Rivkin, D esq
==
SEE TWO
16 tags!
poster boy? for? villain? see pruitt doc
what role indavis hit? david rivkin dereg pipelineOrder 636
free sp in sci
primary
john doe WI
sidekick grossman
dereg nat gas --> enron ?
===
http://davidbrivkin.com/barrs-loyalty-is-to-the-constitution-not-a-party/
David B. Rivkin and Andrew M. Grossman
December 24, 2019, in the Wall Street Journal
Washington’s knives are out for Attorney General William Barr, and the stabbing has intensified since he delivered a November address at the Federalist Society. Predecessor Eric Holder —who while serving in the Obama administration described himself as “the president’s wingman”—accused Mr. Barr of championing “essentially unbridled executive power.” In the same Washington Post op-ed, Mr. Holder added that Mr. Barr’s “nakedly partisan” remarks rendered him a pawn of President Trump and “unfit to lead the Justice Department”—an utterly unhinged claim.
In the New York Times, William Webster, who directed both the Federal Bureau of Investigation and the Central Intelligence Agency, chastised Mr. Barr for criticizing FBI bias. Meanwhile, the Never Trump group Checks and Balances accused Mr. Barr of advancing an “autocratic vision of executive power” that is “unchecked” by Congress and the courts.
Some of the attacks are mere symptoms of Trump derangement syndrome, but others reflect by a deep-seated resistance to the Constitution’s separation of powers and the threat that its enforcement poses to the unaccountable administrative state. In either case, they’re wrong. Far from calling for executive supremacy, Mr. Barr has vigorously advocated the Framers’ vision of the Constitution’s separation-of-powers architecture, featuring the three governmental branches—Congress, the president and the judiciary—each exercising its distinctive authorities while checking the others. In his Federalist Society address, Mr. Barr, quoting Justice Antonin Scalia, explained that the Constitution gives the president and Congress “many ‘clubs with which to beat’ each other.”
Mr. Barr’s extolling of the “unitary executive” is hardly revolutionary—nor, as critics imagine, is it a call for dictatorship. It posits only that the president, being responsible for execution of the law, must be able to control his subordinates. This was the rule across the government until Humphrey’s Executor v. U.S. (1935), in which the Supreme Court carved out an exception for members of certain “independent” regulatory agencies, whom the president can fire only for “good cause.”
The Framers had good reason to favor a strong presidency. The early republic’s weak civilian executive leadership almost lost the Revolutionary War, shifting nearly the entire burden to Gen. George Washington. Postwar government under the Articles of Confederation was a ruinous shambles, unable to assert any sort of national leadership. To be sure, the Framers also feared legislative overreaching. They resolved all these problems by creating a coequal executive who could act, in Mr. Barr’s words, with “energy, consistency and decisiveness.”
Humphrey’s Executor was only the beginning of the attack on the constitutional design. Congress whittled away at executive power, depriving the president of the authority and duty to “take care that the laws be faithfully executed.” The courts not only approved those usurpations, but themselves meddled in disputes between the political branches and seized broad swaths of executive discretion.
Numerous lawmakers, most of the media and much of the political class now claim—at least during a Republican administration—that even core executive-branch activities, such as diplomacy and law enforcement, must be substantially free from presidential control. Hence the steady drumbeat of criticism directed at Mr. Trump for overseeing and making policy for the Justice Department, the FBI and the intelligence community as a whole.
The result isn’t a strong Congress but the supplantation of the Constitution’s checks and balances with a worst-of-all-worlds muddle. Leaders of independent agencies like the Consumer Financial Protection Bureau exercise executive power free from accountability to the president or voters and subject only to the partisan whims of Congress. The bureaucratic “resistance,” spurred on by its allies in Congress, openly defies presidential decisions, undermining the principle of democratic control even in core areas of presidential responsibility like foreign policy. For their part, the courts increasingly police ordinary separation-of-powers disputes between Congress and the executive, destroying the possibility of compromise through political means.
These deviations from the Framers’ blueprint explain much of the government’s current dysfunction. Congress avoids politically dangerous decisions by palming tough choices off on agencies and the courts. The legal and political limbo of the so-called Dreamers is a ready example. Ceaseless congressional investigations nearly incapacitate the White House and are designed to achieve precisely that result. Executive agencies find their every action—even those involving inherently discretionary matters—subject to judicial scrutiny and nationwide injunctions imposed by judges whose jurisdiction is supposed to be limited to a state or district. Whereas the separation of powers fostered practical compromise, today’s judicial supremacy reduces everything to winner-take-all litigation.
Mr. Barr warned in his address that we must “take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” Too often, previous attorneys general regarded the elements of separation of powers opportunistically, as cudgels to be employed in particular disputes. Mr. Barr’s vision and goals are broader. He’s concerned not only with the conflicts of the day but the structure necessary for the federal government to work. It’s a bold vision, but it’s the opposite of a partisan one.
If Mr. Barr achieves even a fraction of his agenda to restore the Framers’ vision of a strong, independent executive, he will go down as Mr. Trump’s most consequential executive appointment.
Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar of the Cato Institute.
Source: https://www.wsj.com/articles/barrs-loyalty-is-to-the-constitution-not-a-party-11577229447
==
apparently a regular at fedsoc confs
eg
Special Session: Executive Power vs. Congressional Power
2019 National Lawyers Convention
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036
Speakers:
W. Neil Eggleston• Edith H. Jones• Martin S. Lederman• A. Raymond Randolph• David B. Rivkin
more
Topics:
Constitution• Federalism• Separation of Powers• Federalism & Separation of Powers
more
Sponsors:
Washington DC Lawyers Chapter•
https://fedsoc.org/contributors/david-rivkin
==
The Hill
States, companies set up their own COVID-19 legal shields | TheHill
One U.S. law firm suggested coronavirus litigation could be “the new ... it would be a disaster,” said David Rivkin, a partner at Baker Hostetler, ...
1 month ago
WBUR
AG William Barr Slams DOJ Inspector General Over Russia ...
David Rivkin, served under Presidents Reagan and George H. W. Bush in the White House ... Current partner at the law firm of Baker Hostetler.
Dec 12, 2019
American Enterprise Institute
WTH can we do to make China pay for the coronavirus ...
David Rivkin, a partner at Baker Hostetler LLP, is a member of the firm's litigation, international and environmental groups and he co-chairs the ...
Apr 29, 2020
New York Times
Republicans Switch Firm Handling Obama Suit
... them pulled out over what was said to be political backlash among his colleagues at the firm, Baker Hostetler. The lawyer, David B. Rivkin Jr., ...
Sep 20, 2014
Law.com
Supreme Court Conference Watch: Qualified Immunity, State ...
Baker & Hostetler's David Rivkin is counsel to Jarchow; Foley ... Pallozzi), and David Sigale of Sigale Law Firm in Wheaton, Illinois (Culp v.
1 month ago
Law.com
Mandatory Bar Dues Are Defended as Challenges Pile Up at ...
... Wisconsin case, lawyers Adam Jarchow and Michael Dean are represented in the Supreme Court by Baker & Hostetler partner David Rivkin.
Feb 3, 2020
Law.com
Justices Won't Take Up Constitutional Challenge to Mandatory ...
In the petition for review, Baker & Hostetler partner David Rivkin Jr. wrote, “Whereas the collective-bargaining speech at issue in Janus was ...
1 month ago
Washington Post
Federal courts need to stop Obama from flouting the Constitution
David Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan ...
Jul 25, 2014
Washington Post
The origin of House of Representatives v. Burwell
In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University law professor Elizabeth Price Foley wrote a series of ...
Sep 22, 2016
Law360
Wis. Bar Dodges 1st Amendment Fight Over Mandatory Dues
The attorneys are represented by David B. Rivkin Jr., Andrew M. Grossman and Richard B. Raile of BakerHostetler and RIchard M. Esenberg of ...
==
404 wayback
prominent Washington lawyer long connected to conservative causes ishelping craft legal strategy for the State of Texas as it fights federal proposals on health care and environmental regulation.
The lawyer, David Rivkin , is working for free, but his firm, Baker Hostetler , represents at least one major health care company and several oil and gas companies, including ExxonMobil, that have pushed for lighter regulations.
Rivkin, 54 , worked as a paid lobbyist for at least one energy company through 2008. That fall, he ended a contract with Georgia-based Southern Co. , which has most of its operations in the Southeast, according to records with the Center for Responsive Politics , which tracks money in government.
As an attorney, he represents, among others, the Edison Electric Institute , a trade organization whose members serve more than 90 percent of the customers in the investor-owned segment of the electric utility industry, in a case on the consequences
of greenhouse gases.
Rivkin did not respond to requests for comment.
At a hearing of the Texas House Environmental Regulation Committee last Wednesday about the ongoing court cases between Texas and the federal Environmental Protection Agency, state Rep. Lon Burnam, D-Fort Worth , asked Deputy State Attorney General Bill Cobb about what kind of outside legal representation the state had sought.
Cobb told Burnam that Rivkin, who was already working with Texas and other states to fight federal health care reform, had "expressed an interest to be involved in our greenhouse gas litigation and volunteered his time to the State of Texas."
"Most of the work is done in-house, but we're grateful for the work of experts who live and work in D.C. and practice in front of those courts on a daily basis," Cobb said.
The attorney general's office does not seek outside help very often, spokesman Jerry Strickland said.
In one case, Texas is challenging the EPA over its greenhouse gas regulations. The state is the only one to refuse to comply with the new rules, which are the first attempts by the agency to regulate the emissions scientists say contribute to global climate change.
The state has a handful of challenges to the new greenhouse gas rules pending in the D.C. federal District Court.
The state says that the rules will cost jobs and are based on faulty science and that the EPA is overreaching its authority: Typically, the federal government delegates environmental permitting powers to state governments.
The EPA, in turn, has accused the Texas Commission on Environmental Quality of renegade behavior and said it would take over the regulation of greenhouse gases at large industrial facilities and refineries, mostly along the Gulf Coast.
"State officials in Texas have made clear that they have no intention of implementing this portion of the federal air permitting program," Al Armendariz , the Dallas-based regional administrator for the EPA, wrote in an open letter in December.
Efforts by Texas to delay a federal takeover of greenhouse gas permitting in the only state where the EPA has committed to such a move have failed.
History shapes outlook
Rivkin was born in the Soviet Union. He earned degrees from Georgetown and Columbia universities in the mid-1980s and got his start in the Reagan White House.
He rose to associate general counsel in the Department of Energy during the first Bush administration, and at the same time he served as special assistant for domestic policy to then-Vice President Dan Quayle .
Rivkin continues to be involved in high-profile causes: He is representing former Defense Secretary Donald Rumsfeld in a suit by al Qaeda operative Jose Padilla , who claims he was tortured while in custody.
Between 2001 and 2008, Rivkin lobbied on behalf of Southern Co., according to records at the Center for Responsive Politics. While it is impossible to track exact figures for how much individual Washington lobbyists are paid, in 2008 Southern Co. paid Baker Hostetler $190,000 for its lobbying work. Between 2001 and 2008, when Rivkin lobbied for Southern and worked at Baker Hostetler,Southern paid the firm $2.99 million.
According to federal campaign finance records kept by the center, last year Rivkin sprinkled $10,260 to 10 Republican candidates for federal office around the country.
"He's a very well respected lawyer who has talents in constitutional law," said Bill McCollum , the former Florida attorney general who partnered with Rivkin to spearhead a fight against the health care law.
...On the grounds that it exceeds Congress' constitutional authority, at least 20 states, including Texas, are challenging the requirement that virtually all Americans obtain health insurance or pay a fine.
McCollum also used to work at Baker Hostetler, which counts among its clients Cardinal Health, an Ohio-based company that lobbied against parts of the health care law.
"You want an experienced attorney on that kind of matter," he said, adding that Rivkin handled oral arguments and attacks on the individual mandate portion of the law.
Rivkin, who has written for the Wall Street Journal and appeared on Fox News , was helpful in arranging media opportunities, McCollum said.
"David Rivkin has connections in Washington and the world," he said.
In an article in National Review Online in 2004, Rivkin wrote about how his personal history had shaped his policy outlook .
"I grew up in the Soviet Union, where the individual's interests were always subordinated to the whims of the state, and where the government was the law," he wrote.
At the committee meeting Wednesday, Cobb suggested that the two lawsuits had grown personal for attorneys.
"I know the attorneys donate their personal time to cases for causes they believe in," Cobb said. "There are some of us who believe that health care litigation and greenhouse gas litigation are some of the most important lawsuits that will be decided within our lifetime.
"There are, not surprisingly, attorneys lining up outside the door to donate their services to the State of Texas. In these trying economic times with the budgetary crisis facing the Legislature, we're happy to accept their services."
asherprice@statesman.com; 445-3643
2/11
==
vance decision (eventually lost 7th circuit en banc
https://en.wikipedia.org/wiki/Donald_Vance
https://www.leagle.com/decision/infco20110808079
VANCE v. RUMSFELD
Nos. 10-1687, 10-2442.
653 F.3d 591 (2011)
Donald VANCE and Nathan Ertel, Plaintiffs-Appellees, v. Donald RUMSFELD and The United States of America, Defendants-Appellants.
United States Court of Appeals, Seventh Circuit.
Argued February 10, 2011.
Decided August 8, 2011.
Conclusion
The decision of the district court in No. 10-1687 denying in part Secretary Rumsfeld's motion to dismiss is AFFIRMED. The decision in No. 10-2442 denying dismissal of the personal property claims under the Administrative Procedure Act is REVERSED.
MANION, Circuit Judge, concurring in part and dissenting in part.:
---
https://www.casemine.com/judgement/us/5914fa45add7b049349a7129
Michael Kanovitz (argued), Attorney, Loevy & Loevy, Chicago, IL, for Plaintiffs–Appellees. Robert Loeb (argued), Attorney, Department of Justice, Civil Div., Appellate Staff, Washington, DC, for Defendants–Appellants.
Mark W. DeLaquil, David B. Rivkin (argued), Attorneys, Baker & Hostetler LLP, Washington, DC, for Harold Brown, Richard B. Cheney, William S. Cohen, Amici Curiae.
