Loretta Lynch’s Obama Problem
Nominations are one way the GOP can fight the President’s executive excesses.
March 22, 2015 6:48 p.m. ET
How does Congress deal with a President who exceeds his appointment power, rewrites laws when it suits him, and shuts down the government rather than compromise with a co-equal branch over policy differences? That’s the dilemma Republicans on Capitol Hill have faced, and it explains why Loretta Lynch may not be confirmed as Attorney General for weeks, if it all.
Senate Republicans are blocking a vote on Ms. Lynch, the U.S. Attorney for the Eastern District of New York who would be the first black woman to run the Justice Department. Most Republicans don’t have a problem with Ms. Lynch’s qualifications. Their problem is with President Obama and his willful disregard for the limits of executive power.
These columns believe that Presidents deserve their cabinet nominees in nearly all cases, but Mr. Obama’s governance presents Congress with a larger Madisonian dilemma. James Madison designed a constitutional system of checks and balances to prevent executive or legislative tyranny. This works best when Presidents and Congresses assert their legal powers but step back from constitutional excesses that lead to judicial intervention or political crises.
Mr. Obama honors no such limits even when he admits they exist. On immigration policy, he said 22 times that he lacked the authority to issue work permits to millions of illegal immigrants only to order precisely that. He is negotiating a nuclear arms deal with Iran that he will submit for approval to the United Nations but not Congress.
The Supreme Court has scolded Mr. Obama for making recess appointments when Congress wasn’t in recess. It has rebuked him for rewriting the Clean Air Act without statutory authority. And it is now hearing a challenge to his decision to spend billions of dollars in subsidies without clear authorization in the ObamaCare statute.
The normal constitutional response would be for Congress to use its own powers to check these executive excesses. Republicans have been stymied in part by Senate Democrats, especially Harry Reid, who did a deal with the President to protect him at all costs if Mr. Obama used appointments at the Nuclear Regulatory Commission to stop a nuclear waste facility in Nevada.
But above all Congress has been frustrated by a President who has used the threat of government shutdowns as a political bludgeon to erode Congress’s power of the purse. Most Presidents negotiate compromises over spending priorities, as George W. Bush did in his last two years with the Pelosi-Reid Congress and Bill Clinton did with Newt Gingrich. Mr. Obama negotiates more sincerely with Ayatollah Khamenei than he does with Congress.
So what can the Congressional majority do? Impeachment is a political loser and makes no sense in the last two years anyway. Shutdowns don’t work, though regular order on spending will at least give the GOP more leverage to win some smaller victories. That leaves the Senate’s power of advice and consent over Mr. Obama’s nominees for the executive branch and judiciary.
This is the leverage the Senate GOP is now exercising against Ms. Lynch. She was headed toward easy confirmation until Mr. Reid decided to filibuster a previously agreed upon and bipartisan human-trafficking bill over an obscure abortion-funding provision. Mr. Reid’s goal, like Mr. Obama’s, is to show that Republicans can’t govern.
As usual, Democrats are playing the race card by claiming that the hold on Ms. Lynch is because she is black. But no one believes this. Current AG Eric Holder is black, and Majority Leader Mitch McConnell has suggested she will still get a vote if Mr. Reid stops the filibuster.
The Lynch hold nonetheless signals that the GOP Senate should consider using its advice and consent power more aggressively—as a constitutional response to Mr. Obama’s unconstitutional abuse of his executive authority. In her confirmation hearings Ms. Lynch defended Mr. Obama’s executive order on immigration, which is a fair reason to vote against her, though Mr. McConnell and other Republicans should explicitly repudiate the false racial charge on the Senate floor.
The more fruitful area for resistance may be on Mr. Obama’s appellate-court nominees, as Curt Levey recently argued on these pages. Simply refuse to confirm all of his appellate nominees until he stops abusing his power. This would be proportionate political justice after Messrs. Obama and Reid broke Senate rules to pack the D.C. Circuit Court of Appeals last year.
The President and liberals would protest, but the public would barely notice. Mr. Obama might make recess appointments to the bench, but these would end with his Presidency. In 2017 a Republican President would still have more judicial openings to fill.
Most important, Mr. Obama would begin to pay a measurable price for failing to operate within the Constitution’s guardrails. And Republicans would be in the good constitutional company of James Madison.
wsj.com |
