Who is going to be able to have standing to challenge the constitutionality of this law? I don't know if the Supreme Court will get a crack at it.

Ilya,

There is surely a difference in a theoretical sense, but can you explain why that difference matters outside the world of theory?

Speaking as someone who's very much in favor of voting rights for DC, I think this reasoning is too charitable. The common excuse I've heard is that he wants an OLC opinion in favor because that makes it more likely the courts will uphold it. I don't know if this is true, but it seems the exact opposite of what you suggest here.

Even if you're right, it strikes me as similar to that of Administration defenders claiming that the Obama Administration was continuing to take Bush-era positions in the detainee and domestic spying cases because it wanted the courts to reject those theories. I'm skeptical of the Administration defenders' claim to begin with, and I think it's too clever by half if it's true. I'm not a real fan of Machiavellian maneuvering by the AG; that's one office which should be up front about its policies and goals.

This doesn't mean I think Holder was wrong to reject the OLC opinion. I don't know enough about the circumstances to say that with assurance. There may be internal matters which affect his decision (e.g., who wrote it).

Is it likely that the case would make it to SCOTUS?

The bill itself would probably mandate direct review by SCOTUS so it can be settled before the 2010 midterms. BICRA did that, IIRC.

If the principal is to draw publicity by supporting something illegal so a constitutional amendment can be passed, why not just skip the illegal act of Congress and have the illegal DC election without Congressional authorization? In fact, why not skip the election and just appoint a DC Congressman?

Here's the thing - Obama and Democrats made a huge deal of Bush's Justice Dept being too political or too involved in policy.

You say:

We know that AG Holder favors voting rights for DC as a matter of policy.

The Democrats, Candidate Obama, President Obama, and Nominee Holder have all railed against the "politicization" of Justice under Bush. Therefore, the standard they set for AG is to act apolitical and just enforce the law. This raises the standards and means that policy motivations don't justify this action.

The bill itself would probably mandate direct review by SCOTUS so it can be settled before the 2010 midterms. BICRA did that, IIRC.

The bill requires any action to be brought in federal court in DC. Any appeal is then direct to the Supreme Court. The bill also requires all courts to decide the matter as expiditiously as possible (or language to that effect). There's every reason to believe that the matter would be settled well before November 2010 and that, if unconstitutional, there would be negative consequence from its passage other than the waste of time and money in passing and litigating the matter.

JoshD,

But if your argument is that Holder should be held to the standard to which he held the Bush DOJ, doesn't that apply equally to conservative critics of Holder? I don't recall many of the conservative critics of Holder being equally eager to criticize Gonzales, et. al.

Incidentally, something valuable is getting lost: OLC thus far has not given Obama what he has wanted. Sure, Holder might side step OLC. But that's not what happened during the Bush/Yoo OLC. Under Bush/Yoo, OLC said whatever he wanted Bush wanted OLD to say.

So at least we have seen some improvement in the politicization of Justice.

If the bill is passed, and the Supreme Court strikes it down, the publicity and focus of a Supreme Court case may go a long way towards gathering political support for a constitutional amendment.

It might also gather a lot of political support for an amendment reducing D.C. to the area between the Capital and the White House and forcing Virginia and Maryland to split the rest.

MRM:

Who is going to be able to have standing to challenge the constitutionality of this law? I don't know if the Supreme Court will get a crack at it.

I would assume the political parties would have standing, since they tend to have standing in other matters of election law where they have an interest (see Washington State Republican Party vs Washington State Grange).

No politician who has an oath to uphold the Constitution should support a law that he knows is Unconstitutional. Eric Holder didn't take an oath to amend the Constitution, but to uphold it.

There were plenty of conservatives criticizing Alberto Gonzalez when he endorsed the unconstitutional power for himself to arbitrarily deny gun rights to American citizens without due process based on his decision to arbitrarily put them on a terrorist watch list. I think Eric Holder will lobby for himself to have this same power. Rahm Emanuel already has.

As an aside, people always seem to forget that in 1978 Congress DID pass a constitutional amendment to grant DC three reps and two Senators. It did not get ratified by the States. I can't imagine that it would get ratified today either -- too many small states, along with the Republican party, will be opposed.

If the Dems and Obama are serious, there is an easier way to get DC full voting rights in Congress and the Senate. Admit it as a State, which only requires a majority of both houses of Congress and the President's signature. The Democrats have enough votes for that -- but I imagine Democratic Senators from smaller states don't want to do it.

"[A] pleading must be not warranted by existing law or a good faith argument to change the law"

But who listens to losers like that, anyway?

Would it be reasonable for Mr. Holder to support execution of a person he believes to be innocent if he believes this would be the best way to rally opposition to the death penalty and advance his policy agenda?

I suppose I was looking for a consistent commitment to the rule of law

And you didn't find it in Dan's criticism of Gonzalez for exercising an unconstitutional power? Offhand, I can't think of anything Gonzalez did to unconstitutionally advance a conservative political agenda, so naturally conservative criticism would have to involve cases where he unconstitutionally restricted that agenda.