Louis Clark, Government Accountability Project, Washington, DC, for Government Accountability Project, Society of Professional Journalists, Project on Government Oversight, Amici Curiae.
:{
Before EASTERBROOK, Chief Judge, andPOSNER, FLAUM, MANION, KANNE, ROVNER, WOOD, WILLIAMS, SYKES, TINDER, and HAMILTON, Circuit Judges.
}::{:{
EASTERBROOK, Chief Judge.}:}:
==
author? labelled opinion?]
By The Wall Street Journal
(published January 28, 2012)
The guerrilla legal campaign against national security suffered a big defeat this week, and the good news deserves more attention. The victory for legal sanity came Monday when the Fourth Circuit Court of Appeals upheld a lower court decision to toss out a suit brought by aspiring terrorist Jose Padillaagainst a slew of Bush Administration officials.
Readers may remember that Padilla was arrested in 2002 for plotting to set off a dirty bomb on U.S. soil. He was detained as an enemy combatant, convicted in a Miami court and sentenced to 17 years in prison. But Padilla has been adopted as a legal mascot by the ACLU and the National Litigation Project at Yale Law School, which have sued far and wide alleging mistreatment and lack of due process.
Padilla may in fact have had more due process than any defendant in history. His case has been ruled on by no fewer than 10 civilian courts, and as a prisoner in the Navy brig in Charleston, South Carolina from 2002 to 2006 he received the benefit of protections under the highly disciplined U.S. Code of Military Justice. Your average bank robber should be so lucky.
But the lawyers suing for Padilla aren’t interested in justice. They’re practicing “lawfare,” which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability.
The ACLU and the rest of the legal left have failed to persuade several Congresses and two Administrations to agree to their anti-antiterror policies. So instead they’re suing former officials in civilian court to harass them and damage their reputations. It’s shameful stuff, and if it succeeds it would have the effect of making Pentagon officials look over their shoulder at potential lawsuits every time they had to make a difficult military or interrogation decision.
In Lebron v. Rumsfeld et al., the ACLU sued under the Supreme Court’s 1971 Bivens decision, which has been interpreted as creating a right of action against the federal government. Their targets included a retinue of Pentagon officials, starting with former Secretary of Defense Donald Rumsfeld and going down to the Navy brig commander where Padilla was held. Mr. Rumsfeld doesn’t have to worry about getting another job, but the ACLU wants to make lower-level officials politically radioactive so they have a difficult time getting promoted or working in any influential position.
The good news is that the Fourth Circuit’s three-judge panel saw this for what it was and unanimously rejected the claims. In his 39-page opinion, the influential Judge J. Harvie Wilkinson wrote that the Constitution gives authority over military affairs to Congress and to the President as Commander in Chief, but it never created a similar role for the courts.
“It takes little enough imagination,” Judge Wilkinson wrote, “to understand that a judicially devised damages action would expose past executive deliberations . . . [and] would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.”
The decision is especially notable because one of the three judges is Clinton appointee Diana Motz, who has been a skeptic of the Bush Administration’s detainee policies and has dissented from her colleagues in cases like 2003’s Hamdi v. Rumsfeld.
The ACLU may appeal to all of the Fourth Circuit judges, but Judge Wilkinson’s ruling is comprehensive enough that an appeal is unlikely to prevail. The judges deserve credit for understanding that the Constitution gave war powers to the political branches, not to courts. The country will be safer for it.
https://justourfreedom.wordpress.com/tag/bivens-decision/
==
Argument Recap in Lebron v. Rumsfeld (Padilla's Bivens Suit)
By Alan Z. Rozenshtein Monday, October 31, 2011
https://www.lawfareblog.com/argument-recap-lebron-v-rumsfeld-padillas-bivens-suit
...Rivkin gets up to argue for Donald Rumsfeld. He begins by arguing that Congress, through the UCMJ, has created an "elaborate and effective system to enforce military discipline" and that this system protects the rights of those in military custody; thus, a Bivens remedy is foreclosed. Rivkin argues that Padilla was subject while in custody to the protections afforded by the UCMJ and was able to challenge his confinement through internal procedures.
Judge Motz asks Rivkin to address Padilla's Religious Freedom Restoration Act (RFRA) claim, and Rivkin argues that the realities of military detention mean that RFRA cannot be fully applied to military detention. Judge Motz asks Rivkin for a case on this point, and Rivkin replies that, to his knowledge, the courts have not addressed this particular issue. Judge Motz asks Rivkin why military detention should be any different than regular civilian detention, where the courts have held that RFRA applies. Judge Wilkinson cuts in and argues that RFRA "addresses itself" to civilian criminal justice system, not the military detention system. Because of the unique concerns raised by military detention, Judge Wilkinson continues, when Congress addresses itself to that area, it does so clearly and explicitly. Judge Motz quotes RFRA to argue that nothing in the statutory language excludes military detention facilities from RFRA's scope. Rivkin replies that the issue is one of context, and that Congress always speaks explicitly about military detention when trying to regulate it. Judge Wilkinson points out that RFRA is not applicable to individual respondents sued in their personal capacities. Judge Duncan points out that the uncertainty around RFRA's application in the military detention context might provide an argument for qualified immunity.
Rivkin returns to the issue of Bivens and why the UCMJ is a satisfactory alternate remedy that forecloses Bivens. First, unlike in the civilian system, where complaints need not be pursued, a complaint under the UCMJ prompts a mandatory investigation and failure to address a complaint of misconduct is itself an offense. Second, there are a number of sanctions that can be deployed if a member of the military is found to have engaged in wrongdoing, and military defendants have fewer procedural rights than do civilian defendants.
Judge Wilkinson brings the discussion back to RFRA and asks Rivkin how the Supreme Court's decision last term in Sossamon v. Texas bears on Padilla's RFRA claim. Rivkin apologies and says that he is not familiar with the case and was not planning to discuss RFRA. Judge Wilkinson says that he understands, but that when advocates divide an argument, they each have to be prepared to "field whatever ground balls are hit."
Rivkin returns to the UCMJ. The third reason that the UCMJ is a satisfactory alternative scheme is that even "very benign military punishments are an absolute career killer." Thus, it doesn't take much to produce an effective deterrent. Fourth, the military system is a system "permeated with consultation with lawyers," including regarding conditions of confinement. The upshot of these four factors is that the military is "shackled" (as it should be) by the UCMJ regarding military discipline. Thus, Rivkin argues, Stanley and Chappellshould not be read as limited to military-to-military interactions. Judge Wilkinson notes that the UCMJ has been explicitly approved by Congress. Rivkin then cites Middlebrook, noting that, in that case, a Bivens remedy for a civilian plaintiff (a nurse who unsuccessfully tried to join an auxilliary part of the military and sued for employment discrimination) was foreclosed because of the military context, even though the plaintiff could not readily avail herself of the UCMJ. Rivkin also notes that, in Stanley, half of the defendants were civilians. Rivkin concludes.
The Rebuttal
Wizner begins by discussing the UCMJ. He argues that the respondents made the processes of the UCMJ unavailable to Padilla. Wizner notes that Padilla was denied access to counsel for the first two years of confinement, and that he was also not allowed to make complaints through the usual UCMJ process. Wizner notes, "Had the defendants actually abided by the Uniform Code of Military Justice, we would not be here today." Judge Wilkinson responds that the question is not whether Padilla was denied access to the UCMJ procedures, but whether the existence of the UCMJ precludes a court from extending Bivens so as to create a new remedy
===
Rumsfeld's attorney David Boris Rivkin of Baker Hostetler told Law360 that the decision
:{:{:{Law360, New York (November 13, 2012, 10:34 PM EST) -- The Seventh Circuit's recent en banc rejection of monetary damages for government contractors allegedly tortured in Iraq essentially blocks out federal torture suits against the U.S. military, part of a trend of rulings that have made it difficult for plaintiffs to win cases where national security is implicated, attorneys say.}:
The two plaintiffs, defense contractors Donald Vance and Nathan Ertel, sued former Secretary of Defense Donald Rumsfeld for creating and carrying out the policies that led to their alleged torture. They base their claims on the......}:}:
==
rivkin not involved? padilla precedent?
http://www.slate.com/articles/news_and_politics/jurisprudence/2012/11/new_ruling_donald_rumsfeld_can_t_be_sued_for_torture.html
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Why Donald Rumsfeld Can’t Be Sued for Torture
His latest and biggest court victory.
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no lnx
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Former Defense Secretary Donald Rumsfeld may not be sued by two U.S. citizens who were tortured by members of the military.The U.S. Court of Appeals for the 7th Circuit, which issued the decision, is the third appeals court to let Rumsfeld off the hook legally. But the 7th Circuit decision goes further than the others. By a vote of 7-4, its judges said that no member of our military—presumably even one who personally inflicts torture—can be sued for his related conduct in office.
The facts are a case study in system failure. Donald Vance and Nathan Ertel were Americans working for a private security firm in Iraq.When Vance became suspicious that hisemployer was selling weapons to groups hostile to the United States, he went to the FBI. Vance and Ertel were then fingered as arms dealers. Military personnel arrested them in 2006 and held them for several weeks.
According to the complaint, Vance and Ertel were held in solitary confinement and subjected to violence, sleep deprivation, extremes of temperature and sound, denial of food, water, and medical care, and other abuses. Though the Army Field Manual (and four judges) calls this torture, the majority opinion prefers the euphemism “harsh interrogation techniques.”
The majority and the dissents clashed over military accountability and the role of the judiciary. The starting point for both sides is Bivens, a 1971 Supreme Court case that allows a victim of a constitutional violation to sue a responsible federal officer for damages when no other law or court ruling gives them an entry into court. The majority argued that the Supreme Court has spent the last three decades reining in Bivens, and it thus cannot sanction Vance and Ertel’s “novel damages remedy” against military personnel. The dissenters attacked this entire mode of analysis: It is incorrect to say that Vance and Ertel are asking the court to create a right to seek damages, they argued, because Bivens already provides it.
The majority also read Supreme Court precedent to say that civilian courts should not “interfere with the military chain of command” without guidance from Congress. And here, Congress has addressed the rights of detainees in laws such as the Torture Victim Protection Act and has chosen not to provide for damages against military personnel. End of story. The dissenters respond by accusing the majority of converting a narrow rule—one that prevents military personnel from suing for injuries related to their service—into a sweeping rule that shields the military entirely from lawsuits by civilians. One telling and troubling point they make: In the 7th Circuit now (Illinois, Indiana, and Wisconsin), a victim of torture by a foreign militarywho finds his torturer in the United States has a remedy, but a U.S. citizen who is tortured by his own military does not.
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Katie Mesner-Hage is a recent graduate of Yale Law School.
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==
==
pruittconf ggl doc
16x eg
:{:{:{Dinner, Continental Room}::{
}:Dinner Speaker: Harold Hamm, Chairman, Continental Resources:{
}::{
}:Thursday, January 17, 2013:{
}:AG Strategy Sessions held at the Skirvin Hilton, Venetian Room:{
}:7:30 - 9:30 am:{
}::{
}:Working Breakfast, Continental Room}:}:
:{:{:{
}:Suggested Responses to Assaults on Federalism:{
}:F. William Brownell, Partner, Hunton & Williams:{
}:Kirsten L. Nathanson, Partner, Crowell & Moring:{
}:Peter S. Glaser, Partner, Troutman Sanders:{
}:David B. Rivkin, Jr., Partner, Baker Hostetler:{
}:Moderator: The Honorable Wayne K. Stenehjem, Attorney General of North Dakota}:}:
:{:{
}:}:
off bs
:{:{
}:}:
David B. Rivkin, Jr.
Partner, Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Phone: 202.861.1731
drivkin@bakerlaw.com
:{:{
}:}:
David B. Rivkin, Jr., is a member of the firm's litigation, international and environmental groups and he cochairs the firm's appellate and major motions team. He has extensive experience in constitutional, administrative and international law litigation.
Mr. Rivkin has been involved in numerous high-profile cases. He has represented the 26 States that havechallenged the constitutionality of the Patient Protection and Affordable Care Actand was the lead outside
counsel in the District Court and Court of Appeals. He also represented theRepublic of Croatia before theInternational Criminal Tribunal for the Former Yugoslavia and the International Court of Justice for a number
of years on a wide range of issues involving international humanitarian law and the laws of war. Mr. Rivkin
also has considerable experience with litigation involving national security-related matters, including defending Bivens actions brought against former Secretary of Defense Donald H. Rumsfeld.From 2004
through 2007, he served as an expert member of the United Nations Subcommission on the Promotion andProtection of Human Rights.
Mr. Rivkin has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges
to federal agency actions and constitutional challenges to state statutes. He has provided compliance advice
to companies, as well as handled enforcement proceedings before government agencies on issues arising
out of various multilateral and unilateral sanctions (ITAR, EAR and questions relating to dealings with proscribed countries), Foreign Corrupt Practices Act (FCPA), anti-boycott issues and environmental and
energy matters.
From 1993 to December 1999, Mr. Rivkin was a member of the Hunton & Williams law firm. Prior to
returning to private practice, Mr. Rivkin served from 1987-1993 in various capacities in the federal
government. During 1992-1993, he was Associate Executive Director and General Counsel of the
President's Council on Competitiveness at the White House. While there, he was responsible for the review
and analysis of legal issues related to the regulatory review conducted by the Council.
Mr. Rivkin also served as the Associate General Counsel, U.S. Department of Energy (DOE), from 1990-91.
At DOE he was responsible for international, constitutional, environmental and energy matters, including
global climate change problems, natural gas, hydro and electricity issues, development and implementation
of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlands policy
and related issues, development of RCRA and Clean Water Act legislative proposals and deregulation of
energy markets. Mr. Rivkin played a significant role in developing the Reagan and Bush Administrations’
regulatory and legislative proposals affecting natural gas and electric utility industries.
In addition to his positions with the Council on Competitiveness and the Department of Energy, he served in
the office of then Vice President George H.W. Bush as Legal Advisor to the Counsel to the Vice President,
in the White House Counsel’s Office and as Deputy Director of the Office of Policy Development (OPD),
U.S. Department of Justice. While at OPD, he worked on a wide variety of constitutional, domestic and
international issues, including judicial selection, legal policy, immigration and asylum matters and
intelligence oversight.
