Heritage Action Brief: No More Obama Judicial Confirmations

 

Background: President Obama has consistently shown a lack of regard for the separation of powers laid out in the United States Constitution. His executive overreaches have undermined not only our Constitution and the rule of law, but have also paved the way for progressive politics. Whether the issue is health care, immigration, or second amendment rights, President Obama uses his phone and his pen to enact progressive policies that the American people do not want.

For the most part, President Obama has gotten his way on a number of issues, shielded by liberal federal judges who he and Presidents before him appointed. Entering his eighth year in office, judicial appointments are at the very top of his priority list.

Reasserting Constitutional Prerogatives: Despite the President’s actions, in the last year, the Republican controlled Senate has already allowed the confirmation of 12 federal judges. Overall the President has successfully appointed 55 appeals court judges and 264 district court judges. To put this in perspective, President George W. Bush successfully appointed 62 appeals court judges and 261 district court judges. President Obama is on track to have more judicial nominees confirmed than President Bush.

The President’s damage to our constitution and the rule of law has gone far enough. Senate Republicans must use their constitutional power of confirming federal judges to reassert their constitutional prerogatives and rein in executive overreach.

Conservative Momentum Against Judicial Confirmations: At the end of 2015, Senate Republicans unanimously agreed to hold votes on five district and circuit court nominees in the new year. The first, Third Circuit nominee Luis Felipe Restrepo, was confirmed 82-6 on January 11th. In response, Heritage Action key voted the nomination of Wilhelmina Marie Wright to the Minnesota Supreme Court. This is the same liberal judge who accused President Ronald Reagan of racism and bigotry and took a dim view of property rights.

While the Senate confirmed her nomination on January 19th, 36 Republicans voted against her, demonstrating the growing momentum to stop future nominees. Even Senate Minority leader Harry Reid recognizes the progress. According to Reid, “Powerful right-wing groups announced they’re scoring votes on presidential nominations. In fact…Heritage Action said the Senate should only confirm nominees they deem – they deem, not the senators, but this right-wing cabal – that they deem worthwhile.”

36 “No” votes is a good start, but more work needs to be done. The Senate should no longer confirm any additional non-security nominees under this President in the months ahead.

Claim: Just because President Obama has engaged in executive overreach doesn’t mean Congress should engage in legislative overreach. Two wrongs don’t make a right.

Response: While the President has the power to nominate federal judges, the Constitution clearly gives power to the Senate alone to approve those nominations. In fact the Constitution calls on the President to adhere to the “advice and consent” of the Senate.

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

Our system of government requires each branch to jealously guard its prerogatives, and President Obama routinely tramples over the legislature’s prerogatives. Senators should not stand by idly for the next 12 months. They must act to reassert their separate but equal role in our constitutional system.

Furthermore, there is a long history of the Senate ending consideration of nominees in the last few months before an election. The Thurmond Rule, for example, is an unwritten Senate rule that discourages the confirmation of lifetime judicial appointments during the last 6 months of an outgoing president. Senator Strom Thurmond used it to oppose President Lyndon Johnson’s and President Jimmy Carter’s nominations and Senator Patrick Leahy used it against President Bush during the last year of his presidency. Conservatives should act now by applying the Leahy-Thurmond Rule a few months earlier than is custom in order to restore the balance of powers and limit further executive overreach.

Claim: Senate Republicans have a duty to confirm federal judicial nominees, especially considering so many judicial seats are empty.

Response: While filling judicial seats are important, Senate Republicans have a duty to confirm not just any judicial nominee, but nominees who follow and obey the Constitution. White House chief of staff Denis McDonough admitted in January of 2016, “We’ll do audacious executive action over the course of the rest of the year, I’m confident of that.” The President’s track record has proven he cannot be trusted to obey, or nominate judges who obey, the Constitution.

While many judicial seats are empty, President Obama has filled hundreds of seats over the course of his presidency. In fact, President Obama already has more district court nominees confirmed than President Bush did at the end of his presidency. Every seat filled by an Obama appointee is a seat that can’t be filled by a Republican president.

Claim: Republican attempts to stifle judicial nominations are unprecedented in American history. Only 11 judges were confirmed in 2015, the lowest since 1960.

