President Obama’s executive action granting deferred deportation status and work permits for up to 5 million undocumented immigrants was based on a “reasonable” legal opinion by Justice Department lawyers, Mr. Obama’s choice to become the next attorney general told senators at her confirmation hearing on Wednesday.
Loretta Lynch, currently the top federal prosecutor in Brooklyn, N.Y., said that she was not personally involved in the decision that led to the president’s unilateral immigration action in November.
But, she told the Senate Judiciary Committee, the underlying legal justification for the president’s granting deferred action for 5 million individuals was based on an identifiable legal framework that she found compelling.
“I did find the analysis to be reasonable. It did seem to find a reasonable basis,” she said in answer to pointed questions from Sen. Ted Cruz (R) of Texas.
Many Republican senators maintain that Obama exceeded his authority under the Constitution and usurped legislative power reserved exclusively for Congress. The issue is being litigated in a federal court in Texas.
Democrats disagree with this view and tried to play down attempts by Republicans to pin Ms. Lynch down on the issue.
“I have to have a clear answer to this question,” Sen. Jeff Sessions (R) of Alabama asked. “Do you believe the executive action announced by President Obama is legal and constitutional?”
Lynch responded: “As I read the opinion, I believe it is.”
The legal memo, Lynch added, had also recommended that the president not take certain contemplated actions. She said the administration followed that advice as well.
The comments came during a day-long hearing in which she nimbly fielded barbed questions mostly from Republican senators still smarting over their contentious confrontations with outgoing Attorney General Eric Holder.
Lynch sought to reassure combative Republicans that she would not be a clone of her predecessor. Mr. Holder maintained a prickly posture toward Republicans in Congress and became the first attorney general in US history to be held in contempt of Congress for failing to cooperate on oversight issues.
“How do we know you are not going to perform your duties as attorney general the way Eric Holder performed his duties?” Sen. John Cornyn (R) of Texas asked.
“I will be myself,” Lynch said. “I will be Loretta Lynch.”
She added: “I do pledge to this committee that I want to hear your concerns. I want to listen to your concerns and will discuss them going forward.”
The confirmation hearing seemed at times more like a forum for Republican complaints about the Obama administration than an examination of Lynch’s qualifications to become America’s top federal law enforcement official.
Through it all, Lynch maintained a professional and businesslike demeanor that she probably honed while prosecuting terrorists, mob figures, corrupt cops, and white-collar criminals in the Eastern District of New York.
If confirmed for the job, as expected, she will become the first African-American woman to serve as attorney general.
If the Republicans were particularly tough on her, the Democrats were more than supportive.
“She is smart, she is tough, she is hard-working and independent. Her qualifications are beyond reproach,” Sen. Patrick Leahy (D) of Vermont said.
Sen. Charles Schumer (D) of New York noted that Lynch’s father is a fourth-generation Baptist minister and that her mother “picked cotton in the segregated South so her daughter would never have to.”
Lynch is graduate of Harvard College and Harvard Law School.
Though most of her career has been as a prosecutor in the United States, she spent two years as a volunteer advising prosecutors at the International Criminal Tribunal for the genocide in Rwanda.
In response to questions, Lynch revealed that she is opposed to the legalization of marijuana, believes waterboarding is a form of torture and is thus illegal, and is open to prosecuting suspected terrorists in either federal court or in a military tribunal.
She supports beefed-up protection of US trade secrets and an aggressive approach to counter cybercrime and human trafficking.
At one point, Lynch was asked if it was lawful for the president to unilaterally issue work permits for those who entered the country illegally.
“The right and the obligation to work is one that’s shared by all in the US, regardless of status,” she said. If they are here, it is preferable, she said, that they are in the workplace.
Later in the hearing, Senator Schumer sought to walk Lynch back from her statement. “What did you mean when you said you think everyone should work regardless of status?” he asked.
“I was making a personal observation,” she said. The comment was a personal reflection, not a legal position, she stressed.
“In my family, we are all expected to try to find employment to become a responsible adult and a responsible member of society,” she said.
“You are not suggesting it is a legal right,” Schumer asked.
“No,” she responded.
Senator Cruz, a former solicitor general of Texas who has argued at the US Supreme Court, was by far the most aggressive in his interrogation of Lynch.
He wanted to know her opinion on whether it is constitutional for the US government use a drone strike to kill an American on US soil if the individual does not pose an imminent threat.
Lynch hesitated to answer. She suggested it would be governed by the nature of the interaction.
“I am not aware of legal authority that would authorize that ... or of a policy to do that,” she said.
Cruz noted that Holder had repeatedly refused to answer the question. He pressed Lynch for a yes or no answer.
“The obvious answer is no,” Cruz said. “I don’t view that as a difficult legal question, and it demonstrates what I think is this administration’s approach to constitutional law – that it always, always, always opts in favor of government power.”
Cruz said he was trying to gauge Lynch’s willingness to enforce limits on presidential power. “It is disappointing in this hearing that try as I might, there is nothing that yielded anything that suggests a limitation on the authority of the president,” he said.
“That does not augur well for your standing up to the president when the law so requires,” he told Lynch.
Lynch responded that it is the role of the attorney general to give objective legal advice to the president. Ultimately, the attorney general must represent the American people, she added.
Wednesday’s hearing was set aside to question Lynch. On Thursday, the senators will hear testimony from various experts and colleagues concerning her nomination.
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