Prior to embarking on a legal career, Mr. Rivkin worked as a defense and foreign policy analyst, focusing on
Soviet affairs, arms control, naval strategy and NATO-related issues, and served as a defense consultant to
numerous government agencies and Washington think tanks.
==
==
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https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1600&context=cjil
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chicjrnl of int'l law
:{:{
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1-1-2005
Preemption and Law in the Twenty-First Century
David B. Rivkin Jr.
Lee A. Casey
Mark W. DeLaquil
footnote:
Intl
Stud 1, 10 (1999-2000). While the Milosevic regime was committing genocide against Kosovars,
it could not credibly be claimed that he posed even the most attenuated military threat to any of
the NATO members or any of his neighbors (while Milosevic had launched aggressive wars,
using both Belgrade's military and paramilitary proxies, against Slovenia, Croatia, and Bosnia-Herzegovina,
he was defeated and the prospects of renewed fighting in these areas was
nonexistent). Thus, the embrace of NATO's Kosovo campaign by critics of the US-led regime
change in Iraq demonstrates the infinite elasticity of the underlying legal rules. Similarly,...
==
==
testimony:
- Foreign Law
Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming — falsely — that some judges believe that foreign court decisions should govern U.S. law. No one, including Judge Sotomayor, believes this. Nevertheless, the witness list includes **Neomi Rao**, **Nick Rosenkranz** and **John McGinnis**, all right-wing international law professors who are likely to share Sessions’ delusion. David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.
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[david rivkin dereg pipeline Order 636
In the mid-to-late 1980’s, the natural gas market was deregulated through a series of federal policies, most notably Federal Energy Regulatory Commission (FERC) Order No. 436, the Natural Gas Wellhead Decontrol Act of 1989 (NBGWDA), and FERC Order No. 636 of 1992.
Each of these policies was designed to eliminate the regulatory constraints by the federal government on the natural gas market,largely, to help avoid a repeat of the tough economic issues resulting from the 1970’s energy crisis (“The History of Regulation,” 2004). Enron capitalized on the governmental deregulation of the natural gas market by providing consumers with greater access to natural gas via their nationwide pipeline system.
Due to deregulation, as supplies increased and the price for natural gas fell by over 50 percent from 1985 to 1991, Enron was able to charge other firms for using their pipelines to transport gas. Likewise, Enron was also able to transport gas through other companies’ pipelines (Culp and Hanke, 2003, p. 8)
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off bs
...
:{:{
Mr. Rivkin also has considerable experience with litigation involving national security-related matters, including defending Bivens actions brought against former Secretary of Defense Donald H. Rumsfeld.
From 2004 through 2007, he served as an expert member of the United Nations Subcommission on the Promotion and Protection of Human Rights.[CYA cryptic FIRE luk?]}:}:
...
Mr. Rivkin also served as the Associate General Counsel, U.S. Department of Energy (DOE), from 1990-91. At DOE he was responsible for international, constitutional, environmental and energy matters, including global climate change problems, natural gas, hydro and electricity issues, development and implementation of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlandspolicy and related issues,development of RCRA and Clean Water Act legislative proposals and deregulation of energy markets.
Mr. Rivkin played a significant role in developing the Reagan and Bush Administrations’ regulatory and legislative proposals affecting natural gas and electric utility industries.
In addition to his positions with the Council on Competitiveness and the Department of Energy, he served in the office of then Vice President George H.W. Bush as Legal Advisor to the Counsel to the Vice President, in the White House Counsel’s Office and as Deputy Director of the Office of Policy Development (OPD), U.S. Department of Justice.
...From 1993 to December 1999, Mr. Rivkin was a member of the Hunton & Williams law firm.Prior to returning to private practice, Mr. Rivkin served from 1987-1993 in various capacities in the federal government. During 1992-1993, he was Associate Executive Director and General Counsel of the President’s Council on Competitiveness at the White House. While there, he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the Council.
:{:{
He handled the development and implementation of President George H.W. Bush’s deregulatory initiatives, which entailed review of all existing federal regulatory strictures and the application of a more rigorous cost-effective standard to new regulations.His substantive areas of responsibility included international sanctions, energy, environment and tax issues. He played a leading role in the development of Order 636, which introduced major changes to the regulation of the interstate natural gas pipelines, and simultaneously served as the Special Assistant for Domestic Policy to then Vice President Dan Quayle.}:}:
banner: First to identify the Individual Mandate of THE AFFORDABLE CARE ACT AS UNCONSTITUTIONAL...
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FERC
Deregulation
In the late 1970s FERC provided for gradual deregulation.
- 1985 FERC Order No. 436 required that natural gas pipelines provide open access to transportation services, enabling consumers to negotiate prices directly with producers and contract separately for transportation;
- In 1991 FERC issued a Notice of Proposed Ruled Rulemaking;
- In 1992 FERC issued Order No. 636(The Restructuring Rule). This mandated unbundling of sales services from transportation services, providing customers with full choice of providers and opening these markets to competition; and
- FERC Order No. 637 further addressed inefficiencies in the capacity release market.
==
http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1000&context=implications-of-ferc-order-for-natural-gas-industry
==
https://www.alternet.org/media/wall-street-journal-echoing-trumps-derangement-and-its-own-reporters-are-appalled
During the 2016 election, the conservative Wall Street Journal declined to endorse Donald Trump, recognizing the Republican candidate's manifest personal deficiencies posed a clear and present danger to American democracy. While the newspaper has grown more Trump-curious since he was sworn into office, it has largely resisted the overt #MAGA cheerleading of Rupert Murdoch's other media organs, Fox News and the New York Post.
At least until last week. Despite multiple indictments being handed down in the Russia probe, and a separate Trump aide pleading guilty to lying to the FBI, the paper's once tepid support for the president has reached a fever pitch bordering on dissociation.
On October 25, the Journal incurred the wrath of readers and social media alike when it ran an editorial titled "Democrats, Russian and the FBI," arguing that special investigator Robert Mueller “lacked the critical distance to conduct a credible probe," and that he should resign his post for the good of the country.
Four days later, in "Begging Your Pardon, Mr. President," David B. Rivkin Jr. and Lee A. Casey called on Trump to issue blanket pardons to every administration official ensnared in the investigation—himself included.
The day after that, an editorial titled "The Manafort Indictment" acknowledged the malfeasance of Trump's former campaign manager, but managed to single out the Democratic Party for its financing of the Fusion GPS dossier (opposition research compiled, incidentally, by former members of the Wall Street Journal).
These rantings and ravings have not been lost on the paper's reporters. According to a recent report by Vanity Fair, staffers fear the opinion page has begun to undermine the publication's credibility. The Journal has always been a purveyor of neoconservative dogma, particularly as it pertains to the economy and foreign policy, but as one veteran editor recently confided, “It does feel like this is a different level of crazy."
“We could disprove half the stuff [the opinion writers] are saying if they just read our own reporting," a WSJ reporter told Vanity Fair. "It’s like living in some alternate universe."
Another staffer likened the paper's editorials on the Mueller investigation to the dark days of Vince Foster, a former Clinton confidante whose suicide in 1993 continues to fuel conservative conspiracy theories. (The right has since added John F. Kennedy, Jr. and the DNC's Seth Rich to Hillary's ever-expanding hit list.)
Former Wall Street Journal editor Bill Grueskin put things more succinctly in a recent tweet:[img]
Twitter Ads info and privacyThis is not the first time the Journal has embarrassed itself or its reporters. In August, editor-in-chief Gerard Baker reprimanded the paper's staff for its entirely accurate coverage of a Trump rally in Phoenix, where the president painted himself as the true victim of the terrorist attack in Charlottesville. “Sorry. This is commentary dressed up as news reporting,” he wrote in an email. “Could we please just stick to reporting what he said rather than packaging it in exegesis and selective criticism?”
That same month, Politico released a full transcript of his interview with the president in late July, exposing Baker's chummy personal relationship with the Trump family. At one point during the conversation, he even tells Ivanka, "It was nice to see you out in Southampton a couple weeks ago."
Perhaps it was only a matter of time before the opinion page began parroting the talking points of White House press secretary Sarah Huckabee Sanders. Over the past 18 months, conservative publications ranging from the Weekly Standard to the National Review have, at various junctures, embraced the Republican standard-bearer, even after the latter outlet ran an entire issue "Against Trump." But as the august Wall Street Journal's descent into authoritarianism and deranged conspiracy theory reveals, no corner of right-wing media is immune from the disease of Trumpism.
===
Lee A. Casey focuses on federal environmental, constitutional and international law and Alien Tort Statute issues. He also advises clients on compliance issues under the Foreign Corrupt Practices Act (FCPA), U.S. trade sanctions regimes, and federal ethics requirements. Mr. Casey’s practice includes federal, district and appellate court litigation, as well as matters before federal agencies. Prior to joining BakerHostetler, Mr. Casey was an associate with Hunton & Williams, practicing in international, environmental and constitutional law. From 2004 through 2007 he served as an member of the United Nations Subcommission on the Promotion and Protection of Human Rights.
From 1986 to 1993, Mr. Casey served in various capacities in the federal government, including the Office of Legal Policy (1986-90) and the Office of Legal Counsel (1992-93) at the U.S. Department of Justice and served as Deputy Associate General Counsel at the U.S. Department of Energy (1990-92). The Office of Legal Counsel is responsible for advising the Attorney General and the White House on issues of constitutional law and statutory interpretation. The Office of Legal Policy served as a strategic “think tank” for the Reagan Justice Department and was responsible for reviewing candidates for appointments to the federal bench.
Before joining the government in 1986, Mr. Casey was an associate in the Los Angeles firm of Mitchell, Silberberg & Knupp, practicing in the litigation section, with an emphasis on copyright, contract and First Amendment issues. From 1984 to 1985, Mr. Casey served as Law Clerk to the Honorable Alex Kozinski, then Chief Judge of the United States Claims Court. From 1982 to 1984, he practiced at the Detroit firm of Dykema Gossett, focusing on corporate, securities, commercial and intellectual property litigation, and from 1990 through 1994, he served as an Adjunct Professor of Law at George Mason University School of Law in Arlington, Virginia.
Among the chapters, articles and papers that Mr. Casey has authored or co-authored are: “International Law and the Nation-State at the U.N.,” Reclaiming the Language of Freedom at the United Nations: A Guide for U.S. Policymakers, The Heritage Foundation (2006) (with David B. Rivkin, Jr.); “The Dangerous Myth of Universal Jurisdiction,” A Country I Do Not Recognize(ed. Robert H. Bork) (2005) (with David B. Rivkin, Jr.); “Leashing the Dogs of War,” The National Interest (Fall 2003) (with David B. Rivkin, Jr.); “The Limits of Legitimacy: The Rome Statute’s Unlawful Application to Non-State Parties,” 44 Va.J.Int’l L. 63 (Fall 2003) (with David B. Rivkin, Jr.); “Devil’s Advocates: The Danger of Judging Lawyers By Their Clients,” Policy Review(Feb. and Mar. 2002) (with David B. Rivkin, Jr.); “The Case Against the International Criminal Court,” 25 Fordham Int’l L.J. 840 (2002); “Europe in the Balance: The Alarmingly Undemocratic Drift of the European Union,” Policy Review (June and July 2001) (with David B. Rivkin Jr.); “Against an International Criminal Court,” Commentary, May 1998 (with David B. Rivkin, Jr.); “Federalism (Cont’d.),” Commentary, December 1996 (with David B. Rivkin, Jr.); “Presidents and War Powers: Another View,” Common Sense, Winter 1996 (with David B. Rivkin, Jr.); “How Binding Are Contracts?” The American Enterprise, Nov./Dec. 1993 (with David B. Rivkin, Jr.); and “Pirate Constitutionalism: An Essay in Self-Government,” 8 J. of L. & Politics477 (1992).
Mr. Casey is a member of the California, Michigan and District of Columbia Bar Associations.
fedsoc
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horner defends
bs:
Mr. Rivkin also served as the Associate General Counsel,U.S. Department of Energy (DOE), from 1990-91. At DOE he was responsible for international, constitutional, environmental and energy matters, including global climate change problems, natural gas, hydro and electricity issues, development and implementation of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlands policy and related issues, development of RCRA and Clean Water Act legislative proposals and deregulation of energy markets. Mr. Rivkin played asignificant role in developing the Reagan and Bush Administrations’ regulatory and legislative proposals affecting natural gas and electric utility industries. ENRON
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The Rule of Law Defense Fund
Pruitt was a member of the Rule of Law Defense Fund (RLDF) board of Directors since it was created in 2014 until late 2016. He chaired the group from 2015 until he stepped down in December 2016 following his nomination by Trump.
The RLDF is a 501C4 organization, and so it is not required to publicly disclose its sources of funding. It was created in 2014 by the Republican Attorneys General Association, with which it shares staff and office space and holds joint events.
RLDF is highly secretive about what it does. CMD obtained an agenda for one RLDF meeting, held in April 2016 which featured a session about blocking the Clean Power Plan. Pruitt was a speaker on the panel which also included David Rivkin, a partner at the law firm Baker Hostetler. Rivkin, who is a donor to Pruitt's Oklahoma Strong PAC, is representing the state of Oklahoma in the lawsuit against the Clean Power Plan.
Currently, only two funders of RLDF have been identified, both with deep ties to the fossil fuel industry. Freedom Partners, the mega-fund created by Charles and David Koch, gave RLDF $175,000 in 2014. The Edison Electric Institute (EEI) gave RLDF a $25,000 contribution in 2014. EEI is the trade association for the utility sector, and has engaged in litigation in an attempt to block the Clean Power Plan
Defending ExxonMobil
...
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bs fb https://www.facebook.com/DavidBRivkinJr/
https://justourfreedom.wordpress.com/
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:{‘:(style="font-weight:normal"):}:Clean Power’ Plays and the Last Stand for Federalism
:{Leave a reply:(style="margin:0px;padding:0px;border:0px;vertical-align:baseline"):}:
By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN
Sept. 25, 2016, in the Wall Street Journal
After Congress turned down President Obama ’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.
If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.
