MEMO: Fight Obama's Overreach by Refusing to Confirm Nominees

Jan 14, 2016

Interested Parties
Heritage Action
January 15, 2016
Fight Obama's Overreach by Refusing to Confirm Nominees

President Obama began his final year in office by taking aim at the Second Amendment and unilaterally shredding immigration caps set by Congress without congressional approval. On Wednesday, his chief of staff Denis McDonough made clear the year would continue in a similar fashion, announcing that "We'll do audacious executive action over the course of the rest of the year, I'm confident of that."

Repeated executive power grabs threaten to undo the system of checks and balances written into our Constitution. The president's actions have not only marginalized the legislature, they have also begun eroding the independence of our nation's judicial system by stacking the courts with liberal judges who interpret the Constitution to serve this president's radical progressive agenda.

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 constitutional prerogatives.

Obama's Undeniable Impact on Federal Courts

While the pace of judicial confirmations has slowed since 2015, much of the damage has already been done. At this point in his presidency, President Obama has had more judicial nominees confirmed than President Bush. He has successfully appointed 55 appeals court judges and 260 district court judges, approximately 30 percent and 40 percent of the total seats, respectively. Granting any more lifetime appointments to federal judges whose views align with this president's radical ideological agenda is indefensible.

Not only have 12 federal judges been confirmed since Republicans took control of the Senate, there have been numerous political appointees confirmed, including Loretta Lynch as Attorney General. Her confirmation came after she said illegal immigrants have just as much of a right to work in the United States as natural born citizens do.

Reasserting Congressional Prerogatives

"With or without congressional action" has been the Obama Administration's motto. The fundamental disregard for our nation's laws—including the Senate's ability to advise and consent to nominees and on treaties—should prompt senators to reclaim their constitutional prerogatives.

Senators should refuse to consider or confirm any additional Obama nominees unless they are directly related to national security; and those specific nominees should be evaluated and vetted by the strictest standards, with emphasis given to their record of respect for and adherence to the rule of law and the Constitution. Otherwise, the vast majority of President Obama's nominees—whether they have a lifetime appointment, a multi-year term, or will leave their post in one year—will simply be empowered to help the president to continue circumventing elected Representatives and Senators.

After Harry Reid invoked the nuclear option, conservatives had no ability to stop the president's nominees from being rubber stamped. The 2014 elections fundamentally changed that dynamic, handing the Senate to Republicans for the first time since 2006.

When asked about this new dynamic, Hans von Spakovsky, senior legal fellow in The Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies, said that "Barack Obama will go down in history as one of the most lawless of American presidents, someone who—with the help of his political appointees—has ignored, changed, or bent the law and the Constitution on every occasion. Given his overall record of ruling by executive fiat; his obvious contempt for Congress and the rule of law; and his most recent unilateral actions; why in the world would the Congress help him continue his misconduct by confirming more of his nominees? It makes no sense."

What Congress Should Do

Therefore, beginning immediately, the Senate should stop confirming any of Obama's non-security nominees.

Senators should not grant unanimous consent to schedule any additional nomination votes. Nominees previously scheduled to receive a vote, such as the liberal Minnesota Supreme Court Justice Wilhelmina Wright who once accused Ronald Reagan of bigotry, and is set for confirmation on January 19th, should be rejected. Additionally, committee chairs should refuse to report out any of their pending nominees.

Given the Obama administration's disregard for Congress's role in our constitutional system of government, the Senate should refuse to confirm the president's nominees unless those nominees are directly related to our national security.

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