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Tushnet on OLC & D.C. Representation Bill:

Mark Tushnet thinks the flap over the Attorney General's handling of the OLC opinion on proposed legislation to grant D.C. voting rights is much ado about nothing. Whereas some commentators may have overstated the case, I think Tushnet may be understating it.

Based on what we know, OLC issued a signed opinion reiterating its prior conclusion that the pending legislation is unconstitutional. Presumably this opinion was in response to a request from the Attorney General or someone else. Then, according to most press accounts, Holder sought other opinions, albeit on a slightly different question. Tushnet is correct that the AG may seek advice from whomever he likes, but it is certainly the case that OLC has traditionally been charged with researching these sorts of questions. Further, based upon press reports, and the opinions of former OLC attorneys (e.g. Ed Whelan and John McGinnis), Holder's actions were contrary to established procedures and undermined OLC's traditional role within the Department. Of course, these conclusions are based upon news reports, which may themselves be inaccurate. Thus, I've posted every story I've seen that sheds light on what occurred in this circumstance, and will continue to do so, and repeatedly noted that my conclusions are based upon what has been reported in the press or detailed by OLC alums.

According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk. I disagree. If OLC is to perform its historic role, it needs time to examine complex legal issues. Thus, it must begin to analyze potentially problematic legislation well before it is enacted. And, in fact, it is quite common for OLC to evaluate proposed legislation before it is enacted. By the same token, if the AG is inclined to overrule an OLC opinion — and if, as Tushnet notes, it is "good practice" for the AG to issue an opinion if he is disregarding or overruling OLC's conclusions — then he better get cracking well before legislation passes both houses of Congress, particularly if we expect such a memo to substantively address the relevant legal issues. In this case, it appears the AG did initiate such an examination, and sought to contain the damage of an unfavorable OLC opinion in what OLC veterans have characterized as a violation of established procedures. Again, this is what the press reports suggest, and Holder's actions here are characterized by former OLC attorneys as untraditional. If Holder's actions were different from what has been reported, then he may have done nothing improper.

I certainly agree with Tushnet that the President is free to disregard the AG's (and OLC's) advice, and that the rejection of an OLC memorandum does not, in itself, constitute a violation of the President's constitutional obligations. I also agree that the President can (and should) give some degree of deference to Congress on close constitutional questions. In this regard, I have little problem with the Dellinger memorandum. But I don't think this is what is at issue here. The question is whether Holder acted to undermine or overrule a signed OLC memorandum in an improper fashion for political reasons. Hence, the primary charge is that Holder is "politicizing the Justice Department," not that he is inducing the President to violate his constitutional obligations. I should also note that this episode resembles Holder's conduct with regard to the Rich and FALN pardons, in which he allegedly bypassed traditional procedures in order to smooth the way for a desired outcome, far more than it does the controversy over OLC's national security memoranda. Indeed, when John Ashcroft was Attorney General, he accepted OLC conclusions that went against administration policy, and backed OLC against the White House. (See, e.g., Angler by Barton Gellman.)

Let me also note another point on which Tushnet and I are in total agreement: There is no implication that OLC did anything untoward or improper in this case. Quite to the contrary, OLC appears to have operated in accord with its traditional obligations. Further, as I have said before, I have no reason to believe that the outcome within OLC would have been any different had Dawn Johnsen been at the helm of OLC.

UPDATE: Mark Tushnet responds in the comments below, and Ed Whelan adds his thoughts on Bench Memos.

For myself, let me just note that the April 1 Post story cites the Justice Department for the proposition that Holder has, in fact, rejected the OLC opinion, a point reiterated (again citing Holder's spokesperson) in the April 2 story. So, unless the Post is misrepresenting the Justice Department, the OLC memo has, in fact, been rejected. Further, the April 3 story reports "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill." So, whatever else may or may not have occurred, it seems fairly clear at this point that Holder a) rejected the conclusion adopted in a signed OLC memo, and b) has not, and has no plans to, issue an opinion explaining the basis for his decision.

Mark Tushnet:
As far as I can tell, these are the ways -- or to be more precise, this is the way -- in which Holder's actions departed from established procedures: "The right way would have been for Holder to conduct a full and careful formal review of the legal question.... Holder hasn't signed an opinion setting forth his grounds for reversing OLC" (Whelan); "Attorneys General previously have themselves rendered legal opinions" (McGinnis). I don't see anything else in either of their pieces describing a departure from established procedure.