The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice :{Anthony Kennedy:(style="margin:0px;padding:0px;border:0px;vertical-align:baseline"):}: called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.[nb state laws that pre-empt local laws which they claim to support]
Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way. [as in waivers and block grants tyhat let states manage ACA?]
Even these approaches were not enough for the Obama administration to cajole the states to carry out its energy agenda.[ding!] So it resolved to obliterate one of the last vestiges of the Constitution’s vertical separation of powers: the bar on federal commandeering of the states and their officials to carry out federal policy.
The Clean Power Plan is enormously complicated, but its overall approach is straightforward. Previous emissions regulations have focused on reducing emissions from particular facilities, but this one relies on shifting electricity generation from disfavored facilities (coal-fired power plants) to those the EPA prefers [read picking winners and losers, tho FF get 9b/yr subsidies?!](natural gas and renewables). The EPA then determined what, in its view, is the maximum amount of such shifting that each of the nation’s regional electric grids could possibly accommodate and calculated the emissions reductions.[maybe, but then let states figure out how ro meet target?]
Parcel those figures out by state, factor in additional reductions due to estimated efficiency improvements at older plants, and the result is state-specific reduction targets. The states can elect to achieve those targets themselves—or, if they decline, the EPA will do it for them. “Textbook cooperative federalism,” says the EPA.
Not quite. Whether or not the states choose to implement the plan directly, it leaves them no choice but to carry out the EPA’s federal climate policy. That’s because the EPA can destroy but not create. It can regulate emissions of existing facilities, but it lacks the legal authority to facilitate the construction and integration of new power sources, which is ultimately the only way to achieve the plan’s aggressive targets.[isn't creating natural gas jobs?]
That duty falls to the states, which the plan depends upon to carry out what the EPA calls their “responsibility to maintain a reliable electric system.” Doing nothing, as in the cooperative federalism scenario, is not an option.[nor in the actual reality]
So this is how the plan works: The EPA pushes coal-fired plants off the grid, and then counts on the states to ensure that the resulting reductions in capacity are matched by increases in EPA-preferred forms of power generation. State agencies will have to be involved in decommissioning coal-fired plants, addressing replacement capacity—like wind turbines and solar arrays—addressing transmission and integration issues, and undertaking all manner of related regulatory proceedings. All this to carry out federal policy.[and prevent hurricanes and floods that will cost lives and huge $]
The Clean Power Plan implicates everyevil associated with unconstitutional commandeering. It dragoons states into administering federal law, irrespective of their citizens’ views. Itdestroys accountability, by directing the brunt of public disapproval for increased electricity costs and lost jobs onto state officials, when the federal government deserves the blame. And itsubverts the horizontal separation of powers, by allowing the executive branch to act where Congress has refused to legislate.
One can only wonder what will be left of our constitutional order if the plan passes judicial muster.
The federal government would no longer be a government of limited powers, but instead be able to compel the states to do its bidding in any area. The states, in turn, would be reduced to puppets of a federal ventriloquist, carrying out the dirty work for which federal actors wish to avoid accountability. And the federal executive, in many instances, could effectively create new law by working through the states, free of the need to win over Congress.
So it is difficult to imagine a U.S. where the Clean Power Plan is the law of the land. It would not be the same country, or the same Constitution, that Americans have enjoyed all these years.
Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C., and represent the State of Oklahoma and the Oklahoma Department of Environmental Quality in their challenge to the Clean Power Plan.
Source: http://www.wsj.com/articles/clean-power-plays-and-the-last-stand-for-federalism-1474841482
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Trump Can Ax the Clean Power Plan by Executive Order
By DAVID B. RIVKIN JR. and ANDREW M. GROSSMAN
Nov. 20, 2016, in the Wall Street Journal
President Obama pledged to wield a pen and phone during his second term rather than engage with Congress. The slew of executive orders, enforcement memorandums, regulations and “Dear Colleague” letters comprised an unprecedented assertion of executive authority. Equally unparalleled is the ease with which the Obama agenda can be dismantled. Among the first actions on President Trump’s chopping block should be the Clean Power Plan.
In 2009 Congress rejected a cap-and-trade scheme to regulate greenhouse-gas emissions. The Environmental Protection Agency then devised a nearly identical scheme to mandate shifting electricity generation from disfavored facilities, like those powered by coal, to those the EPA prefers, like natural gas and renewables. No statute authorized the EPA to seize regulatory control of the nation’s energy sector. The agency instead discovered, in an all-but-forgotten 1970s-era provision of the Clean Air Act, that it had that power all along.
To support its preferred policy, the agency was compelled to “interpret” the statute in a way that contradicts what it acknowledges is the “literal” reading of the text[mass v epa required implementation?]and clashes with decades of its own regulations. It also nullifies language blocking regulation for power plants because they are already regulated under an alternative program. By mangling the Clean Air Act to intrude on areas it was never meant to, the regulation violates the constitutional bar on commandeering the states to carry out federal policy.
These defects are why the Supreme Court put the EPA’s plan on holdwhile an appeals court in Washington, D.C., considers challenges brought by the energy industry and 27 states. [what was outcome?] These legal challenges now appear to have been overtaken by events. President Trump can immediately issue an executive order to adopt a new energy policy that respects the states’ role in regulating energy markets and that prioritizes making electricity affordable and reliable. Such an order should direct the EPA to cease all efforts to enforce and implement the Clean Power Plan. The agency would then extend all of the regulation’s deadlines, enter an administrative stay and commence regulatory proceedings to rescind the previous order.
That would leave the D.C. appeals court—which some supporters of the plan are still counting on for a Hail Mary save—or the Supreme Court with little choice but to send the legal challenges back to the agency. While the Clean Power Plan could technically linger in the Code of Federal Regulations for a year or so, it would have no legal force.
When an agency changes course, it must provide a reasoned explanation to address factual findings supporting its prior policy. In certain instances that requirement may impose a real burden. For example, a rule rescinding the EPA’s “Endangerment Finding” regarding the effects of greenhouse gases would have to address the evidence underlying it. A failure to provide a satisfactory explanation of a change in policy may render a rule “arbitrary and capricious” and vulnerable to legal challenge.
Environmentalist groups have already vowed to bring suit to defend the Clean Power Plan, but a challenge would be toothless. The aggressive legal positions underlying the Obama administration’s most controversial rules—including the Clean Power Plan, the Waters of the United States rule, and the FCC’s Open Internet order—will make it easier to rescind them. That’s because rejecting the assertion of legal authority underlying such a rule is enough to justify a policy change. If the agency’s view is that it simply lacks the power to carry out a rule, then it follows that the rule must be withdrawn.
Even if a court were to find that the EPA’s interpretation of the Clean Air Act underlying the plan is permissible, that would still not compel the Trump EPA to accept that interpretation as the only permissible one. And even if a court were to rule—erroneously, in our view—that the Clean Power Plan does not violate the Constitution’s vertical separation of powers, that would still not absolve the executive branch of the responsibility to consider that constitutional issue for itself and then act accordingly.
President Obama may soon come to understand that the presidential pen and phone is a double-edged sword.
Messrs. Rivkin and Grossman, who practice appellate and constitutional law in Washington, D.C., represent the state of Oklahoma and theOklahoma Department of Environmental Quality in their challenge to the Clean Power Plan.
Source: http://www.wsj.com/articles/trump-can-ax-the-clean-power-plan-by-executive-order-1479679923
This entry was posted
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boston globe
MADISON, Wis. (AP) — A leading lead manufacturer was among a host of corporate leaders who donated to a conservative group that helped Gov. Scott Walker and Republican legislators fend off recall challenges, a newspaper reported Wednesday.
The Guardian obtained more than 1,000 pages of leaked documents from a secret investigation into whether Walker’s recall campaign illegally coordinated with outside conservative groups. That investigation was halted in 2015 by the Wisconsin Supreme Court.[previously stacked? prosser?]
The documents show Walker was interested in getting Harold Simmons, the billionaire owner of NL Industries, which was a major producer of leadthat was used in paint before such practices were banned, to donate to the conservative Wisconsin Club for Growth. Simmons gave the group $750,000 in 2011 and 2012, the height of the recalls.
Walker and his fundraisers also solicited money from hedge-fund billionaire Stephen Cohen, who gave the club $1 million; Home Depot co-founder Ken Langone, who gave $25,000; and hedge-fund manager and Manhattan Institute for Policy Research Chairman Paul Singer, who gave $250,000.
such donations are legal under the U.S. Supreme Court’s 2010 Citizens United decision, which said restrictions on corporations’ political spending were unconstitutional.
Prosecutors had alleged Walker and his fundraising team asked potential contributors to donate to Wisconsin Club for Growth and other groups so they could run ads supporting him in the recalls, which stemmed from Walker’s signature law that stripped public unions of nearly all of their bargaining rights. But the state’s high court said Walker had done nothing illegal because coordination between candidates and outside groups on so-called issue advertising — ads that don’t expressly call for a candidate’s election or defeat — is permissible.[what did the ads actually say? TV? direct mail?]
Prosecutors have asked the U.S. Supreme Court to let them re-start the investigation. Justices will consider that request on Sept. 26.
Walker campaign spokesman Joe Fadness issued a statement Wednesday calling the investigation ‘‘baseless’’ and that there is ‘‘no evidence of any wrongdoing. He didn’t comment on the documents.
Club For Growth attorney David Rivkin said in an email that prosecutors made up crimes that don’t exist and called their appeal ‘‘legally frivolous and just another publicity stunt intended to tarnish their targets’ reputations and salvage their own.’’
Walker signed a measure in January 2011, before Simmons made his donations, that made lead paint manufacturers immune from lead-poisoning liability lawsuits going forward. The recalls took place later that year. And after Simmons’ last donation, the Wisconsin Legislature’s finance committee tucked language into the 2013-15 state budget making manufacturers immune from pending lawsuits.
Staff members for three Republicans on that committee who faced recall in 2011 didn’t immediately respond to email messages from The Associated Press inquiring about whether the lawsuit immunity was in return for the Club for Growth donations. One of them, Sen. Luther Olsen of Ripon, told the Cap Times of Madison it was not.
‘‘I think that’s quite a jump,’’ he said. ‘‘I voted for something in the budget and somebody else got some money ... that’s not pay-to-play.’’
Previously released documents show iron mining company Gogebic Taconite gave the club $700,000. Walker later signed a bill easing regulations to help clear the path for the company’s mine near Lake Superior. The company ultimately gave up plans for the mine, however.
Minority Democrats said during a news conference that the documents raise more questions about what other legislation may have been passed in exchange for donations to outside groups.
‘‘It appears we have more payback than policy,’’ Rep. Dana Wachs of Eau Claire said.
Spokeswomen for Republican Senate and Assembly leaders didn’t immediately respond to emails.
Milwaukee County District Attorney John Chisholm said in a statement that whoever leaked the documents committed a crime because the investigation is a John Doe probe — equivalent to a grand jury investigation.
https://www.bostonglobe.com/news/politics/2016/09/15/wis-governor-sought-corporate-donations-recall/qMt4DpRkWC5OqoHULJdg0H/story.html
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http://www.progressive.org/news/2016/01/188520/dark-money%E2%80%99s-front-man
In November 2013, a little-known conservative activist named Eric O’Keefe brazenly disobeyed a court order and leaked information to The Wall Street Journal editorial page about a secret “John Doe” investigation involving campaign finance violations by political operatives surrounding Wisconsin Governor Scott Walker. O’Keefe’s group, the conservative Wisconsin Club for Growth, was among the parties being investigated.
It was the beginning of an extraordinary scorched-earth campaign by O’Keefe to harass and undermine the John Doe investigators, who had targeted alleged illegal coordination between Walker and conservative groups including Club for Growth and Wisconsin Manufacturers and Commerce. But O’Keefe had a bigger goal in mind: overturning decades of established law in America saying that independent advocacy groups could not coordinate with political campaigns.
O’Keefe launched a series of suits against the prosecutors leading the investigation, continued to leak information about the probe, and publicly denounced it as a “partisan” attack on free speech. He went on conservative talk radio to accuse prosecutors of imposing “a traumatic, unconstitutional abuse on people” and compared those being investigated to “a rape victim”—adding, “I am saying this deliberately.”
Together with his lawyer, David Rivkin, O’Keefe pushed the idea that the John Doe investigators conducted early morning “paramilitary raids” violating the constitutional rights of those being investigated, and which resulted in stories in conservative publications like National Review. Stories of these abuses were discredited by an audiotape in which investigators treated their alleged victim politely. Yet a majority of the Wisconsin Supreme Court in July released an extraordinary ruling that shut down the John Doe probe, with three of the four-member majority citing unproven violations of constitutional rights.
The Club for Growth and Wisconsin Manufacturers and Commerce had together provided more than $8 million supporting these four justices in their last elections, accounting for anywhere from 48 percent to 76 percent of the total spent on each justice’s behalf.The justices returned the favor, writing a decision that seemed to ignore Wisconsin law and decades of U.S. Supreme Court decisions holding that independent advocacy groups cannot coordinate with political campaigns, since that would make them no longer independent.
It was a huge victory for O’Keefe and for Walker, one that has legalized the unlimited use of dark money in campaigns in Wisconsin and could influence how such cases are handled in other jurisdictions. Long after the end of Walker’s 2016 Republican presidential campaign, O’Keefe’s national aspirations still have legs.
“Wisconsin has sort of become ground zero for the testing of how far outside groups could coordinate with candidates,” says Tara Malloy, senior counsel for the Campaign Legal Center, a nonprofit advocacy group that has closely followed the Wisconsin fight. But she notes that what is happening here is part of a much larger conservative agenda. Across the country, Malloy says, “The envelope is being pushed on coordination in all areas.”
All of which has made O’Keefe a public figure, despite a long history of quietly effective conservative advocacy. He has been dubbed the “third Koch brother” for his efforts to lead and recruit donors to numerous advocacy groups connected to billionaire industrialists David and Charles Koch.
O’Keefe founded the Sam Adams Alliance, which has trained Tea Party activists. He helped establish a network of rightwing journalistic publications, hired lawyers who are gradually chipping away at legal restrictions on independent advocacy groups, and created groups to challenge Obamacare. Though poorer than the Kochs, he is arguably just as indispensable to the rightwing agenda.
