Speaker Boehner Bags A Bargain

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Well, the suspense is over, fellow Americans.  Speaker Boehner has found a lawyer to present his case against President Barack Obama and, you’ll be happy to hear—since we are all footing the bill—he’s found us a great conservative lawyer, writer and all-purpose Republican operative, at a very reasonable cost.

The lawyer is David B Rivkin (not to be confused with David W. Rivkin, a younger more Liberal model).  David B is a Russian emigre who earned his JD at Columbia Law School and proceeded to hold a variety of legal and policy positions during the GOP Golden Age of the Reagan and Poppy Bush eras.

Rivkin is a frequent participant in Congressional hearings and spends quite a bit of time enlightening the public about law and government policy via cable TV and conservative radio programs (e.g., CNN, MSNBC, NBC, ABC, CBS, FOX News, NPR, PBS, The Laura Ingraham Show, Al Jazeera, and the BBC, to name a few).

Rivkin also writes frequently, appearing in the Wall Street Journal, the National Review, the Washington Post, the New York Times, the Washington Times, the Heritage Foundation, and the Harvard Journal of Law and Public Policy.

As a matter of fact, it was an article in Politico Magazine, written by David B Rivkin and Elizabeth Foley, that gave Speaker Boehner the bright idea to sue the President.  The article outlined a plan specifically for suing Obama for not rolling out Obamacare quickly enough.

The biggest hurdle, of course, for anyone wishing to sue POTUS (or anyone else, for that matter) is the “standing” doctrine which requires that plaintiffs convincingly demonstrate that they have been injured in some way by the actions of the person they are suing.  Rivkin and Foley recognize that could be a hurdle but they think they’ve figured out a way around it.

Unfortunately, as Ian Milhiser pointed out, shortly afterward in Think Progress, Rivkin and Foley’s legal theory of establishing standing depends on “an objectively false reading” of United States v. Windsor which so recently struck down the Defense of Marriage Act (DOMA). 

Here’s what Milhiser has to say about that:

Rivkin and Foley claim that, in Windsor, the Supreme Court held that the Bipartisan Legal Advisory Group (BLAG), a five member body of the House of Representatives currently controlled by Republicans, “had standing to defend DOMA for several reasons.” According to Rivkin and Foley, this precedent supports their claim that Boehner’s lawsuit should also be allowed to move forward so long as the BLAG joins the suit as a plaintiff.

But this reading of Windsor is objectively false. Windsor held that “the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court” — thus it was the Obama Administration, not BLAG, who had standing to seek Supreme Court review of DOMA. Indeed, Windsor explicitly states that “the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.” Thus, a major prong of Rivkin and Foley’s legal argument rests on an egregious misreading of a famous Supreme Court case.

On the other hand, Speaker Boehner is getting the services of Rivkin and Foley at a discount—$500/hr as opposed to the $520/hr that Paul Clement was charging House Republicans to defend DOMA after DoJ opted out.

So far, the House has set a cap of $350,000 to secure Rivkin’s services but then Clement’s bill was originally capped at $500,000 and the total payoff was five times larger—coming in at a cool $2.3 million.  But hey, who can put a price on the peace of mind it will bring American taxpayers to sue the president?

Whatever Attorney Rivkin is paid for this case he has a snowball’s chance of winning it. Especially if it comes down to “forum shopping” for a judge that is willing to look like a) an easy touch and/or b) willing to perpetuate a pretty egregious misreading of existing law.

But, if any of you have legal problems? you might want to forward the details to Rivkin & Foley. As long as they are on the Peoples’ Payroll . . .

Posted by Bette Noir on 08/27/14 at 01:22 PM • Permalink

Categories: PoliticsBarack ObamaElection '14Nutters

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