Federal courts need to stop Obama from flouting the Constitution

By David B. Rivkin Jr. and Elizabeth Price Foley, July 25 at 7:34 PM

The Constitution states that it’s Congress’s job to make the laws and the president’s to faithfully execute them. It does not permit a president to suspend a law or grant special dispensations from its requirements. But President Obama has done just these things on numerous occasions, and only the federal courts can preserve the constitutionally mandated separation of powers by definitively rebuffing his illegal actions.

Separation-of-powers lawsuits are generally straightforward: A private party, injured by some unconstitutional government action, sues for relief. Last month, the Supreme Court decided Noel Canning v. NLRB, a suit brought by a bottling company adversely affected by a National Labor Relations Board decision. The court unanimously concluded that the president’s appointments to the board, which had been made without Senate confirmation, violated the Constitution.

When a president suspends a law, however, private parties often lack “standing” to sue, because the act of not enforcing a statute doesn’t injure them in any individualized way. But such suspensions undoubtedly injure Congress as an institution. By arrogating to himself a power to rewrite laws, a president violates his duty of faithful execution and infringes on Congress’s lawmaking prerogatives. A suspension nullifies the law suspended and diminishes Congress’s power.

Such acts trigger a genuine constitutional crisis and undermine our democracy. Federal courts are well equipped to resolve such crises, as Alexander Hamilton explained in Federalist No. 78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

This week, the House Rules Committee approved a resolution authorizing a lawsuit challenging Obama’s Affordable Care Act suspensions. Skeptics of the lawsuit, which is expected to be authorized by the full House next week, argue that such congressional lawsuits — to date, mostly initiated by Democrats — usually fail because of a lack of standing.

However, there is a simple reason most of these suits have failed: To assert an institutional injury to the House or Senate, courts want proof that the chamber, as an institution — and not a rump group of legislators — believes it has been injured. For example, in its 1997 ruling in Raines v. Byrd , the Supreme Court denied standing to six congressmen who sued President Bill Clinton over the Line Item Veto Act, for three reasons:

First, the injury the lawmakers alleged — a dilution of their voting power caused by future exercises of the line-item veto — was conjectural, since no president had yet exercised that veto.

Second, private plaintiffs (for example, those who would have personally benefited from federal largess but for a presidential line-item veto) would be readily available to challenge the act, so there was no need to resort to legislative standing. Indeed, in the following term, a private plaintiff sued, and the court ruled the act unconstitutional.

Finally, the court denied the legislators’ standing because they weren’t litigating on behalf of their colleagues. In the words of the court, the six “simply lost [the] vote” on the act, declaring: “We attach some importance to the fact that [the six] have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”

When legislators do represent their institution’s views, however, courts have granted standing. In 1939’s Coleman v. Miller, the Supreme Court granted standing to 21 Kansas senators who had sued the state’s lieutenant governor over his tiebreaking vote in support of a constitutional amendment, which the senators argued nullified the legislative will of the Senate. The court agreed that the Senate had suffered an institutional injury. Significantly, the senators — a majority of the chamber — unequivocally represented their chamber’s institutional position.

A few days ago, in the case of Kerr v. Hickenlooper, the full U.S. Court of Appeals for the 10th Circuit held that five Democratic Colorado legislators had standing on facts far less compelling than those of the House lawsuit. The legislators challenged their governor’s execution of a state constitutional amendment, asserting that the amendment nullified their power to raise taxes. Standing was granted despite the absence of an explicit institutional authorization for the lawsuit by their colleagues.

In numerous other cases, federal courts have recognized a single chamber’s standing to assert institutional injury caused by the executive’s refusal to comply with congressional subpoenas. In these cases, the chamber passed a resolution authorizing litigation to vindicate its institutional injury, which was described as a nullification of chamber’s investigatory power.

As the Supreme Court made clear in Eastland v. U.S. Servicemen’s Fund in 1975, subpoenas are “inherent in the power to make laws” and an “integral part of the lawmaking process.” A failure to comply with a chamber’s subpoena, in other words, is an injury to the lawmaking power of the chamber itself. The institutional injury caused by executive nullification of a subpoena is far less than that caused by executive nullification of a law. If ignoring a congressional subpoena is sufficient to establish legislative standing, ignoring a law should be more than sufficient as well.