For all we know, the Attorney General is preparing an opinion that he will sign when the question of advising the President is presented to him, and -- again for all we know -- is conducting a full and careful formal review of the legal question. I doubt that "the right way" to act would have been to sit down on the afternoon the OLC memo came to his office and type out a formal opinion disagreeing with it. Or, to use your term, the Attorney General has time to "get cracking," and for all we know, he has already done so. (And, of course, he hasn't "reversed" OLC, whatever that word means in this context.) And nothing the Attorney General has done has displaced OLC's traditional role: OLC has prepared a memorandum giving its opinion, for whatever use the Attorney General and the President make of it.
4.7.2009 7:01pm
Just an Observer:
Tushnet says (emphasis in original):

The first thing to note -- I would have thought it obvious -- is that NOTHING HAS HAPPENED.


I don't know if that is right, but it might be. It does seem to me that we do not know, beyond some mushy paraphrases in the Washington Post, precisely what actions Holder has taken, if any.
4.7.2009 7:01pm
My Middle Name Is Ralph:

Further, based upon press reports, and the opinions of former OLC attorneys (e.g. Ed Whelan and John McGinnis), Holder's actions were contrary to established procedures and undermined OLC's traditional role within the Department. [emphasis added]


McGinness's only allegation of Holder acting contrary to established procedures is his failure to produce a written opinion. Whether this is never varying precedent as McGinness asserts without citation or merely good practice as asserted by Tushnet, Tushnet is undoubtedly correct that McGinness's complaint is premature since the bill has not even passed.

Whelan's complaint is similar in alleging Holder should conduct a full and formal review resulting in a written opinion. Whelan asserts that would be the "right way," making it unclear whether he thinks this is an established procedure or merely good practice. Again, the criticism seems premature.

So, I have at least two problems with the Whelan and McGinness criticisms. First, what are these "established procedures?" Are they actual written policies or merely good practice? The amount of criticism of Holder would seem to depend on whether he's violating written Department of Justice procedures or merely not following some sort of tradition. Second, any failure to disagree with/overrule OLC in the "right" way seems premature.
4.7.2009 7:02pm
BTE:
Tushnet seems more persuasive here.
4.7.2009 7:23pm
Chris L (mail):
According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk. I disagree. If OLC is to perform its historic role, it needs time to examine complex legal issues. Thus, it must begin to analyze potentially problematic legislation well before it is enacted. And, in fact, it is quite common for OLC to evaluate proposed legislation before it is enacted.


The OLC's own website appears to indicate, quite clearly, that one of its roles is to offer constitutional analysis of pending legislation:

The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.
4.7.2009 7:37pm
Nunzio:
Let's get rid of OLC. Seems like a waste of money.
4.7.2009 7:42pm
My Middle Name Is Ralph:
Chris L, isn't this what the OLC has done? If so, then there's no basis for criticizing the OLC.
4.7.2009 7:43pm
Neal Goldfarb (mail):
In order for Holder to be able to adequately advise the President, shouldn't he be in a position to tell the President whether there is, notwithstanding OLC's view, a reasonable argument that can be made in support of the proposed law?

After all, the President isn't bound by what OLC says, and it would certainly make sense for the President to want to get additional input on precisely that question.

In fact, wouldn't Holder arguably be negligent if he failed to seek out such input? And doesn't his personal support for the bill make it all the more reasonable -- perhaps even praiseworthy -- for him to ask for a reality check from the SG's office? Why shouldn't Holder be seen as having engaged in due diligence as opposed to political hackery?
4.7.2009 8:16pm
sdfsdf (mail):
Professor Tushnet's argument that "nothing's happened" sounds quite persuasive till you read the original Washington Post article again. Then you see that unless the Post is actually forging official statements, Holder has announced that he is going contrary to the OLC, and announced it without giving any legal arguments. Holder could have said he was still considering his position till he could issue a reasoned memo, or that a reasoned memo would follow later, but he didn't. And in fact he implicitly downgraded the OLC from its traditional status as THE Justice agency for this kind of determination to the same level as "different people inside the department" and "the opinions of legal scholars".



