In November, just days after the American electorate gave Republicans strong majorities in both chambers of Congress, President Obama thumbed his nose at several million voters by issuing an executive order effectively granting amnesty to 5 million–plus immigrants residing in the United States illegally. That lawless action was, naturally, supported by Attorney General Eric Holder, whose primary contribution as head of the Department of Justice for six years has been to grant specious legal imprimatur to the president’s various usurpations of legislative power.
Loretta Lynch, U.S. attorney for the Eastern District of New York, nominated to be Mr. Holder’s replacement, has proven herself equally unfit for the office. That some Senate Republicans seem prepared to swiftly confirm her to office is an abnegation of their November mandate and, even more important, their constitutional duty.
In Senate confirmation hearings held this week, Ms. Lynch has evaded questions from Louisiana senator David Vitter about whether the amnesty order will actually be carried out on a “case-by-case basis,” as even the administration’s own lawyers say is required by law, and from Utah senator Mike Lee and Texas senator Ted Cruz about whether a future president could, under President Obama’s rationale of “prosecutorial discretion,” decline to enforce tax or labor or environmental laws. But among the things she has stated unequivocally is her belief that the president’s executive order is “legal and constitutional.” She even went further, telling Alabama senator Jeff Sessions that “the right and the obligation to work is one that’s shared by everyone in this country regardless of how they came here.” Such an assertion is both ahistorical and constitutionally insupportable. But it is the president’s own alarming view, and simply confirms that Ms. Lynch, like Eric Holder, would lend the Justice Department’s endorsement to the president’s lawlessness.
Still, several Republicans on the Senate Judiciary Committee seem happy to send her through to a full Senate vote, where she will be readily confirmed. Arizona senator Jeff Flake told BuzzFeed on Wednesday that “the president should always get his people unless there is something disqualifying about them, and there’s nothing disqualifying about her.” If the execution of a lawless act of executive overreach by the top law-enforcement official in the country is not disqualifying, what is?
Senate Republicans are under no obligation to call a vote on Ms. Lynch’s nomination. That is a power exercised at the discretion of the majority leader, and Senate Democrats were happy to postpone indefinitely votes on Republican nominees during the previous administration.
What some seem to have forgotten is that at issue in the president’s executive order is not simply America’s immigration policy. The president’s action in November — coming on top of his unilateral, de facto implementation of the Dream Act in the summer of 2012 — rends the principle of separation of powers that is part of the warp and weft of America’s constitutional fabric. Republicans — indeed, all of Congress — should exercise their constitutional prerogative to check the power of a president who has demonstrated his contempt for the very concept of checks and balances. The GOP will suffer merciless accusations of racism and sexism for doing so, but unflattering New York Times headlines are a small price to pay for upholding constitutional order.
Successful resistance to Ms. Lynch’s nomination would be a clear rebuke to the president. While it would likely leave Eric Holder or an acting attorney general in office, since the president is unlikely to nominate any candidate who would not support his executive amnesty, Republicans would at least firmly demonstrate that they are unwilling to participate in the neutering of their own constitutional powers.
But if the Senate votes to confirm Loretta Lynch — in what would be the chamber’s most important vote related to the president’s executive amnesty since its proclamation — what else ought conservatives to think than that it portends many white flags to come?