O’Keefe, sixty-one, was born in Grosse Pointe, Michigan, a suburb of Detroit known as a wealthy community for auto executives. His father was an investor and Eric did well in the stock market, telling friends he was independently wealthy by age twenty-five. When David Koch ran as a Libertarian for vice president in 1980, O’Keefe served as the party’s national field coordinator. As The Washington Post reported, he “became friendly with the Koch brothers, with whom he has joined in many battles.”
O’Keefe has been at the center of a series of national rightwing policy efforts, including the fight for term limits and a so-called taxpayer bill of rights. Paul Jacob, executive director of U.S. Term Limits, has written that O’Keefe “should be known, but isn’t, as the man who came up with the plan to blitz the country with statewide ballot initiatives aimed at limiting the terms of politicians.”
O’Keefe was a founding board member of U.S. Term Limits, and also served as president of Americans for Limited Terms, which during the 1994, 1996, and 1998 congressional election cycles ran ads bashing candidates who opposed term limits. The movement also pushed twenty-three states to put congressional term limit initiatives in front of voters. The Koch brothers were “the main financial backers” of the effort, The New York Times reported.
Some $300,000 went into a series of attack ads targeting House Speaker Tom Foley, Democrat of Washington, for attempting to overturn the term limits law voters in his state had approved in 1992. The TV ads, relates O’Keefe on his website, “showed a tear rolling down the cheek of the George Washington face” on Mount Rushmore.Foley became the first Speaker to lose re-election since the Civil War.
O’Keefe also served on the board of Americans for Limited Government, founded in 1996 and funded by the Koch brothers.The group has backed “taxpayer bill of rights” ballot initiatives in Colorado and other states, with a goal of slashing state government spending. The group systematically savaged President Obama, calling him “‘the biggest liar of all” and comparing his vision of a national volunteer service agency to the Hitler Youth.
A fierce opponent of the McCain-Feingold law’s campaign finance restrictions, O’Keefe helped create theCenter for Competitive Politics in 2005. The group filed briefs in Citizens United, the 2010 Supreme Court case that allows unlimited campaign donations by corporations and unions to the kind of independent advocacy groups O’Keefe has used to target incumbents for defeat. This greatly expanded the political might of these groups, many of which do not disclose their donors. OpenSecrets.org found that 72 percent of all such spending in 2014 was by conservative groups.
O’Keefe also launched the Health Care Compact Alliance to combat Obamacare and undermine Medicare and Medicaid by letting states use the funding as they wished. The group’s approach reinforced the anti-Obamacare ads by Americans for Prosperity.
The Sam Adams Alliance, which O’Keefe created in 2006, helped train citizen activists and bloggers and provided key support to the Tea Party, as did the Koch-funded Americans for Prosperity. In 2009, the group provided the seed money to create the Franklin Center for Government and Public Integrity, which has bankrolled a huge new network of conservative news publications. By 2012, Media Matters reported,there were “fifty-five news sites covering state government in thirty-nine states that have ties to the Franklin Center.”
The total amount of spending by the vast network of rightwing advocacy groups O’Keefe has helped create is unknown but formidable indeed. While much of the money came from the Kochs, O’Keefe has also “created a network of uber donors and of fundraisers,” says an O’Keefe sympathist who declined to speak on the record.
But when asked about concerns over wealthy donors spending fortunes to influence elections and government policy, O’Keefe told The Washington Post that voters don’t care. “That’s inside baseball,” he said.
R. J. Johnson, a longtime Republican operative, was likely the person who connected O’Keefe to Scott Walker, first elected governor in 2010. Walker’s campaign paid Johnson’s consulting firm more than $130,000 between July 2009 and January 2012. Johnson also worked as a top adviser to Wisconsin Club for Growth.
Justthree days after Walker introduced his bill gutting collective bargaining for public employees in February 2011, the Center for Media and Democracy reported, “Wisconsin Club for Growth began running slick ads accusing state workers of not having to sacrifice, and urging support for the legislation to make state workers ‘pay their fair share.’ ”
When the bill passed, and opponents tried to recall a group of state senators and Walker himself, Club for Growth spent an estimated $9 million on the recalls, according to the Wisconsin Democracy Campaign. Johnson served as a key consultant to both Club for Growth and Walker’s campaign in his 2012 recall election.
That would seem to make it impossible for coordination not to have occurred between the two groups, and such coordination was then considered illegal in Wisconsin. Emails later showed that Walker secretly fundraised for the Club for Growth; his staff advised the governor to “stress that donations to [Club for Growth] are not disclosed.” Walker met with donors who soon contributed to Club for Growth.
There was every reason to believe the John Doe might succeed. It was actually the second probe involving Walker launched byMilwaukee County District Attorney John Chisholm, a reputed straight arrow who had previously angered Democrats by prosecuting several Democratic politicians.The first probe, which concerned Walker’s tenure as the Milwaukee County executive, led to the convictions of six people, including three members of his staff, for campaigning on government time.
While Chisholm was a Democrat, the special prosecutor he chose was Francis Schmitz, a longtime Republican who revealed that he voted for Walker in the recall election. Two Republican district attorneys and three chief judges of circuit courts with Republican credentials also took part in the multicounty, bipartisan investigation.
Yet Walker supporters condemned the probe as a “partisan witch hunt,” and this became a conservative mantra on talk radio and at WisconsinWatchdog.org, one of the rightwing news sites funded by the Franklin Center. To date, it has published more than 300 stories condemning the probe and repeating O’Keefe’s criticisms of it. Those criticisms have been echoed by The Wall Street Journal and National Review.
O’Keefe went on the offensive right away. He hiredRivkin,a top attorney in Washington, D.C., tosue Chisholm and all the prosecutors involved in the John Doe probe, accusing them of violating the civil rightsof those under investigation and demanding personal damages from the prosecutors. A WisconsinWatchdog story cheered this, warning that Chisholm and company are “in for a very unpleasant time. He’s got a tiger by the tail, and he’s not up to it.”
O’Keefe and Rivkin launched a barrage of suits, tied the investigation in legal knots, and eventually brought it to a halt. Frank Gimbel, a top Milwaukee defense attorney for more than five decades who represented one of the Walker aides convicted in the first John Doe probe, marvels at what O’Keefe has done.
“I have not ever seen an individual being investigated who has gone on the offensive like this,” Gimbel says in an interview. “Most of the time it’s an uneven battle with the police and prosecutors. But he has gone on the offensive with very high quality lawyering.”
Malloy of the Campaign Legal Center agrees. “It’s definitely become a bit of an ugly personal fight,” she says of O’Keefe’s effort “to hold the prosecutors personally liable.” A federal appeals court rejected this line of contention, and the U.S. Supreme Court denied a petition for review.
To further frighten Chisholm, O’Keefe and other conservatives threatened to bankroll a recall effort against him. It never materialized, but the threat hung over his head for a year or so.
O’Keefe also put a scare into Walker. In June 2014, as news surfaced that the governor was seeking an out-of-court settlement to the Doe probe, The Wall Street Journal editorial page excoriated Walker, charging that while O’Keefe’s group “fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight.” It concluded: “Mr. Walker has to decide whose side he’s on—his own, or the larger principles he claims to represent.”
For O’Keefe and other conservative activists, Walker’s re-election was small potatoes compared to pushing the courts to kill restrictions on independent advocacy groups. Walker got the message, quickly backing off from talk of a settlement.
Walker’s collapse as a presidential candidatedoes not mean much to O’Keefe and company either. They have a loftier goal: doing away with campaign finance limits and other regulations that keep the wealthy from swaying elections.
Rivkin is probably the foremost proponent of the view that the First Amendment prohibits coordination between political campaigns and independent advocacy groups only when the groups expressly advocate for someone’s election, rather than simply running ads condemning or praising a candidate.
The U.S. Supreme Court, since the *Buckley v. Valeo* case of 1976, has repeatedly ruled that once groups have coordinated with campaigns the money they spend becomes subject to campaign finance disclosure laws. Yet the Wisconsin Supreme Court decision bought Rivkin’s argument and ignored both Buckley v. Valeo and a recent Seventh Circuit Federal Court of Appeals ruling on the John Doe which found that “no opinion issued by the [U.S.] Supreme Court, or by any court of appeals, establishes. . . that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic.”
Wisconsin Supreme Court Justice Patrick Crooks, who died suddenly in September, dissented in part from the court’s decision, calling it “erroneous” and “unprecedented.” As for O’Keefe’s complaint that the John Doe infringed on his First Amendment rights, Crooks wrote, “There is a simple solution to that problem: stop coordinating. In the absence of coordination, the contributor is free to discuss candidates and issues.” Crooks said the John Doe probe “should not be terminated.”
The ruling was a tremendous victory for O’Keefe, but there were more to come. In the fall of 2015, the Wisconsin legislature passed a law ending the use of John Doe probes into political corruption, a measure The New York Times dubbed “The Revenge of Scott Walker.” Another law dismantled the Government Accountability Board, a nationally praised nonpartisan watchdog of ethics and elections,which had been involved in the John Doe probe, replacing it with two toothless boards whose funding to pursue cases must be approved by the Republican-controlled legislature.
A third law lets independent advocacy groups coordinate with candidates they favor, clearly violating past U.S. Supreme Court decisions, and even opens the door toexpress advocacy groups (which openly tell people how to vote) to coordinate with candidates, so long as the candidate doesn’t specifically ask that the groups spend campaign money in a certain way.
“This is a loophole large enough to drive a Koch Industries truck through,” declared Matt Rothschild, executive director of the Wisconsin Democracy Campaign. Another longtime observer of state politics, Jay Heck of the group Common Cause in Wisconsin, said the new laws, all of which Walker signed, were products of “the Eric O’Keefe session of the Wisconsin legislature.”
Malloy thinks the U.S. Supreme Court might consider a review of the case, seeing it as an opportunity to rethink its past positions and open the floodgates to new kinds of campaign activity. And, she says, “Walker’s departure from the presidential race can only improve slightly the case’s chance of being heard, because the issues are at least somewhat less politically ‘hot.’ ”
O’Keefe’s many legal and legislative victories will allow the nation’s wealthiest people and corporations to secretly bankroll the candidates and political outcomes they favor in Wisconsin. But his long-term goal is to achieve a similar victory in other jurisdictions and, ultimately, turn the entire country into a land where dark money rules all politics. ω
==
==
At the heart of the John Doe files is Scott Walker, the governor who shot to national prominence – a hero for conservatives, pariah for liberals – soon after taking office in February 2011 when he introduced thehyper-partisanAct10. The legislation instantly made Wisconsin the battleground state in the fight between boardroom might and union muscle.
The state capital Madison erupted in weeks of protests in which the legislative building was overrun with thousands of protesters. Democratic lawmakers fled the state and took up residence in neighboring Illinois in a failed attempt to foil Walker's plans.
In the fallout of Act 10, progressive groups retaliated by dragging Walker and several other Republicans through a series of bitter recall elections. Six GOP senators were forced to defend their seats in 2011, and Walker himself was put through the recall furnace in 2012.
Those recall elections, and the question of whether Walker flouted campaign finance regulations in order that he and other Republican politicians could stay in office and preserve their anti-union legislation, were the focus of the investigation that generated the files now leaked to the Guardian. It was run by five Wisconsin prosecutors, led by Francis Schmitz, a former federal counter-terrorism expert.
It was known as a John Doe investigation because, much like a grand jury, its subjects were kept anonymous while officials weighed whether or not to press charges. In this case, prosecutors alleged that there was evidence to indicate that Walker and his team of advisers and associates had set up a coordinated effort with lobbyists and major donors to swing elections by secretly pouring huge amounts of corporate cash into the races.
The money was channeled through a third-party group, the DAs alleged, in order to circumvent state and federal rules that set limits on political contributions and require them to be publicly revealed.
The documents show the governor and his fundraising team going after, and receiving cash from, many of the most prominent rightwing donors in the country. In addition to Adelson, there was business magnate Carl Icahn who was approachedfor $100,000 though nothing in the files indicates that he donated; the hedge-fund billionaire Stephen Cohen, whoarrangeda wire transfer of $1m; and Home Depot co-founder Ken Langone who gave $25,000.
Paul Singer, hedge-fund manager and chairman of the Manhattan Institute, also crops up in the documents. Three months before Walker's recall election, Singer attended a forum of business leaders held by the American Enterprise Institute in a luxury resort off the coast of Georgia.
Walker was also there, arriving at the resort armed with a to-do list from his chief fundraiser Kate Doner. It bore thepithy command: “Paul Singer: Grab him”.
img
The governor presumably did as he was told. Two months later a check from Singer was banked for $250,000.
What particularly caught the attention of the prosecutors was that when the money came in it did not go directly to Walker's personal campaign committee, Friends of Scott Walker. To do so would have been problematic, as any campaign committee directly linked to a candidate is limited in Wisconsin to accepting contributions of up to $43,000 that have to be fully disclosed.
The prosecutors alleged in court filings published here for the first time that Walker's campaign found a way around these restrictions by banking the corporate cash through the third-party group, Wisconsin Club for Growth. WCfG describes itself as a “pro-liberty, pro-fiscal restraint” organisation, sharing the same small government and anti-union ideology as Walker. It is a tax-exempt group, or 501 (c) (4), that is supposed to be primarily concerned with “social welfare” rather than partisan politics and as such is not obliged to reveal its donors.
In court submissions, the prosecutors alleged that Walker's campaign used WCfG as a shadow committee that allowed him to solicit large sums of corporate cash without scrutiny or accountability. “Contributions were personally solicited by Governor Scott Walker to WCfG ... in order to circumvent the reporting and contributions provisions of Wisconsin statutes,” an investigator working for the prosecutors in the John Doe investigation, Robert Stelter, alleged.
A good example of the way things worked was the donation made by Donald Trump. On 3 April 2012, two months before the governor faced the electorate, Walker flew to New York for a rapid-fire string of fundraising meetings with big money interests.
He travelled the length of Fifth Avenue in Manhattan, making stops at the investment bank Morgan Stanley, a hedge fund, a corporate law firm, and the residence of publishing tycoon Steve Forbes. He also enjoyed a 45-minute audience with Trump in his Fifth Avenue lair.
