Memo for the Movement: Congress Must Stop the Obama Court-Packing Plan

Conservative Action Project
Memo for the Movement

The Conservative Action Project, chaired by former Attorney General Edwin Meese and former Congressman David McIntosh, is designed to facilitate conservative leaders working together on behalf of common goals. Participants include the CEO’s of over 100 organizations representing all major elements of the conservative movement-economic, social and national security.

Congress Must Stop the Obama Court-Packing Plan

Current Event:

President Obama is seeking to add three new judges to the U.S. Court of Appeals for the D.C. Circuit, one of the most important but most underworked courts in the country.  The move is a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.

Action:

  • Congress should pass legislation to reduce the size of the D.C. Circuit to fit its actual workload. Legislation to this effect has been introduced by Senator Charles Grassley in the Senate and Rep. Tom Cotton in the House.
  • The Senate must reject any new nominee to the D.C. Circuit, regardless of that nominee’s party, background, or philosophy.

Issue in Brief:

The D.C. Circuit’s workload has been in consistent decline in the last decade.  According to United States Courts statistics, the number of pending appeals in the D.C. Circuit declined more than 10% between September 2005 and September 2012.  There has also been a significant decline (more than 14%) in the number of cases filed in the D.C. Circuit.  In fact, the court’s workload is now so low that it is not uncommon for the court to cancel argument dates because there are not enough cases.

But the court, which is largely responsible for reviewing the actions of the ever-growing administrative state, has served as one of the most effective checks on President Obama and his extreme agenda.  According to liberal activist Nan Aron, “The court is critically important – the majority has made decisions that have frustrated the president’s agenda.”  President Obama and his Democratic allies have been especially hostile to the D.C. Circuit since it invalidated his non-recess appointments to the NLRB, after he tried to circumvent the constitution’s advice and consent process.  Similarly, the court has been criticized by liberals for invalidating a burdensome and illegal EPA rule which would have shut down power plants and increased American energy costs.

Federal courts have been a very low priority for most of President Obama’s tenure.  But he has learned that a court that abides by the Constitution and traditional legal principles is a serious threat to his plan to insulate the administrative state from accountability.  Here are just a few examples of cases President Obama would like to see decided by a politically motivated D.C. Circuit: 

  • The lawsuit filed recently by a group of small business owners in six states seeking to invalidate a key IRS regulation imposed by Obamacare.
  • A constitutional challenge to Dodd-Frank, the massive bill that institutionalized taxpayer funded bailouts for big banks.
  • A challenge to the HHS contraceptive mandate, which forces religious organizations to violate their deeply held religious beliefs, or pay crippling fines.
  • Lawsuits challenging EPA regulations designed to stop fracking, the oil and gas extraction technique that has yielded a significant decrease in energy costs. 
  • Lawsuits against IRS officials who wrongfully targeted American citizens because of their viewpoints.

To guarantee the desired political outcome in such cases, President Obama seeks to do exactly what President Franklin Roosevelt did when his agenda faced constitutional problems in the Supreme Court:  pack the court with allies who will decide cases on the basis of politics instead of the Constitution and traditional legal principles.   Or, as Senator Chuck Schumer put it, Democrats “will fill up the D.C. Circuit one way or another.”

One way they plan to “fill up the D.C. Circuit” is to put pressure on Republican Senators who fear that Majority Leader Harry Reid will use this opportunity to abolish the filibuster, destroying the minority party’s ability to debate important legislation.  But no Senator should fall for that trap.  Republicans have treated President Obama’s judicial nominees fairly, confirming more than 111 of them during the 112th Congress, more than during any other Congress in 20 years.  According to President Obama, his nominees have waited “three times longer to receive confirmation votes than those of my Republican predecessors.”  But that is simply not true.  During his entire first term, President Obama’s appellate nominees waited an average of 240 days from nomination to confirmation.  By contrast, President George W. Bush’s nominees waited an average of 283, and some waited for years.

No spin on the statistics will make it any easier for President Obama or Senator Reid to prove the existence of a crisis, because none exists.  This is nothing more than a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.  It must be stopped.

