National Review editor Rich Lowry is painting Loretta Lynch, President Obama's nominee to be the next attorney general, as a controversial pick who should “never be confirmed,” because she has suggested that the president's executive actions on immigration are lawful. Not only is Lowry's analysis of the legality of the actions contradicted by experts, his erroneous description of such prosecutorial discretion as “executive action” has been debunked, and presidents generally do not nominate chief enforcement officers who promise to go after their sponsor.
Right-wing media have been hard-pressed to find a legitimate reason to oppose Lynch's nomination, instead relying on specious attacks and, in one instance, going after the wrong Loretta Lynch. Lowry's March 18 op-ed for Politico was likewise devoid of any substantive critiques of Lynch's legal positions or her qualifications. Still, Lowry argued that Senate Republicans should “never” confirm Lynch because she believes -- as is the wide consensus among legal and immigration experts -- that the president's executive actions on immigration, a modified Deferred Action for Childhood Arrivals (DACA) and a new Deferred Action for Parental Accountability (DAPA), are lawful.
As all the Republicans opposing her nomination make plain, the issue is her belief that President Barack Obama's executive amnesty is lawful.
This isn't a mere matter of policy or personal preference. It implicates her view of the constitutional order that she will be sworn to uphold. Whether she thinks the executive branch can in effect write laws on its own is a threshold question. Her answer in the affirmative should be disqualifying, no matter how impressive her career has otherwise been, or how historic her confirmation would be.
On the merits, when should Republicans bring her up for a vote -- now delayed because Democrats are filibustering a sex-trafficking bill? Never. When should they confirm her? Never.
The Senate shouldn't confirm any attorney general nominee, from whatever party, of whatever race, ethnicity or gender identification, who believes the president can rewrite the nation's laws at will.
What Lowry calls “executive amnesty” is actually a series of executive actions that President Obama signed in November 2014, temporarily deferring deportation proceedings for certain eligible undocumented immigrants. It is not amnesty -- Obama's orders do not confer permanent legal status, although immigrants who qualify for deferred action are able to obtain work authorization permits pursuant to a 1986 law signed by then-President Ronald Reagan. FactCheck.org has repeatedly pointed out that "[u]se of the term 'amnesty' predictably arises in nearly every immigration policy debate, but as we have noted when it has been used in the past, it is an emotion-laden term that misleads many to believe that plans call for immediate, permanent legal status for illegal immigrants, when in fact they do not."
With respect to the specific executive actions that Lowry condemns, the American Immigration Council has noted:
The DAPA and DACA programs are temporary measures that do not meet either the technical or the political definitions of amnesty in use today. Technically, an “amnesty” is a governmental pardon, often issued to individuals or groups convicted of crimes, and it represents a form of forgiveness in which the offending party is admitted back into the fold. [Reagan's] 1986 legalization program was often referred to by its supporters as an amnesty -- under that program, people who were in the country unlawfully could come forward, prove that they met certain criteria, pay fees, and obtain a green card...In the case of DACA and DAPA, these programs offer some unauthorized immigrants a temporary reprieve, but offer neither permanent legal status nor a chance at citizenship. That power remains in the hands of Congress.
Even Fox News' Megyn Kelly has conceded this, explaining on her November 19 show that “amnesty is citizenship and that's not what [Obama] is talking about,” and that the word is “a hot-button term that the right uses to sort of get people upset.”
The president's immigration actions are neither “amnesty” nor a sneaky attempt to “rewrite the nation's laws” as Lowry claims -- because existing immigration law provides the president broad discretionary powers to set enforcement priorities. In a recent post at The Washington Post's Plum Line blog, Greg Sargent explained, “the law also gives the executive discretion to temporarily and formally shield people from removal. As right-leaning legal observers such as Jonathan Adler and Margaret Stock have noted, immigration statute -- i.e., Congress -- allows this discretion, and previous presidents have employed this discretion to shield whole categories of people from deportation.” In fact, every president since Dwight Eisenhower has taken some executive action on immigration, including Republicans like Reagan and George H.W. Bush.
But even in the face of such overwhelming legal support for Obama's executive actions, right-wing media are clamoring to create some precedent of their own in their insistence that Lynch must be held accountable for programs not under her jurisdiction.
As Roll Call's David Hawkings recently pointed out, “For essentially the first two centuries under our Constitution, senators afforded the president free rein to stock his Cabinet as he chose, except in the most extraordinary circumstances.” The fact that Lynch agrees that there is plenty of legal and historical precedent to support the president's executive action on immigration is hardly an “extraordinary circumstance” -- yet Lynch has waited longer than any other attorney general nominee in recent history for her confirmation vote.
Photo of President Obama and Loretta Lynch by Pete Souza via Flickr/The White House under a United States government work license.
Language in this post has been updated for accuracy.