There is no record of the conversation between the two men. But it appears to have been a warm encounter, as the John Doe files show that Trump wrote a check for $15,000 on the same day. Who was the beneficiary of Trump's generosity? Wisconsin Club for Growth.
Another example of the pattern is the casual comment Walker dropped into an email to his fundraiser dated 14 June 2011:“Also, I got $1m from John Menard today”. Eight days later a check for $1m is cut on a corporate check of Menard Inc, the billionaire John Menard's home improvement chain Menards, and made out not to the governor's campaign committee but to Wisconsin Club for Growth. There the donation remained a secret until the publication of the Guardian's leaked files.
img
Friends of Scott Walker, Wisconsin Club for Growth and other parties named in the John Doe investigation have all vigorously denied any legal violations. They point out that no charges have been brought against any subject of the inquiries.
John Fadness, spokesman for the Scott Walker campaign, told the Guardian: “As widely reported two years ago, the prosecutor’s attorney stated that Governor Walker was not a target. Several courts shut down the baseless investigation on multiple occasions, and there is absolutely no evidence of any wrongdoing.”
In June 2014, the special prosecutor Schmitz said through a lawyer that Walker was not a target of his John Doe investigation. Yet legal documents contained in the John Doe files identify as the anonymous “Movant No. 1” of the investigation “Friends of Scott Walker, the personal campaign committee of Scott Walker.”
David Rivkin, the attorney representing Wisconsin Club for Growth and its director Eric O'Keefe, said in a statement to the Guardian: “As the Wisconsin Supreme Court explained, the John Doe prosecutors made up crimes 'that do not exist' under Wisconsin law in order to target 'citizens who were wholly innocent of any wrongdoing.' Because the U.S. Supreme Court does not review matters of state law, it should be obvious that the John Doe prosecutors' appeal is legally frivolous and just another publicity stunt intended to tarnish their targets' reputations and salvage their own.”
Further insight into the position of the subjects of the investigation – the “movants” as they are technically known – is given in court papers including in the Guardian's John Doe Files.[x link] They criticise the prosecutors for making fundamental mistakes in their reading of campaign finance law. They said that regulatory restrictions on the size and source of donations only applied to groups that were expressly advocating for or against a named political candidate.
WCfG's director Eric O'Keefe said in an affidavit that the club's involvement had stemmed purely from its commitment to “advancing liberty and fiscal responsibility”. Its role in the recall elections was “to educate Wisconsin citizens ... The Club paid for advertisements that advanced its pro-liberty, fiscal responsibility, pro-Act 10 beliefs. None of the advertisements expressly urged voters to vote for or against any candidate.”
The movants also complained that in issuing over-broad subpoenas for evidence and conducting pre-dawn raids on the homes of some individuals, the prosecutors strayed well beyond their legitimate powers and into the realm of governmental abuse.
In the course of the John Doe investigation, the prosecutors obtained hundreds of emails and bank records under subpoena. An email sent by Kate Doner, Walker’s fundraiser, in April 2011, summed up the strategy. She said the aim was to raise $9m in six weeks, to pay for political advertising – she called it “issue advocacy efforts” – in the senatorial recall races.
Walker, she said, wants all the ads “run thru one group to ensure correct messaging”, [aka COORDINATION? ]and that group, the governor declared, should be Wisconsin Club for Growth. “The Governor is encouraging all to invest in the Wisconsin Club for Growth [which] can accept Corporate and Personal donations without limitations and no donors disclosure.”
The email trail shows a pattern of behavior developing: Walker meets up with big corporate donors and encourages them to contribute unlimited sums of money through WCfG in secret, then shortly after the checks start to flow. In June 2011, the emails show, the governor had dinner with the CEO of the largest privately owned trucking company in the US, Schneider National, in the hope of getting him and his peers to donate $250,000.
“Stress the donations to WiCFG are not disclosed and can accept Corporate donations without limits,” Walker's talking points said....
==
State AGs on Global Warming Litigation
By David B. Rivkin, Jr., Lee A. Casey
January 10, 2008
Many state Attorneys General across the country are becoming increasingly involved in global climate change (GCC) litigation, even on the federal level. Federal policy on this issue has involved a rejection of the 1997 Kyoto Protocol, which would have imposed mandatory greenhouse gas (GHG) emissions reductions on the United States and other industrialized nations, but not on burgeoning "third world" economies,by both the Clinton and Bush Administrations.
In 2001, President Bush made clear that his Administration would not work to impose mandatory greenhouse gas (GHG) emissions caps on American industries, [after promsng to do so in the campaign] both because such caps would damage U.S. economic prospects and would not actually solve what is manifestly a global problem. United States policy is to address GCC issues on the international level with the ultimate goal being an approach to GCC based on sound scientific principles and a genuinely global effort that includes (unlike the Kyoto Protocol) both industrial and developing nations in any strategy for limiting man-made GHG emissions.
Since that time, activists at the state and local levels have sought to adopt their own GCC measures, and several state Attorneys General have become leaders in this effort. Their most notable success has been the Supreme Court's 2007 decision in Massachusetts v. EPA, 127 U.S. 1438 (2007). That case was brought by California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, along with a number of activist groups, and challenged EPA's 2003 determination that it lacked Clean Air Act authority to regulate carbon dioxide as a "pollutant" for purposes of controlling "global warming." The Court ruled that EPA did have this authority and remanded for further agency proceedings on whether and how to regulate. Given the very real standing issues raised in this case (especially regarding causation and remediability), the Court's resolution of the merits was a significant win for the State petitioners and will likely embolden their efforts in this area.
A number of other global climate change cases have, in fact, been brought and are currently pending in the lower federal courts, including Connecticut v. American Electric Power, 406 F. Supp. 2d 265 (S.D.N.Y. 2005). This case involves federal common law "public nuisance" claims, based on carbon dioxide emissions and their alleged relation to "global warming," against five of the country's largest electric utilities. The plaintiffs include California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, along with New York City and a number of private groups. Judge Loretta A. Preska,United States District Court for the Southern District of New York, dismissed the action as raising nonjusticiable political questions in September, 2005. The case is now on appeal to the United States Court of Appeals for the Second Circuit. A similar case, brought by the California Attorney General and alleging "public nuisance" against the automobile manufactures on account of motor vehicle GHG, was also dismissed on political question grounds in September. See California v. General Motors, No. C06-05755 (N.D. Ca. Sept. 17, 2007).
The Attorneys General, however, have not been discouraged. As recently reported by Christopher Horner in his "Planet Gore" National Review Online Blog, a number of state Attorneys General and environmental interest groups are evidently working on a litigation strategy document "providing a roadmap for cooperatively replicating the tobacco litigation of a decade ago in the 'global warming' context."
Horner further indicates that, in an effort to monitor these activities more closely - and especially the close and cooperative relationship between GCC activistsand Attorneys General - a series of freedom of information requests have been submitted to AG offices in California, New York, New Jersey, Connecticut, Vermont, Washington and Massachusetts. These requests seek documents detailing communications to and from activist groups and those offices that reference the tobacco litigation and prospects for a similar campaign related to the GCC issue.
In the short term, however, there seems little doubt that California's Attorney General, former Governor and Democrat presidential hopeful Edmund G. (Jerry) Brown, Jr., will be leading the global warming charge. With its Global Warming Solutions Act of 2006 (AB 32), the California legislature has commanded that the State's greenhouse gas emissions be reduced to 1990 levels by the year 2020. The law requires California's Air Resources Board to establish a statewide GHG emissions cap by January 1, 2008, and to promulgate implementing regulations by January 1, 2011. In advance of these measures, Attorney General Brownhas initiated his own campaign to force immediate GHG emissions reductions. In particular, he has embarked upon a statewide effort, pursuant to the California Environmental Quality Act (CEQA), to force California's counties to adopt global climate change plans.[baby version of fed overreach bs]
Most recently, Brown announced the settlement of a suit he brought against San Bernardino County challenging its general CEQA plan. The county agreed to undertake a 30-month "Greenhouse Gas Reduction Plan," including inventories of GHG emission sources and targets for reductions in emissions attributable to the county's land use decisions and other governmental operations. Brown, who has filed CEQA comments on the plans of at least eleven other California counties, has indicated that the San Bernardino plan is a "model that I encourage other cities and counties to adopt." See Brown Announces Landmark Global Warming Settlement Press Release (Aug. 21, 2007).
Similarly, Brown appealed a decision by Contra Costa County (in the San Francisco Bay Area) to permit the expansion of an existing ConocoPhillips refinery and thereby obtained an agreement from the company to adopt a GHG reduction plan. This plan includes a multi-million dollar "offset" program in the Bay Area and elsewhere in California. On the federal level, Attorney General Brown has petitioned EPA to establish carbon dioxide limitations for all ocean going vessels entering American ports and threatens to sue the Agency if it fails to approve California's pending request for a section 209(b) Clean Air Act waiver. This provision permits California - once a waiver is granted - to impose new motor vehicle and engine emissions standards that may be more stringent than comparable federal regulations.[we've had this for decades?] In this instance, it would permit California to regulate GHG emissions from new motor vehicles and motor vehicle engines sold in the State, and grant of the waiver would also permit other States to adopt the California standards; fourteen have indicated a desire to do so.
There is every reason to believe that Attorney General Brown, along with many other state Attorneys General, will continue to be active in this area.
==
https://www.jstor.org/stable/1148717?seq=1#page_scan_tab_contents
supports bushHW 41 env pol = no nothing (except in easterm eur?) = ltr ~
A "No Regrets" Environmental Policy
C. Boyden Gray and David B. Rivkin, Jr.
Foreign Policy
No. 83 (Summer, 1991), pp. 47-65
Published by: Washingtonpost.Newsweek Interactive, LLC
DOI: 10.2307/1148717
Stable URL: http://www.jstor.org/stable/1148717
Page Count: 19
Environmental Policies in the Third World: A Comparative Analysis
https://books.google.com/books?isbn=031329397X
O. P. Dwivedi, Dhirendra K. Vajpeyi - 1995 - Nature
C. Boyden Gray and David B. Rivkin, Jr., "'No Regrets' Environmental Policy," ... Luc Mougeot, "Alternate Migration Targets in Latin American Countries and ...
https://books.google.com/books?id=HnKQ3CYeEa8C&pg=PA43&lpg=PA43
==
Baker & Hosteler Background
In Michigan v. EPA in which the U.S. Supreme Court in 5-4 vote struck down the EPA's carefully crafted rules to limit the emission of mercury and other toxic pollutants from oil and coal power plants, David B. Rivkin Jr. of Baker & Hostetler represented the Cato Institute, which in turn has received millions from energy interests including the David H. Koch Foundation and ExxonMobil. Rivkin worked in the Reagan Justice Department and was the associate general counsel at the Department of Energy under George H. W. Bush.More recently, he has been part of the legal effort to strike down Obamacare and also has defeated lawsuits aimed at holding former Secretary of Defense Donald Rumsfeld personally liable for alleged torture in Iraq.
Rivkin also argued the cause for petitioner State of Texas in Texas v. EPA, which was decided in July 2013. The U.S. Court of Appeals slapped down Texas’ attempt to block the EPA from controlling the state’s system for issuing permits to power plants.
===
==
h&W mass v epa 2007, he left in 2000
his firms worked for:
Southern Co, Environmental Systems Products, Tucson Electric Power, Federated Investors Inc, Sempra Energy, Dominion Land Management, Southern Co Services,Envirotest Systems, Tyco International, Zephyr Management
==
https://en.wikipedia.org/wiki/Croatia%E2%80%93Serbia_genocide_case
The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)[1] was heard before the International Court of Justice.
The Republic of Croatia filed the suit against the Federal Republic of Yugoslaviaon 2 July 1999, citing Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide.[2] The application was filed for Croatia by American lawyer David Rivkin.[3] With the transformation of the Federal Republic of Yugoslavia into Serbia and Montenegro and the dissolution of that country in 2006, Serbia is considered its legal successor.
The Republic of Serbia counterfiled a suit charging the Republic of Croatia with genocide, on 4 January 2010.[4] The application covers missing people, killed people, refugees, expelled people and all military actions and concentration camps with historical account of World War II persecution of Serbs committed by the Independent State of Croatia, puppet state of Nazi Germany, and Ustašeduring World War II.[5]
Both applications have a financial aspect, seeking compensation of damages. Opening arguments began on Monday, 3 March 2014 and lasted until 1 April 2014.[6][7]
On 3 February 2015, the International Court of Justice ruled that neither Serbia nor Croatia proved sufficient evidence that either side committed genocide, thereby dismissing both cases.[8]
---
A majority of Croats wanted Croatia to leave Yugoslavia and become a sovereign country, while many ethnic Serbs living in Croatia, supported bySerbia,[28][29] opposed the secession and wanted Croatia to remain a part of Yugoslavia. Most Serbs effectively sought a new Serb state within a Yugoslav federation, including areas of Croatia and Bosnia-Herzegovina with ethnic Serb majorities or significant minorities,[30][31] and attempted to conquer as much of Croatia as possible.[32][33][34] In 2007, the International Criminal Tribunal for the former Yugoslavia (ICTY) returned a guilty verdict against Milan Martić,[35yrs sent] one of the Serb leaders in Croatia, for having colluded with Slobodan **Milošević** and others to create a "unified Serbian state".[35] Between 2008 and 2012, the ICTY had prosecuted Croatian generals Ante Gotovina, Mladen Markač and Ivan Čermak for alleged involvement in the crimes related to Operation Storm. Čermak was acquitted outright, and the convictions of Gotovina and Markač were later overturned by an ICTY Appeals Panel.[36][37]
==
The former state of Yugoslavia was divided into separate republics, leading to a war that caused severe civilian casualties on all sides. When discussing the events of the 1990s, historians and sociologists have used the phrases war crimes and genocide to describe the actions of military leaders, especially those of Croatia and Bosnia. The term genocide is often controversial – and is separate in meaning to mass killing – because it implies the killing and displacement of an entire ethnic, national, racial, religious or political group [5] During the Yugoslav Wars the Srebrenica Massacre became the most infamous systematic killing of a religious group on European soil since the Holocaust. At least 7,475 Muslim men, women and children were killed by Serbian paramilitary troops.[6]
==
The Srebrenica massacre, also known as the Srebrenica genocide[7][8][9][10][11][12] (Bosnian: Masakar u Srebrenici; Genocid u Srebrenici), was the genocidal[13][14][15] killing, in July 1995, of more than 8,000[1][16][17][18][19] Muslim Bosniaks, mainly men and boys, in and around the town of Srebrenica during the Bosnian War.