Response: President Obama’s judicial nominations must be taken in the larger context. President Obama has already successfully appointed 55 appeals court judges and 264 district court judges. President Bush before him successfully appointed 62 appeals court judges and 261 district court judges within his entire 8 years of office. President Obama is on track to have more nominees confirmed than his predecessor.

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President Obama’s Executive Gun Control

On January 4, 2016, President Obama announced a series of new executive actions intended to increase restrictions on gun sales and access. The statement “clarifies” that the definition of those “engaged in the business” of selling firearms, making it more difficult for individuals to transfer the ownership of guns, and expands staffing for the enforcement of these guidelines. It directs the Social Security Administration to determine how to share private mental health records with the National Instant Criminal Background Check System (NICS), potentially prohibiting law abiding citizens, including veterans and older Americans, from purchasing or possessing a firearm. It also asserts a strong federal role in “shaping the future of gun safety technology,” laying a foundation to develop additional regulations for gun manufacturers.

The White House cited Congress’s failure to take action as justification for its executive actions. But congressional inaction is no justification for Presidential overreach. Congress should block the President from implementing this policy, which will have a chilling impact on many gun sales.

Expanded Background Checks: The Gun Control Act of 1968 establishes a series of restrictions on those who are “engaged in the business” of selling firearms, with the “principal objective of livelihood and profit.” This provision covers those who operate gun stores, requiring them to secure a Federal Firearms License, keep meticulous records on every person who purchases a gun, and run a background check on a purchaser before sale. This provision contains an exemption for a person “who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms.”

The executive actions clarify that a person can be deemed to be “engaged in the business” of selling guns, “even if the person only conducts firearm transactions at gun shows or through the Internet.” The statement does not set a threshold number of firearms purchased or sold that triggers the requirement to secure a license, but notes that “even a few transactions, when combined with other evidence, can be sufficient to establish that a person is ‘engaged in the business.’” While the Administration relies on court decisions where individuals have been successfully prosecuted consistent with this clarification, many conservatives are concerned that these obscure scenarios are being used to effectively propound a broader definition of what it means to be “engaged in the business” for regulators.

The result is a potentially wide expansion of discretionary authority for the federal government, allowing bureaucrats to target individuals who are selling from personal collections.

To ensure that they avoid penalties up to $250,000 and five years in prison, individuals will need to use a federally licensed dealer as an intermediary, which involves additional fees, a background check, and a record of the transaction. This attempt to reroute a larger number of gun exchanges to federally licensed dealers is consistent with a troubling 2013 memo from the Department of Justice, which argued that effective background checks require gun registration, and that “understanding gun sources requires a sustained and localized surveillance program.” The Left has long wanted a system of universal background checks, which to enforce, eventually requires a gun registry.

To enforce this policy, the administration is proposing to hire an additional 430 agents, 200 for the Bureau of Alcohol, Tobacco, and Firearms (ATF), and 230 for the FBI (to ramp up background checks). This ramped-up enforcement is particularly troubling considering the ATF’s likely intent to target a broader class of individuals.

Mental Health: The White House is proposing an additional $500 million in spending on mental health care, paired with tighter restrictions on the ability of those with a mental health illness to access guns. The administration’s plan is expected to require the Social Security Administration to report the records of approximately 75,000 people with documented mental health issues for inclusion in the National Instant Criminal Background Check System (NICS). The language is ambiguous, leaving concerns that this provision could affect veterans with post-traumatic stress disorder, retirees receiving benefits through a representative payee, and potentially other Americans suffering from mental health illnesses which should have no bearing on their gun rights.

“Gun Safety” Technology: The plan includes a memo directing federal departments to increase research and development, as well as acquisition, of new gun safety technology – such as fingerprint scanners, radio-frequency identification, and microstamping. This could help to set precedent for future regulations of firearms manufacturing.

The administration’s plan, crafted in response to the shootings at San Bernardino, is a sophisticated and dangerous distraction from the real threat of radical Islamic terrorism. By seizing the tragedy as opportunity to push gun control policies, the president is causing genuine harm to citizens’ constitutional right to bear arms, while distracting from the opportunity to confront the real threat of radical Islamic terrorism. Congress should make it clear that President Obama’s “phone and pen” attack on our constitutional rights needs to end, and take action to stop the president’s action.

