March 11, 2016
"to elevate the condition of men--to lift artificial weights from all shoulders, to clear the paths of laudable pursuit for all, to afford all an unfettered start and a fair chance, in the race of life." --Abraham Lincoln
Chairman's Note: The People Should Determine What Kind of Supreme Court They Wish to Have
The opening words of the Preamble to the United States Constitution are familiar to us all: “We the People.” But what exactly do they mean?
It was by “the People” that the Constitution was written and ratified. It is for “the People” that my colleagues and I, along with every other public official across these United States, now serve. And it was on behalf of “the People” that the Constitution established “one supreme Court,” consisting of judges appointed “by and with the Advice and Consent of the Senate.”
Since the tragic passing of Supreme Court Justice Antonin Scalia, there has been a great deal of debate about this particular provision of the Constitution.
But there should be no controversy. The text of our founding charter is clear: The president has full and complete power to nominate individuals to the Supreme Court, and the Senate has full and complete power to confirm nominees or to withhold consent.
It’s as simple as that. Indeed, the Senate retains complete discretion with respect to whether it should even consider – much less accept or reject – presidential nominees.
This should not be controversial. It is how virtually every student of the Constitution – and nearly every member of Congress – has understood the Senate’s power of “Advice and Consent” for the past 228 years since the Constitution was ratified.
But now, with the presidential election in full swing, President Obama and his allies in Congress and the media claim the opposite is true. As they tell it, the Senate is constitutionally obligated to hold hearings and to vote on the candidate that President Obama eventually nominates to replace Justice Scalia on the Supreme Court.
I respectfully dissent.
If this a-textual and a-historical account of the Constitution were accurate, then prior Senates violated the Constitution when they did not cast up-or-down votes on Supreme Court nominees. Even the Standing Rules of the Senate would be suspect, contemplating as they do that “[n]ominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President...”
Neither does the prospect of a temporary eight-member Court raise concern. For instance, during the Court’s 2010-2011 term, the Court decided over 30 cases with eight or fewer justices, almost entirely as a result of recusals arising from Justice Kagan’s nomination. Similarly, following the retirement of Justice Powell in 1987, the Court acted on 80 cases with eight or fewer justices.
In short, the sky does not fall when the Court comprises only eight justices. As Justice Breyer recently stated, the work of the court “[f]or the most part...will not change.”
With the future of the Supreme Court now at stake, and the election for our next president already well underway, it is the People who should determine what kind of Supreme Court they wish to have. The president is entitled, of course, to discharge his own constitutional authority to nominate. But the Senate is equally entitled to withhold consent and protect the People’s voice.
As James Madison wrote in The Federalist Papers, ambition must counteract ambition. And the People should decide.
Issue in Focus: Obama’s Latest Attempt to Govern by Fiat
After seven years in office, it is now very clear what President Obama does when Congress refuses to do his bidding: he simply ignores the lawmaking branch and tries to use raw power to change the law by fiat.
He did it on immigration to grant amnesty to millions of illegal immigrants. He did on education to force Common Core on the states. And now he is doing it again to try to rewrite our nation’s privacy laws.
In 1994, Congress passed and President Clinton signed the Communications Assistance for Law Enforcement Act, which determines the requirements facing technology companies when law-enforcement agencies want their help with criminal investigations.
Specifically, the law states that it “does not authorize any law enforcement agency or officer to require any specific design of equipment, features [...] or system configurations to be adopted by any [...] manufacturer of telecommunications equipment.”
In other words, a mobile phone manufacturer, like Apple, can’t be forced to create a backdoor key for law-enforcement agencies to use to access any phone they want.
For years President Obama sought to change this law, but Congress disagreed.
So when one of the San Bernardino terrorists failed to destroy one of his three mobile phones, which was owned by the county for which he worked, President Obama saw his chance to rewrite the law through the courts.
The Federal Bureau of Investigations (FBI) is now claiming in federal court that the All Writs Act, passed in 1789, empowers the law-enforcement agency to compel Apple to create new software that will allow to get FBI agents into the terrorist’s phone.
Earlier this week, in front of the Senate Judiciary Committee, President Obama’s Attorney General, Loretta Lynch, testified that there was no link between the president’s failure to change the law in Congress and the FBI’s decision to use the All Writs Act to achieve the same result through the courts.
But a federal judge in Brooklyn, New York, who received a similar All Writs Act request from the FBI exposed President Obama’s tactics. In a February 29 ruling, Magistrate Judge James Orenstein wrote: “It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.”
“Indeed,” Orenstein continued, “on the very same day that the government filed the ex parte Application in this case [...] it made a public announcement that after months of discussion about the need to update CALEA to provide the kind of authority it seeks here, it would not seek such legislation.”
People of good faith can have honest disagreements about what tech companies should or should not be compelled to do by law enforcement. But the proper place for that debate and policymaking process is Congress, not the courts.
