Just a few days ago 10 Republican members of the U.S. Senate voted to affirm Loretta Lynch as attorney general of the United States. While we were overjoyed at the departure of Eric Holder — the most lawless, most corrupt attorney general in U.S. history — his replacement is just as bad and totally unacceptable as he is. She should never should have been confirmed. Everyone knows that if the Democrats were in control of the Senate they would have refused to affirm a Republican president’s nominee for attorney general.
Nonetheless, we were curious to see how Arizona’s junior Senator Jeff Flake justified his vote to affirm Lynch. This is the message he posted on his official Senate website:
“I was pleased today to confirm Loretta Lynch as attorney general. While I disagree with Ms. Lynch on many policy positions, I have always believed that the Senate should give deference to the president to pick his Cabinet unless there is something disqualifying in a nominee’s background.
“Furthermore, with Loretta Lynch confirmed, Eric Holder’s tenure as head of the Department of Justice draws to a close. Not a bad day in Washington.”
So it’s “not a bad day in Washington” when the people we sent to D.C. to oppose the most lawless, radical, un-American presidential administration in our history refuse to do their jobs.
Now let’s look at how a real leader — Senator Jeff Sessions of Alabama, who voted against Lynch’s confirmation — responded to the same responsibility set before him:
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 Sessions, you are an inspiration and a true patriot and leader. We applaud your courage and your integrity in standing up to evil and to minimize harm to this great nation. You are doing what you were elected to do.
As for you, Senator Flake, the same cannot be said. We do not compound one mistake by replacing it with a second mistake. The lack of reasoning, the void of depth and intellect in your brief, casual statement is stunning. And unacceptable.