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Is the Senate's confirmation of Amy Coney Barrett constitutional?

Published in Blog on October 20, 2020 by Article V Patriot

There's been much debate as to whether the nomination and confirmation of Amy Coney Barrett is constitutional. Politicians like Joe Biden, Sen. Patrick Leahy, and former Sen. Russ Feingold have all suggested that Barrett's nomination process violates the Constitution for occurring so close to an election.

But what do the facts say?

Fortunately, one of the nation's leading constitutional scholars just wrote an op-ed in the Epoch Times to help us answer this question. 

Prof. Rob Natelson has done invaluable work on the Article V issue and for the Convention of States Project. He argues that not only are the President and the Senate permitted to nominate a Supreme Court justice -- they are obligated to do so, even prior to an election. 

The relevant sections of the document are simple and straightforward. Article II of the Constitution states: “[The president] … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”

Consider this sentence for a moment: The Constitution grants many powers that officials are free to exercise or not, as they wish. But in this grant of power, exercise is mandatory. This sentence is in a grammatical form called the future imperative: “shall nominate” and “shall appoint.” The language is similar to the Constitution’s requirement that the president “shall take Care that the Laws be faithfully executed.” A president who systematically refused to enforce laws—or to nominate judges—during election season would be violating his constitutional duty.

Prof. Natelson goes into greater detail in his full article, but even this brief passage is enough. The Constitution allows Senators to be elected for six years and the President to be elected for four. If a Supreme Court vacancy comes up within that time frame, they are obligated to start the nomination and confirmation process. 

It's as simple as that.

The President and the Senate are following the letter of the Constitution in this case, but the federal government as a whole has departed widely from our original founding document. We're working at the Convention of States Project to fix that.

We're calling on the states to call the first-ever Article V Convention of States to propose constitutional amendments that force the feds to follow the limited-government principles laid out in the Constitution. These amendments would limit federal power back to its original bounds, limit Congress' ability to spend taxpayer dollars irresponsibly, and limit the terms of office for federal officials.

These constitutional limitations will go a long way towards getting our country back on track -- and restoring the right to self-governance to We the People. 

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