Media Miss Vitter's Badly Bungled Justification For Opposing Loretta Lynch

Media outlets are reporting that Sen. David Vitter (R-LA) will attempt to block the confirmation of Loretta Lynch as U.S. attorney general on the grounds that the president's “illegal executive amnesty for illegal immigrants would be implemented” by the nominee. However, in reports about the January 28 hearing in which Vitter explained his “huge concern” about the “unconstitutional” executive actions on immigration, both mainstream and right-wing media failed to note that the statutory provision the senator relied on was not only the wrong one, it was out-of-date.

Lynch, the federal prosecutor for the Eastern District of New York, has been widely praised across the political spectrum, and multiple conservatives -- including current Republican senators -- support her nomination. Her credentials are so strong, even right-wing media favorites called to her confirmation hearing by GOP members of the Senate Judiciary Committee agreed she was unobjectionable. Nevertheless, from the moment President Obama nominated Lynch, conservative media have attempted to smear her -- attempts that have been riddled with spectacular mistakes.

Right-wing media are now hitching their opposition to Lynch to the positions of Vitter, who has repeatedly stated he will do his best to block the nominee's confirmation because she does not oppose the president's executive actions on immigration. On her radio show, Laura Ingraham hosted Vitter and agreed with his opposition to Lynch because of her support for “executive amnesty,” repeating the debunked myth that Lynch believes there is a legal right for undocumented immigrants to work., which has struggled mightily to successfully criticize the nominee, also highlighted Vitter's obstructionist intentions toward Lynch, noting that “Lynch's outspoken support for President Obama's executive amnesty” was in part responsible for the current Republican delay on an up-or-down vote.

Mainstream outlets have reported on Vitter's antipathy toward Lynch as well, based on her support for the “reasonable[ness]” of the justification for the immigration actions. These reports have specifically noted that the senator laid out his case for the illegality of deferred action for certain undocumented immigrants at her recent hearing, where he accused the administration of flouting the law by assigning Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA) to the Department of Homeland Security. As Vitter said during the hearing, “I've read the plan, and the plan as I read it is for all of that to be done in the Department of Homeland Security. So my question would be, what is the statutory basis to allow that, when under the statute -- not some order, not some legal opinion -- the statute, the law, word by word it says the attorney general is in the middle of that decision[.]” The Washington Post, for example, included a photo of the oversized copy of 8 U.S. Code § 1182(d)(5) that Vitter displayed as he repeatedly questioned the nominee for agreeing with the White House's legal defense of the immigration actions. Vitter finally remarked, “Well, again, I'll have to be following up for the fourth time, but that'll be a central question. The plan is not for the attorney general to be in the middle of this at all. The statute says that 'the attorney general is.' Why aren't we following the statute?”

Unfortunately, both right-wing and mainstream media reporting on Vitter, the January 28 hearing, and his opposition to Lynch have failed to note that Vitter's questioning was referring to the wrong part of the law, which has since been superseded.

Lynch's unfamiliarity with Vitter's line of inquiry about the Office of Legal Counsel's conclusion that the president's executive actions on deferred action were legal was likely due to the fact that the senator was displaying a provision dealing with “parole,” an entirely different category of immigration status and discretionary relief.

More relevant provisions for the senator to question Lynch about would have been those that deal with “deferred action,” such as 8 U.S. Code § 1154 and 8 U.S. Code § 1227, both of which the OLC memo referenced as part of the authority for the president's ability to exercise prosecutorial discretion and defer action on deportation. More significantly, even if Vitter had quoted from the correct provisions, he failed to acknowledge that the law has since been superseded and that the responsibilities of the U.S. attorney general as to this type of immigration enforcement were transferred to the Department of Homeland Security and its secretary, under sections 402 and 403 of the Homeland Security Act of 2002.

Later in the hearing, Sen. Richard Blumenthal (D-CT) explained the up-to-date state of immigration law enforcement and cleared up the confusion, reassuring Lynch that “so, good news, the President has done nothing wrong, and you don't have to run home and look up the statute and get ready to implement a whole new area of law. You have enough to do, or will have enough to do, already.” Watch Blumenthal's explanation:

BLUMENTHAL: [A]s a careful lawyer, which I know you are, I want to try to perhaps set your mind a little bit at ease about a question that you were asked earlier. The question related to a statute that purportedly, according to the questioner, made the attorney general responsible for determining who can take deferred action. One of my colleagues suggested that the president's executive order is illegal because it's being implemented by the Department of Homeland Security and not the attorney general as the law he quoted seemed to suggest. Just to clarify, the statute that was quoted to you actually was amended in 2002. It no longer assigns responsibility for immigration policy to the attorney general. The provision that he quoted, and another provision which more directly authorizes what President Obama has done, are to be implemented by the secretary of homeland security. So, good news, the president has done nothing wrong, and you don't have to run home and look up the statute and get ready to implement a whole new area of law. You have enough to do, or will have enough to do, already.