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Refugee Resettlement Claim-Response

Claim: The U.S. refugee vetting system is thorough, a terrorist couldn’t get in if he tried.

 Response: According to a memo by the National Counterterrorism Center (NCTC), “The refugee system, like all immigration programs, is vulnerable to exploitation from extremist groups seeking to send operatives to the West.”

This popular argument, frequently advocated by left-of-center magazines, wrongly confuses the length of the vetting process with its effectiveness. While the refugee resettlement process can take months or even years, it does not mean that all refugees are being screened thoroughly. As FBI Director James Comey noted, there are significant gaps in the vetting process, due to the breakdown in information gathering systems in a refugee’s homeland. Before the House Committee on Homeland Security, he stated: “If someone has never made a ripple in the pond in Syria in a way that would get their identity or their interest reflected in our database, we can query our database until the cows come home, but there will be nothing show up because we have no record of them.”

The fact is that terrorists have entered the United States through the refugee system before. In 2009, it was discovered that two insurgents from Iraq had made it through the screening system and been placed in Bowling Green, Kentucky. This prompted the Department of Homeland Security to stop processing Iraqi refugee requests for 6 months in 2011, after it was discovered that several dozen additional terrorists may also have slipped in through the refugee system.

Claim: Refugees are victims, not perpetrators, of terrorism.

Response: The situation in Syria is incredibly complex, as are the allegiances of those seeking refuge. While the majority of Syrian refugees are not sympathetic to terrorism, a significant minority is sympathetic to ISIS’s cause. A November 2014 study by the Arab Center for Research and Policy Studies noted that 13% of Syrian refugees have a view of ISIS that is at least “positive to some extent” (4% were simply “positive”). Given that aggressve online recruitment strategy employed by ISIS to target recruits in the west, and that current intelligence agencies are ill-equipped to discern sympathies towards ISIS, this is cause for serious concern. Congress has the responsibility to ensure that more rigorous screening procedures are intact before allowing additional refugees to enter the United States.

Claim: There has never been an act of terror committed by a refugee in the United States.

Response: This is not because terrorists have not entered the United States through the refugee system. As the Bowling Green incident illustrated, insurgents from Iraq have been successful in gaining access to the United States through the refugee process.

Furthermore, the Tsarnaev brothers, the terrorists responsible for the Boston Marathon bombing, radicalized in the United States after having been granted asylum. This radicalization threat is becoming more pressing, as ISIS is using online propaganda techniques to target refugees disaffected by the current refugee resettlement industry.

Claim: Most refugees are women and children.

Response: It’s true that many refugees are women and children, but that does not mean that many are not cause for concern. Women and children are frequently used in terrorist operations. Since the 1980s, women have accounted for nearly a quarter of attacks in several countries, including Iraq, Egypt, and Syria. Research indicates that women have carried out half of the suicide attacks in Sri Lanka, Turkey, and Chechnya between 2002 and 2012.

According to an article in the Los Angeles Times called “Terror’s ‘invisible women,’” “a younger generation of female jihadists has come to believe that acts of violence can be just as liberating politically and spiritually for women as for men. A religious woman can deflect her parents’ or husband’s objections by invoking the name of religion, which trumps all. The new mantra is ‘even women must fight.’” Furthermore, ISIS has also been training children for suicide bombing operations.

In the wake of the Charlie Hebdo attacks, The New York Times reported that intelligence agencies have failed to appreciate the role women play in terror. Now, as political lines have been drawn over the Syrian refugee debate, conservatives are being accused of being cold-hearted towards women and children. The left cannot have it both ways.

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WHAT THEY’RE SAYING about H.R. 2: The Senate can and should do better

Conservative and nonpartisan voices say Congress should scrap the H.R. 2 ‘doc fix’ deal…

Senator Ben Sasse:

“Unfortunately, the House bill is a missed opportunity to fix Medicare and arguably makes our long-term problems worse. This is exactly why Congress has dismal approval ratings. Lets use this opportunity to secure the program for seniors and for their grandchildren. Congress should scrap this deal and work on a new solution.”

