Lynch vs. the Constitution

Andrew C. McCarthy:

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.

Yet, five Republican senators have announced that they will vote to confirm Ms. Lynch. Three have already supported her in the Judiciary Committee: Orrin Hatch (Utah), Lindsey Graham (S.C.), and Jeff Flake (Ariz). The two others are Mark Kirk (Ill.) and Susan Collins (Maine). If they follow through in the vote now scheduled for Thursday, Ms. Lynch would almost certainly have the 51 votes needed to be confirmed.

There are six points to be made about this.

1. 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.

2. 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). It is a staple of federal criminal prosecutions.

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. Among the best ways of proving aiding and abetting is to demonstrate that the conduct could not have succeeded in the absence of actions knowingly taken by the alleged aider and abettor.

Under long-settled federal law, an aider and abettor is deemed to be just as culpable as the person who actually carries out the illegal act that has been aided and abetted. (See Section 2: “Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”)

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; she cannot carry it out unless she is confirmed by the Senate. 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 — after all, Ms. Lynch cannot implement the plan unless the senators confirm her.

3. 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. There is a sound rationale for this guideline: Under the Constitution, all executive power is vested in the president. It is his power and his subordinates wield it only at his pleasure — even if they have been confirmed by the Senate.

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.

A president who is violating the Constitution is not owed any deference, much less deference in the selection of a nominee to help him violate the Constitution. A president is not entitled to deference for a nominee who is disqualified — as is a nominee who testifies that, if confirmed, she will undermine the Constitution.

Finally, the Senate’s power to veto nominations is not just a check on the nominee. It is a check on the executive branch. If a president is violating the Constitution, a senator who has taken an oath to support the Constitution has an obligation to use the power over confirmations to pressure the president to comply with the Constitution.

Consequently, President Obama is not entitled to deference, because he is violating the Constitution; and his nominee is not entitled to deference, because she has announced that she will violate the Constitution. Under those circumstances, a senator who rationalizes voting to confirm the nominee on the ground that the president is entitled to his preferred nominee is undermining the Constitution’s advice-and-consent requirement, as well as violating the senator’s oath to uphold the Constitution.

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