The killings were perpetrated by units of the Bosnian Serb Army of Republika Srpska (VRS) under the command of General Ratko Mladić. The Scorpions, a paramilitary unit from Serbia, who had been part of the Serbian Interior Ministry until 1991, also participated in the massacre.[6][20] In April 1993 the United Nations had declared the besieged enclave of Srebrenica—in the Drina Valley of northeastern Bosnia—a "safe area" under UN protection. However, in July 1995, UNPROFOR's 370[21] Dutchbat soldiers in Srebrenica failed to prevent the town's capture by the VRS — and the subsequent massacre.[22][23][24][25]
In 2004, in a unanimous ruling on the case of Prosecutor v. Krstić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), located in the Hague, ruled that the massacre of the enclave's male inhabitants constituted genocide, a crime under international law.[26] The ruling was also upheld by the International Court of Justice (ICJ) in 2007.[27] The forcible transfer and abuse, of between 25,000 and 30,000 Bosniak women, children and elderly which accompanied the massacre was found to constitute genocide, when accompanied with the killings and separation of the men.[28][29]
In 2005, Kofi Annan, then Secretary-General of the United Nations described the mass murder as the worst crime on European soil since the Second World War,[2][3] and in a message to the tenth anniversary commemoration of the massacre, he wrote that, while blame lay "first and foremost with those who planned and carried out the massacre and those who assisted and harboured them", the UN had "made serious errors of judgement, rooted in a philosophy of impartiality", describing Srebrenica as a tragedy that would haunt the history of the UN forever.[2]
==
DAVID B. RIVKIN, JR. (D.C. Bar No. 394446)
BRUCE D. BROWN (D.C. Bar No.457317)
MARK I. BAILEN (D.C. Bar No. 459623)
ANDREW M. GROSSMAN (D.C. Bar No.
985166)
BAKERHOSTETLERLLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW nat rev, simkin cei
===
Justice Office of Legal Counsel written by John Yoo and signed by Jay S. Bybee, .... The attorneys David B. Rivkin Jr. and Lee A. Casey
==
Lead attorney David Rivkin, who is best known for his previous defense of Bush Administration torture policies, has been hired to represent O’Keefe/WCFG and filed the complaint. The federal filing is predicated in part on the suggestion that county prosecutors violated O’Keefe/WCFG’s civil rights by selectively prosecuting them while failing to prosecute CMD. “I hope the court will consider imposing Rule 11 penalties against the attorneys for making false claims,” said Graves.
With the cascading news leaks about the John Doe, apparently from subpoenaed parties in the case and with important decisions of campaign finance law being discussed, CMD urges the John Doe judges to consider opening up proceedings as much as possible to the press and public so that citizens, election and non-profit law experts, and others can better understand the legal policies at stake. CMD also urges the John Doe judges to consider releasing as many documents as possible to the public, especially due to the fact that O’Keefe/WCFG have sought to distort public opinion through selective and self-serving leaks.
vagabond schol blog:
David Rivkin, a lawyer who worked for the Reagan and H.W. Bush administrations, is one of the most slippery and adept torture apologists out there. He testified last week to Congress against forming a Truth Commission to investigate torture and prisoner abuses under George W. Bush's administration. As some observers have noted, Rivkin and others arguing against a Truth Commission may have inadvertently made a stronger case for criminal investigations instead. (Alternatively, they could just think that the Democrats lack the resolve for criminal investigations.) Last week, Digby revisited an excellent earlier post of hers on Rivkin, "It's Just Like Hell Week."
http://digbysblog.blogspot.com/2007/11/its-just-like-hell-week-by-digby.html torture works and is nec
I'd recommend reading both posts. Meanwhile, I wanted to examine more closely some of Rivkin's specific argument techniques and his protean logic on torture. (I'll warn you this is a long post.)
Background
As we've explored before, torture is (1) immoral, (2) illegal, (3) endangers us(especially American troops in the Middle East), and (4) doesn't work – unless one wants to inflict pain, produce bogus intelligence or elicit false confessions. For obtaining reliable information, more humane, rapport-building techniques are far more effective.
Meanwhile, almost every excuse from Bush officials and their allies fits somewhere in the following pattern of descending denials: We did not torture; waterboarding is not torture; even if it is torture, it was legal; even if it was illegal, it was necessary; even if it was unnecessary, it was not our fault. Furthermore, the "debate" on torture and specific techniques are stalling tactics by torture proponents and apologists, who consistently favor fantasy over reality in their arguments. They will discuss Jack Bauer and hypothetical ticking time bombs endlessly, but not Maher Arar or Binyam Mohamed (among many others). Hollywood fiction is somehow more important than the very real consequences of our policies. ...
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www.bakerlaw.com/davidbrivkinjr/
BakerHostetler
David Rivkin is a member of the firm's litigation, international, and environmental teams and is co-leader of the firm's national Appellate Practice. He has ...
en.wikipedia.org/wiki/DavidB.Rivkin
Wikipedia
David B. Rivkin, Jr., (born in 1956 in the former Soviet Union) is an American attorney, political writer, and media commentator on matters of constitutional and ...
Early life and education - Public service - Legal career - Congressional hearings
https://www.fed-soc.org/publications/.../**david**-**b**-**rivkin**-...
Federalist Society
David B. Rivkin Jr. is a member of the firm's litigation, international and environmental groups and he co-chairs the firm's appellate and major motions team.
https://www.weeklystandard.com/.../**david**-**b**.-**rivki**...
The Weekly Standard
Find political news and opinion from David B. Rivkin Jr. at The Weekly Standard, a leading source for conservative editorial insights.
www.defenddemocracy.org/.../d...
Foundation for Defense of Democracies
David B. Rivkin, Jr., is a partner in the Washington office of Baker Hostetler LLP. He is also a Visiting Fellow at the Nixon Center and a Contributing Editor of the ...
davidbrivkin.com/
David B. Rivkin Jr., a partner at Baker Hostetler LLP, is a member of the firm's litigation, international and environmental groups and he co-chairs the firm's ...
https://www.facebook.com/**DavidBRivkinJr**
In The Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey write that later this month, the Supreme Court will weigh in on Obama's power play to stock the ...
===
bs fedsoc bio
David B. Rivkin, Jr.
Partner, Baker & Hostetler LLP, and Co-Chairman, Center for Law and Counterterrorism
David B. Rivkin Jr. is a member of the firm’slitigation, international and environmental groups and he co-chairs the firm’s appellate and major motions team. He has extensive experience in constitutional, administrative and international law litigation.
Mr. Rivkin has been involved in numerous high-profile cases. He has represented the 26 States that have challenged the constitutionality of the Patient Protection and Affordable Care Act and was the lead outside counsel in the District Court and Court of Appeals. He also represented the Republic of Croatia before the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice for a number of years on a wide range of issues involving international humanitarian law and the laws of war.
Mr. Rivkin also has considerable experience with litigation involving national security-related matters, including defending Bivens actions brought against former Secretary of Defense Donald H. Rumsfeld. From 2004 through 2007, he served as an expert member of the United Nations Subcommission on the Promotion and Protection of Human Rights.
Mr. Rivkin has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges to federal agency actions and constitutional challenges to state statutes. He has provided compliance advice to companies, as well as handled enforcement proceedings before government agencies on issues arising out of various multilateral and unilateral sanctions (ITAR, EAR and questions relating to dealings with proscribed countries), Foreign Corrupt Practices Act (FCPA), anti-boycott issues and environmental and energy matters.
He is a recipient of numerous academic and professional awards, including Phi Alpha Theta (1981), U.S. Naval Proceedings Annual Alfred Thayer Mahan Award for the best maritime affairs article (1984) and the Burton Award for legal achievement (2011). He is a prolific writer and commentator and, over the years, has published hundreds of articles, op eds, book reviews and book chapters on a variety of international, legal, constitutional, defense, arms control, foreign policy, environmental and energy issues for various newspapers and magazines, including the Wall Street Journal, Washington Post, New York Times, Washington Times, Los Angeles Times, Foreign Affairs, Foreign Policy, National Interest, National Review, Policy Review, Harvard Journal of Law & Policy, American University Law Review, Administrative Law Journal, University of Pennsylvania Law Review and University of Chicago Journal of International Law. Mr. Rivkin also has been a frequent commentator and guest on TV and radio shows, including CNN, NBC and MSNBC, CBS, ABC, Fox News, NPR, PBS, BBC, Canadian Broadcasting Corporation and numerous Australian, French, German and Swiss TV stations.
From 1993 to December 1999, Mr. Rivkin was a member of the Hunton & Williams law firm. Prior to returning to private practice, Mr. Rivkin served from 1987-1993 in various capacities in the federal government. During 1992-1993, he was Associate Executive Director and General Counsel of the President’s Council on Competitiveness at the White House. While there, he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the Council.
He handled the development and implementation of President George H.W. Bush’s deregulatory initiatives, which entailed review of all existing federal regulatory strictures and the application of a more rigorous cost-effective standard to new regulations. His substantive areas of responsibility included international sanctions, energy, environment and tax issues. He played a leading role in the development of Order 636, which introduced major changes to the regulation of the interstate natural gas pipelines, and simultaneously served as the Special Assistant for Domestic Policy to then Vice President Dan Quayle.
Mr. Rivkin also served as the Associate General Counsel,U.S. Department of Energy (DOE), from 1990-91. At DOE he was responsible for international, constitutional, environmental and energy matters, including global climate change problems, natural gas, hydro and electricity issues, development and implementation of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlands policy and related issues, development of RCRA and Clean Water Act legislative proposals and deregulation of energy markets. Mr. Rivkin played a significant role in developing the Reagan and Bush Administrations’ regulatory and legislative proposals affecting natural gas and electric utility industries.
In addition to his positions with the Council on Competitiveness and the Department of Energy, he served in the office of then Vice President George H.W. Bush as Legal Advisor to the Counsel to the Vice President, in the White House Counsel’s Office and as Deputy Director of the Office of Policy Development (OPD), U.S. Department of Justice. While at OPD, he worked on a wide variety of constitutional, domestic and international issues, including judicial selection, legal policy, immigration and asylum matters and intelligence oversight.
Prior to embarking on a legal career, Mr. Rivkin worked as a defense and foreign policy analyst, focusing on Soviet affairs, arms control, naval strategy and NATO-related issues, and served as a defense consultant to numerous government agencies and Washington think tanks.
[david rivkin dereg pipeline Order 636
In the mid-to-late 1980’s, the natural gas market was deregulated through a series of federal policies, most notably Federal Energy Regulatory Commission (FERC) Order No. 436, the Natural Gas Wellhead Decontrol Act of 1989 (NBGWDA), and FERC Order No. 636 of 1992. Each of these policies was designed to eliminate the regulatory constraints by the federal government on the natural gas market, largely, to help avoid a repeat of the tough economic issues resulting from the 1970’s energy crisis (“The History of Regulation,” 2004). Enron capitalized on the governmental deregulation of the natural gas market by providing consumers with greater access to natural gas via their nationwide pipeline system. Due to deregulation, as supplies increased and the price for natural gas fell by over 50 percent from 1985 to 1991, Enron was able to charge other firms for using their pipelines to transport gas. Likewise, Enron was also able to transport gas through other companies’ pipelines (Culp and Hanke, 2003, p. 8).]
Education
- J.D., Columbia University School of Law, 1985
- M.A., Soviet Affairs, Georgetown University, 1984, with high honors
- B.S.F.S., Georgetown University, 1980
Publications
Debt Ceiling Deadline - Podcast
Federalism & Separation of PowersPractice Group Podcast
October 14, 2013
:{Environmental Law and Regulation:(style="background-color:#ffff66;"):}: - Event Audio/Video
First Annual Executive Branch Review Conference
June 14, 2013
Health Care Decision: NFIB v. Sebelius - Podcast
Federalism & Separation of Powers Practice Group Podcast
June 28, 2012
SCOTUScast 03-30-12 featuring David Rivkin and Ian Millhiser
March 30, 2012
Where Are the Muslim Moderates? - Event Audio/Video
Silenced: Are Global Trends to Ban Religious Defamation, Religious Insult, and Islamophobia a New Challenge to First Amendment Freedoms?
November 4, 2011
The President's Authority in Libya - Podcast
International & National Security Law Practice Group Podcast
April 7, 2011
Terror Trials and Executive Power - Podcast
International & National Security Law Practice Group Podcast
January 28, 2011
Debating the Constitutionality of the Federal Health Care Legislation - Event Audio/Video
2010 National Lawyers Convention
November 18, 2010
January 29, 2010
The War on Terror: Where Are We Now? Where Do We Go from Here? - Event Audio/Video
International & National Security Law Practice Group
January 27, 2010
Detention and Trial of Terrorist Suspects - Event Audio/Video
International & National Security Law Practice Group
May 28, 2009
The War on Terror: Litigation Update - Event Audio
International & National Security Law Practice Group
February 24, 2009
International Law & the Separation of Powers - Event Audio/Video
November 20, 2008
SCOTUScast 6-16-08 featuring David Rivkin
Boumediene v. Bush
June 16, 2008
The War on Terrorism and Specialized Courts - Event Audio/Video
Chicago Lawyers Chapter and International & National Security Law Practice Group
May 12, 2008
:{Climate Change Litigation Since Mass v. EPA:(style="background-color:#ffff66;"):}:
March 20, 2008
State AGs on Global Warming Litigation
January 10, 2008
2007 National Lawyers Convention
November 17, 2007
Analyzing the Decisions of the 2006-07 Supreme Court - Event Video
June 28, 2007
International Law - Coercing Virtue: The Worldwide Rule of Judges - Event Video
A Conference Discussing the Contributions of Judge Robert H. Bork
June 26, 2007
Terrorist Surveillance and the Constitution
May 22, 2007
Presidential Signing Statements
October 10, 2006
Military Commissions Act of 2006: Striking the Right Balance
October 10, 2006
EPA's NSR Enforcement Policy: An Improvident Regulatory Endeavor?
