Debates over Constitutional Governance at the Forefront

ScalesDebates related to the framework of the United States Constitution, and the balance of powers enshrined within it, were of utmost importance to the late Justice Antonin Scalia. He surely would have watched with great interest the battle lines that formed across Capitol Hill and up and down Pennsylvania Avenue on just these subjects this week. 

In the White House Rose Garden, President Obama fired a volley for the Executive Branch when he exercised his constitutional power by nominating DC Circuit Court Chief Judge Merrick Garland to fill the vacancy left after Justice Scalia’s death. President Obama declared, “Of the many powers and responsibilities that the Constitution vests in the presidency, few are more consequential than appointing a Supreme Court justice - particularly one to succeed Justice Scalia, one of the most influential jurists of our time.” He then challenged the Senate to act, by which he meant giving the nominee a hearing and a vote.

However, leaders in the Senate see their role differently.  The Constitution gives them power to confirm, or not confirm, federal judges. There is no timetable by which they must act.  Senate Majority Leader Mitch McConnell (R-KY) held firm to his conviction that the Senate will abide by the “Biden Rule.” Vice President Joe Biden, when he previously chaired the Senate Judiciary Committee during the George H.W. Bush Administration, asserted that Supreme Court nominations should be put off until after a presidential campaign is concluded.  Leader McConnell stated:

The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the Court’s direction. It is a President’s constitutional right to nominate a Supreme Court justice and it is the Senate’s constitutional right to act as a check on a President and withhold its consent.

National Religious Broadcasters added its voice in agreement with Senator McConnell.  Dr. Jerry A. Johnson, President & CEO of NRB, said, “We know the poor track record of the Obama Administration on respect for freedom and the rule of law.  The American people should at least have a chance to vote in November before this President gets to place a third and likely generational-altering pick on the Court.”  He added that the American people ushered in a change in the Senate in the 2014 elections, and in the months ahead voters will essentially decide “the fate of all three branches of government.”

Notably, on the other side of Capitol Hill, the House of Representatives was engaged in another constitutional battle with the Executive Branch.  In a rarely used move, Speaker Paul Ryan (R-WI) called for a full House vote on a resolution authorizing the House to weigh in on a case before the Supreme Court.  While the case is immigration-related, Speaker Ryan emphasized that immigration policy was not the fundamental question in this case.  He said, “It is about the integrity of our Constitution. Article I. Article I states that ‘all legislative powers’ are vested in Congress. Article II. Article II states that the president shall ‘take care that the laws be faithfully executed.’ Those lines—that separation of powers—could not be clearer.”  He accused the Executive Branch of overreach such that government bureaucrats “are now writing the laws at their whim.” In the interests of the integrity of the American system of government, Speaker Ryan believed the House was obligated to act.  The House approved this resolution on a party-line vote.

Next week, another constitutional battle will ensue.  This time, in Zubik v. Burwell, commonly identified by the Little Sisters of the Poor case it contains, the Executive Branch will be pitted against the religious freedom rights of non-profit religious organizations that refuse to be forced into providing abortion-inducing drugs to their employees.  Speaking about this case earlier this year, Senator Orrin Hatch (R-UT), an author of the 1993 Religious Freedom Restoration Act, said, “Religious freedom is a fundamental right that government must respect and accommodate. Threatening draconian fines if religious organizations are unwilling to violate their faith clearly violates federal law.”  The Supreme Court will hear oral arguments in this case next Wednesday.

By Aaron Mercer, Vice President of Government Relations

Published: March 18, 2016

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