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."
4.7.2009 8:36pm
RowerinVa (mail):
"According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk." Absolutely not correct. (1) Obama claimed during the campaign that he would try to minimize conflicts between the President and Congress by having "his" OLC advise him and Congress of constitutional objections at early stages of bill drafting. (2) Regardless of point #1, OLC has served this function since its inception, and the reason it issued this opinion is that it was serving this function as a matter of course -- this opinion was in no way unusual; in fact, OLC reviews all major items of legislation in their early stages; it has a position purely for this purpose, known as the "bill comment" deputy or "legislative" deputy (Deputy Assistant Attorney General, or DAAG). (3) Regardless of points #1 and #2, having OLC offer its views before bills become final is good policy and good government, as only the Justice Department (as compared to individual Senators and Representatives) has the budget and staff capability to field a standing body of con law experts, and having those experts advise Congress provides both a valuable "second look" and a way to head off legislative-executive conflicts before they reach an advanced stage where positions can harden artificially. (Con law isn't the only area of expertise for which OLC serves this function for Congress but the others aren't implicated in this question, so I won't digress.)

Tushnet, therefore, is wrong as a matter of Obama's campaign promises, as a matter of historical practice, and as a matter of good government practice. Three strikes -- he's out!
4.7.2009 9:03pm
Just an Observer:
sdfsdf: Then you see that unless the Post is actually forging official statements, Holder has announced that he is going contrary to the OLC, and announced it without giving any legal arguments.

But what "official" action has Holder taken? You don't know, and neither do I.

In a follow-up story, the Post said:

Justice Department officials said Wednesday that they will not release the memo, because it reflects internal deliberations and is not a "final" or "formal" ruling. But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document.

Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House.


Without doubt there is a lack of transparency at DOJ here, but there also has been muddled reporting by the Post. (Your own paraphrase that "Holder has announced that he is going contrary to the OLC" is more muddled still. What the heck does that mean? Where is he "going" and how? Has he issued an opinion of his own, whispered in the president's ear, just formed an opinion within his mind, or merely responded to questions through the spokesman at the DOJ podium?

We do not know.
4.7.2009 9:05pm
A.S.:
Gee, so it turns out Mark Tushnet is a partisan hack who is willing to defend whatever Obama's DOJ does, no matter how ridiculous? I'm shocked, shocked.

I like Tushnet; had him for a course in law school (back when he was at Georgetown). But, really, the Obama/Holder defenders here just demonstrate the full glory of their hackdom here.

I mean, Tushnet's argument is that "pending" legislation (which is the legislation that OLC comments upon) only becomes "pending" once it passes both houses? If OLC passes judgement on "pending" legislation that hasn't yet passed both houses, that's irrelevant? Really? A first year law student should be embarrassed by that moronic argument.

Then Tushnet goes on to argue that OLC has done nothing wrong? Really? Who exactly was accusing OLC of doing anything wrong? Nobody. The accusation is that Eric Holder is a partisan hack who doesn't one whit about politicizing the OLC process. But Tushnet doesn't even seem to understand that that's the issue. Apparently hacks of a feather flock together.
4.7.2009 10:07pm
A.S.:
The funny thing is to see people like Tushnet twist himself into knots to defend the Holder/Obama DOJ's outrageous politcization, when you just know that, had this occurred when Bush was in office, Tushnet would be outraged by such unprecedented conduct.

I mean, what if Ashcroft and Bush had decided to ignore OLC's conclusion that the warrantless wiretapping was illegal. If Ashcroft and/or Bush had said "Goldsmith has his opinions, but, you know, I think it's legal." Is there any chance that Tushnet would write "There's no legal rule that opinions of the Office of Legal Counsel (his subordinates) are binding on the Attorney General or the President"? Yeah, right.

My only regret in this whole episode is that Marty Lederman isn't blogging at the moment. To see Marty claim his crown as king of the hacks would have been golden to see.
4.7.2009 10:20pm
Chico's Bail Bonds (mail):
What exactly am I supposed to be upset about here? I think you are arguing that it is that Holder overruled an opinion of OLC without doing the proper paperwork. Is that right? Is that all?

He is still allowing everyone to see the OLC memo, right? Every member of Congress can read it before they vote, right? And Obama can read it before he signs the bill, right? Anyone in the world can read it and then tell their member of Congress to read it, right?

What is the problem?
4.7.2009 11:03pm
Jonathan H. Adler (mail) (www):
Chico's --

No. The Justice Department has not released the OLC memo, and the Department says it will not be released, nor are there plans to issue an AG opinion explaining the basis for their opinion.