The House lawsuit isn’t a stunt, and it isn’t frivolous. Precedent fully recognizes legislative standing to vindicate the nullification injury inherent in a president’s suspension of law. And while impeachment and cutting appropriations are useful political options to consider, neither can force the faithful execution of the law, much less prevent future presidents from continuing the destruction of separation of powers. For a tailored and proportionate legal declaration of the proper dividing line between Congress and the president, courts — and courts alone — are the appropriate venue.

Source: http://www.washingtonpost.com/opinions/federal-courts-need-to-stop-obama-from-flouting-the-constitution/2014/07/25/138f5bfc-12bc-11e4-98ee-daea85133bc9_story.html

David Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Foley is a constitutional law professor at Florida International University College of Law.

Boehner: why we must now sue the President

by John Boehner

(CNN) — Every member of Congress swore an oath to preserve, protect and defend the Constitution of the United States. So did President Barack Obama.

But too often over the past five years, the President has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold — at times even boasting about his willingness to do it, as if daring the American people to stop him.

That’s why, later this month, we will bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country.

The President’s response: “So sue me.”

What’s disappointing is the President’s flippant dismissal of the Constitution we are both sworn to defend. It is utterly beneath the dignity of the office. I know the President is frustrated. I’m frustrated. The American people are frustrated, too.

After years of slow economic growth and high unemployment under President Obama, they are still asking, ‘where are the jobs?’ The House has passed more than 40 jobs bills that would help. But Washington Democrats, led by the President, just ignore them.

Even worse, the President’s habit of ignoring the law as written hurts our economy and jobs even more. Washington taxes and regulations always make it harder for private sector employers to meet payrolls, invest in new initiatives and create jobs — but how can those employers plan, invest and grow when the laws are changing on the President’s whim at any moment?

I don’t take the House legal action against the President lightly. We’ve passed legislation to address this problem (twice), but Senate Democrats, characteristically, have ignored it.

In the end, the Constitution makes it clear that the President’s job is to faithfully execute the laws. And, in my view, the President has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education.

There must be accountability. We have a system of government outlined in our Constitution with the executive branch, the legislative branch, and the judicial branch. Congress has its job to do, and so does the President. When there are conflicts like this — between the legislative branch and the executive branch — it is my view that it is our responsibility to stand up for this institution in which we serve, and for the Constitution.

If you look back over American history, there has always been a tension between the inherent powers of the executive branch versus the inherent powers of the legislative branch. This issue is as old as Marbury vs. Madison and as fresh as the unanimous Supreme Court ruling last week that the President overstepped his authority on recess appointments.

Over the last five years, starting — not coincidentally — when his political party lost the majority in the House of Representatives, the President has consistently overstepped his authority under the Constitution, and in so doing eroded the power of the legislative branch.

The legislative branch has an obligation to defend the rights and responsibilities of the American people, and America’s constitutional balance of powers — before it is too late.

Source: http://edition.cnn.com/2014/07/06/opinion/boehner-obama-lawsuit/index.html

Rep. John Boehner, R-Ohio, is speaker of the House of Representatives. 

Russia’s actions in Ukraine clearly violate the rules of war

By David B. Rivkin Jr. and Lee A. Casey

While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.

The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture.  But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.

The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.

Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.

Russia’s denials ring hollow. Moscow has inserted intelligence operatives, Spetsnaz personnel and other elite troops into the region, and some of these individuals have been apprehended by Ukrainian forces. Evidence of Russia’s involvement includes the Russian body armor these forces wear and the specialized and expensive Russian weapons they carry, such as AK-74 automatic rifles and Dragunov sniper rifles.

During the most recent fighting around Slovyansk, Russia’s stronghold in eastern Ukraine, hundreds of Russian personnel and irregulars deployed mortars, heavy machine guns and antitank weapons. The National Security Agency, NATO intelligence services and the Ukrainian government have also intercepted communications indicating that senior officers from Russia’s Southern Military District control Moscow’s operations in eastern Ukraine, as Secretary of State John F. Kerry discussed in meetings last week.

Moscow-led forces have also engaged in an intimidation campaign of assassination and torture against Ukrainian civilians, among the most serious Geneva offenses. Examples include Vladimir Rybak, a local government official in the Donetsk region and a strong supporter of the Ukrainian government, who was kidnapped, tortured and killed. His body was thrown into a river on the outskirts of Slovyansk.

