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The Lawyers Behind the Lawsuit against Obama
The National Review ^ | July 5, 2014 | Ian Tuttle

Posted on 07/05/2014 2:10:40 PM PDT by 2ndDivisionVet

For 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.”

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?” Moreover, “impeachment is overkill for this particular transgression,” she says. “All Congress wants is for the president to faithfully execute the law. This does not mean that they think he should be kicked out of office.” The second option, cutting funds, “creates major distortions in political accountability, which is the genesis, the heart, of the notion of the separation of powers.” Congress, says Foley, should not be blamed for the president’s misdeeds — but that is just what will happen if the House has no recourse but to penalize innocent organizations as a means of punishing the president. Political self-help is important, Foley observes, “but only when proportionate and related to the transgression.”

If the House can establish standing by fulfilling these four criteria — the establishment of injury-in-fact, as required by the Constitution, and the three “plus” factors — they will have the opportunity to make their case to the courts that the president has flouted his constitutional mandate. While they believe there are a number of transgressions to choose from, Foley and Rivkin plan to present only the strongest infraction in court. They are mum about which one that might be. There is a mindset in both Washington and legal academia that this case is doomed because of the question of standing. The answer, Foley and Rivkin counter, is “creativity” — and their auspicious pairing. “David has been around D.C. a long time; he’s an old-school neocon, very Article II,” Foley says, referring to the portion of the U.S. Constitution that addresses the executive branch. “I’m more libertarian, more focused on individual rights. It’s important to have those differences.”

The pair is adamant that this is not their lawsuit: “It’s the House of Representatives’ lawsuit.” But they are equally adamant about the stakes: “The president is taking actions that are directly contrary to congressional instructions,” Foley says. “The constitution is clear: He has a duty to faithfully execute the laws. Congress needs to preserve its lawmaking prerogative.”

“It is incredible brazenness,” Rivkin adds. “And he continues in part because he’s gotten away with it.”

With any luck, Foley and Rivkin hope, not for long.


TOPICS: Issues; Parties; U.S. Congress
KEYWORDS: boehner; lping; obama; scotus

1 posted on 07/05/2014 2:10:40 PM PDT by 2ndDivisionVet
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To: 2ndDivisionVet

Yet another EXEMPT Judas 'Prince':
"Do not worry. We have your back, our beloved King."

2 posted on 07/05/2014 2:13:38 PM PDT by Diogenesis
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To: Diogenesis

That picture makes me ill.


3 posted on 07/05/2014 2:20:21 PM PDT by FreeAtlanta (Liberty or Big Government - you can't have both.)
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To: Diogenesis

From the looks of that picture, Mr. Bonner has become a “Rump Ranger”. That answers a lot of questions that have accumulated
about him.


4 posted on 07/05/2014 2:24:47 PM PDT by capt. norm
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To: FreeAtlanta

Me, too.


5 posted on 07/05/2014 2:26:00 PM PDT by Bluebird Singing
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To: 2ndDivisionVet

In short; Stay Tuned, but don’t hold your breath while doing so.


6 posted on 07/05/2014 2:28:00 PM PDT by lee martell
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To: 2ndDivisionVet

This idea of with holding fund from the president will cause severe dislocation of this country is a bogus argument. When the congress with held funds from Nixon during the Viet Nam War, this country didn’t all of a sudden collapse. All congress has to do is with hold the funds from OBAMA every time he makes a “PRESIDENTIAL DECREE”. Which alphabet government agency will he use to enforce his decree? With hold funds from that agency. They can also decide where the money should be spent, and where it cannot be spent. That would be more meaning full than taking this administration to court. By the time it goes through the courts, his term will be over.


7 posted on 07/05/2014 2:28:29 PM PDT by gingerbread
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To: All
Here's what happens when Repubs stupidly consort w/ the Prince.

34 points ahead in the polls----dumped by the voters.
Ex-majority Leader Eric Cantor and friend.

A REFRESHER COURSE IN LOSING Cantor in 2013: "One of the great founding principles of our country was that children would not be punished for the mistakes of their parents. It is time to provide an opportunity for legal residence and citizenship for those who were brought to this country as children and who know no other home."

B/c no one believed that Constitutional fable, Cantor doubled down---he later offered a new explanation for why he supports granting amnesty to individuals brought into the country illegally as minors. It's “Biblical,” he said in a local radio interview.

That "revelation" offed the sucker but good. So much for Cantor's gulling the voters---endorsing a measure intended to dismantle US ntl security.

=================================================

Cantor stupidly believed the rest of us just fell of turnip truck---that we know nothing about the Dream Act except what he makes up.

THE FACTS ARE THESE---The Senate amnesty bill is dangerously flawed, and its glaring omissions WRT protecting US ntl security, cannot ever serve as the basis for useful legislation.

By legalizing illegal aliens w/out shoring up law enforcement, we hand an engraved invitation to global Third Worlders----all of 'em salivating to ride the US gravy train.....each separatist group conniving to achieve its hidden agenda.

Amnesty recklessly opens the door wide for illiterate, low-skilled aliens, born and bred in savage cultures, here to suck up US benefits and take jobs away from Americans.

Third Worlders may, in fact, contribute their labor to the US, but their loyalties are elsewhere----they have no intention of becoming Americanized....of participating as equals in American culture, revering our vast history, or preserving American values.

The Senate amnesty bill is a blueprint----it amply demonstrates that illegal separatist populations intend to usurp the US political system to advance their own hidden agenda.

