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
. . . . 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.
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. . . .
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. . . .
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. . . .
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.
Testimony before the House Judiciary Committee on "Enforcing the President's Constitutional Duty to Faithfully Execute the Laws" (Feb. 26, 2014)
How five Colorado Democrats may have paved the way for Congress to sue the administration
by Elizabeth Price Foley & David Rivkin
Mar. 13, 2014
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.
The drive for equal outcomes is held in check, for now
(Apr. 25, 2014)
The Supreme Court, in Schuette v. By Any Means Necessary, reaffirmed that the central purpose of the Equal Protection Clause is prohibiting racial discrimination. The Court on April 22 upheld a Michigan state constitutional amendment that prohibited the state from using race and gender-based preferences, including in university admissions.
In upholding Michigan’s amendment, the court dodged a lethal constitutional bullet: Striking down the amendment would have transformed the Equal Protection Clause into an Unequal Preferences Clause.
Holder’s latest foray into the intellectual tar pit of disparate impact is an incredible waste of limited time and resources. So why does he bother? Because disparate impact is the cause du jour of the political left, which isn’t interested in achieving racial harmony but racial balancing.