In another palpable violation of the Geneva Conventions, which require military operations to be waged in ways designed to minimize collateral damage to noncombatants, Russian forces have staged assaults on police stations and government buildings in ways designed to maximize civilian casualties. This was done to discredit the Ukrainian government and provide a “humanitarian” justification for further Russian intervention.

Russian forces in eastern Ukraine have seized hostages, including Organization for Security and Co-operation in Europe observers. They have also violated the Geneva Conventions and the customary laws of war byrecruiting Ukrainian civilians and police personnel. In two regions of eastern Ukraine, Luhansk and Donetsk, about 50 percent of local police personnel have reportedly switched sides. The Ukrainian Security Service says Russian banks have been transferring funds to make daily payments to pro-Russian Ukrainians. .

While the responsibility for Russia’s actions in Ukraine begins with President Vladi­mir Putin and other Moscow leaders, the Geneva Conventions require that the Russian military be held accountable for its violations of the laws of war. The first step should be for the United States, NATO and the Ukrainian government to release all of the available information about the Russian offenses, including the names of all individuals involved. The second step should be sanctions that would prevent Russian military officers from traveling to any Western countries regardless of the purpose. No equipment sales or technology transfers to the Russian armed forces should be approved, and no Western military should buy Russian weapon systems or equipment.

Because military establishments, by their nature, value respect and esprit de corps, ostracizing Russia’s armed forces could have a significant impact on Moscow’s behavior, getting its attention in real and immediate ways. They would also underscore the strong Western commitment to upholding the laws of war in general and the Geneva Conventions in particular.

Source: http://www.washingtonpost.com/opinions/russias-actions-in-ukraine-clearly-violate-the-geneva-conventions/2014/05/06/74c8fcde-d22f-11e3-937f-d3026234b51c_story.html

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

The Catholic Church and the Convention on Torture

By David B. Rivkin and Lee A. Casey

The United Nations committee that monitors compliance with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment is being urged by several influential nongovernmental organizations to condemn the Vatican when the committee meets this week in Geneva. These groups, including the Center for Constitutional Rights, Survivors Network of those Abused by Priests, and the Center for Reproductive Rights, claim that the Catholic Church’s handling of child-sexual-abuse accusations against priests and the church’s stand on birth control and abortion amount to violations of the Convention Against Torture.

If the U.N. committee were to grant the groups’ request and conclude that the Vatican has violated the Convention Against Torture, this would represent a legally insupportable and perverse interpretation of the treaty, actually weakening its effectiveness. It would also represent a blatant attack on religious freedom.

There is no doubt that for years the Catholic Church failed to deal in a timely and effective way with child sexual abuse by priests. More recently, however, the church has admitted its mistakes and instituted fundamental reforms to root out the problem, which is hardly unique to Catholics. According to the U.N.’s own World Health Organization Fact Sheet No. 150 on child maltreatment, “approximately 20% of women and 5-10% of men report being sexually abused as children.”

No one doubts the evil of child sexual abuse, but attempting to shoehorn it into the Convention Against Torture is legally incorrect. However monolithic the Catholic Church may seem, it is not a sovereign state, and the Vatican (which is) has no legal authority over the church hierarchy or the millions of Catholic believers around the world.

Although the papacy has enormous spiritual authority, its secular, legal power—which is what the treaty addresses—extends only to the 100 acres of Vatican City, which has about 800 residents. Accordingly, the Holy See in 2002 acceded to the Convention Against Torture for “the Vatican City State” and undertook “to apply it insofar as it is compatible, in practice, with the peculiar nature of that State.” Claims that the Vatican exercises such compelling control over all Catholic institutions and individuals that it bears responsibility for all of their actions reflect a basic misunderstanding of how the treaty and the church operate.

The treaty requires member states to refrain from torture and to take other actions to prevent and punish it by their citizens and within their territory. When Catholics, including Catholic clergy, commit crimes outside of Vatican City, their trial and punishment is up to the countries where crimes occurred. If church officials in those countries were complicit in the offenses, addressing that remains a matter of domestic law. All of this is well-known and accepted international practice.

Attempting to internationalize the very serious crime of child abuse by defining it as “torture” is also misguided. The treaty defines torture narrowly and is directed at states for a reason: to focus attention on repressive governments engaging in torture as a form of terror and as a means of preserving the regimes’ hold on power.

