How five Colorado Democrats may have paved the way for Congress to sue the administration

Photo of Elizabeth Price Foley and David Rivkin
Elizabeth Price Foley and David Rivkin
Law Professor; Senior Advisor, FDD
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      Elizabeth Price Foley and David Rivkin

      Elizabeth Price Foley is a Professor of Law at Florida International University College of Law, a public law school in Miami, where she teaches constitutional law and health care law. Foley was a law clerk to the Honorable Carolyn King of the U.S. Court of Appeals for the Fifth Circuit and spent several years on Capitol Hill as a health policy advisor and lobbyist. She is now a recovering liberal who believes passionately in defending the original meaning of the Constitution. She is the author of Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale 2006); The Law of Life & Death (Harvard 2011); and The Tea Party: Three Principles (Cambridge 2012). Her website can be found at: http://www.elizabethpricefoley.com

      David B. Rivkin, Jr., is a partner in the Washington office of Baker Hostetler LLP, and Co-Chairs the Firm’s Appellate and Major Motions practice. He is also a Senior Advisor to the Foundation for the Defense of Democracies. He specializes in litigation and regulatory work, with a particular emphasis on constitutional, international law and public policy issues. Mr. Rivkin has been involved in numerous high-profile cases. He is the lead counsel in the Section 1983 Civil Rights Action case brought against several Wisconsin state government officials, alleged who have initiated a sprawling John Doe investigation directed solely at conservative and right-of-center policy advocacy groups in the State. As part of BakerHostetler’s role as court-appointed counsel to the Securities Investor Protection Act Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, David is responsible for the appellate litigation in more than half a dozen Second Circuit and Supreme Court cases. David is also a lead lawyer on a team that represents a former London-based JP Morgan managing director whose cooperation was sought in the investigation related to a multibillion-dollar trading loss for the bank. He has represented the 26 States that have challenged the constitutionality of the Patient Protection and Affordable Care Act and was the lead outside counsel in the District Court and Court of Appeals.

Last week, the U.S. Tenth Circuit decided a case that should reverberate on Capitol Hill. In Kerr v. Hickenlooper, five Colorado legislators sought “standing” to challenge a state constitutional amendment. The three-judge panel — consisting of Carter and Clinton appointees — ruled in favor of the legislators’ standing. This decision should embolden members of Congress who correctly believe that President Obama has encroached upon Congress’ constitutional authority. Indeed, Congress should do no less in defending its authority than the five Colorado state legislators.

Many members of Congress believe that numerous presidential actions — delaying various provisions of the Affordable Care Act, granting amnesty for DREAMers, eviscerating the work requirement of welfare reform — violate the President’s constitutional duty to “take care that the laws be faithfully executed.” Several pending bills would authorize congressional lawsuits to challenge the constitutionality of these actions. The House Judiciary Committee held a hearing in late February and favorably reported a measure, the ENFORCE Act, that passed the House on Wednesday with the support of only five Democrats. Whether these lawsuits can move forward hinges on legislative standing — the very issue favorably resolved by Kerr.

Legislative standing is important for both the political right and left. The Kerr plaintiffs were Democrats, who opposed a 1992 state constitutional amendment called “TABOR” (Taxpayer Bill of Rights), that constrains year-to-year spending increases and prohibits any tax increases without subsequent voter approval. They were unhappy that the law handcuffed the state’s ability to raise taxes to increase spending for programs such as education. They also believed TABOR violated the U.S. Constitution’s guarantee to states of a “republican form of government” by depriving the Colorado legislature of is power over taxing and appropriations.

The Kerr court held that the institutional injury alleged — depriving the legislature of its ability to tax and spend — constituted an “injury-in-fact,” thereby satisfying the key constitutional prerequisite of standing. Specifically, the court asserted that TABOR rendered legislative votes on tax issues “completely ineffective” because a “vote in favor of a tax increase is not a change in the law” without subsequent voter approval. Legislative votes on tax increases were thus merely “advisory” and the amendment effectively “disempower[ed]“ the Colorado legislature.

Kerr follows Supreme Court precedent on legislative standing. In Coleman v. Miller (1939), the Court allowed a majority of Kansas state senators to sue their governor to challenge the legitimacy of their state’s ratification of a federal child labor amendment. The Supreme Court in a subsequent case, Raines v. Byrd (1997), made it clear that Coleman stands “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

The Tenth Circuit observed that, if “nullification” of a single legislative vote can give rise to standing, the governor’s enforcement of a law that deprives the legislature of its power over an entire category of votes must likewise confer standing: “[I]t would be a bizarre result if the nullification of a single vote [in Coleman] supported legislative standing, but the nullification of a legislator’s authority to cast a large number of votes [on taxing matters] did not.”

A congressional lawsuit for President Obama’s failure to faithfully execute the laws would be grounded upon an analogous claim of nullification. Presidential unilateral amendments of Obamacare disempower Congress in exactly the same way as TABOR injured the Colorado legislature. Executive failure to faithfully execute deprives Congress of its constitutional prerogative to make laws. If presidents can unilaterally “amend” laws, they can nullify not only discrete votes, but vitiate legislative power as such.