Immigration Push Back: Don’t Confirm His Judges

Here’s a strategy that would unite Republicans and get Obama’s attention in a way that shutdowns don’t.

Congress’s approval of unconditional funding for the Department of Homeland Security was an embarrassing setback in Republicans’ struggle to respond to President Obama’s unilateral rewriting of U.S. immigration law. The collapse of the GOP’s plan to tie DHS funding to annulling the president’s immigration orders left the party with two options: sit back and hope that a federal judge’s temporary injunction against the November order is made permanent and is upheld on appeal, or come up with a new plan to force Mr. Obama’s hand.

If Republicans opt for a plan, their best bet is a vow not to confirm the president’s appeals-court nominees until he rescinds his immigration fiats. This strategy has virtues that others do not.

To be sure, the simplest approach for congressional Republicans would be passing a bill that rescinds the immigration orders or tightens the underlying statute. But they lack the votes to override Mr. Obama’s inevitable veto.

Ted Cruz proposed denying a vote on Mr. Obama’s nominee for attorney general, Loretta Lynch, unless the president withdraws his orders. But many GOP senators are reluctant to block the nation’s first black female attorney general, and Senate Majority Leader Mitch McConnell says Ms. Lynch will get a vote. Mr. Cruz has also suggested blocking every executive or judicial nominee “outside of vital national security positions”—a proposal that would meet with even wider opposition.

Still, Mr. Cruz is on the right track, and a more modest approach has a better chance of success: Deny confirmation only to Mr. Obama’s nominees to the U.S. Courts of Appeals, which rank just below the Supreme Court and have the last word on most legal issues.

Tying circuit-court nominations to the president’s executive actions is a principled response because the circuit courts will likely have the final say on the constitutionality of those orders. The Supreme Court is unlikely to decide the issue before Mr. Obama leaves office, and the Senate traditionally accords the president less deference on circuit nominees than on executive or district-court nominees. A circuit-court response is also proportional because circuit nominees make up just one-fifth of all judicial nominees and a tiny fraction of all presidential nominees.

Read the rest of the WRJ op-ed HERE.

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