The lawyers behind the lawsuit against Obama's executive power grabs

This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?” Moreover, “impeachment is overkill for this particular transgression,” she says. “All Congress wants is for the president to faithfully execute the law. This does not mean that they think he should be kicked out of office.” The second option, cutting funds, “creates major distortions in political accountability, which is the genesis, the heart, of the notion of the separation of powers.” Congress, says Foley, should not be blamed for the president’s misdeeds — but that is just what will happen if the House has no recourse but to penalize innocent organizations as a means of punishing the president. Political self-help is important, Foley observes, “but only when proportionate and related to the transgression.”

If the House can establish standing by fulfilling these four criteria — the establishment of injury-in-fact as required by the Constitution and the three “plus” factors — they will have the opportunity to make their case to the courts that the president has flouted his constitutional mandate. While they believe there are a number of transgressions to choose from, Foley and Rivkin plan to present only the strongest infraction in court. They are mum about which one that might be. There is a mindset in both Washington and in legal academia that this case is doomed because of the question of standing. The answer, Foley and Rivkin counter, is “creativity” — and their auspicious pairing. “David has been around D.C. a long time; he’s an old-school neocon, very Article II,” Foley says, referring to the portion of the U.S. Constitution that addresses the executive branch. “I’m more libertarian, more focused on individual rights. It’s important to have those differences.”