The Lawyers Behind the Lawsuit against Obama

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NATIONAL REVIEW:

 

 

 

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.”

 

 

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.”