Free Republic

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor. Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only...

This Tuesday the Supreme Court will hear arguments in two cases that should interest every U.S. company doing business overseas, and especially those operating in the developing world. Kiobel v. Royal Dutch Petroleum Co. and Mohamed v. Palestinian Authority raise the issue of whether corporations can be sued for violations of international law under U.S. statutes, including the Alien Tort Statute. The ATS was adopted in 1789 by the first U.S. Congress. The statute permits suits by aliens in federal courts for certain alleged international-law violations, but it was moribund for nearly 200 years and its purpose remains opaque. The...

“Organized labor” brings to mind railroads, factories, and government offices, but the labor movement’s biggest recent gains have been in the home. Led by SEIU, unions and their political allies have pushed through executive orders and legislation in a dozen states to “organize” home-care workers, such as personal assistants and sitters, by deeming them state employees for collective-bargaining purposes alone. California was the trailblazer in this campaign, with SEIU first trying to convince the state courts to designate Los Angeles County home-care workers as county employees. Having lost the battle in the courtroom, SEIU commenced lobbying the California legislature to...

Tuesday at AEI, four distinguished lawyers aggressively debated the constitutionality of the president’s recent "recess" appointments during the Senate's 2011-2012 pro forma sessions. First, Morton Rosenberg asserted that the president was explicitly violating the Constitution by making recess appointments when the Senate was in pro forma sessions, thereby avoiding recess by its own constitutional authority to develop its own rules. Douglas Kmiec countered that the Senate's creation of pro forma sessions simply to inhibit the executive branch violated the honest interface that the framers intended between the branches of government. David Rivkin Jr. concurred with Rosenberg's conclusion about the unconstitutionality...

Last Friday, the White House announced that it would revise the controversial ObamaCare birth-control mandate to address religious-liberty concerns. Its proposed modifications are a farce. The Department of Health and Human Services would still require employers with religious objections to select an insurance company to provide contraceptives and drugs that induce abortions to its employees. The employers would pay for the drugs through higher premiums. For those employers that self-insure, like the Archdiocese of Washington, the farce is even more blatant. The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates...

The 2012 election year has just begun, and already controversies have swirled around a number of President Obama’s actions. Constitutional issues are at the forefront as the president seeks to improve his chances of reelection by delivering on his promises. But is the president violating the Constitution as he tries to implement his program of transformation? Constitutional attorney David Rivkin believes he is. The American Enterprise Institute (AEI) in Washington D.C. will be facilitating a discussion on one of the recent controversies, President Obama’s “recess appointments.” On January 4, 2012, President Obama made the following appointments: Richard Cordray as Director...

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 Padilla against 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...

David Rivkin, the lawyer who designed and argued the successful multi-state challenge to ObamaCare, is turning his guns on the latest and possibly the most egregious unconstitutional power grab by the Obama administration. Watch Rivkin in action on Lou Dobbs. David Rivkin will be interviewed on Lou Dobbs Tonight on the Fox Business Network Friday, January 13 (7 to 8 p.m. EST) regarding a recent article he co-authored for The Washington Post about President Barack Obama’s claims that he can preempt state law whenever immigration policy “might irritate a foreign government.

Constitutional defender and appellate attorney David Rivkin debates Vincent Warren of the Center for Constitutional Rights on the tenth anniversary of Guantanamo, how the U.S. treats its terror suspects, the U.S. Justice paradigm, and current legislation. "For the first time Congress has explicitly put its stamp of approval on what here to for has been done either based upon indirect congressional support and authorization to use military force, executive branch practices and judicial decisions." - David Rivkin on not seeing the legislation as "new."

Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab. It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point. The president has done his new appointees and the public...

The Obama administration has taken federal-state relations to a new low in its quest for an unprecedented expansion of presidential power. In response to Arizona’s efforts to identify and arrest undocumented immigrants, the president claims that he can preempt state law whenever its enforcement might irritate a foreign government. This unconstitutional power grab cannot stand. While the challenge by 26 states to the 2010 Affordable Care Act seeks limits on Congress’s powers, the Arizona law defends the fundamental authority of states to act in contravention of the president’s preferences. There is genuine controversy over the Arizona immigration policy of penalizing...

