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The Lawyers Who Would (Sue Obama, That Is)

The House´s lawsuit against Obama has brought together two unlikely legal allies, a neocon lawyer and a libertarian lawyer, who may appear an unlikely duo to take on the most powerful man in the United States.

Foley, a professor of constitutional law at Florida International University College of Law and Rivkin, lead outside counsel of Florida et al. v. United States Department of Health and Human Services, one of three Obamacare challenges that ended up before the Supreme Court in 2012, are leading the legal charge against Obama 

 They are the architects of the House of Representatives’ likely lawsuit against President Obama, which would challenge the president’s selective suspension of various laws as violations of his constitutional duty to faithfully execute the laws, and as violations of the constitutionally prescribed separation of powers.

“It began,” Foley tells National Review Online, “with utter fascination,” a reaction that should be universal, Foley adds, among constitutional lawyers observing the current executive.

Foley and Rivkin have a list of questionable executive actions, going back to the president’s first term, that range from little-reported executive orders to U.S. Immigration and Customs Enforcement (ICE) to controversial, large-scale actions, such as the multiple suspensions of Obamacare provisions and the unilateral implementation of the DREAM Act.

“Over a period of time, the president has taken increasingly bold actions that defy the congressional actions that preceded them,” Foley says. “With every step, he gets more aggressive.” Foley and Rivkin corresponded frequently and pondered various legal possibilities — “but we kept coming back to the problem of standing.”

The pair first outlined a potential solution in a January 15 Politico article, “Can Obama’s Legal End-Run Around Congress Be Stopped?” That article spurred an invitation to testify before the House Judiciary Committee, which had been searching for an answer to the same question.

In December 2013, the committee had heard testimony from four legal experts on “the constitutional concerns raised by recent non-enforcement policies and the President’s duty to faithfully execute the law of the United States,” as Jonathan Turley, a George Washington University law professor (and self-avowed liberal), put it in his testimony. Foley appeared before the committee in late February 2014 and elaborated on the points she and Rivkin had first outlined in Politico.

“I knew the committee was looking for information about standing, so I saw it as an opportunity to give Congress and that committee a roadmap” to addressing executive overreach. Her testimony occasioned several conversations with House Judiciary Committee staff members, which rapidly led to meetings with House leadership and the consolidation of a legal strategy that has, in their view “a likelihood of success.”

The strategy depends on successfully establishing that the House of Representatives has “standing” to sue the president. Only one criterion is provided by the Constitution: identification of an injury-in-fact, in this case the apparent nullification of Congress’s institutional power. Showing this, Foley and Rivkin say, is the easy part. But they suggest that the courts have identified three additional factors that, if met, would strengthen the claim that the House has standing. They are not constitutionally necessary, but they are “‘plus’ factors that will take the lawsuit over the finish line in terms of standing,” Foley notes.

“The idea,” Rivkin tells me, “is to create the perfect combination of all relevant factors to create the perfectly configured legislative-standing case.”

The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.

Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.

The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?”
Supreme Court in 2012, are doing something. They are the architects of the House of Representatives’ likely lawsuit against President Obama, which would challenge the president’s selective suspension of various laws as violations of his constitutional duty to faithfully execute the laws, and as violations of the constitutionally prescribed separation of powers.

“It began,” Foley tells National Review Online, “with utter fascination,” a reaction that should be universal, Foley adds, among constitutional lawyers observing the current executive. Foley and Rivkin have a list of questionable executive actions, going back to the president’s first term, that range from little-reported executive orders to U.S. Immigration and Customs Enforcement (ICE) to controversial, large-scale actions, such as the multiple suspensions of Obamacare provisions and the unilateral implementation of the DREAM Act. “Over a period of time, the president has taken increasingly bold actions that defy the congressional actions that preceded them,” Foley says. “With every step, he gets more aggressive.” Foley and Rivkin corresponded frequently and pondered various legal possibilities — “but we kept coming back to the problem of standing.”

