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During an exclusive Google Hangout earlier today, renowned constitutional expert and Supreme Court litigator David Rivkin and House Rep. Tom Rice (R-SC) discussed the lawsuit being brought against President Obama.

Mr. Rivkin was among a handful of constitutional law experts selected to brief all House GOP Members on the litigation process related to the President’s overreach and did so on Wednesday morning.

Here’s a quick and dirty transcript of how it went.  Video follows:

Participants:
David Rivkin, Constitutional Law Expert who spoke today before the House Rules Committee

Rep. Tom Rice (R-SC, 7thCD), authored STOP Resolution requiring president to adhere to the law
(Rice, an accountant and tax law attorney sits on the Transportation and Infrastructure Committees, the Small Business and Budget Committee.)

Rivkin:  This is really an effort to enforce not just the President’s duty ti faithfully comply with the law, but to the entire separation of powers architecture.  That is extremely important, all from a perspective of insuring that not too much power is combined in any single hand… but also ensures in the absence of any democratic process of accountability that the American people can know at any point in time the rights of government is engaged in what action.

This president unfortunately, beginning two years into his first term, has engaged in a series of unprecedented actions, suspending provision, including enacting statutes and supplementing in a number of instances what is, in effect, his own statutory language.

Whatever you think of the policy merits of this proposal, his actions are profoundly disruptive of the separation of powers.  They debase the Constitution and they need to be stopped.  And that’s the purpose that animates this particular action that the House has taken after a great deal of deliberation and care.

Q.  What do you hope to accomplish with this action?

Rice:  Our Constitution clearly sets forth… tax.  He’s rewriting the tax code. He’s come along and said he’s not going to enforce that tax. Initially.  Then he said ‘Well, I’m going to enforce it on this group of people and not THAT group of people. In a sense, he’s rewriting the tax code. And if a president has that power, then who’s to stop the next president from saying, ‘well, you know, I don’t like the maximum tax bracket. Therefore, I’m not going to enforce it.’

Or ‘I don’t like the Capital Gains tax, so I’m not going to enforce it’. Or, ‘I’m gonna enforce it against my enemies, not against my friends.’  That goes well beyond the democratic form of our democratic republic, and is more or less a king who can write the law, enforce the law.  It’s more like a monarchy is than a constitutional republic. So we’re really here trying to defend our form of government.

My ultimate goal would be to make the president comply with the law – comply with Article 2, Sec 3 of the Constitution to faithfully execute the law, not ust the ones he wants to enforce.

Rivkin: This president in addition to doing things that are unconstitutional has basically articulated quite boldly the authority for himself. The famous “I have a pen, I have a phone,”.  What we’d be looking for is a final decision by the Supreme Court that clearly declares this behavior to be unconstitutional.

And I think this answer would be enormously curative.  In effect, it would delegitimize not only a particular target of this lawsuit, but a whole series of unlawful actions by this president. And therefore, would make it politically unfeasible for his successors or whatever party to do that.

The flip side is if nothing is done, what we now have is a new baseline – a new normal, if you will – to debase the Constitution where every occupant of the (oval?) office would come under pressure and say ‘look, why don’t you just do this… and that would be an extremely bad outcome.

Rice:  Our ultimate goal is to uphold the Constitution, to uphold a system of government that the founding fathers created and they created it after much deliberation to try to protect into the future as much as they could the freedom of the people. If we allow that to disintegrate, then people’s freedom disappears.

Rivkin:  The Supreme Court in the last two weeks before the end of a term decided 9-0 against the president. And in the last two years, decided 13 times 9-0, which is unprecedented and even in opinions that are closer than 9-0 there’s excellent language.  9-0 in particular was a decision striking down the unconstitutional appointments of the National Labor Relations Board indicating where the president quite arrogantly there claimed that he knows better than the Senate when the Senate is in recess.

You had…. a decision come down within a few days of that – 5-4.  Utility Irregularity (?) Group v. EPA where EPA rewrote the language.  These cases are (?)

My candid opinion is that this president has been talking too much, has been extremely arrogant, and it has taken a toll on things. The fact that he loses his own nominees to the Supreme Court — Sotomayor and Kagan — is quite significant.

The House has standing to bring the suit forward. The people who say this is the biggest hurdle either were urged — shall we say — to say so by the administration or they don’t know the law.  The House of Representatives has repeatedly gained standing in a footprint of the DC Circuit and in four legislative subpoenas spanning a period of decades.

The same court has said clearly that a subpoena is a subset of a legislative power so let me explain it a little bit more.  A single committee of the House issues a legislative subpoena. The House goes to the District of Columbia court, and then the DC Circuit court can enforce it. The committee is doing it without an explicit institutional authorization because under the rules of the House, it can do so.

In this case, there will be an explicit institutional authorization by the full House. That is absolutely clearly recognized.

Now the only argument I’ve heard made by people who….and by the way…subpeona is a gateway into the legislative process…

There have been roughly 45 lawsuits since 1938 seeking legislative standing involving state legislatures and other groups.

If the House cannot get the president to enforce the law as written and the president writes his own law, that’s not a sufficient institutional injury? This argument is absurd.

The biggest issue that separates this from other various lawsuits is that you had a group of legislators who didn’t like the outcome of the legislative process, bringing the lawsuit to try to impose their will on the legislature.

This is vastly different. This is the House as an Institution. The majority of the members of the House will presumably vote, and this House –as an Institution — will bring this lawsuit to enforce its prerogative that was granted to it under the Constitution that was written by the founding fathers. That’s vastly different than disgruntled legislators who you get in their way.

This would be a challenge the president’s failure to execute — not challenge the decision by the majority of Congress to do something.

The critics like to mention a Supreme Court case titled ? v Burke where, in fact… a line item veto and challenged by six members was precisely that.

I’m very optimistic that this lawsuit will succeed both from the standing of the merits — it’s a matter of driving it with as much expedition as possible. With respect to the DOJ trying to be as dilatory as possible, I certainly expect there’ll be a propaganda offensive.  Its already started. But I don’t see any fundamental legal problems with regard to the standing or the merits.

Expedited review legislation submitted by Cong. Gowdy and voted on by the House sits languishing in Harry’s Reid’s desk drawer.  It would have provided for expedited review similar to McCain Feingold that would enable a case like this to go to a three judge panel.

Rice:  And that’s one of the 300-odd bills that the House has sent up to the Senate on various matters that they refuse to touch on.

The Administration should have told Sen. Reid to fast-track the expedited review provision and if they think this lawsuit is so likely to fail, why not let it fail quickly?

Of course, if they don’t believe it, they’ll try to stretch it out as much as possible.  The DoJ is going to invariably as for some more time and so you say to yourself ‘if you’re so sure you’re going to win, why do you need more time?’  I think we’ll do very well.

Rivkin is one of many constitutional experts under consideration to be retained by the House as its lawyer to argue the case.<

Expected Timeline:

Authorization followed by a full House vote in the last week of July
Lawsuit to be filed late August
1st set of decisions denying the government its motions to dismiss by November
Summary judgement granted by end of December.

 

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