Let us be clear: Republicans in the Senate are under no obligation to interview, vote on or confirm President Obama’s pick for the Supreme Court. It does not matter that the president has nominated Judge Merrick Garland, who is widely admired as a competent jurist. It is not about the person, it is about principle – but the GOP leadership has been remarkably inept at framing what that principle is and why they are in the right.
The point is this: President Obama has caused this conflict, by diminishing the role of the legislature and assuming unprecedented power for the executive branch. He has purposefully skirted Congress for the better part of seven years, instead pushing ahead on his mostly unpopular agenda through regulations and executive orders. As a result, the Court is being asked to act as referee, ruling on the legality of Obama’s “my way or the highway” presidency. You don’t change a referee in the middle of a contest.
This isn’t about Judge Robert Bork, or the “Biden Rule” -- this is a fight about President Obama undermining the checks and balances established in the Constitution.
For instance, President Obama has tried to essentially shut down our coal industry through new EPA regulations limiting carbon emissions. These rules would create a massive dislocation to our economy, which has long benefited from cheap energy, including abundant coal. That there is a significant cost to the economy is clear; Hillary Clinton recently said “We’re going to put a lot of coal miners and coal companies out of business.” How right, and how cruelly nonchalant that statement is. As reported in the New York Times, “The plan could transform the nation’s electricity system, cutting emissions from existing power plants by a third by 2030, from a 2005 baseline, by closing hundreds of heavily polluting coal-fired plants and increasing production of wind and solar power.”
Because of the sizeable cost to the economy, lower courts have ruled against the president’s anti-coal regulatory blitz. The Supreme Court, in an unprecedented move, issued a stay requested by 29 states and numerous other groups which prevents implementation of the carbon rule while a lower court assesses its legality. In effect, the courts will rule on whether the White House is allowed to unilaterally punish one of our heritage industries and tens of thousands of workers.
Another important issue before the Supreme Court is President Obama’s executive action allowing some 6 million people living in the country illegally to be protected against deportation. This unilateral effort to rewrite our immigration laws is opposed by a majority of Americans; but, it is a politically useful policy for Democrats hoping to win Latino votes. Because of possibly harmful consequences, 26 states sued to prevent the order from taking effect.
Last fall, the Fifth Circuit Court of Appeals ruled in favor of those states, upholding an earlier injunction that blocked implementation of the president’s executive order. At the time, Ken Paxton, Attorney General of Texas, which is leading the suit, said, ““Today, the Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else.” That’s the point.
For the Republican leadership, refusing to consider Mr. Obama’s nominee is a matter of principle, and also an opportunity to reward voters for having elected a Republican Congress. Mitch McConnell, John Boehner and others have come under heavy criticism for not effectively countering President Obama’s policies. In fairness, substantial resistance from Congress led the president to go his own way, using whatever tools he could find to pursue his “legacy” agenda. Many think those tools went beyond the rightful scope of the executive branch. Now, it is up to the Supreme Court to decide.
Because the Court will weigh whether Mr. Obama has overstepped, he cannot be allowed to put his thumb on the scale by adding another sympathetic jurist. This is the message that Republican leaders need to send to voters: the president has abused his authority, and we rely on the Supreme Court to reestablish the checks and balances that prevent an imperial White House. The GOP should not be cowed by the bloviating of the New York Times; they are on the right side of this battle.