Signed:

The Honorable Edwin Meese III
Former Attorney General 
President Ronald Reagan
 
The Honorable David McIntosh
Former U.S. Representative
Indiana
 
Mike Needham
CEO
Heritage Action for America
 
Tony Perkins
President
Family Research Council
 
Grover Norquist
President
Americans for Tax Reform
 
Brent Bozell
Chairman
ForAmerica
 
Colin Hanna
President
Let Freedom Ring
 
David Bossie
President
Citizens United
 
Phyllis Schlafly
Founder and President
Eagle Forum
 
The Honorable J. Kenneth Blackwell
President
Constitutional Congress, Inc.
 
The Honorable T. Kenneth Cribb, Jr.
Former Counselor to the U.S. Attorney General
President Ronald Reagan
 
The Honorable Alfred S. Regnery
Former Publisher
The American Spectator
 
William L Walton
Chairman
Rappahannock Ventures LLC
 
Bob Reccord
Executive Director
Council for National Policy
 
Morton Blackwell
Chairman
The Weyrich Lunch
 
Heather Higgins
President
Independent Women’s Forum
 
Kellyanne Conway
President
The Polling Company
 
Carrie Severino
Chief Counsel and Policy Director
Judicial Crisis Network
 
Gary Bauer
President
American Values
 
Mathew D. Staver
Chairman
Liberty Counsel Action
 
Jim Martin
Chairman
60 Plus Association
 
Nathan Mehrens
President
Americans for Limited Government
 
Duane Parde
President
National Taxpayers Union
 
Gary Aldrich
President
CNP Action, Inc.
 
Judson Phillips
Founder
Tea Party Nation
 
Gary Marx
Executive Director
Faith & Freedom Coalition
 
Phillip Jauregui
President
Judicial Action Group
 
Frank Cannon
President
American Principles Project
 
Curt Levey
President
The Committee for Justice
 
Jim Ryun
Chairman
The Madison Project
 
Phil Kerpen
President
American Commitment
 
Tom Winter
Editor-in-Chief
HumanEvents.com
 
Tim Wildmon
President
American Family Association
 
Raymond J. LaJeunesse, Jr.
Vice President & Legal Director
National Right to Work Legal Defense Foundation, Inc.
 
Susan Carleson
President
American Civil Rights Union
 
Andrea Lafferty
President
Traditional Values Coalition
 
Lewis Uhler
President
National Tax Limitation Committee
 
Mario H. Lopez
President
Hispanic Leadership Fund
 
Craig Shirley
Reagan Campaign Biographer
 
Rev. Lou Sheldon
Chairman
Traditional Values Coalition
 
Lee Beaman
Businessman
Nashville, TN
 
Angelo M. Codevilla
Professor Emeritus
Boston University
 
Tom Donelson
Chairman
America’s PAC
 
Kay R. Daly
President
Coalition for a Fair Judiciary
 
Ralph Benko
President
Center for Civic Virtue
 
Andresen Blom
Senior Strategist
Center for Civic Virtue
 
C. Preston Noell III  President
Tradition, Family, Property, Inc.
 
Dan Bongino
Candidate for Congress
Maryland
 
George Landrith
President
Frontiers of Freedom
 
Gene Mills
President
Louisiana Family Forum
 
Mike Stenhouse
CEO
Rhode Island Center for Freedom & Prosperity
 
Richard Viguerie
Chairman
ConservativeHQ.com
 
Elaine Donnelly
President
Center for Military Readiness
 
Larry Cirignano
President
Faithful Catholic Citizens
 
Jim Backlin
Vice-President
Christian Coalition of America
 
Bob Adams
President
Revive America USA
 
Dr. William Greene
President
RightMarch.com
 
Paul Caprio
Director
Family PAC Federal
 
Sandy Rios
Vice President
Family PAC Federal
 
Melissa Ortiz
Founder
Able Americans
 
Catherine Engelbrecht
President
True the Vote

 (All organizations listed for identification purposes only.)