Remember When The Obama Administration Pressured Baker Hostetler To Drop Its Representation In House of Representatives v. Burwell?
For the past two decades or so, conservatives have been systematically excluded from big law. Paul Clement was pushed out of two big law firms for his representation of conservative causes. A lawyer at Hogan Lovells was fired after defending Dobbs. Associates are routinely forced to do pro bono work on progressive causes, including abortion. But you will not find AMLAW 100 firms that filed an amicus brief in support of abortion restrictions. With good reason, boutique firms like Consovoy McCarthy and Clement Murphy have flourished. Big law firms have decided they would take a position on ideological issues, conservatives be damned. Maybe that was a good business judgment in the past, though those tides may have turned.
I don’t think anyone would quibble with what I wrote above. But they would probably draw a distinction between a law firm making a business decision to favor progressive causes, and the government taking actions against a firm because of their political decisions. The Trump Administration’s revocation of security clearances for attorneys at certain firms would be an example of the latter issue.
Is this sort of action unprecedented? Not really. I will repost below I wrote in 2016 about the origin of House of Representatives v. Burwell. This post was based on my 2016 book, Unraveled: Obamacare, Executive Power, and Religious Liberty. The bottom line: the Obama Administration indirectly pressured Baker Hostetler to drop its representation of the House. And that pressure worked. I’ll add a coda at the end of the post.
In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. Judge Rosemary M. Collyer ruled that the House as an institution had standing and that the payments were made without an appropriation. Currently, the case is on appeal to the U.S. Court of Appeals for the D.C. Circuit. Though the litigation has had unexpected success in the courts, its origin was rocky. As I discuss in Chapter 23 of “Unraveled,” one of the most difficult aspects the case was finding an attorney to take it – or, more precisely, an attorney whose law firm would allow him keep the case.
In 2014, David Rivkin of the Baker Hostetler law firm and Florida International University law professor Elizabeth Price Foley wrote a series of articles, sketching a theory of why the House would have standing to challenge the president’s implementation of the Affordable Care Act. At the time, their writings focused on the White House’s delay of the employer mandate. Behind the scenes, Rivkin, Foley and their colleagues at Baker Hostetler were advising the House on how to take legal action.
With their counsel, on June 25, 2014, then-Speaker John A. Boehner (R) circulated a memorandum to the House GOP caucus. The Ohioan wrote that “for the integrity of our laws and the sake of our country’s future, the House must act now” to stop the president’s illegal executive actions. In July, Boehner would bring legislation to the floor to authorize the House general counsel “to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country.” On July 30, the House voted along nearly straight party lines – 225 to 201 – to authorize the litigation. (One Republican voted nay.) House Resolution 676 was framed very broadly: The lawsuit could “seek any appropriate relief regarding the failure” of all executive-branch officials – including the president himself – “to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation” of the ACA.
After the House authorized the suit, Rivkin and Baker Hostetler signed a contract to litigate the case, which was capped at $350,000. The reaction from Democrats was swift. The White House called the suit “unfortunate.” Minority Leader Nancy Pelosi (Cslif.) criticized the case as a waste of “time and taxpayer dollars.” Rep. Louise M. Slaughter (D-N.Y.) called the suit a “sorry spectacle of legislative malpractice” and “political theater.” Even many conservatives critiqued the decision. Talk
Article from Reason.com
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