The Senate must vote no. Although Majority Leader Mitch McConnell (Ky.) and Republicans who control the Senate are under no obligation to do so, they have agreed to grant a confirmation vote to Loretta Lynch, President Obama’s nominee to replace Eric Holder as United States Attorney General. Ms. Lynch has testified that she supports and would implement President Obama’s executive action providing de facto amnesty to illegal immigrants.
This edict, which blatantly violates Obama’s oath to execute the laws faithfully, also unconstitutionally confers positive legal benefits on illegal aliens, something only Congress has the authority to do.
There are six points to be made about this.
- Violation of the Senatorial Oath of Office. As mandated by the Constitution, every United States senator takes a solemn oath to support the Constitution and to bear it true faith and allegiance. Ms. Lynch has forthrightly told the Senate, under oath, that she will undermine the Constitution. A senator cannot support and defend the Constitution by voting to confirm — to the highest law-enforcement position in the federal government, no less — a nominee who has announced that she intends to undermine the Constitution. A vote to confirm such a person, therefore, would plainly violate the senator’s oath.
- Aiding and Abetting Unconstitutional Conduct All United States senators, especially those who are lawyers with prosecutorial experience, are familiar with the concept of aiding and abetting (see Section 2 of the U.S. penal code, Title 18). To be culpable as an aider and abettor, a person need not approve of the conduct he or she is accused of enabling. Rather, it must simply be shown that the aider and abettor understood the conduct that was planned or being carried out and knowingly took steps to help that conduct succeed.
A senator who votes to confirm Ms. Lynch would be guilty of aiding and abetting President Obama’s unconstitutional amnesty decree. It does not matter whether the senator claims to oppose the amnesty decree and wishes Ms. Lynch would refuse to carry it out. Ms. Lynch has put everyone on notice that she will carry it out.
A vote to confirm her, therefore, is not only a vote for President Obama’s unconstitutional usurpation; a senator who votes to confirm Ms. Lynch will be just as culpable for the implementation of the president’s unconstitutional decree as Ms. Lynch will be.
- The President Not Entitled to His Choice of Subordinates. There is a prudential guideline that, in the absence of disqualifying circumstances, the Senate should defer to the president’s choice of high executive-branch officials. A prudential guideline is not, however, a legal rule, much less a constitutional obligation. If a senator treated this prudential guideline as if it were a requirement, this would effectively nullify the Constitution’s advice-and-consent mandate that the Senate provide meaningful review of the president’s nominees — thus violating the senator’s oath to uphold the Constitution.
- It is irrelevant that Ms. Lynch is competent and well-regarded, because the confirmation vote is about the Constitution, not the nominee. Ms. Lynch has testified that she supports and will implement unconstitutional executive-branch policy. That would be unacceptable coming from any high executive-branch official, but it is anathema coming from a nominee to the highest law-enforcement position in the government — a position that exists only to uphold the Constitution and see that the laws are executed faithfully.
- The Lynch supporters’ straw man rationale: Any lawyer President Obama nominates is going to support his unconstitutional amnesty, so we might as well accept Ms. Lynch because we’re not going to get anyone better. Again, the vote is not about Ms. Lynch, it is about the Constitution. The senators have taken an oath to uphold the ConstitutionThe Senate’s obligation is to bend President Obama into obeying the Constitution, not to allow themselves to be bent into violating the Constitution because the president is obstinately lawless.
On that score, two other important points: First, Republican leadership has forsworn impeaching the president and using the power of the purse to stop the president’s lawless conduct. There is thus nothing left to oppose the president’s lawlessness except leveraging the Senate’s power over confirmations of high officials. Second, in connection with the appointment of every Republican attorney general, Democrats have made a point of pushing nominees to vow that they believe the attorney general’s job is to be an independent voice defending the laws and the Constitution, not to do the president’s bidding. The attorney general’s duty, Democrats have insisted, is to tell the president when he is wrong and to prod the president to comply with the law.
- The Fact the Eric Holder Will Probably Remain Attorney General Until a Successor Is Confirmed Is Not a Rationale for Confirming a Disqualified Nominee. Because Eric Holder’s tenure as attorney general has been disastrous — he is the only AG in history to be held in contempt of Congress. It was very clear back in January 2009 that Holder was not a worthy candidate for attorney general. It makes no sense to say Ms. Lynch should get a pass for violating the Constitution because she would only be carrying out President Obama’s lawless agenda and yet to say that we must now rid ourselves of Mr. Holder because he has carried out President Obama’s lawless agenda. Any senator who votes to confirm her would be violating his or her oath to support the Constitution. Ms. Lynch has testified that she will help implement President Obama’s unconstitutional immigration amnesty. Any senator who votes to confirm her would be aiding and abetting the implementation of the unconstitutional amnesty. Period.