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Quote of the Day: Taxpayer Privacy and IRS Abuse

At CFIF, the issue of improving taxpayer privacy and protection against persistent abuse by the Internal Revenue Service (IRS) remains among our most important missions.  Among the abuses that we've chronicled is the case of convicted criminal Charles Littlejohn, who rejoined the IRS in 2017 with the specific purpose of illegally breaching and leaking the private tax returns of Donald Trump and other Americans to radical left-wing organizations like ProPublica.

In The Wall Street Journal this week, one of those victims speaks out on his own experience and the need for greater taxpayer protection against this recurring problem that should terrify all Americans of every political persuasion.  Ira Stoll, whose tax information was passed to ProPublica, even helpfully details how…[more]

May 29, 2024 • 11:28 AM

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Constitutional Text and History Favor Senate Republicans on Scalia Vacancy, Not Obama Print
By Timothy H. Lee
Thursday, February 18 2016
The Senate possesses plenary power to grant or refuse consent to whomever Obama chooses to nominate, and in whichever manner it chooses.

"The President ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court...."  United States Constitution, Article II, Section 2, Clause 2

In the deepening partisan dispute over the U.S. Supreme Court vacancy following Justice Antonin Scalia's passing, at least credit Barack Obama and his transparently cynical apologists for providing comic relief in their effort to cast themselves as sudden constitutional textualists. 

During a press conference this week, Obama managed to simultaneously misstate what the Constitution commands while percolating with false condescension in addressing the matter: 

"The Constitution is pretty clear about what is supposed to happen now.  When there is a vacancy on the Supreme Court, the President of the United States is to nominate someone.  The Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court.  Historically, this has not been viewed as a question.  There's no unwritten law that says that it can only be done in off years.  That's not in the constitutional text.  I'm amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there." 

As the actual text cited above makes clear, however, the Constitution says no such thing.  Quite the contrary, it unequivocally favors Senate Republicans in the looming standoff, not Barack Obama. 

That might come as a shock to the so-called "constitutional scholar" Obama, assuming that he actually believes what he said.  In either case, the simple fact is that this dispute isn't subject to ambiguity or subjective interpretation.  The Senate possesses plenary power to grant or refuse consent to whomever Obama chooses to nominate, and in whichever manner it chooses. 

As even the most rudimentary student of the Constitution knows, the framers designed a governmental system of divided powers and checks and balances as a safeguard against tyranny. 

Accordingly, they granted coequal power to the legislative and executive branches in staffing the third branch, the judiciary.  The framers specifically refused to allow Congress to dictate whom a president might nominate, but they just as specifically refused to allow a president to dictate whom Congress might confirm. 

Had the framers sought to grant presidents greater authority over the appointment process, they could have required a two-thirds Senate supermajority to reject nominees, as is required to override a presidential veto.  Alternatively, had the framers sought to grant the Senate greater authority over the appointment process, they could have required a two-thirds Senate supermajority to confirm presidential nominees, as is required to ratify a foreign treaty proposed by a president. 

But they did neither.  The framers instead designed a mechanism fit for a representative democracy, which granted the president exclusive power to propose and granted the Senate exclusive power to dispose.  

James Madison actually proposed a system more favorable toward presidential power, under which a president's nominees would be automatically appointed unless the Senate affirmatively rejected a nominee through majority or supermajority vote.  But that idea was intentionally rejected in favor of a system that required a president to affirmatively obtain express consent from his coequal Senate. 

As a result, the Senate possesses full authority to confirm or reject a president's nominees for any reason it chooses.  The Constitutional text the framers chose does not, as Obama contends, limit the Senate's discretion in any way whatsoever, just as it does not limit a president's power to nominate anyone of his choosing. 

In over two centuries since that time, it might surprise many to learn that only 124 out of 160 total presidential nominations to the Supreme Court have actually been confirmed.  And as Adam White of The Weekly Standard notes, fully 25 of those failed 36 nominees did not actually receive an up-or-down vote. 

Thus, Obama's claim of entitlement to his preferred course of Senate action is grounded in neither constitutional text nor historical practice. 

Moreover, his demand isn't even supported by his own practice while in the Senate.  Specifically, Obama explicitly opted to filibuster the nomination of Justice Samuel Alito, a man of undisputed qualification and professional achievement.  Joe Biden and John Kerry, the second- and third-ranked members of Obama's own administration, acted similarly at the time.  They cannot now be heard to lament that Senate Republicans stand unwilling to bring pillows to the knife brawl that they started. 

Additionally, a recent survey reveals that approximately 40% of Americans believe that the Supreme Court prior to Justice Scalia's passing was too liberal, while approximately 40% believed that it was appropriately balanced.  Only 20% believed the Court too conservative, meaning that fully 80% of Americans either preferred the ideological balance during Scalia's tenure or wished it to be even more conservative. 

Accordingly, Obama is perfectly entitled to nominate whomever he chooses.  He is even entitled to plead that the Senate comply with his demands.  But he has neither constitutional text, nor history, nor popular opinion on his side. 

Notable Quote   
"Georgia Secretary of State Brad Raffensperger says Democrats have tipped their hand to their desire to unleash noncitizen voting by opposing his state's citizenship verification in court and he is urging elections chiefs in other states to fight such lawsuits.Georgia's citizenship verification system has prevented noncitizens from getting on state voter rolls, but the state had to defend it in court…[more]
— Natalia Mittelstadt, Just the News
Liberty Poll   

Which would be the most useful for voters: a televised presidential debate that only includes Trump and Biden or one that adds Kennedy?