting possible crimes on behalf of the people of the United States. Executive privilege, which restricts public disclosure of certain communications between the president and his staff, is at its peak for advice given to the president by his counsel.

To be sure, the counsel sometimes has to handle allegations of wrongdoing by White House staff members. But when the allegations concern purportedly criminal misconduct -- as was alleged by some in recent years in the Valerie Plame affair, the dismissal of U.S. attorneys and the destruction of CIA "interrogation tapes" -- the procedures that the counsel must follow are quite strict and the scope of any investigation narrow. The counsel would be limited to conducting a preliminary inquiry to establish whether there is some factual basis for the allegations. The lawyers would follow standard procedure for preserving the integrity of the investigation, including instructing staff members to preserve all relevant documents, not to discuss the matter with each other and to take all other necessary steps to preserve evidence. If there is some basis to believe a crime was committed, even if the evidence may not be definitive or even particularly convincing, the Justice Department would step in for possible further investigation.

Given that the U.S. Code explicitly proscribes "promises [of] any employment, position, [or] appointment . . . to any person as consideration, favor or reward for," among other things, staying out of any political primary, this standard has been amply met. Indeed, Bauer's own conclusions establish that there is a factual basis to believe Sestak may have been offered a position as an illegal quid pro quo. Nonetheless, Bauer clearly does not believe that anyone violated the law. And he may well be right. Perhaps the position was offered unconditionally. Perhaps Sestak misunderstood. Perhaps even if it was a quid pro quo, the offer does not satisfy the statutory requirements for criminal liability. But in the face of doubt on these questions, it is not the counsel's role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works.

This conflict of interest makes Bauer's numerous lapses in normal investigatory procedure all the more troubling. His report is silent concerning similar job-related discussions last year between Deputy White House Chief of Staff Jim Messina and Romanoff, who is mounting a primary challenge against Democratic Sen. Michael Bennet in Colorado. Any credible investigation would have inevitably focused on whether the alleged job-for-withdrawal scenario was exclusive to Sestak or part of a broader pattern of conduct.

Meanwhile, according to various press accounts, witnesses were permitted to consult with each other directly or through intermediaries. This is a major process error that would horrify any experienced Justice Department prosecutor, because it allows witnesses to influence each other's recollections or even "get their stories straight." Once this happens, it is very difficult to discern what actually happened. Even releasing Bauer's report taints the investigation by telling witnesses the "official" narrative. E-mails or other documents, which cannot easily be altered to fit the story, may now be the only reliable way to uncover what everyone said and intended.

The claims that past administrations have done this, too, or that further inquiries would only distract us from tackling the nation's pressing problems are risible. The whole matter is about, at the front end, senior White House officials engaging in unsavory political horse trading, and leveraging in the process, explicitly or implicitly, the awesome power of the federal government to reward or punish. Separating governance from politics is a key imperative in our body polity and a principle emphasized in ethics briefings given to all government employees, from the lowly GS-4 to the chief of staff to the president.

Even more important, at the back end, l'affaire Sestak is about the senior White House officials, who should be held to the highest ethical standard, acting irresponsibly. This is no minor matter, since nothing reveals more about the soul of any administration than how it deals with suspected legal lapses by its own. At a time when the public's respect for all branches of the federal government is miserably low, Bauer's report cannot be the end of the matter. The only credible way forward is to have the Justice Department investigate both the original Sestak-related White House discussions and the exchanges with Romanoff and any other similar dealings -- as well as the way in which the White House has handled the matter since the story broke.

William A. Burck served in the Justice Department and was a deputy White House counsel under President George W. Bush. David B. Rivkin Jr. served in the Justice Department and the White House Counsel's Office under presidents Ronald Reagan and George H.W. Bush.