AdvertisementThe pair first outlined a potential solution in a January 15 Politico article, “Can Obama’s Legal End-Run Around Congress Be Stopped?” That article spurred an invitation to testify before the House Judiciary Committee, which had been searching for an answer to the same question. In December 2013, the committee had heard testimony from four legal experts on “the constitutional concerns raised by recent non-enforcement policies and the President’s duty to faithfully execute the law of the United States,” as Jonathan Turley, a George Washington University law professor (and self-avowed liberal), put it in his testimony. Foley appeared before the committee in late February 2014 and elaborated on the points she and Rivkin had first outlined in Politico. “I knew the committee was looking for information about standing, so I saw it as an opportunity to give Congress and that committee a roadmap” to addressing executive overreach. Her testimony occasioned several conversations with House Judiciary Committee staff members, which rapidly led to meetings with House leadership and the consolidation of a legal strategy that has, in their view “a likelihood of success.”

The strategy depends on successfully establishing that the House of Representatives has “standing” to sue the president. Only one criterion is provided by the Constitution: identification of an injury-in-fact, in this case the apparent nullification of Congress’s institutional power. Showing this, Foley and Rivkin say, is the easy part. But they suggest that the courts have identified three additional factors that, if met, would strengthen the claim that the House has standing. They are not constitutionally necessary, but they are “‘plus’ factors that will take the lawsuit over the finish line in terms of standing,” Foley notes.

“The idea,” Rivkin tells me, “is to create the perfect combination of all relevant factors to create the perfectly configured legislative-standing case.”

The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.

Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.

The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?”
some time now, Elizabeth Foley and David Rivkin have had two questions about the 44th president: “How is he getting away with this? And why isn’t someone doing something about this?” Foley, a professor of constitutional law at Florida International University College of Law, and Rivkin, lead outside counsel of Florida et al. v. United States Department of Health and Human Services, one of three Obamacare challenges that ended up before the Supreme Court in 2012, are doing something. They are the architects of the House of Representatives’ likely lawsuit against President Obama, which would challenge the president’s selective suspension of various laws as violations of his constitutional duty to faithfully execute the laws, and as violations of the constitutionally prescribed separation of powers.

“It began,” Foley tells National Review Online, “with utter fascination,” a reaction that should be universal, Foley adds, among constitutional lawyers observing the current executive. Foley and Rivkin have a list of questionable executive actions, going back to the president’s first term, that range from little-reported executive orders to U.S. Immigration and Customs Enforcement (ICE) to controversial, large-scale actions, such as the multiple suspensions of Obamacare provisions and the unilateral implementation of the DREAM Act. “Over a period of time, the president has taken increasingly bold actions that defy the congressional actions that preceded them,” Foley says. “With every step, he gets more aggressive.” Foley and Rivkin corresponded frequently and pondered various legal possibilities — “but we kept coming back to the problem of standing.”

AdvertisementThe pair first outlined a potential solution in a January 15 Politico article, “Can Obama’s Legal End-Run Around Congress Be Stopped?” That article spurred an invitation to testify before the House Judiciary Committee, which had been searching for an answer to the same question. In December 2013, the committee had heard testimony from four legal experts on “the constitutional concerns raised by recent non-enforcement policies and the President’s duty to faithfully execute the law of the United States,” as Jonathan Turley, a George Washington University law professor (and self-avowed liberal), put it in his testimony. Foley appeared before the committee in late February 2014 and elaborated on the points she and Rivkin had first outlined in Politico. “I knew the committee was looking for information about standing, so I saw it as an opportunity to give Congress and that committee a roadmap” to addressing executive overreach. Her testimony occasioned several conversations with House Judiciary Committee staff members, which rapidly led to meetings with House leadership and the consolidation of a legal strategy that has, in their view “a likelihood of success.”

The strategy depends on successfully establishing that the House of Representatives has “standing” to sue the president. Only one criterion is provided by the Constitution: identification of an injury-in-fact, in this case the apparent nullification of Congress’s institutional power. Showing this, Foley and Rivkin say, is the easy part. But they suggest that the courts have identified three additional factors that, if met, would strengthen the claim that the House has standing. They are not constitutionally necessary, but they are “‘plus’ factors that will take the lawsuit over the finish line in terms of standing,” Foley notes.

“The idea,” Rivkin tells me, “is to create the perfect combination of all relevant factors to create the perfectly configured legislative-standing case.”

The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.

Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.

The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?”

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