Tag: david rivkin

ObamaCare Implementation: What Rivkin Said, and Why

A couple of people have asked me about a comment David Rivkin made at Cato’s recent conference on the first anniversary of ObamaCare.

Rivkin is representing the 26 states suing to overturn ObamaCare in Florida v. HHS, the case in which a federal judge declared ObamaCare unconstitutional and void. In his most recent ruling in that case, Judge Roger Vinson allowed the Obama administration to keep implementing and enforcing the law, in part because the fact that most of the plaintiff states are also implementing the law “undercut” their request that he stop the Obama administration from doing so.  I (and others) have been urging states to follow the lead of Republican governors Rick Scott (FL), Sean Parnell (AK), and Bobby Jindal (LA) by refusing and returning all Obama funds and refusing to implement any type of health insurance “Exchange.”

According to Politico, when asked about the impact of states implementing the law, Rivkin said:

The decision to take money or not take money is a quintessentially political decision that does not impede legal claims… If a given state wants to continue complying with Obamacare and receiving money, that’s not impairing our ability to challenge the law.

Consider that answer in context.  Rivkin is representing 26 states, and as their attorney he has a duty to them.  Asking him if plaintiff states implementing ObamaCare are undermining the lawsuit is basically to ask, “Aren’t 23 of your clients making your job harder?”  What should he have said?  Yes?  Of course not.  As a good lawyer should, he responded that those states are doing nothing to inhibit his ability to litigate the case.  He said nothing about whether those states’ actions could affect the outcome of his case (which they might), nor the likelihood that the law will be repealed (which they obviously do).  On those questions, he’s the wrong guy to ask.

“To Declare [Kinetic Military Action]”

Recently, I’ve been blogging over at the Washington Examiner’s lively “Beltway Confidential” site, mostly on the subject of congressional war powers and President Obama’s Libyan adventure. Today’s post, “Obama Makes ‘Kinetic Military Action’ on the English Language” has a little fun with the administration’s wordgames and the legal rationales behind them. Other posts and a column on the subject are here, here, and here.

Today also brings a pair of columns–in the Wall Street Journal and the Washington Post, respectively–from conservative luminaries defending the notion that Obama has the constitutional power to bomb Libya without congressional authorization. Yoo, the legal architect of George W. Bush’s Terror Presidency, chides Tea Party Republicans like Jason Chaffetz of Utah and Justin Amash of Michigan for questioning Obama’s authority to launch a nondefensive war:

Their praiseworthy opposition to the growth of federal powers at home misleads them to resist Washington’s indispensable role abroad. They mistakenly read the 18th-century constitutional text through a modern lens—for example, understanding “declare war” to mean “start war.” When the Constitution was written, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain fought numerous major conflicts but declared war only once beforehand.

Similarly, in the Post, David B. Rivkin, Jr., and Lee A. Casey write:

As commander in chief, the president has the authority to determine when and how U.S. forces are used…. When the Constitution was adopted, the power to “declare war” was not equivalent to permitting the use of military force.

The president certainly can’t derive the authority to bomb Libya from the commander-in-chief clause. As Hamilton explained in Federalist 69, that provision merely indicates that the president is the “first General and admiral” of US military forces. Important as they are, generals and admirals don’t get to decide whether and with whom we go to war.

It’s more common for presidentialists to combine a broad reading of Article II, sec. 1’s “executive Power” with an exceptionally narrow interpretation of Article I, sec. 8’s congressional power “to declare War,” to conclude that the president can start wars, leaving it up to Congress to make it official if they so choose.

One problem with that view is that virtually no one from the Founding Generation seems to have understood the clause in that way. For example, James Wilson told the Pennsylvania ratifying convention that ‘‘this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power in declaring war is vested in the legislature at large.’’ Pierce Butler, like Wilson, had been a delegate to the Philadelphia Convention, and–to the dismay of some delegates–had actually argued for vesting the power to go to war in the president. Yet during the ratification debates, Butler assured the South Carolina legislature that the proposed constitution prevented the president from starting wars: ‘‘Some gentlemen [i.e., Butler himself] were inclined to give this power to the President; but it was objected to, as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.’’

As Professor Michael Ramsey puts it:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.

“How could this be, though,” Ramsey asks, “if Congress has only the power to ‘declare War’, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?” The answer:

…is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way…. Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks…. Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.

Professor Ramsey lays out the argument in greater detail in his book The Constitution’s Text in Foreign Affairs, and in his (for my money) devastating 2002 rebuttal of Yoo [JSTOR] in the University of Chicago Law Review. Ramsey has further thoughts on the poverty of the argument from “past practice” here as does GMU law professor and Cato adjunct scholar Ilya Somin here.

One last point. While this doesn’t speak directly to the original meaning of the “Declare War” clause, I think it’s worth noting nonetheless:

Like Yoo, Rivkin, and Casey, I’m convinced that Obamacare’s individual mandate is unconstitutional. But consider how that view fits with their other views on federal power. They’ve argued, among other things, that the president can order up bombing raids without so much as a by-your-leave to Congress. As Yoo puts it, the president has the “right to start wars”, for good reasons, bad reasons, or no reason at all, presumably. If the president suspects you’re a terrorist, he doesn’t need a warrant to tap your phone, and, right here in America, he can send soldiers to search your house without offending the Fourth Amendment. He can (according to Yoo, at least) ignore the federal statute prohibiting torture, and he can lock you up for the duration of the war on terror (forever?) without charges.

But there is one thing that he can never, ever do: he cannot penalize you for failure to purchase health insurance. Ours is a government of limited powers, you see.

Taken all in all, doesn’t that constitutional vision strike you as… strange?

Monday Links

  • The New Health Care Law: What a Difference a Year Makes,” featuring a keynote address from constitutional attorney and counsel in Florida v. HHS David Rivkin, and panels including economist and former CBO director Douglas Holtz-Eakin, Cato director of health policy Michael F. Cannon and vice president for legal affairs Roger Pilon, and many more, begins at 1pm Eastern today. Please join us as we stream the event at our new live events hub, or watch on Facebook. If you prefer television, the forum will be broadcast live on C-SPAN 2.
  • “The next time gun-control advocates point to violence in Mexico and call for more restrictions on gun sales or a revived assault-weapons ban, they should consider that the problem may not be with the laws on the books, but with those who enforce them.”
  • The Bush administration far underestimated the divide between Sunni, Shiite, and Kurdish Iraqis before 2003–the Obama administration may be making the same type of mistake in Libya.
  • The U.S. military currently far exceeds its legitimate function of national defense:


Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.