JHA
4.7.2009 11:21pm
Just an Observer:
Jonathan Adler: No. The Justice Department has not released the OLC memo, and the Department says it will not be released, nor are there plans to issue an AG opinion explaining the basis for their opinion.

I keep coming back to my initial reaction, which was to abhor the lack of transparency. Ironically, as I recall, a few days ago you did not seem as concerned about that because such opinions are not necessarily published as a matter of routine tradition and practice.

But sometimes such opinions are public, and OLC sometimes testifies about its views while Congress considers legislation.

I continue to ask for more facts, and more disclosure.
4.8.2009 12:06am
Brett Marston:
I still don't understand what it means to say that the OLC opinion has been "rejected." Presumably, the President can take a peek if he really wants to. And there is apparently a whole set of OLC opinions that say the same thing. Have those been "rejected," too? What does that mean?

At this point, everyone knows that the OLC still believes X, but Holder believes not-X. I doubt the OLC wrote a Pelican Brief that nobody else could ever reproduce, in substance, independently. (And the materials for Holder's view are also in the public domain, see Dinh and Starr.) Whelan speculates about some action Holder might have taken, but that was absent from his earlier op ed, and it's still just a guess.
4.8.2009 12:07am
Chowda in DC:
So, let me get this straight. There's a multi-day discussion on this OLC thing on whether giving DC voting rights in Constitutional. The interplay between this agency and the political actors is somewhat interesting but...

I realize the text of the Constitution is somewhat silent on the issue, but it apportions representation in Congress to States and States only. A Constitutional Amendment was *necessary* to give DC presidential electors.

the ATTORNEY GENERAL needs expert legal counsel on this? Is it not a fundamental maxim every 1L learns expressio unius est exclusio alterius? Is this how far we've come from common sense of even the legal variety?
4.8.2009 12:09am
Chico's Bail Bonds (mail):
Interesting, thanks.

Now I wonder what possible justification there is for the OLC to write an opinion and not have it made public as a matter of course.
4.8.2009 12:34am
mls (www):
"Whereas some commentators may have overstated the case, I think Tushnet may be understating it."

I think that Professor Adler has this exactly right. (BTW, I had a pleasant exchange with Professor Tushnet about this subject today, focused on the significance of the Dellinger memo that he relies on in his post).

I don't know if there is any established "procedure" that would prevent Holder from seeking alternative points of view after OLC has issued an opinion on the constitutionality of proposed legislation. But it seems pretty silly to pretend that this action by Holder reflects anything other than political dissatisfaction with the answer that OLC provided. If someone wants to suggest that it is perfectly normal for the Attorney General to get a second opinion from the Solicitor General's office, they should at least provide an example of it actually happening before.

Tushnet's argument, as I understand it, is based on the premise that, in a close case, the President could properly decide to defer to Congress's view on the constitutionality of a bill presented to him, even if his own view and/or that of the Justice Department is to the contrary. I think this is plausible (although, as I indicated to Tushnet, I do not believe that it can be derived from the Dellinger memo).

There are a number of reasons, however, why this premise cannot justify Holder's actions here. First, although it explains why Holder could legitimately want to ensure that the OLC's opinion fairly characterized the strength of the arguments in favor of the constitutionality of the legislation, it doesn't explain why Holder would want or need to get an opinion from the SG's office. Surely OLC could be expected—or explicitly requested-- to address this issue in its memorandum, and it could likewise be expected or asked to consult with the SG's office as appropriate. It certainly seems like Holder was attempting to create the appearance of conflicting opinions within the Justice Department, rather than simply to ensure that all relevant experts within the Department were included in the process.

Second, the question that was apparently asked of the SG's office—whether a reasonable argument could be made in defense of the law—is not at all the same thing as asking whether this is a "close case" in which the President might appropriately defer to Congress's judgment. The standard that the SG applies to decisions whether to defend acts of Congress is very deferential—the SG will defend the law unless there is "overwhelming" authority on the other side.

Third, there is no evidence that Holder's actions have anything to do with deference to Congress's judgment. This would be an odd case to defer to Congress on constitutionality in any event because many Members of Congress who support the DC Voting Rights Act have themselves declined to take any firm position on the constitutional question, saying instead that it should be left to the courts to decide.

