Eric H. Holder Jr.’s replacement as attorney general will face a grilling from the Senate Judiciary Committee after the elections, with the position key to enabling President Barack Obama’s pen-and-phone executive agenda and with numerous hot-button issues under the purview of the Justice Department.
The nominee to replace Deputy Attorney General James Cole, who is also leaving, will also face much the same treatment.
Here are 10 questions the nominees will likely hear:
1. What is the limit of the president's executive authority on immigration? The nominee will face questions from senators either just before — or just after — the president announces sweeping executive action to expand deportation relief to illegal immigrants, a move sure to enrage the GOP.
Many Republicans say the president can not act without Congress, which, under Article I of the Constitution, has authority over immigration. The House has already voted to end the president’s existing program known as DACA deferring deportations for young immigrants brought here illegally.
Expect Sen. Jeff Sessions, R-Ala., and Ted Cruz, R-Texas, both members of the Judiciary Committee, to lead the questioning on this front.
2. Will you ignore the federal prohibition on marijuana in states that legalize the drug? Do you support raids on state-licensed medical marijuana operations? Should it be a Schedule I drug? With Colorado and Washington legalizing recreational marijuana and more states expected to do so — the selective enforcement of federal marijuana laws under Holder has come under increasing scrutiny from both sides of the debate over the drug war.
“Up until this point Holder has been a mixed bag when it comes to marijuana reform,” said Tom Angell, chairman of the Marijuana Majority, a legalization advocacy group. “During the first term his Department of Justice shuttered more state-legal marijuana providers than were closed during two full terms of the Bush administration.”
But, since 2012, Angell said, Holder has led federal efforts to give these states the room they need to implement these laws effectively.
3. At what point does the president need to come to Congress for authorization to engage in war? The debate over the fight against the Islamic State terror group could still be raging when the nominee comes before the committee — with senators in both parties questioning the president’s claim he has authority under the 2001 Authorization to Use Military Force against al-Qaida to wage war on the group, which did not exist in 2001.
“That is going to be a large part of Republican and Democrat [inquiries]; I think Democrats might be more critical,” said Makan Delrahim, former Republican staff director and chief counsel of the Senate Judiciary Committee when Orrin G. Hatch, R-Utah, was chairman.
4. What about the drones? Few legal opinions have been more controversial than the one holding that Obama can order drone strikes on American citizens overseas.
The administration’s guidelines say drone targets must pose “a continuing and imminent threat to the American people.” But a Justice Department white paper on when U.S. citizens can be targeted noted that an imminent threat “does not require the United States to have clear evidence that a specific attack … will take place in the immediate future” and cited the fact that “al-Qaida leaders … are continually planning attacks.”
Sen. Rand Paul, R-Ky., launched a 13-hour filibuster in March 2013 against the confirmation of John O. Brennan to head the CIA until Holder released a letter to him, assuring that the president does not have the authority to order a drone attack on an American on U.S. soil if they are not engaged in combat.
5. Will you commit to turning over all Fast and Furious documents? The controversial gun-tracking program known as Operation Fast & Furious has been a priority for Senate Minority Whip John Cornyn, R-Texas, a veteran committee member.
The 2009 Phoenix-based operation came under scrutiny when it was revealed that officials lost guns used in the ill-fated sting that resulted in guns getting in the hands of Mexican gangs.
Republicans have been critical of Holder for not providing related documents to Congress and in 2012 the GOP-led House voted to hold him in contempt of Congress.
6. Will you appoint a special prosecutor to investigate the IRS? Republicans have been frustrated at the pace of the Justice Department’s investigation into the IRS’ delays in granting tax-exempt status for tea party and other conservative groups, with Cruz calling on Holder to appoint a special prosecutor.
Republicans have been critical of the Justice Department’s handling of the matter — particularly that Barbara Bosserman, who contributed more than $6,000 to Obama and the Democratic National Committee, is leading the investigation.
7. What are the limits on the president’s ability to not enforce the law? If the president has the authority to delay the employer mandate tax in Obamacare — as the White House claims — would a Republican have the authority to stop collecting capital gains tax? The House has already voted to authorize a lawsuit against the president for delaying the employer mandate tax without Congress.
8. Why shouldn’t states be allowed to impose voter identification laws? Holder has been an aggressive protector of voting rights — and the gutting of a key section in the Voting Rights Act in 2013 by the Supreme Court has only heightened the issue for both parties.
Some lawmakers — and especially Democrats — want to restore the teeth to the Voting Rights Act against states with a history of discrimination. But Republicans, such as Judiciary Committee ranking member Charles E. Grassley, R-Iowa, say voter ID laws should be allowed.
At a June hearing on reauthorizing the law, Grassley said a new bill “seems to create only a fig leaf of protection for legitimate voter ID laws, which are supported by 70 percent or more of all Americans in every poll that I’ve seen.”
9. What should be the limits on National Security Agency surveillance? Holder came under criticism from some in both parties for the nation’s surveillance programs that came to light after Edward Snowden stole classified documents and released their details.
Judiciary Chairman Patrick J. Leahy, D-Vt., has sponsored legislation backed by the administration that would curtail the surveillance.
10. Can the president close the terrorist detention facility in Guantánamo Bay, Cuba, without the approval of Congress? After reports that Obama was eyeing an end run around Congress to close the prison, Republicans promised to fight the president with Speaker John A. Boehner, R-Ohio, promising to do "everything within our power" to keep terrorists from being brought to the United States.