“This is classic Sherlock Holmes ‘the-dog-didn’t-bark’ evidence” of cooperation between the progressive groups and the administration, Rivkin said. The groups “are always bitching about [legal] impunity, and how impunity encourages aberrant behavior and weakens deterrence,” he said. “So where is their outrage? Why are they not criticizing a war criminal going free?” If U.S. troops had committed war crimes and were let go, Rivkin told TheDC, “wouldn’t every newspaper in the country be horrified and slamming the administration? How is it better to let an enemy war criminal go [free] to be hailed and praised?”

David Rivkin joins Frank Gaffney on Secure Freedom Radio to talk about Ali Musa Daqduq, a Hezbollah fighter that was dispatched to Iraq on behalf of the Iranian government and in 2007 he kidnapped, brutality tortured and killed five American soldiers. U.S. forces have since apprehended him and the Obama Administration is ready to hand him over to the Iraqi government who will undoubtedly give him to the Iranians where he will be hailed a hero. At first, Obama wanted to bring him to America and try him in a civilian court and when Congress denied that request, the president...

World-class attorney David Rivkin speaks about the legal issues surrounding the Iraq and Afghanistan wars at a debate held by the Center for Study of Responsive Law in Washington, D.C. Introduced by Ralph Nader. Link to YouTube video: http://youtu.be/sqkHOcqiKAg

Call it the triumph of ideology over national interest and honor. Having dithered for nearly three years, the Obama administration has only a few weeks to bring to justice a Hezbollah terrorist who slaughtered five U.S. soldiers in Iraq in 2007. Unfortunately, it appears more likely that Ali Musa Daqduq will instead be transferred to Iran, to a hero's welcome. In the early evening of Jan. 20, 2007, in the city of Karbala, south of Baghdad, five black SUVs approached the location of a regular meeting between U.S. and Iraqi military officers. Inside the vehicles, which mimicked U.S. transports (to...

Call it the triumph of ideology over national interest and honor. Having dithered for nearly three years, the Obama administration has only a few weeks to bring to justice a Hezbollah terrorist who slaughtered five U.S. soldiers in Iraq in 2007. Unfortunately, it appears more likely that Ali Musa Daqduq will instead be transferred to Iran, to a hero's welcome. In the early evening of Jan. 20, 2007, in the city of Karbala, south of Baghdad, five black SUVs approached the location of a regular meeting between U.S. and Iraqi military officers. Inside the vehicles, which mimicked U.S. transports (to...

They are not what democracy looks like and are looking less and less like a serious protest movement. Nevertheless, much can be learned from the Occupy Wall Street crowd's protracted seizure of New York's private Zuccotti Park, similar unlawful tactics around the country and the much delayed official response. The most important lesson is that when government fails to do its duty in a timely manner, ordinary citizens must consider using existing laws to protect themselves from unruly Occupiers. The park protesters have been camping out in the urban environment, unsuitable for such activities. They have created sanitary problems and...

Video link from Ralph Nader and the Center for Study of Responsive Law’s “Debating Taboos” series on Friday, November 18 with “Bush/Obama: War Crimes or Lawful Wars?” The debate format consists of two moderators and four debaters. Arguing against the proposition that Bush and Obama engaged in war crimes are attorneys David Rivkin and Lee Casey. Rivkin served in the Department of Justice under Presidents Ronald Reagan and George H.W. Bush, and is renowned for articulate commentary on the U.S. Constitution and presidential war powers. Casey, Rivkin’s frequent collaborator, also served in the DOJ under Reagan and H.W. Bush, and...

Under our Constitution's system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of "general police power." Federal legislation must be grounded in one of the "enumerated" powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.

Ralph Nader and the Center for Study of Responsive Law’s “Debating Taboos” series continues Friday, November 18 with “Bush/Obama: War Crimes or Lawful Wars?” The debate format consists of two moderators and four debaters. Arguing against the proposition that Bush and Obama engaged in war crimes are attorneys David Rivkin and Lee Casey. Rivkin served in the Department of Justice under Presidents Ronald Reagan and George H.W. Bush, and is renowned for articulate commentary on the U.S. Constitution and presidential war powers. Casey, Rivkin’s frequent collaborator, also served in the DOJ under Reagan and H.W. Bush, and currently specializes in...