Confirmation hearings for Loretta Lynch, President Obama’s nominee to replace Eric Holder, got underway this week. One of her inquisitors was Senator Ted Cruz (R – Tex) who had plenty of questions, many related to the performance of the current Attorney General and how her approach might differ, if at all. The conversation would, in my opinion, be described as polite and professional, while still being confrontational. This first section (which starts in the first couple of minutes in the video below) deals with the limits of discretion in prosecution.
With regard to the limits of executive power, Sen. Cruz asked, “Let me ask about your understanding of prosecutorial discretion. Would it allow a subsequent president… to state that there are other laws that the administration will not enforce – labor laws, environmental laws – would it allow a president to say every existing federal labor law shall heretofore not apply to the state of Texas because I am using my prosecutorial discretion to refuse to enforce those laws? In your judgment, would that be constitutional?”
Nominee Lynch responded, “Again, I would have to know what legal basis was being proposed for that.”
Sen. Cruz continued, “I find it remarkable that you are unable to answer that question. I can answer it straightforward. It would be patently unconstitutional for any subsequent president to refuse to enforce the tax laws, or the labor laws, or the immigration laws for the very same reason that President Obama’s actions refusing to enforce immigration laws are unconstitutional. And it is discouraging that a nominee who hopes to serve as attorney general will not give a straightforward answer to that question.”