Attorney General rejects Constitution

[Hansmeister]

From the WaPo:

A Split At Justice On D.C. Vote Bill
Holder Overrode Ruling That Measure Is Unconstitutional

By Carrie Johnson
Washington Post Staff Writer
Wednesday, April 1, 2009; A01



Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.

In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration's position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general.

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."

Holder's decision to get involved may expose President Obama's Justice Department to some of the same concerns raised by Democrats during George W. Bush's presidency.

Democrats claimed then that political considerations infused decisions on subjects including environmental regulations and national security policy. In particular, Bush's OLC drew criticism when lawyers allegedly shaped their analysis on harsh interrogation tactics and warrantless eavesdropping to fit the views of superiors in the White House.

M. Edward Whelan III, who was a deputy at OLC during the Bush administration, said when informed of the matter that Holder's decision to override the office's conclusions amounted to a "blatant abuse" of the office's purpose.

Questions over the constitutionality of a D.C. voting bill have dogged the proposal throughout its journey through Congress. Some legal experts say that because the District is not a state, the proposal does not square with a constitutional requirement that House members be chosen "every second year by the people of the several states." Others argue that the Constitution gives Congress broad power over the District, including the ability to grant it a full House seat.

Both Holder and Obama have expressed support for D.C. voting rights in the past. In an interview earlier this year, Obama described himself as a "strong proponent" of giving the District voting representation in Congress. As a U.S. senator, he co-sponsored a similar measure two years ago. Signing the legislation would represent a political victory for him, even if the Supreme Court later reversed the law, said sources who spoke on the condition of anonymity because the controversy is sensitive and ongoing.

Holder, who has lived in the District for more than two decades, co-signed a 2007 letter with other prominent lawyers supporting D.C. voting rights legislation.

The measure would create two new permanent seats in the House, one for the District and one for Utah, although that seat could transfer to a different state based on the results of the 2010 census.

In 2007 testimony before the Senate, Bush lawyer John P. Elwood said that the D.C. voting rights legislation was not constitutional because the District is not a state.

"In the absence of a constitutional amendment, therefore, the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation," he told lawmakers.

Advocates of the measure note that its constitutionality has been endorsed by powerful legal voices, including the American Bar Association, former federal appellate judge Kenneth W. Starr and former Justice Department lawyer Viet D. Dinh. Starr and Dinh have written a legal brief supporting the bill.

Supporters note that courts have often treated the District as if it were a state, addressing, for example, questions of whether D.C. residents are subject to laws governing federal taxation, interstate commerce and the right to a jury trial.

The Office of Legal Counsel remains a source of intense interest in the legal community and on Capitol Hill, where Senate Republicans have delayed a vote to confirm Dawn Johnsen, an Indiana University law professor nominated to lead the office. Johnsen, who served as acting leader of the office during the Clinton administration, has been a vocal critic of political influence there and has advocated for more transparency in the work of its lawyers.

A dispute over advice from the office inspired one of the most dramatic episodes of the Bush administration, when then-White House counsel Alberto R. Gonzales rushed to the bedside of ailing Attorney General John D. Ashcroft in 2004, in an unsuccessful effort to get him to overrule OLC opinions about the government's warrantless wiretapping program. More than half a dozen law enforcement officials threatened to resign if the president ignored OLC conclusions that the program was illegal.

At his confirmation hearing in January, Holder promised to review OLC opinions issued by the Bush administration. "We don't change OLC opinions simply because a new administration takes over," he said. "The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law."

Staff writer Mary Beth Sheridan, research editor Alice Crites and researcher Eddy Palanzo contributed to this report.

Could you imagine the outrage if Ashcroft or Gonzales had decided to ignore a finding of unconstitutionality like that?  Yet of course all you hear is a deafening silence now.

[grumbler]

Could you imagine the outrage if Ashcroft or Gonzales had decided to ignore a finding of unconstitutionality like that?  Yet of course all you hear is a deafening silence now.

Isn't he doing exactly what Ashcroft and Gonzales did?  Asking the same question to enough different lawyers that eventually one of them tells him what he wants to hear?