None of this makes a difference to the activists who want to accuse the Catholic Church of violating the Convention Against Torture. Among the most determined are those whose claims are a thinly veiled effort to use a U.N. forum to attack Catholic doctrine, especially the church’s stand on birth control and abortion. The Center for Reproductive Rights has even claimed that these key aspects of Catholic belief are themselves tantamount to psychological torture. How so? Because they insidiously shape human behavior, bringing feelings of shame to individuals who seek access to birth control or abortion services, and improperly use the church’s formidable spiritual authority to influence numerous governments to limit access to contraception and abortion services.

By that preposterous logic, any religious faith—or secular doctrine, for that matter—could be condemned for practicing torture if it seeks to motivate adherents to lead their lives in particular ways. This attempt to hijack the Convention Against Torture for political purposes degrades the definition of torture and undermines the treaty’s efforts to end these terrible practices.

Even critics of Catholic doctrine should appreciate that the Convention Against Torture is not the proper instrument, and its U.N. monitoring committee not the proper forum, to challenge anyone’s religious beliefs. Were a sovereign state to act in this manner and attempt to suppress or penalize religious beliefs, its behavior would violate other critical international instruments, including the U.N.’s own International Covenant on Civil and Political Rights and the Universal Declaration on Human Rights, with their explicit protections for religious liberty.

If the Convention Against Torture committee stretches the treaty to condemn an entire religious institution for the criminal behavior of individuals who belong to it, the treaty’s credibility will be dramatically diminished. That’s bad enough. But if the Convention Against Torture were used to single out the Vatican for condemnation, Catholics and Catholic clergy around the world would be marked as somehow collectively responsible for individual offenses, leaving these innocent people open to attack and persecution, particularly in countries where religious liberty is already threatened. This is not the mission of the Convention Against Torture—or of the United Nations.

Source: http://online.wsj.com/news/articles/SB10001424052702304178104579534370116475920

Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

Crippling the Intelligence We Used to Get bin Laden

Obama’s directive to protect the privacy of foreigners will make Americans less safe.

By Mike Pompeo and David B. Rivkin Jr.

On Jan. 17, in response to former National Security Agency contractor Edward Snowden’s theft of U.S. intelligence secrets and concerns over the NSA’s bulk metadata collection, President Obama issued a Presidential Policy Directive (PPD-28) that neither strengthens American security nor enhances Americans’ privacy. To the contrary, it undermines our intelligence capabilities in service of a novel cause: foreign privacy interests.

All nations collect and analyze foreign communications or signals, what is known as “signals intelligence.” American technological prowess has produced the world’s most abundant stream of signals intelligence, thwarting plots against the U.S. and saving lives. PPD-28 threatens American safety by restricting the use of this signals intelligence.

First, under the new directive, U.S. officials are required to ensure that all searches of foreign signals intelligence are limited to six purposes: countering foreign espionage, terrorism, weapons of mass destruction, cybersecurity, threats to U.S. or allied forces, and transnational crime.

Such policy guidance is appropriate in principle, but these limitations are mere window dressing. Intelligence activities are already heavily scrutinized by executive-branch lawyers to protect Americans’ privacy. Yet the intelligence community must now operate under the presumption that they are somehow engaged in wrongdoing and must justify each and every step by reference to a proper “purpose” to rebut that presumption. This will make intelligence analysts overly cautious and reduce their flexibility in handling security threats.

Second, PPD-28 extends the same privacy protections to foreigners that now apply to data regarding “U.S. persons,” defined as U.S. citizens anywhere in the world and anyone in the U.S. The most visible result will be that intelligence concerning foreigners will contain redactions of material that may have value to U.S. security and diplomacy. The policy contains an exception for information “relevant” to understanding the substantive content of foreign intelligence, but analysts will inevitably face pressure to go with the redaction rather than bring in the lawyers to justify an exception.

These new policies aren’t required by law. Just as foreign terrorists should not be read their Miranda rights, the U.S. Constitution, including the Fourth Amendment’s requirement that searches be reasonable, doesn’t apply to foreigners outside the U.S. And international law imposes no limitations on foreign surveillance. Yet in a stunning display of naïveté, Mr. Obama says it is crucial that people in foreign countries, from Pakistan to Peru, understand that “the United States respects their privacy too.” The leak last week of the recording of a sensitive phone call between two senior State Department officials regarding Ukraine—almost certainly the result of Kremlin surveillance—vividly indicates how other countries feel about protecting Americans’ privacy.

