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Memo for the Movement

Conservative Action Project

The Conservative Action Project, chaired by former Attorney General Edwin Meese and former Congressman David McIntosh, is designed to facilitate conservative leaders working together on behalf of common goals. Participants include the CEO’s of over 100 organizations representing all major elements of the conservative movement-economic, social and national security.

Memo for the Movement

12 July 2013

Congress Must Stop the Obama Court-Packing Plan

Current Event:

President Obama is seeking to add three new judges to the U.S. Court of Appeals for the D.C. Circuit, one of the most important but most underworked courts in the country.  The move is a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.


  • Congress should pass legislation to reduce the size of the D.C. Circuit to fit its actual workload. Legislation to this effect has been introduced by Senator Charles Grassley in the Senate and Rep. Tom Cotton in the House.
  • The Senate must reject any new nominee to the D.C. Circuit, regardless of that nominee’s party, background, or philosophy.

Issue in Brief:

The D.C. Circuit’s workload has been in consistent decline in the last decade.  According to United States Courts statistics, the number of pending appeals in the D.C. Circuit declined more than 10% between September 2005 and September 2012.  There has also been a significant decline (more than 14%) in the number of cases filed in the D.C. Circuit.  In fact, the court’s workload is now so low that it is not uncommon for the court to cancel argument dates because there are not enough cases. But the court, which is largely responsible for reviewing the actions of the ever-growing administrative state, has served as one of the most effective checks on President Obama and his extreme agenda.  According to liberal activist Nan Aron, “The court is critically important – the majority has made decisions that have frustrated the president’s agenda.”  President Obama and his Democratic allies have been especially hostile to the D.C. Circuit since it invalidated his non-recess appointments to the NLRB, after he tried to circumvent the constitution’s advice and consent process.  Similarly, the court has been criticized by liberals for invalidating a burdensome and illegal EPA rule which would have shut down power plants and increased American energy costs. Federal courts have been a very low priority for most of President Obama’s tenure.  But he has learned that a court that abides by the Constitution and traditional legal principles is a serious threat to his plan to insulate the administrative state from accountability.  Here are just a few examples of cases President Obama would like to see decided by a politically motivated D.C. Circuit:
  • The lawsuit filed recently by a group of small business owners in six states seeking to invalidate a key IRS regulation imposed by Obamacare.
  • A constitutional challenge to Dodd-Frank, the massive bill that institutionalized taxpayer funded bailouts for big banks.
  • A challenge to the HHS contraceptive mandate, which forces religious organizations to violate their deeply held religious beliefs, or pay crippling fines.
  • Lawsuits challenging EPA regulations designed to stop fracking, the oil and gas extraction technique that has yielded a significant decrease in energy costs.
  • Lawsuits against IRS officials who wrongfully targeted American citizens because of their viewpoints.
To guarantee the desired political outcome in such cases, President Obama seeks to do exactly what President Franklin Roosevelt did when his agenda faced constitutional problems in the Supreme Court:  pack the court with allies who will decide cases on the basis of politics instead of the Constitution and traditional legal principles.   Or, as Senator Chuck Schumer put it, Democrats“will fill up the D.C. Circuit one way or another.” One way they plan to “fill up the D.C. Circuit” is to put pressure on Republican Senators who fear that Majority Leader Harry Reid will use this opportunity to abolish the filibuster, destroying the minority party’s ability to debate important legislation.  But no Senator should fall for that trap.  Republicans have treated President Obama’s judicial nominees fairly, confirming more than 111 of them during the 112th Congress, more than during any other Congress in 20 years.  According to President Obama, his nominees have waited “three times longer to receive confirmation votes than those of my Republican predecessors.”  But that is simply not true.  During his entire first term, President Obama’s appellate nominees waited an average of 240 days from nomination to confirmation.  By contrast, President George W. Bush’s nominees waited an average of 283, and some waited for years. No spin on the statistics will make it any easier for President Obama or Senator Reid to prove the existence of a crisis, because none exists.  This is nothing more than a transparent attempt to evade our traditional system of checks and balances, turning an evenly divided court into a political rubber stamp for overreaching executive orders and agency actions.  It must be stopped.


The Honorable Edwin Meese III Former Attorney General President Ronald Reagan The Honorable David McIntosh Former U.S. Representative Indiana Mike Needham CEO Heritage Action for America Tony Perkins President Family Research Council Grover Norquist President Americans for Tax Reform Brent Bozell Chairman ForAmerica Colin Hanna President Let Freedom Ring David Bossie President Citizens United Phyllis Schlafly Founder and President Eagle Forum The Honorable J. Kenneth Blackwell President Constitutional Congress, Inc. The Honorable T. Kenneth Cribb, Jr. Former Counselor to the U.S. Attorney General President Ronald Reagan The Honorable Alfred S. Regnery Former Publisher The American Spectator William L Walton Chairman Rappahannock Ventures LLC Bob Reccord Executive Director Council for National Policy Morton Blackwell Chairman The Weyrich Lunch Heather Higgins President Independent Women’s Forum Kellyanne Conway President The Polling Company Carrie Severino Chief Counsel and Policy Director Judicial Crisis Network Gary Bauer President American Values Mathew D. Staver Chairman Liberty Counsel Action Jim Martin Chairman 60 Plus Association Nathan Mehrens President Americans for Limited Government Duane Parde President National Taxpayers Union Gary Aldrich President CNP Action, Inc. Judson Phillips Founder Tea Party Nation Gary Marx Executive Director Faith & Freedom Coalition Phillip Jauregui President Judicial Action Group Frank Cannon President American Principles Project Curt Levey President The Committee for Justice Jim Ryun Chairman The Madison Project Phil Kerpen President American Commitment Tom Winter Editor-in-Chief HumanEvents.com Tim Wildmon President American Family Association Raymond J. LaJeunesse, Jr. Vice President & Legal Director National Right to Work Legal Defense Foundation, Inc. Susan Carleson President American Civil Rights Union Andrea Lafferty President Traditional Values Coalition Lewis Uhler President National Tax Limitation Committee Mario H. Lopez President Hispanic Leadership Fund Craig Shirley Reagan Campaign Biographer Rev. Lou Sheldon Chairman Traditional Values Coalition Lee Beaman Businessman Nashville, TN Angelo M. Codevilla Professor Emeritus Boston University Tom Donelson Chairman America’s PAC Kay R. Daly President Coalition for a Fair Judiciary Ralph Benko President Center for Civic Virtue Andresen Blom Senior Strategist Center for Civic Virtue C. Preston Noell III President Tradition, Family, Property, Inc. Dan Bongino Candidate for Congress Maryland George Landrith President Frontiers of Freedom Gene Mills President Louisiana Family Forum Mike Stenhouse CEO Rhode Island Center for Freedom & Prosperity Richard Viguerie Chairman ConservativeHQ.com Elaine Donnelly President Center for Military Readiness Larry Cirignano President Faithful Catholic Citizens Jim Backlin Vice-President Christian Coalition of America Bob Adams President Revive America USA Dr. William Greene President RightMarch.com Paul Caprio Director Family PAC Federal Sandy Rios Vice President Family PAC Federal Melissa Ortiz Founder Able Americans Catherine Engelbrecht President True the Vote (All organizations listed for Identification purposes only)

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