About Me:

  I am a Professor of Law at 
  Florida International
  University (FIU) College
  of Law, a public law school
  located in Miami, Florida.

  I teach constitutional law,
  health care law/bioethics,
  and civil procedure.




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  Elizabeth Price Foley
Martin Kozlowski
David Rivkin and Elizabeth Foley: An ObamaCare Board Answerable to No One
The 'death panel' is a new beast, with god-like powers. Congress should repeal it or test its constitutionality.
By DAVID B. RIVKIN JR. And ELIZABETH P. FOLEY

Signs of ObamaCare's failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law's most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a "death panel," threatens both the Medicare program and the Constitution's separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.

* * * *

The IPAB's godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.


To continue reading, click here [goes to WSJ.com]




The Case Against Deference
Judges should be unafraid to review government actions
Jun 10, 2013, Vol. 18, No. 37

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

To continue reading, click here

Prof. Foley discusses the constitutionality of police "stop & frisk" policies (Aug. 2013)
Prof. Foley discusses Obamacare "death panels" with Fox News' Megyn Kelly
Discussing President Obama's Top 10 Constitutional Violations of 2013 with Peter Johnson of Fox News
Why Shira’s wrong
by David B. Rivkin, Jr. & Elizabeth Price Foley

August 23, 2013 | 4:00am

The recent federal court rebuke of New York City’s stop-and-frisk tactics shows that many disputes are best resolved through politics, not lawsuits.

Courts resolve discrete controversies — whether existing law has been violated. They’re not equipped to answer questions about what the law “should” be. Judicial remedies are supposed to make plaintiffs whole, not rewrite policies wholesale.

But try telling that to Judge Shira Scheindlin. She not only enjoined NYPD’s existing tactics, but also ordered the city to video all stops within certain precincts and appointed a monitor to “develop . . . a set of reforms of the NYPD’s policies, training, supervision, monitoring and discipline regarding stop and frisk.” Such intricate policy prescriptions are the stuff of statutes and regulations, not judicial opinions.

Whether or not any of this is good policy, it has very little to do with the law. Indeed, Supreme Court precedent is utterly at odds with Scheindlin’s Fourth and Fourteenth Amendment analysis.

To continue reading, click here [goes to NYPost.com]



Scheindlin ignored him, too: Justice Thurgood Marshall, a giant of the civil rights movement, agreed that stop-and-frisk is constitutional. Photo: Getty Images


Can Obama’s Legal End-Run Around Congress be stopped?
Jan. 15, 2014


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. . . . .

To continue reading, click here
http://www.howtoaddlikebutton.com Drucker Test Staubsauger Test
Prof. Foley's contributions to the "Room for Debate" series of the New York Times:

(Jan. 29, 2014)


(Oct. 2, 2013)



(July 8, 2012)

Prof. Foley discusses
the constitutionality of Executive Orders on Obamacare & Immigration Law
Why Not Even Congress Can Sue the Administration Over Unconstitutional Executive Actions
by ELIZABETH PRICE FOLEY
Feb. 7, 2014

What happens if a president refuses to “take care that the laws be faithfully executed” as required by Article II of the Constitution? The Framers assumed that neither Congress nor the courts would tolerate such usurpation. In Federalist No. 48, James Madison said power was “so divided and balanced among several bodies … that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Madison’s confidence assumes a wayward president could be reversed by the courts, reigned in by Congress or — as a last resort — impeached. But what if none of these checks and balances works? Americans may soon find out.
Click here to continue reading
Testimony before the House Judiciary Committee on "Enforcing the President's Constitutional Duty to Faithfully Execute the Laws"  (Feb. 26, 2014)