PPD-28 applies only to signals intelligence and has nothing to say about human intelligence from spies, defectors and friendly intelligence services. But this too reveals the senselessness of the new directive. If we could induce an al Qaeda leader to defect, everything in his possession could be used immediately, helping to make connections and capture or kill our enemies. But if we obtained the same information through signals intelligence, much of it would have to be redacted in the name of a privacy “right” not recognized by U.S. or international law.

This disparate treatment of signals and human intelligence will complicate “connecting the dots.” Human and signals intelligence should work together to inform policy makers of a possible threat as quickly and thoroughly as possible. But imposing different restrictions on intelligence data from human and technological sources prevents that from happening. Different data regarding the same threats will be subject to different legal requirements and limitations on use and disclosure. That will require more lawyering and more time, neither of which helps U.S. security.

History provides numerous examples of how vital it is to integrate signals and human intelligence. Their interplay has long been used to direct troop movements, bombing campaigns and drone strikes, and it was crucial to finding Osama bin Laden.

Consider the 1962 Cuban missile crisis. Seeking to upend the strategic nuclear balance, Moscow installed short- and intermediate-range ballistic missiles in Cuba, reasoning that U.S. intelligence wouldn’t detect them until they were operational. American spy planes provided only low-quality photographs (signals intelligence) of the missile sites.

But because Soviet Lt. Col. Oleg Penkovsky, a double agent, had provided British and U.S. intelligence with information about the standard Soviet missile-base layout, analysts were able to interpret the spy-plane data to ascertain what Moscow was doing in Cuba. This kind of synergy between signals data and human intelligence will be stymied by policies that undermine flexibility in the use of intelligence from different sources.

Under the Constitution, national security and intelligence are largely the president’s responsibility. Because President Obama has decided to recognize a foreign right to privacy, Congress has little ability to check his move. But lawmakers can and should shine a bright light on PPD-28 and hold him accountable for a directive that will hobble our foreign-intelligence capabilities, even as the world spies on us and threats to Americans multiply.

Source: http://online.wsj.com/news/articles/SB10001424052702303519404579353322885979550?KEYWORDS=david+rivkin

Mr. Pompeo, a Republican from Kansas, is a member of the House Permanent Select Committee on Intelligence. Mr. Rivkin is a partner at Baker Hostetler LLP and served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.

Can Obama’s Legal End-Run Around Congress be stopped?

By DAVID RIVKIN and ELIZABETH PRICE FOLEY

The Constitution, many of us learned in grade school, assigns the legislative power to the legislative branch, not the executive. The Constitution also commands that the president “take care that the laws be faithfully executed.” Unfortunately, President Obama either missed that lesson or considers it inapplicable to his own administration. Thus, his promise-cum-threat, made in the heat of last year’s campaign: “Where Republicans refuse to cooperate on things that I know are good for the American people, I will continue to look for ways to do it administratively and work around Congress.”

Obama has delivered on his promise and worked around Congress with breathtaking audacity. In his signature legislative achievement alone, the Affordable Care Act, the president has unilaterally amended the law multiple times, including delaying the employer mandate and caps on out-of-pocket expenses, waiving the individual mandate for certain people, extending tax credits to individuals who purchase insurance through the federal health insurance exchange and ignoring a statutory requirement that Congress and their staff participate in the exchanges. But the president’s audacity doesn’t stop with Obamacare. He has also suspended immigration law, refusing to deport certain young illegal aliens—a major reform that Congress has refused to enact. Similarly, with the stroke of a magisterial pen, he has gutted large swaths of federal law that enjoy bipartisan support, including the Clinton-era welfare reform work requirement, the Bush-era No Child Left Behind law and the classification of marijuana as an illegal controlled substance.

So much for the separation of powers.

In a desperate attempt to stem the hemorrhaging of legislative power, members of Congress are turning to the courts to enforce their constitutional prerogative. Sen. Ron Johnson (R-Wisc.), for example, filed a lawsuit last week challenging the president’s decision to exempt Congress from the exchanges. And Rep. Tom Rice (R-S.C.) is plotting a broadside attack on executive lawlessness through a resolution, called the Stop This Overreaching Presidency (STOP), that would authorize the House to legally challenge several presidential workarounds. Congressional friend-of-the-court briefs have been popping up in numerous lawsuits challenging Obama administration overreach.