There were the interrogation cases, of course, but maybe Gonzalez agreed with so many of the commenters here that the administration was clearly acting unconstitutionally, and banked on a quick Supreme Court overturn followed by an amendment to give the administration the interrogation powers it asserted it had in the first place.

I'm still at the same place I started. What really made the torture memos not just obnoxious in their content but actually an abhorrant politicization of the OLC was the fact that they were relied upon in commiting illegal acts. Since signing a bill that the Supreme Court may strike down is not an illegal act the way torturing someone is, I really don't see any situational resemblance.

I have many problems with Professor Kerr’s post, but let me focus on just one. He seems to have overlooked the fact that Holder is the Attorney General, and that he is expected to provide a legal opinion to the President on the constitutionality of the law in question. OLC, after all, would not be consulted for policy advice, but for a legal opinion.

If Holder wants to advise the President that the law is unconstitutional (or, as Professor Hasen says, “probably unconstitutional), but that he should sign it anyway for policy reasons, that’s one thing. Doing so may or may not violate Holder’s constitutional oath, but it seems to me that the more relevant question, in that situation, would be whether signing the bill would be consistent with the President’s oath.

I take it, however, that this is not what Holder intends to do. Instead, Holder intends to advise the President that the law is, in his best judgment, constitutional, notwithstanding the OLC’s judgment (which, reportedly, came from David Barron, an Obama political appointee) to the contrary.

Holder is not “bound” to follow OLC’s opinion. My understanding is that OLC’s function is delegated from the Attorney General, who has the ultimate authority and responsibility with respect to the legal opinions of the Department. So however unusual it may be, I assume that Holder can overrule OLC’s opinion if he thinks it is wrong.

But Kerr is not suggesting that Holder thinks OLC is wrong. He is suggesting that Holder, notwithstanding the fact that he thinks that OLC is right (or probably right), may nonetheless ignore OLC’s opinion in order to achieve a policy result that Holder favors. In other words, Holder will advise the President that the law is constitutional not because he thinks that it is actually constitutional but because he wants to provide the President with legal cover to take an action that is desirable from a policy standpoint.

Perhaps Kerr could provide additional explanation as to why he thinks this is acceptable, if he does, or how it is different from the oft-charged “politicization” of the Justice Department. I don’t get it.

if unconstitutional, there would be negative consequence from its passage other than the waste of time and money in passing and litigating the matter.

(1) You probably mean not.

(2) Judges are salaried, not hourly, so it's hard to imagine that this really wastes money. Perhaps the SCOTUS will granted one fewer cert case and we will get slightly less judicial review for our dollar?

At AF’s suggestion, I read Professor Tushnet’s “irrefutable” post. I was pretty surprised to read that Dellinger had suggested that the President ought to defer to Congress’s views about constitutionality in deciding to sign or veto a bill. So I went to the memo, which states:

"2. When bills are under consideration by Congress, the executive branch should promptly identify unconstitutional provisions and communicate its concerns to Congress so that the provisions can be corrected. Although this may seem elementary, in practice there have been occasions in which the President has been presented with enrolled bills containing constitutional flaws that should have been corrected in the legislative process.

3. The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems."

This doesn’t say that the President should defer to Congress on constitutionality in deciding whether to veto a bill. It says with regard to a “statute” (ie, a bill that has already become law) the President should give deference to Congress’s determination of constitutionality. This applies to the President’s obligation to execute the law, not his exercise of the veto. It would be pretty surprising if the President were obligated to defer with regard to exercise of the veto since the primary (and some early scholars thought the sole) purpose of the veto was to block unconstitutional legislation.

The rest of Tushnet’s post is equally far from “irrefutable.” What difference does it make whether Holder’s obligation to advise the President does not arise until the President has to make a decision on the veto? Holder has already decided on what his legal advice will be. Moreover, Tushnet conveniently omits the part of the Dellinger memo that says the executive branch should communicate constitutional concerns to Congress while a bill is still under consideration.

Finally, Tushnet seems to have an interesting recollection of the “politicization” claims relating to the Bush Justice Department: “As far as we know, the Attorney General has not directed the Office of Legal Counsel to change or shape its legal analysis to fit the administration's policy views, which was at the heart of the claim about the politicization of the Office of Legal Counsel in the prior administration.” I don’t recall any such directives in the Bush Administration. I thought the charge was that OLC had produced poor legal analyses that supported the administration’s policy views. If the Bush OLC had produced legal analyses that conflicted with the administration’s policy views and then the Attorney General had proceeded to ignore OLC and provide legal advice that supported the administration’s policy views, would that have been less “politicized”?

Part of the Tushnet post that seems refutable because the Constitution does not specify any duty for the Attorney General: the Attorney General's constitutional duty is only to give his opinion (when requested, in writing) on the constitutionality of the pending legislation

Or did I miss something in the Constitution?