D.C. Voting Rights & OLC:
Thursday's Washington Post had a follow up story on the OLC opinion that legislation to provide voting representation for the District of Columbia in the House of Representatives is unconstitutional. According to the story, the OLC opinion was approved by a political appointee, namely Deputy Assistant Attorney General David Barron. The story also notes that Senator John Cornyn (R-TX) sought a copy of the OLC, but was rebuffed on the grounds that it was a preliminary document, and "not the final, formal opinion."
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- Tushnet on OLC & D.C. Representation Bill:
- Constitutional Obligations and Signing Statements:
- Challenging the Constitutionality of the D.C. Representation Bill:...
- Still More on the OLC Opinion Re: D.C. Voting Rights:
- D.C. Voting Rights & OLC:
- Holder vs. OLC:
- Testimony on Constitutionality of DC Voting Rights Bill:
- Holder, OLC, and the DC Voting Rights Bill:
The most transparent, ethical administration ever.
Someone can correct me if I’m wrong, but OLC should generally give advice on what the law is. The President and the SG can decide to try to change the prevailing constitutional interpretation. If the President and SG are wrong, their position will lose in court, so there’s a major check on abuse.
If the President and SG were bound by the OLC’s constitutional interpretation on the constitutionality of a bill, a conservative president could never sign a bill significantly restricting abortion or ask the Supreme Court to rule that that 14th Amendment does not include even a limited right to abortion. That’s just not right.
Seeking to change the interpretation of the Constitution is within the President’s prerogatives. By contrast, Bush/Gonzales manipulated OLC’s opinions behind the scenes with the specific intent of to give torturers unassailable immunity from legal challenge. That’s deceitful, dishonest, and left no check for abuse (other than leaks).
It seems to be to be perfectly consistent to say (a) OLC should promptly publish its opinions, and (b) OLC won't release opinions that aren't finalized. No one should want a world in which lawyers' drafts are open to scrutiny (whether at OLC or anywhere else). Once they're finished, they should publish.
Of course, if what you're saying is that they are using the "not finished" line as a cover to avoid publishing, that's a different issue; but you should come out and say that directly.
Holder is a hatchet man whose ethics consist of taking orders from whomever is in charge.
Note that this would also have helped with the so-called "torture" OLC memos. They could just have said they were "drafts", and when Holdsmith wanted to change them, he wouldn't have had to withdraw - he could simply have revised the draft. And Bush could simply have told Conyers et al. that they were not entitled to "draft" opinions.
The new nuance in this story is that, according to a DOJ spokesman, Holder himself disagreed with the OLC opinion, and sought Neal Katyal's opinion only as an informal check on his own:
Meanwhile, DOJ is sticking by its position not to release Barron's memo:
I'll accept the first point as plausible. The second point, about the OLC memo not being "final," I find fishy.
While I don't buy all the strained comparisons between this incident and the sordid mess in the Bush-era OLC, the lack of transparency here does not look good.
Johnsen is not yet the head of the OLC. Kind of ironic if Republicans are holding up her confirmation and making noise about filibustering it, but then want to complain about the OLC not following her lead.
I don't think that's the argument at all. If anybody is making the argument that it is OLC that is frustrating the release of its opinion as to the unconstitutionality of the D.C. vote legislation, it ain't me. The complaint is not that OLC or the as-yet unconfirmed nominee to head-up OLC have done anything wrong, it's that the Attorney General appears to be making a mockery of the transparency that this Administration was supposed to deliver and is happy to deliver when it comes to many of its predecessor's OLC memoranda.
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