House Hires Lawyer for Obama Lawsuit

Contract caps legal fees at $350,000.

Speaker of the House Rep. John Boehner speaks during a press briefing July 31, 2014 on Capitol Hill in Washington, DC. 
National Journal
Daniel Newhauser
Aug. 25, 2014, 11:51 a.m.

House Re­pub­lic­ans have en­lis­ted Dav­id Rivkin to shep­herd their law­suit against Pres­id­ent Obama for al­leged ex­ec­ut­ive over­reach, hir­ing one of the ori­gin­at­ors of the leg­al the­ory un­der­pin­ning their ac­tion.

Speak­er John Boehner had been con­sult­ing with Rivkin in the run-up to his an­nounce­ment that he would sue the pres­id­ent for in­flict­ing in­sti­tu­tion­al in­jury against the House by act­ing uni­lat­er­ally. Now, Rivkin, a part­ner at Baker Hostetler in Wash­ing­ton, will have a chance to test how re­cept­ive the courts will be to that the­ory he out­lined with Flor­ida In­ter­na­tion­al Uni­versity Col­lege of Law pro­fess­or Eliza­beth Price Fo­ley.

“No Pres­id­ent is above nor should op­er­ate bey­ond the lim­its of the Con­sti­tu­tion,” House Ad­min­is­tra­tion Com­mit­tee Chair­wo­man Can­dice Miller said in a state­ment. “The House of Rep­res­ent­at­ives, us­ing reg­u­lar or­der and the powers that the Con­sti­tu­tion has provided, calls upon our gov­ern­ment’s sys­tem of checks and bal­ances and asks the ju­di­cial branch to ex­am­ine the Pres­id­ent’s fail­ure to faith­fully ex­ecute the law.”

The agree­ment caps pay­ments at $350,000 through Janu­ary 2015, and spe­cifies an hourly rate of $500 for the leg­al work, ac­cord­ing to the con­tract, signed by Rivkin, Miller, and House Gen­er­al Coun­sel Kerry Kirch­er.

Rivkin re­ferred ques­tions con­cern­ing the con­tract to the Ad­min­is­tra­tion Com­mit­tee.

House Demo­crats, mean­while, wasted no time de­cry­ing the suit as a waste of time and money. Demo­crat­ic Con­gres­sion­al Cam­paign Com­mit­tee Chair­man Steve Is­rael said in a state­ment that the suit shows that Re­pub­lic­ans have the wrong pri­or­it­ies.

“This out­rageous waste of tax­pay­er dol­lars is yet an­oth­er re­mind­er of House Re­pub­lic­ans’ mis­guided pri­or­it­ies,” Is­rael said. “Only in John Boehner’s world does it make sense to pay law­yers $500 per hour to work on a par­tis­an law­suit while re­fus­ing to raise the min­im­um wage to $10.10 for hard­work­ing Amer­ic­ans try­ing to feed their fam­il­ies.”

The next step will be fil­ing the text of the law­suit, which Boehner already has said will seek to paint Obama’s ex­ec­ut­ive ac­tion delay­ing the man­date that all em­ploy­ers provide health in­sur­ance as a stip­u­la­tion of the Af­ford­able Care Act.

The biggest hurdle will be gain­ing stand­ing be­fore the court, ac­cord­ing to sev­er­al leg­al ex­perts. The ju­di­ciary is of­ten un­will­ing to jump in­to a dis­pute between the oth­er branches of the gov­ern­ment.

Sev­er­al ques­tions re­main un­answered, in­clud­ing where the law­suit will be filed. The United States Dis­trict Court for the Dis­trict of Columbia is the most ob­vi­ous ven­ue. But since the House voted to au­thor­ize the law­suit, it could be ar­gued that plaintiffs””in this case House mem­bers””reside in every dis­trict. It is pos­sible, then, that the suit could be filed in a dis­trict per­ceived to be more amen­able to a suit chal­len­ging Obama.

The con­ven­tion­al wis­dom is that a more con­ser­vat­ive area would be more will­ing to give stand­ing to a suit against a Demo­crat­ic pres­id­ent. However, Jonath­an Tur­ley, a law pro­fess­or at George Wash­ing­ton Uni­versity, said that is not ne­ces­sar­ily so. He said con­ser­vat­ive judges are ac­tu­ally less in­clined to grant stand­ing be­cause they be­lieve in a lim­ited role for the ju­di­ciary.

“In the past con­ser­vat­ives have been as­so­ci­ated with more nar­row stand­ing de­cisions,” Tur­ley said.