But Congress’s ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional “standing.” Standing is a constitutional prerequisite to maintaining a case in federal court; without it, a case is quickly dismissed. A plaintiff has standing when he or she can demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court. Abstract injuries suffered by society at large do not suffice.

The Supreme Court seemed to shut the door to congressional standing in Raines v. Byrd (1997), a lawsuit brought by six congressmen who challenged the constitutionality of the presidential line-item veto. The court held that the congressmen lacked standing, because the loss of congressional power they lamented was a “wholly abstract and widely dispersed” injury.

The post-Raines presumption against congressional standing is appropriate as a general matter. It is not desirable to allow a single member of Congress, or an ad hoc group of members, to challenge any presidential action with which they politically disagree. Such lawsuits would be abstract, inefficient and potentially destructive to the president’s legitimate authority.

But Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants.

First, standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. In Raines itself, for example, the court knew that other plaintiffs, who possessed standing, were waiting in the wings to sue the president. Indeed, in the subsequent case of Clinton v. City of New York (1998), standing was established by several businesses, individuals and a city that had lost tax benefits, and the court then declared the line-item veto unconstitutional.

But no other plaintiffs possess standing to challenge several of President Obama’s recent acts. This is because they are “benevolent” suspensions, in which the president exempts certain classes of people from the operation of law. No one person was sufficiently harmed to create standing to sue, for instance, when Obama instructed the Department of Homeland Security to stop deporting young illegal immigrants. Indeed, these actions have helped affected individuals, rather than harmed them, even while shredding the rule of law. In such situations, courts should permit congressional standing as a last resort to enforce the basic constitutional architecture.

Second, in Raines, it was an ad hoc congressional group that filed the suit. The court emphasized that the plaintiffs “have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” However, when House or Senate rules have a mechanism for designating a bipartisan, official body with authority to file lawsuits on their chamber’s behalf, the case for standing is more compelling. Then, the lawsuit is not an isolated political dispute, but a representation by one of the two chambers of the legislative branch that the institution believes its rights have been violated. These types of serious, broad-based institutional lawsuits should be in a different category than Raines.

In United States v. Windsor (2013), for example, the Supreme Court suggested that such official lawsuits are different in character. In Windsor, a surviving member of a same-sex married couple sued to obtain a federal spousal estate tax exemption. The exemption was denied based upon the Defense of Marriage Act (DOMA), which defined marriage, for purposes of federal law, as one man, one woman. The federal government defended DOMA in the trial court but abandoned its defense at the appellate level. When the Obama administration bowed out, a bipartisan group of House leaders—the Bipartisan Legal Advisory Group (BLAG)—stepped in to defend the law.

The Supreme Court found that BLAG had standing to defend DOMA for several reasons. There was a continuing controversy between the plaintiff and federal government, regardless of who was defending the law. Moreover, House rules authorized BLAG to represent that chamber in litigation. It had every incentive to vigorously defend its law. If BLAG could not defend DOMA, the administration’s refusal to defend could have precluded judicial review, posing “grave challenges to the separation of powers,” the court explained, because “the Executive at a particular moment [would] be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.”

These same considerations would exist in a lawsuit challenging President Obama’s benevolent law suspensions. Such suspensions directly infringe congressional power, setting up a conflict between two branches of government. If a bipartisan group authorized by House or Senate rules authorized a legal challenge, it guarantees a vigorous defense of the law and counsels in favor of judicial review. Most importantly, without judicial review of the president’s suspension, there is literally no other way—short of impeachment—to defend separation of powers.

Indeed, the third factor counseling in favor of recognizing congressional standing to challenge benevolent suspensions is the nature of the controversy itself, which is completely unlike the dispute in Raines. There, congressional plaintiffs had failed to stop passage of the Line Item Veto Act and were seeking to undo their political loss via litigation. The court correctly concluded that such “angry loser” situations could not justify congressional standing.

But President Obama’s actions have not been blessed by an explicit act of Congress, as was the case in Raines when the president exercised a line-item veto. To the contrary: The suspensions of Obamacare and other statutes defy the plain language of these laws. The fact that the president is exercising this suspension power openly and even brazenly gravely damages the rule of law. A congressional lawsuit would not be about angry losers, but about Congress defending its legislative power and demanding faithful execution of the laws by the president.

If congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment. This is not something the framers of the Constitution would have sanctioned. As the court observed in Clinton, the president does not have “unilateral power to change the text of duly enacted statutes.” That is an important constitutional rule that the current president apparently thinks he can ignore, but the courts must ultimately be willing to enforce.

SOURCE: http://www.politico.com/magazine/story/2014/01/barack-obama-constitution-legal-end-run-around-congress-102231.html?hp=pm_2#.Utlq5KX0Aci

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David Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at Baker Hostetler LLP and represented the 26 states that challenged the constitutionality of Obamacare. Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. She is the author, most recently, of The Tea Party: Three Principles. 

The President vs. the Senate

Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

By David B. Rivkin Jr. and Lee A. Casey

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

While this challenge to presidential power touched off considerable controversy, some political observers say that the recess-appointments issue will fade because Senate Democrats recently did away with the traditional filibuster rule, requiring a “super-majority” of at least 60 senators to allow a contentious nomination to proceed to a vote. This rules change, however, does not moot Noel Canning v. NLRB or the issues it raises. Indeed, limiting filibusters will only grease the wheels of a nomination when a Senate majority approves of a particular nominee.

Even when a president’s own party controls the Senate, there are individuals who for one reason or another cannot get the nod. For example, a nominee unacceptable to his or her home-state senator can be subject to a “hold”—a still-respected senatorial courtesy. Recess appointments are not a proper means of avoiding such roadblocks.

The Constitution’s Framers considered and rejected the notion that the president should be able to staff federal offices without congressional oversight. That’s why the president must have Senate “advice and consent” for the most important appointments. As Alexander Hamilton wrote in Federalist 76, the Senate’s participation “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

The Framers believed that vesting the entire appointment authority in the president would have made him too powerful, contrary to their key goal of safeguarding individual liberty by dividing power among the three branches of government.

The need for a presidential power to make recess appointments arose from the assumption that Congress would meet infrequently and that there would be long periods—running to many months—when critical federal offices might remain vacant because the Senate was unavailable to discharge its advice and consent function. Recess appointments are a necessary exception to the normal appointments procedures, but they are an exception.

In more recent years, however, as attitudes in Washington have hardened and become more ideological, presidents of both parties have used recess appointments to put individuals in office who the Senate either had already refused to confirm or would likely turn down if given the chance. Such individuals may serve for up to two years. Although presidential frustration may be understandable, since many nominees never even get a Senate vote, overcoming this roadblock is not the constitutional purpose of recess appointments.

To avoid being in recess, Senate Democrats began to hold pro forma sessions in the last years of the George W. Bush administration. These involved tasking, by unanimous consent, one senator from each party to “convene” the Senate for brief periods in order to “receive” presidential nominations. These pro forma sessions are not fundamentally different from the way the Senate routinely conducts its core legislative business, which also can involve passing bills by unanimous consent with few senators in attendance.

Mr. Obama made the appointments that are being challenged in Noel Canning during one of these pro forma Senate sessions. The president determined that for the purpose of considering his nominees, the Senate was not properly in session because, according to White House Counsel Kathryn Ruemmler, the Senate was “unavailable to fulfill its function.” This, of course, raised another critical constitutional question, since the Constitution vests each congressional house with the power to determine how to operate.

Permitting any president to resolve when the Senate is or is not in session upsets the constitutional balance of power among the executive and legislative branches even further. Most dangerously, a president could potentially claim that the Senate was not “in session” when certain legislation was enacted, and then refuse to enforce it on the grounds that it was invalid.

The specific issue of pro forma Senate sessions was not addressed by the lower court. But given the key constitutional prerogatives involved, the Supreme Court asked lawyers representing Senate Republicans to participate in the oral argument. This signals that the court may determine the extent of the president’s recess appointment power and decide whether the Senate’s power to determine its own rules precludes the president from questioning the constitutionality of the pro forma sessions.

The Supreme Court should affirm the court of appeals, limiting recess appointments to filling vacancies actually arising during a true Senate recess, and decisively rejecting the Obama administration’s position that the president can determine when the Senate is or is not in session regardless of the Senate’s own view. This will restore the proper separation of powers between the two political branches that the Framers clearly intended.

Source: http://online.wsj.com/news/articles/SB10001424052702303932504579252072715002560

Messrs. Rivkin and Casey, partners in the Washington, D.C., office of Baker & Hostetler LLP, have filed an amicus brief with the Supreme Court, urging the affirmance of the D.C. Circuit’s decision in Noel Canning.