Elizabeth Price Foley

Elizabeth Price Foley is Of Counsel to Cooper & Kirk and a tenured Professor of Law at Florida International University College of Law in Miami, Florida, where she teaches constitutional law, separation of powers, and civil procedure. She has also taught health law and food and drug law. Ms. Foley has extensive experience representing a wide range of clients on a variety of constitutional, appellate, and complex procedural issues, with an emphasis on issues relating to separation of powers. Representative examples of Ms. Foley’s work include:

• Advised State client on First Amendment implications of law regulating ability of social media platforms to contract with minors.
• Successfully defended client against subpoena issued by U.S. Senate Judiciary Committee on basis that it lacked a valid legislative purpose and violated separation of powers, the First Amendment, equal protection, and Senate rules.
• Advised client regarding potential exposure to executive branch prosecution for criminal contempt of Congress pursuant to 2 U.S.C. §§ 192, 194.
• Successfully defended client against subpoena issued by D.C. Attorney General on basis that the AG lacked visitorial power to issue, and constitutional standing to enforce, a subpoena seeking information from an entity organized under the laws of another State.
• Won appeal in the United States Court of Appeals for the Second Circuit, overturning a District Court decision rejecting a foreign bank liquidator’s claim of sovereign immunity. The Second Circuit held that the “time of filing” rule pronounced by the Supreme Court in Dole Food Co. v. Patrickson (U.S. 2003) did not apply to a bank’s post-filing entry into foreign liquidation. The case also involved litigating issues relating to intervention and substitution.
• Represented high-profile client in assertion of diplomatic immunity (lack of subject matter jurisdiction) before U.S. District Court and U.S. Court of Appeals for the Eleventh Circuit (dismissed due to presidential pardon).
• Advised client on applicability of preemption and displacement doctrines relating to State law claims against fossil fuel producers.
• Principal architect of successful separation-of-powers lawsuit challenging Executive Branch implementation of the Affordable Care Act which usurped congressional power under the Appropriations Clause. The suit also successfully argued that the U.S. House of Representatives had legislative standing to bring the suit.
• Advised client on First Amendment implications of federal TikTok law (Protecting Americans from Foreign Adversary Controlled Applications Act).
• Represented large foreign television network accused of defamation in U.S. District Court and U.S. Court of Appeals for the Second Circuit, raising First Amendment (actual malice), forum non conveniens, venue, and personal jurisdiction defenses.
• Represented client in civil forfeiture action raising due process-based objection to personal jurisdiction before the U.S. District Court and obtaining interlocutory appeal by certification to, and stay pending disposition by, the U.S. Court of Appeals for the Ninth Circuit. Filed petition for writ of certiorari with the U.S. Supreme Court.
• Advised State clients regarding anti-commandeering and anti-coercion (vertical separation of powers) challenges to EPA’s Clean Power Plan.
• Advised client regarding potential violations of various national security-based executive orders relating to corporation’s relationship to Chinese government.
• Advised large energy client on preemption, abstention, subject matter jurisdiction, due process and other defenses for land-loss suits in state courts.
• Drafted ethics complaint against U.S. Senator based on Senate conflict-of-interest rules.
• Represented energy company in removal of state-law class action suit and motion to dismiss in federal court based on lack of Article III standing and failure to state a claim.
• Represented creditors’ committee of bankrupt utility on claims relating to due process and inverse condemnation under federal and state constitutions.
• Advised State official on constitutional claims stemming from improper conduct by other State officials, including First Amendment retaliation, due process, and defenses of qualified immunity.
• Advised foreign business owner on domestic and international law claims against foreign bank and government of Croatia, arising from expropriation of business

Ms. Foley is a frequent op-ed contributor to the Wall Street Journal and has testified numerous times before Congress on constitutional issues such as legislative standing, congressional subpoena power, the president’s duty to faithfully execute the law, due process, congressional authority over federal courts, and the ratification and recission of constitutional amendments. She is also the author of three books on constitutional law published by Yale, Harvard and Cambridge University Presses.

Ms. Foley previously served Of Counsel at BakerHostetler, LLP, as a law clerk for Judge Carolyn Dineen King of the U.S. Court of Appeals for the Fifth Circuit, as a Fulbright fellow at the National University of Ireland, and as a senior legislative aide on Capitol Hill. She received her B.A. in history from Emory University and her J.D. degree, summa cum laude, from the University of Tennessee College of Law, where she graduated as class valedictorian, was an Articles Editor of the Tennessee Law Review, and selected to Order of the Coif. She received her LL.M. from Harvard Law School. Ms. Foley is a member of the Florida, District of Columbia, Texas (inactive), and U.S. Supreme Court bars.