Loretta Lynch Confirmed With Ten Republican Votes

The Senate voted 56-43 this afternoon to confirm Loretta Lynch as Attorney General. Ten Republicans voted for confirmation: Kelly Ayotte, Ron Johnson, Mark Kirk, Rob Portman, Thad Cochran, Susan Collins, Jeff Flake, Lindsey Graham, Orrin Hatch and Mitch McConnell.

No doubt other Republicans put out statements explaining their opposition to Lynch, but I got these from Jeff Sessions and Marco Rubio, and thought they were both worth passing on. Senator Sessions’ statement:

Under our Constitution, Congress was given certain powers as a coequal branch of government not only to protect the Congress as an institution, but to restrain the other branches from overreaching. One of those powers is the Senate’s power to confirm or not confirm nominees to high office.

This check on executive powers can be used as Congress sees fit but should not be abused, just as the President should not use his nominees to advance an improper or unlawful agenda.

The Attorney General is the top law enforcement officer in the country. It is not a political position. Anyone who occupies that office must serve the American people and serve under the laws and Constitution of the United States.

The Senate must never confirm an individual to such an office as this who will support and advance a scheme that violates our Constitution and eviscerates established law and Congressional authority. No person who would do that should be confirmed. And we don’t need to be apologetic about it, colleagues.

Ms. Lynch has announced that she supports and, if confirmed, would advance, the President’s unlawful executive amnesty scheme—a scheme that would provide work permits, trillions in Social Security and Medicare benefits, tax credits of up to $35,000 a year (according to the Congressional Research Service), and even the possibility of chain migration and citizenship to those who have entered the country illegally or overstayed their lawful period of admission. The President has done this even though Congress has repeatedly rejected legislation that would implement such a scheme.

President Obama’s unlawful and unconstitutional executive action nullifies current immigration law—the Immigration and Nationality Act—and replaces them with the very measures Congress refused to adopt. Even King George the Third lacked the power to legislate without Parliament.

During her confirmation hearing in the Judiciary Committee, I asked Ms. Lynch plainly whether she supported the President’s unilateral decision to make his own immigration laws. Here is the relevant portion of the hearing transcript:

Sessions: I have to have a clear answer to this question—Ms. Lynch, do you believe the executive action announced by President Obama on November 20th is legal and Constitutional? Yes or no?

Lynch: As I’ve read the [Office of Legal Counsel] opinion, I do believe it is, Senator.

Of course, the lawful duty of the Attorney General is to enforce the law that exists, not one she or the President might wish existed.

One of the most stunning elements of the President’s scheme is the grant of work permits to up to 5 million illegal immigrants—taking jobs directly from citizens and legal immigrants.

Peter Kirsanow, Commissioner on the United States Commission on Civil Rights has written at length about how this undermines the rights of U.S. workers, especially African-American workers, and other minorities, suffering from high unemployment. At her confirmation hearing, I asked Ms. Lynch about what she might do to protect the rights of legal U.S. workers. Here is the exchange in question:

Sessions: Who has more right to a job in this country? A lawful immigrant who’s here or a citizen—or a person who entered the country unlawfully?

Lynch: I believe that the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here. And certainly, if someone is here, regardless of status, I would prefer that they would be participating in the workplace than not participating in the workplace.

This is a breathtaking statement. It is unprecedented for someone who is seeking the highest law enforcement office in America to declare that someone in the country illegally has a “right” to take a job.

This nation is—as George Washington University Law Professor Jonathan Turley has put it—at “a constitutional tipping point.” Professor Turley, who is a nationally recognized constitutional scholar and self-described supporter of President Obama and his policies, testified before the House of Representatives in February 2014, 9 months before the President announced his unprecedented executive action:

The current passivity of Congress represents a crisis of faith for members willing to see a president assume legislative powers in exchange for insular policy gains. The short-term, insular victories achieved by this President will come at a prohibitive cost if the current imbalance is not corrected. Constitutional authority is easy to lose in the transient shifts of politics. It is far more difficult to regain. If a passion for the Constitution does not motivate members, perhaps a sense of self-preservation will be enough to unify members. President Obama will not be our last president. However, these acquired powers will be passed to his successors. When that occurs, members may loathe the day that they remained silent as the power of government shifted so radically to the Chief Executive. The powerful personality that engendered this loyalty will be gone, but the powers will remain. We are now at the constitutional tipping point for our system. If balance is to be reestablished, it must begin before this President leaves office and that will likely require every possible means to reassert legislative authority.

One of those means is the advice and consent power. It was created for just such a time as this. It is not only appropriate, but necessary, that the Senate refuse to confirm a President’s nominees when that President has overreached and assumed the legislative powers of Congress. It is particularly necessary when the President’s nominee is being appointed specifically for the improper purpose of advancing the President’s unconstitutional overreach—all through the powers of the office to which they have been nominated.

Congress must not confirm anyone to lead the United States Department of Justice who will advance the President’s unconstitutional actions. Congress has a limited number of powers to defend the Rule of Law and itself as an institution and to stop the Executive Branch from overreaching. It is unthinkable that we would ignore one of those powers in the face of such a direct threat to our constitutional order—and it is part of an escalating pattern of overreach. Every day that we allow the President to erode the powers of Congress, we are allowing the President to erode the sacred Constitutional rights of the citizens we serve. We have a duty to this institution, to the Constitution, and to the American people not to confirm someone who is not committed to those principles but rather who will continue in violation of them. For those reasons, I will oppose this nomination and I urge my colleagues, regardless of party, to do the same.

Senator Rubio’s statement:

When we assess the suitability of a nominee to be attorney general, it is not enough to question whether that nominee is a good lawyer or an honorable person. We must also consider what type of attorney general that nominee is likely to be and whether he or she is willing to say “no” to the president if no is the answer the law and the Constitution fairly give.

I opposed Loretta Lynch’s nomination because of her failure to identify any limit on the president’s ability to ignore the laws passed by Congress as well as her obvious enthusiasm for civil asset forfeiture, which can deprive innocent people of their property rights without due process. The president has every right to appoint nominees who support his policies, but I could not support Ms. Lynch because of every indication she has given that she will put her support of the president’s policies ahead of her support of the Constitution of the United States.

Many hours of testimony before the Senate Judiciary Committee offered countless opportunities for her to show independence from the president, yet she declined to do so time and again. Pushed on the president’s unprecedented claim that through prosecutorial discretion he can unilaterally change substantive immigration law, she declared this position “reasonable.” Asked whether a conservative president could unilaterally lower taxes by simply not collecting them above a certain rate, she demurred. In fact, she seemed to indicate that she couldn’t imagine a limit to such claims to power.

I regret that Ms. Lynch failed to demonstrate that, if confirmed, she would be willing to tell the president that there are some things that he simply does not have the constitutional power to do. Because she failed to demonstrate that she would be willing to draw a line where appropriate, I voted against her confirmation.

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