================================================

The Senate "Amnesty" bill includes two “slush funds” amounting to $150 MILLION annually, replenish-able with eternal tax dollars for years to come....... earmarked for groups like the blood-thirsty La Raza.

8 posted on 07/05/2014 2:51:55 PM PDT by Liz (Another Clinton administration? Are you nuts?)
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To: 2ndDivisionVet

They will lose. Congress had the process defined for them in the constitution. Impeachment.


9 posted on 07/05/2014 3:01:26 PM PDT by Bryan24 (When in doubt, move to the right..........)
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To: FreeAtlanta
That picture makes me ill

Which is exactly why the White House circulated it. Your reaction delights the other side.

10 posted on 07/05/2014 3:04:26 PM PDT by Steely Tom (How do you feel about robbing Peter's robot?)
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To: 2ndDivisionVet
What makes me sick is the GOP understand the game, but either have no clue how to play it or no will to win.

Conservatives have to get away from these losers!

11 posted on 07/05/2014 3:04:37 PM PDT by sirchtruth (Freedom is not free.)
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To: 2ndDivisionVet; All
Thank you for referencing that article 2ndDivisionVet. Please bear in mind that the following critique is directed at the article and not at you.

"... and as violations of the constitutionally prescribed separation of powers."

Beware! There are actually two sides to the separation of powers coin. While constitutionally ignorant voters are always being reminded about the separation of powers of the legislative, executive and judicial branches of the unconstitutionally big federal government, the second side of the separate powers coin, state powers, is rarely acknowledged imo.

More specifically, voters are essentially left in the dark about the Constitution's division of federal and state government powers. State powers evidenced by Congress's constitutional Article I, Section 8-limited powers, the unique power of the states to ratify proposed amendments to the Constitution as evidenced by Article V, and the 10th Amendment's clarification that the Constitution's silence about a given issue automatically makes the issue uniquely an intrastate issue.

In fact, because of Congress's Section 8-limited powers, the states, not the corrupt feds, actually have the lion's share government power to serve the people. In other words, citizens should be working with their state, not federal lawmakers, to find legislative remedies to their problems.

As a side note concerning the federal government's constitutionally limited powers, consider that the states would really be a dull, boring place to grow up and live in if parents were to make sure that their children were taught about the federal government's constitutionally limited powers. /sarc

12 posted on 07/05/2014 3:11:21 PM PDT by Amendment10
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To: Diogenesis

Guess both of them Irish descent? Whatever


13 posted on 07/05/2014 3:15:04 PM PDT by lavaroise (A well regulated gun being necessary to the state, the rights of the militia shall not be infringed)
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To: 2ndDivisionVet
“It is incredible brazenness,” Rivkin adds. “And he continues in part because he’s gotten away with it.”

This is exactly what people said about Hitler in the 1930's.

14 posted on 07/05/2014 3:21:05 PM PDT by T Ruth (Islam shall be defeated.)
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To: 2ndDivisionVet

I don’t know if this has a chance or not, but in the chance it is, I would hope everyone on FR would get behind the House and give them our strongest support. Don’t dismiss it or put the plaintiff’s down, but get behind them and push.


15 posted on 07/05/2014 3:38:38 PM PDT by elpadre (AfganistaMr Obama said the goal was to "disrupt, dismantle and defeat al-hereQaeda" and its allies.)
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To: Diogenesis

Boehner is obviously drunk.


16 posted on 07/05/2014 3:59:48 PM PDT by odawg
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To: elpadre

Why doesn’t the house go after him in lawsuit for aiding and abedding illegal immigrants; no background checks (safety issues for Americans) and health issues. Go after Pelosi for encouraging and welcoming the illegals at the border.

And why isn’t the Border Patrol Unions standing up to this crap? If it was a pay raise issue in their contract, they would strike, but being exposed to diseases, not allowed to do their job (security, background checks, etc)...No strike.


17 posted on 07/05/2014 4:09:21 PM PDT by Engedi
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To: elpadre
Congress has plenty of authority to deal with this rogue president. I'm not comfortable with the possibility that Scotus might relieve congress of even more of its duties.
18 posted on 07/05/2014 4:20:33 PM PDT by Jacquerie (Article V)
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To: Steely Tom

Boehner, the other GOP establishment and more hard core left’s side?

I don’t care. They are doing conservatives a favor by circulating it. It will help us rise and throw off our chains.


19 posted on 07/05/2014 4:34:45 PM PDT by FreeAtlanta (Liberty or Big Government - you can't have both.)
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To: 2ndDivisionVet

1) Ant guesses on the strongest infraction??
2) What are the Cons in losing the case??


20 posted on 07/05/2014 5:24:31 PM PDT by Steven Tyler
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To: gingerbread

Obama frames his decrees as “benevolent transgressions of Law”

The MSM provides an immense assist.

Congress cannot defund Santa Claus. The Political consequence is obvious. You end up handing everything to 0bama


21 posted on 07/05/2014 5:28:49 PM PDT by Steven Tyler
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To: 2ndDivisionVet
It doesn't matter whether a transgression is "benevolent" or not. I can't get away with robbing a bank by giving the money to the Red Cross.

Any transgression is a violation of the President's constitutional duty to enforce the laws as written, not as he wishes they were written.

22 posted on 07/05/2014 6:35:56 PM PDT by JoeFromSidney (Book: Resistance to Tyranny. Buy from Amazon.)
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To: odawg

In vino veritas.


23 posted on 07/05/2014 11:48:09 PM PDT by chulaivn66 (Semper Fidelis)
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