Openly for­um-shop­ping could come with a back­lash too, Tur­ley ad­ded: “No judge wants to be viewed as an easy touch.”

It also re­mains to be seen what kind of dam­ages Boehner and the House will seek. Courts are un­likely to grant an in­junc­tion re­vers­ing Obama’s de­cision on the em­ploy­er man­date or pick­ing apart the ACA, Tur­ley said.

At any rate, it is pos­sible that the law­suit may still be work­ing its way through the ap­peals pro­cess when the man­date is fi­nally al­lowed to go in­to ef­fect, which would render any in­junc­tion moot.

In the end, the re­lief sought may be simply de­clar­at­ory””that is, a state­ment from the court that the pres­id­ent’s ac­tion was un­con­sti­tu­tion­al.

{{ BIZOBJ (video: 5194) }}

What We're Following See More »
These (Supposed) Iowa and NH Escorts Tell All
2 hours ago

Before we get to the specifics of this exposé about escorts working the Iowa and New Hampshire primary crowds, let’s get three things out of the way: 1.) It’s from Cosmopolitan; 2.) most of the women quoted use fake (if colorful) names; and 3.) again, it’s from Cosmopolitan. That said, here’s what we learned:

  • Business was booming: one escort who says she typically gets two inquiries a weekend got 15 requests in the pre-primary weekend.
  • Their primary season clientele is a bit older than normal—”40s through mid-60s, compared with mostly twentysomething regulars” and “they’ve clearly done this before.”
  • They seemed more nervous than other clients, because “the stakes are higher when you’re working for a possible future president” but “all practiced impeccable manners.”
  • One escort “typically enjoy[s] the company of Democrats more, just because I feel like our views line up a lot more.”
Restoring Some Sanity to Encryption
2 hours ago

No matter where you stand on mandating companies to include a backdoor in encryption technologies, it doesn’t make sense to allow that decision to be made on a state level. “The problem with state-level legislation of this nature is that it manages to be both wildly impractical and entirely unenforceable,” writes Brian Barrett at Wired. There is a solution to this problem. “California Congressman Ted Lieu has introduced the ‘Ensuring National Constitutional Rights for Your Private Telecommunications Act of 2016,’ which we’ll call ENCRYPT. It’s a short, straightforward bill with a simple aim: to preempt states from attempting to implement their own anti-encryption policies at a state level.”

What the Current Crop of Candidates Could Learn from JFK
2 hours ago

Much has been made of David Brooks’s recent New York Times column, in which confesses to missing already the civility and humanity of Barack Obama, compared to who might take his place. In, Jeffrey Frank reminds us how critical such attributes are to foreign policy. “It’s hard to imagine Kennedy so casually referring to the leader of Russia as a gangster or a thug. For that matter, it’s hard to imagine any president comparing the Russian leader to Hitler [as] Hillary Clinton did at a private fund-raiser. … Kennedy, who always worried that miscalculation could lead to war, paid close attention to the language of diplomacy.”

Hillary Is Running Against the Bill of 1992
2 hours ago

The New Covenant. The Third Way. The Democratic Leadership Council style. Call it what you will, but whatever centrist triangulation Bill Clinton embraced in 1992, Hillary Clinton wants no part of it in 2016. Writing for Bloomberg, Sasha Issenberg and Margaret Talev explore how Hillary’s campaign has “diverged pointedly” from what made Bill so successful: “For Hillary to survive, Clintonism had to die.” Bill’s positions in 1992—from capital punishment to free trade—“represented a carefully calibrated diversion from the liberal orthodoxy of the previous decade.” But in New Hampshire, Hillary “worked to juggle nostalgia for past Clinton primary campaigns in the state with the fact that the Bill of 1992 or the Hillary of 2008 would likely be a marginal figure within today’s Democratic politics.”

Trevor Noah Needs to Find His Voice. And Fast.
3 hours ago

At first, “it was pleasant” to see Trevor Noah “smiling away and deeply dimpling in the Stewart seat, the seat that had lately grown gray hairs,” writes The Atlantic‘s James Parker in assessing the new host of the once-indispensable Daily Show. But where Jon Stewart was a heavyweight, Noah is “a very able lightweight, [who] needs time too. But he won’t get any. As a culture, we’re not about to nurture this talent, to give it room to grow. Our patience was exhausted long ago, by some other guy. We’re going to pass judgment and move on. There’s a reason Simon Cowell is so rich. Impress us today or get thee hence. So it comes to this: It’s now or never, Trevor.”