Senator Jeff Sessions:

“This is what brings this Congress in disrepute. The same day we assert that we want to have a balanced budget…we’re now considering pass an unpaid-for increase in spending that would add $170 billion to the debt…

“Let’s all work together to lay out a plan that would pay for this expense. We can do that. “

Heritage Foundation’s Bob Moffit:

“This “deal” will increase the deficit by $141 billion over the next 10 years. Then it will become even more unaffordable…

“In addition to guaranteeing taxpayers hundreds of billions more in future indebtedness, the House bill carries huge opportunity costs. America needed robust, bipartisan structural Medicare changes—reforms that would significantly improve the program and secure serious long-term program savings…

“The bill is now with the Upper Chamber. Senators can and should do better.”

Jim Capretta in National Review:

“For starters, despite claims made by supporters of the emerging bill, it is highly unlikely that the legislation will reduce long-term Medicare spending…

“Proponents of the law counter that the new spending shouldn’t be counted in this assessment because the SGR-mandated spending cuts were never going to happen anyway, and thus undoing them is just matching law with reality. But that’s not really accurate…

Congress has been dealing annually with “doc fix” legislation for more than a decade now, and many physicians are beyond impatient with the legislative process. That’s understandable. But in trying to appease them, it looks as if Congress is going to approve a plan that is more business as usual than its supporters would like to admit.”

Yuval Levin in National Review:

“[U]ltimately, I’d vote against it. I don’t think the annual SGR patches constitute a terrible crisis, but I think the fiscal trajectory of the Medicare program does. This bill seems premised on the opposite assumptions.

Joe Antos of the American Enterprise Institute:

Bounce the ‘dox fix’ – but don’t increase the deficit

“Last year, the permanent “doc fix” failed because Congress was unable to agree on how to pay for it.  This year, Congress wants to cover only part of the cost with Medicare savings.  That would be a serious mistake. …

“The bottom line is clear.  By not finding offsets for the entire cost of the doc fix-CHIP proposal, Congress is opening the door to even greater deficit spending in the future…

“If we cannot reform the entire Medicare physician payment system, we should at least find other savings in the program to avoid adding greater burdens on taxpayers and their children.”

Avik Roy of the Manhattan Institute:

“Senate, you’re our only hope: The authors of the “doc fix” bill call it “entitlement reform.” But how does spending hundreds of billions more on Medicare get to be called “reform?”

“… The only way to salvage the situation is to persuade the Senate to beef up the Medigap and means-testing changes, so as to ensure that the bill would indeed reduce the deficit, relative to current law, in its second decade.

“In 2006, Republicans lost their majorities in both the House and the Senate, in large part because they no longer stood for reducing the size and scope of government. If the “doc fix” becomes part of a deficit-busting pattern, it’s hard not to envision a similar fate for this Congress.”

Committee for a Responsible Federal Budget:

Despite official estimates tabbing the Medicare Sustainable Growth Rate (SGR) formula replacement bill at a cost of $141 billion this decade and implying it would add upwards of $500 billion to the debt over 20 years, lawmakers have taken to fuzzy math – or simply ignoring math altogether – in order to pretend that the bill is fiscally responsible…CBO uses current law as its standard and only evaluated the bill relative to a freeze because it was asked to. You cannot (against all evidence) assume fiscal irresponsibility in order to justify being irresponsible.

Washington Post Editorial:

“[S]uccumbing to [H.R. 2] would set back the cause of long-term fiscal reform. To repeat, the sustainable growth rate has not quite worked as intended, but at least its failure never turned into a source of higher deficits. Instead, both parties should treat this as a chance to impose more structural changes, over and above the $37 billion worth contemplated. The Committee for a Responsible Federal Budget has identified $215 billion worth of medical program savings that could help pay for a long-term doc fix without altering eligibility or other fundamentals in either Medicare and Medicaid.

“For all the polarization and partisanship of a dysfunctional Congress, Republicans and Democrats have proven many times that they are still capable of agreeing to spend more on entitlements and pay for it through borrowing. They should miss this opportunity to prove that yet again.”

