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.
— Ian Tuttle is a William F. Buckley Jr. Fellow at the National Review Institute.