@JeffFlake is at it again, demanding a vote on the clearly unconstitutional “Protect Mueller” bill as the price for his votes to confirm Trump’s clearly qualified judicial nominees.
.@SenTedCruz poured cold water on the idea, telling CBS News, "We had a bill come through the Judiciary Committee that tried to make it impossible for a special counsel to be removed. I believe that...was unconstitutional...it was inconsistent with Article II of the Constitution"
And we believe Senator Cruz is right. Setting aside the historical precedents in which the Supreme Court struck down similar legislative efforts, as the Editors of National Review observed:
Under Article II, all executive power belongs to the POTUS", which is why the chief executive is empowered to remove all subordinate executive officers without cause. Congress has no power to diminish the executive’s constitutional authority by statute."
"The courts have no power to interfere with the executive’s constitutional prerogatives, such as terminating underlings or investigations."
"Thus, a legislative scheme to bar the president from removing the special counsel absent a cause proved to the satisfaction of a federal court would be blatantly unconstitutional."
"Trump’s opponents would effectively be reinstating the baleful independent-counsel statute that was permitted to lapse toward the end of the Clinton administration after it had crippled administrations of both parties. That would be as unwise as it would be unconstitutional."
Not to mention that there is insufficient congressional support for such a law, and Trump would never sign it. Can we move on to something more serious?
Something more serious, like confirming judges who have already been waiting for many months, and whose process would have to start all over again if they are not confirmed before the new 116th Congress is seated in January?
The hurdle of Senator Flake withholding his vote is a real one in the current Senate, where Republicans hold a one vote 51 to 49 majority and Flake is the one vote majority on the Senate Committee on the Judiciary.
But it is not insurmountable.
But it is not insurmountable.
One possibility is for Senate Majority Leader Mitch McConnell to remove the retiring Senator Flake from the Senate Committee on the Judiciary and replace him temporarily with a sane member, Senator Tom Cotton of Arkansas comes immediately to mind.
Cotton would be there to vote Judicial nominees out of Committee and move them to the Floor for a vote, thereby keeping the process flowing right up to the end of the 115th Congress.
Naturally, such a move would infuriate Senator Flake, and undoubtedly lead to more destructive “NO” votes, but at 51 to 49, all tie votes would be broken by Vice President Mike Pence, who can be relied upon to vote “AYE” to confirm the all-important judges.
“We are not going to leave any judges behind at the end of the year, when we get through this Congress,” McConnell told the Washington Examiner.
We urge Senator McConnell to follow through on that commitment and to use whatever tactics are necessary to get those judges confirmed, even if it means sidelining Flake and putting the heat on any other recalcitrant members of the Senate’s Republican Conference.