I am kind of surprised that Holder found a lawyer willing to state that the Constitution doesn't provide the sole means by which representatives are elected, but I am not surprised the Holder would reject opinions with which he disagreed.

[Neil]

Wow.  The thread title is just a little bit overstated.

[PDH]

Wow.  The thread title is just a little bit overstated.

From Hans?

[The Minsky Moment]

Hans doesn't understand what an "opinion" is.

Incidentally, I would much rather have the AG allow OLC to come with its opinion without being pressured, and then make the call whether to accept or reject it openly, as opposed to pressure OLC to give the "right" opinion in the first place.

Holder is doing things the way they are supposed to be done - above board and out in the open.

[Faeelin]

Taking Administrative law now, it seems like government agencies do this all the time.

[dps]

Hans doesn't understand what an "opinion" is.

Incidentally, I would much rather have the AG allow OLC to come with its opinion without being pressured, and then make the call whether to accept or reject it openly, as opposed to pressure OLC to give the "right" opinion in the first place.

Holder is doing things the way they are supposed to be done - above board and out in the open.

Yeah, as I understand it, the OLC is supposed to give their opinion on the legality of some policy or proposal, while the Solicitor General's office is in effect tasked with actually defending the Administration's policy.

Of course, if the OLC gives an opinion that doesn't match what the Administration wants to hear, it can be politically damaging.  I'd say that Hans is implying that in instances when that happened in the Bush Administration, the fact that the OLC disagreed was played up, and that it will be downplayed when it happens in the Obama Administration.  I can't say that I disagree with that implication, but I'm not prepared to completely agree with it yet, either.

[Darth Wagtaros]

Hans doesn't understand what an "opinion" is.

Incidentally, I would much rather have the AG allow OLC to come with its opinion without being pressured, and then make the call whether to accept or reject it openly, as opposed to pressure OLC to give the "right" opinion in the first place.

Holder is doing things the way they are supposed to be done - above board and out in the open.

Yeah, as I understand it, the OLC is supposed to give their opinion on the legality of some policy or proposal, while the Solicitor General's office is in effect tasked with actually defending the Administration's policy.

Of course, if the OLC gives an opinion that doesn't match what the Administration wants to hear, it can be politically damaging.  I'd say that Hans is implying that in instances when that happened in the Bush Administration, the fact that the OLC disagreed was played up, and that it will be downplayed when it happens in the Obama Administration.  I can't say that I disagree with that implication, but I'm not prepared to completely agree with it yet, either.

Once the honeymoon season is over, say, a few million more lost jobs, I'm sure the Obama Administration will get a mostly free pass.  But that won't stop the whining from the Right. 

[derspiess]

From Hans?

Cut him some slack.  He had to deal with 8 years of over the top claims about teh Boosh & Ashcroft tearing up the constitution.

[Queequeg]

From Hans?

Cut him some slack.  He had to deal with 8 years of over the top claims about teh Boosh & Ashcroft tearing up the constitution.

Run a google news search on "Cheney" and "Torture". 

[Fate]

The Constitution is not a suicide pact. Kudos to Mr Holder.

[jimmy olsen]

The court will strike it down so I'm not worried.

[dps]

From Hans?

Cut him some slack.  He had to deal with 8 years of over the top claims about teh Boosh & Ashcroft tearing up the constitution.

True, but the thread title is also way over the top.  The AG isn't rejecting the Constitution, he's rejecting a particular opinion about it.

Granted, I can't see how anyone can actually read the Constitution and come to the conclusion that something that isn't a state can have voting representation in Congress.

Incidentally, you don't need an admendment to give D.C. representation--you could give it statehood without an admendment, but attempts to do that have failed.

Or it could just become part of Virginia again, which would be my preferred solution, but that ain't happening either.

[Barrister]

Or it could just become part of Virginia again, which would be my preferred solution, but that ain't happening either.

Maryland.

[dps]

Or it could just become part of Virginia again, which would be my preferred solution, but that ain't happening either.

Maryland.

D'oh.  I knew that.  I think I meant to post that it should become part of Maryland again, same as half of it became part of Virginia again.