October 6, 2006
Customary International Law, the War on Terror, and the Constitution - Event Audio
May 3, 2006
Five Questions on NSA Surveillance
February 7, 2006
Agency Discretion and Restoring the Reign of Reason to the NSR Program
February 6, 2006
Unlawful Belligerency and its Implications Under International Law
February 15, 2005
Breaking the Compact: Separation of Powers, Deference and Fair Notice in New Source Review
December 1, 2004
International Law and the Use of Force
January 1, 2003
April 17, 2002
The United States and the International Criminal Court: Concerns and Possible Courses of Action
February 8, 2002
Debates
Individual Health Care Insurance Mandate Debate
November 3, 2009
April 24, 2009
Executive Privilege (Continued)
August 17, 2007
===
wiki
David B. Rivkin, Jr., (born in 1956 in the former Soviet Union)[1][2] is an American attorney, political writer, and media commentator on matters of constitutional and international law, as well as foreign and defense policy. Rivkin has gained national recognition as a representative of conservative viewpoints, frequently testifying before Congressional committees, and appearing as an analyst and commentator on a variety of television and radio stations.[3] He is a Visiting Fellow at the Center for the National Interest, and a recipient of the U.S. Naval Proceedings Annual Alfred Thayer Mahan Award for the best maritime affairs article.[4] He currently serves as Co-Chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies,[5] and is a former member of the Sub-Commission on the Promotion and Protection of Human Rights of the United Nations Commission on Human Rights.[6][7]
Rivkin is a former U.S. government official, having served under Presidents Ronald Reagan and George H. W. Bush. In 2010, Rivkin took on his highest-profile case to date when he agreed to represent a multi-state lawsuit—currently consisting of 26 state attorneys general against health care reform legislation signed into law by President Barack Obama in March.[8]
The lawsuit, filed in the Federal Court's Northern District of Florida, argues the legislation is an "illegal expansion of Congress' regulation of interstate commerce and unfairly penalizes uninsured people who refuse to buy into the program".[9] Rivkin is currently involved in two other high-profile cases:
He is representing former Defense Secretary Donald Rumsfeld in a lawsuit by al Qaeda operative José Padilla, who claims he was tortured while in custody; Rivkin is also "helping craft legal strategy for the State of Texas as it fights federal proposals on health care and environmental regulation".[10]
In May 2011, Rivkin was awarded a Burton Award for Legal Achievement for a *Washington Post* article he wrote with Lee A. Casey in February 2010 titled :{"Why the}::{ 'Don't ask, don't tell' }::{policy is doomed"}:.[11]
- 4 Congressional hearings
- 5 Media appearances
- 6 Writing career and publications
- 7 International law and terrorism
- 8 References and notes
- 9 External links
Early life and education
Rivkin was born in the small village of Psov in the former Soviet Union, and lived there during the first decade of his life. In 2004, he stated that he knew what it must have been like to live under the rule of Saddam Hussein in Iraq:
I grew up in the Soviet Union, where the individual's interests were always subordinated to the whims of the state, and where the government was the law. Even so, my parents and grandparents endured much worse. They lived in Stalin's Russia, and they knew real fear—not just occasionally, but every day—fear of the state and its agents. Indeed, many people during that era did not sleep well at night, waiting for the knock at the door, announcing that the security police had come to pick them up and cart them off to the Gulag, or be shot.[2]
After moving to the United States with his family, Rivkin earned a Bachelor of Science degree from the Edmund A. Walsh School of Foreign Service at Georgetown University, and a Master of Arts degree in Soviet Affairs with high honors also from Georgetown University. In 1985, he received a Juris Doctor degree from Columbia Law School.
Public service
Rivkin held a variety of legal and policy positions throughout the administrations of Republican Presidents Ronald Reagan and George H. W. Bush. Rivkin served as Legal Advisor to the Counsel to then President Reagan and as Deputy Director of the Office of Policy Development (OPD) for the United States Department of Justice. While at OPD, he worked on a wide variety of constitutional, domestic, and international issues, including judicial selection, legal policy, immigration and asylum matters, and intelligence oversight.[12][13] He also handled the development and implementation of President Bush's de-regulatory initiatives, carried out from 1991 to 1992,which focused on carrying out a review of existing federal structures in an attempt to make them more cost-effective.[14]
From 1990 to 1991, Rivkin served as the Associate General Counsel of the United States Department of Energy. In this post he was responsible for developing and implementing national and international environmental and energy strategies. He also helped in the passing of the Clean Air Act (1990) and FERC Order 636, known as the Restructuring Rule, designed to allow more efficient use of the interstate natural gas transmission system by fundamentally changing the way pipeline companies conduct business.[13][15] During his term, national energy markets were deregulated.[12] ENRON?
Legal career[edit]
After serving as a legal clerk and associate for several law firms, Rivkin joined Hunton & Williams and was promoted to partner. There his practice concentrated on international public law and litigation before the International Court of Justice and on policy advocacy on a wide range of international and domestic issues, including treaty implementation, multilateral and unilateral sanctions, corporate law, environmental policy, and energy issues. Rivkin left the firm in December 1999 to join Baker Hostetler, where he is a partner in the Washington, D.C. office. Rivkin represented foreign governments and corporate entities on legal, political, economic, military, and public relations matters and has worked on bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities.[14] Rivkin is also a member of the District of Columbia Bar and the Council on Foreign Relations.[16]
Florida et al v. United States Department of Health and Human Services[edit]
Main article: Florida et al v. United States Department of Health and Human Services
Rivkin became lead outside counsel in the lawsuit filed by multiple state attorneys general seeking to nullify the Patient Protection and Affordable Care Act. The lawsuit was filed on March 23, 2010, hours after the law was signed by President Barack Obama, in United States District Court for the Northern District of Florida in Pensacola. In a Wall Street journal article, Rivkin called the law "in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones".[17]
On January 31, 2011, :{Federal Judge Roger}::{ Vinson}: ruled in favor of the 26 state plaintiffs in the case and found the individual mandate unconstitutional. But, unlike the December ruling from a federal judge in Virginia, Vinson ruled that because there was no severability clause in the original legislation, the entire law must be declared void; “The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker”, he wrote in the decision.[18]
Rivkin immediately told media that the ruling meant the 26 states challenging the law must halt implementation of pieces that apply to the state plaintiffs and certain small businesses, since the National Federation of Independent Businesses was also involved in the suit; but the federal government said it would continue to implement the law and appeal the case.[19]
Following this success, Rivkin's representation sent out a press release claiming to be the victim of a denial of service "cyberattack".[20]
Congressional hearings[edit]
Rivkin has testified numerous times in front of the U.S. Congress on such matters as the judicial nomination of Justice Sotomayor,[21][22] the consequences of prolonged detention at Guantánamo Bay.[23] and the clemency controversy surrounding :{Lewis ("}::{Scooter") Libby}:'s 2007 conviction on obstruction justice.
Media appearances[edit]
He appears as a guest analyst on TV and radio programs, including CNN, MSNBC, NBC, ABC, CBS, FOX News, NPR, PBS, :{The Laura }::{Ingraham}::{ Show}:, Al Jazeera, the BBC, and others.[12][24]
Writing career and publications[edit]
David Rivkin has authored or co-authored more than 360 papers, articles, op-eds, book reviews, and book chapters on issues such as international relations, legal matters, constitutional debates, national defense, foreign policy, and environmental and energy policy. During the late 1980s, he addressed the Iran-Contra Affair.[25] After the election of Bill Clinton, Rivkin wrote concerning healthcare reform and the Constitution.[26]
Media and periodicals that have published Rivkin's works include the Wall Street Journal, the National Review, the Washington Post, the New York Times, the Washington Times, the Heritage Foundation, and the Harvard Journal of Law and Public Policy.[27]
During the War on Terrorism, which began after September 11, 2001, Rivkin wrote articles on the international law of armed conflict with which the issues of jus ad bellum, also known as the accepted laws of war for which the Geneva Convention are often associated.[12] Other recent topics include the use of military commissions,[28] presidential powers during war time,[29] civil litigation for Guantánamo Bay detainees,[30] and global warming.[31]
Rivkin and his frequent coauthor, Lee Casey, questioned the constitutionality of government-run healthcare. First raising the issue of privacy,[32] Rivkin went on to question the constitutionality of Congressional legislation requiring all U.S. citizens to purchase health insurance.[33][34] In December 2009, Rivkin and Casey raised the issues of federal aggrandizement and judicial aggrandizement as dangers to the vertical separation of powers in the U.S. Constitution, and suggested a limited constitutional convention to limit the incursion of federal and judicial powers into the powers of the states.[35]
In a May 12, 2011 editorial in the Wall Street Journal, Rivkin addressed the runaway national debt problem by calling on Congress to reclaim its responsibility for issuing new U.S. debt: "Congress should promptly increase the debt ceiling, but with one key caveat: The increase can be used only for borrowing to service existing obligations".[36]
International law and terrorism[edit]
Rivkin has spoken out frequently against Attorney General Eric Holder and the Justice Department's handling of terrorist suspects such as José Padilla ("the dirty bomber"), arguing that "trying them in federal civilian court is a mistake on many levels" and that "if the 'law of war' architecture is undermined here, U.S. forces and civilian officials will be exposed to criminal liability for their use of force [in other countries]".[37]
In March 2011, Rivkin wrote in several editorials that, according to the U.S. Constitution, President Barack Obama did not need approval from Congress to launch attacks in Libya, writing that these "essentially punitive operations now underway against Muammar Gaddafi would not have required a declaration of war at the time the Constitution was adopted, and do not require such action today".[38]
References and notes
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LI
Summary
David B. Rivkin, Jr., is a partner in the Washington office of Baker Hostetler LLP, Co-Chairmen of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies, a Visiting Fellow at the Nixon Center, and a Contributing Editor of the National Review magazine. David Rivkin specializes in regulatory – e.g., energy and environmental matters -- and appellate litigation work, with a particular emphasis on complex constitutional and public policy issues. Mr. Rivkin served in a variety of legal and policy positions in the Reagan and George H. W. Bush Administrations, including stints at the White House Counsel's office, Office of the Vice President and the Departments of Justice and Energy. Prior to embarking on a legal career, David Rivkin served during the 1970s and 1980s as a defense and foreign policy analyst, focusing on Soviet affairs, arms control, naval strategy and NATO-related issues. David Rivkin holds a JD degree from Columbia University Law School, a Masters degree in Soviet Affairs from Georgetown University, and a Bachelors of Science degree from the Georgetown University’s School of Foreign Service.
David Rivkin is a prolific writer and commentator and has published numerous papers, articles, op eds, book reviews, and book chapters on a variety of international, legal, constitutional, defense, foreign policy, environmental and energy issues for various media including the Wall Street Journal, Washington Post, New York Times, Washington Times, Los Angeles Times, Foreign Affairs, Foreign Policy, National Interest, National Review, Policy Review, Harvard Journal of Law & Policy, American University Law Review, Administrative Law Journal, University of Pennsylvania Law Review, and University of Chicago Journal of International Law. David Rivkin has been a frequent guest on TV and radio shows, including CNN, NBC and MSNBC, CBS, ABC/Nightline, FOX News, NPR, PBS, BBC, Canadian Broadcasting Corporation, and numerous other stations.
Specialties:litigation; international and environmental groups; constitutional issues that are frequently implicated by federal regulatory statutes, including commerce clause- and due process-related issues, as well as First and Tenth amendment-related matters.
Experience
Partner
Baker Hostetler
December 1999 – Present (15 years 8 months)Washington D.C. Metro Area
Has extensive experience in international arbitration and policy advocacy on a wide range of international and domestic issues, including treaty implementation, multilateral and unilateral sanctions, corporate law, environmental and energy matters (with an emphasis on policy, regulatory and enforcement issues). Mr. Rivkin represents foreign governments and corporate entities on a broad range of legal, political, economic, military and public relations matters and has worked on bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities. He is also particularly knowledgeable about, and has been involved in, the handling of complex and contentious matters for clients that require the combination of lobbying, litigation and public relations and implicate difficult public policy issues.
Has particularly strong expertise in regulatory matters covered by the Clean Air Act Amendments of 1990 and the Energy Policy Act of 1992, having been intimately involved in the drafting of the legislative proposals which led to the enactment of those two statutes, in all of the legislative work involved, and in the development and drafting of the implementing regulations.
Partner
Hunton & Williams LLP
March 1993 – December 1999(6 years 10 months)
Practice focused on international public law and litigation before the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia, international arbitration and policy advocacy on a wide range of international and domestic issues, including treaty implementation, multilateral and unilateral sanctions, corporate law, environment and energy (with an emphasis on policy, regulatory and enforcement issues). Has been representing foreign governments and corporate entities on a broad range of political, economic, military and public relations matters and has worked on bilateral and multilateral foreign policy issues with Congress and various Executive Branch entities. Over the last several years, has been keenly involved in legislative and regulatory efforts to restructure the electric utility and natural gas industries. Has been involved in several overseas power plant construction projects, focusing particularly on project finance and tax-related components of the transactions.
Special Assistant to the Vice President and Associate Executive Director
Council on Competitiveness
January 1992 – January 1993 (1 year 1 month)
Substantive areas of responsibility included energy, environment, agricultural issues and tax matters. Responsible for the review and analysis of various legal issues that bore upon the regulatory review conducted by the Council, including dealing with congressional requests for Council documents and information. Responsible for the development and implementation of the President’s deregulatory initiatives. Worked closely with the general counsels and policy heads of all regulatory agencies and departments. Reviewed all of the major regulations developed by these agencies to ensure that they properly balanced environmental, energy and economic imperatives and achieved their objectives in the most cost-effective manner. Played a leading role in the development of the Clean Air Act, Clean Water Act, wetlands, Endangered Species Act and Resource Conservation Recovery Act regulations. Had a major role in the advancement of the Administration’s energy policy, including working with Congress to secure the passage of the National Energy Strategy was instrumental in several key natural gas and electricity rulemakings and in the formulation of the Administration’s policy on alternative fuels.
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