National Review Editorial:

“The SGR has been denounced as a mere budget gimmick, which in a sense it is, but it is one that has been nonetheless effective: Congress has shown no willingness to actually reduce physicians’ Medicare payments, but it has been surprisingly rigorous about offsetting those doc-fix expenses with other spending reductions. …

“The worst outcome — abandoning those spending restraints while doing little or nothing to mitigate the fiscal impact of doing so — is, unfortunately, what is currently under consideration. If presented with that option, conservatives should put their foot down — on the neck of this profligate, deficit-swelling deal.”

Conservative Review Editorial:

“So sure, the SGR is a failure, as is always the case when price controls stand in for genuine, market-based reforms. But that does not mean Congress should eliminate it without any sincere plan to manage Medicare’s untenable trajectory. Cosmetic trimming and deficit spending simply do not suffice. If the GOP-controlled Congress would like to do something about the tradition of the “doc fix,” it should begin by addressing long overdue structural changes. …

“And in the meantime, Republicans, pay for what you say you are going to pay for, and don’t deceive the taxpayers who sent you to Washington to restore fiscal sanity.”

Washington Examiner Editorial:

“The doc-fix drama is not the thing that needs to be cured, but rather Medicare’s rising and unsustainable costs.

“As a symptom, the recurring annoyance of the doc-fix is actually a good thing. It forces Congress to confront the issue repeatedly. The hope is that someday — with the right Congress and president in place — this confrontation will lead to much-needed Medicare reforms that come with support from a medical establishment eager for a permanent doc-fix. This strategy threatens to make that possibility less likely. There exists a danger that if this deal removes the repeated annoyance of the doc-fix, Congress will lose its best short-term incentive to reform the program for the long term.”

Michael Cannon of the Cato Institute:

“[T]his bill is yet another example of the dessert-first-spinach-later approach to fiscal stewardship that is business as usual in Congress…

“For all its faults, and despite the fact that it has become (in health-policy circles, anyway) a punch line, the SGR forces Congress to confront runaway Medicare spending year after year. If this bill passes, it will be easier for Congress to ignore runaway Medicare spending — and that spending will begin to run away even faster. Reformers might be better off leaving the SGR in place and preserving the leverage it creates until political realities have changed — that is, until there is a president who will support broader Medicare reform.”

John Graham of the National Center for Policy Analysis (NCPA):

“Late last month, an overwhelming bipartisan majority in the House of Representatives approved the Medicare Reauthorization and CHIP Extension Act (MACRA), a fiscally irresponsible approach to increasing the amount the federal government spends on Medicare’s physicians’ services. Medicare’s Physician Fee Schedule is tied to an inflation formula that is inadequate to pay physicians enough to keep seeing Medicare patients. While Congress has had to increase this amount every year, those increases have always been funded by offsets from other federal spending.

“This is the first time politicians of both parties have ignored this rule, increasing Medicare’s physicians’ payments perpetually and not paying for it.”

Philip Klein in the Washington Examiner:

“The existing Medicare payment formula that passed nearly 20 years ago is an ugly piece of legislating, but it has acted as a cudgel to reduce spending. This bill would remove that cudgel without making enough longer-term changes to Medicare to make it worthwhile.”

Jay Cost in The Weekly Standard:

“Much of professional Washington greeted [the House passage of H.R. 2] with a cheer—a sign that comity in the capital is still possible.

“Professional Washington is wrong. While the BBA was a clunky attempt to amend Medicare, the program remains in need of reform—and the permanent doc fix illustrates that neither party is prepared to do what needs to be done.”

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Heritage Action Opposes Shaheen-Portman Energy Efficiency Bill

Washington – The Shaheen-Portman energy efficiency legislation may be voted on at the end of the Senate vote-a-rama. This is an inappropriate program of federal mandates and subsidies that is duplicative of existing federal and state efforts.

The free market is the best mechanism for decreasing costs and increasing efficiency in energy production.  The Shaheen-Portman legislation would have the federal government overstep its appropriate role.

Heritage Action opposes this legislation as laid out in our May 02, 2014 key vote. A vote on this legislation will be included in our scorecard.

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