Fourth, it seems pretty clear that Holder intends to do more than merely advise the President that there is a reasonable argument in favor of the constitutionality of the DC Voting Rights Act. While it is fine for Tushnet to say that we should wait and see what opinion Holder actually issues (what choice do we have), Holder has already stated, through his spokesperson, that he believes that the Act is constitutional notwithstanding the OLC's opinion. Thus, it is hardly unreasonable to assume that the formal legal opinion to the President will be that the Act is constitutional. If the President is challenged regarding the constitutionality of the Act, he will be able to say that the Justice Department advised him that it was constitutional, just as his predecessor was able to rely on Justice Department opinions as to the legality of actions in the conflict formerly known as the war on terror.

Last and not least, the question of the constitutionality of the DC Voting Rights Act is not, in fact, a close question. I have summarized elsewhere why this is the case. I would take issue even with the SG's assertion that a reasonable argument could be made in defense of the law. Of course, this is a matter of opinion, as are all legal issues, but I agree with Professor Jonathan Turley, who describes this legislation as "one of most premeditated unconstitutional acts by Congress in decades."
4.8.2009 12:36am
OrinKerr:
A.S.,

I'm curious: Given that I am more or less defending Holder here, does that make me a hack for the Obama Administration, too? Having been tagged a "leading apologist for radical and lawless Bush policies" by Glenn Greenwald, I think it would be sort of neat to be able to pull off the same trick for Obama.
4.8.2009 12:39am
Tony Tutins (mail):
According to the linked webpage, the Attorney General, not the OLC, is the ultimate source of legal opinions for the Executive Branch, because any authority the OLC has comes by delegation from the Attorney General, and because the OLC drafts legal opinions "of" the Attorney General. Drafting implies the Attorney General edits and approves whatever document sees the light of day.

By delegation from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides authoritative legal advice to the President and all the Executive Branch agencies.

The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department.
4.8.2009 1:55am
Chris L (mail):
Chris L, isn't this what the OLC has done? If so, then there's no basis for criticizing the OLC.


Is that a deliberate straw man or a misunderstanding? Who is criticizing OLC? I agree with its ultimate conclusion that the DC vote legislation is unconstitutional. I think the Attorney General is the one rightfully being subject to criticism for reportedly overruling OLC on this issue because it doesn't comport with his political preferences and refusing a request to disclose its written opinion.
4.8.2009 2:27am
The River Temoc (mail):
I will concede that I haven't been following this kerfuffle blow-by-blow, and I'm not familiar with the inner workings of the justice department.

That said, those who are complaining about this matter seem to think that the OLC is some kind of janissary corps -- that its role is immutable and that it exists independently of the rest of Justice. That hardly seems to me to be the case.

If the Attorney General acted contrary to "established procedures" and the OLC's "traditional role," as long as his actions were lawful, then so what? As a society, one of America's strengths is that tradition is not sacrosanct. Change can be a Good Thing, particularly when it involves circumventing bureaucracy.

And the legal eagles who think the DC voting plan is unconstitutional can scarcely claim to have been blindsided this debate, or to have been deprived of time to make constitutional arguments.

In short: this seems to me to be yet another iteration of partisan bickering. Democrats like enfranchising DC; Republicans like disenfranchising it. Fair enough. But let's not pretend that this is a particularly noble or exigent stance of opposition. It's business as usual.
4.8.2009 2:30am
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4.8.2009 6:33am
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4.8.2009 6:34am
Joseph Slater (mail):
Orin:

Neat trick perhaps. Unless someone figures out that your true goal is simply to defend outrageous, lawless behavior, regardless of the the party committing such behavior. Which seems to me to be the only logical conclusion one could draw.
4.8.2009 8:20am
Heh:

That said, those who are complaining about this matter seem to think that the OLC is some kind of janissary corps -- that its role is immutable and that it exists independently of the rest of Justice. That hardly seems to me to be the case.


If they are complaining, it is because they were trained to do so during the last years of the Bush admin. We heard so many things about the glorious OLC and how Bush was thwarting their great work. Now when Obama is in power, it turns out they just write some advice and Obama can do whatever without regard.

Funny that :)
4.8.2009 9:21am
AF:
Professor Adler:

Further, the April 3 story reports "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill." So, whatever else may or may not have occurred, it seems fairly clear at this point that Holder . . . b) has not, and has no plans to, issue an opinion explaining the basis for his decision.

Not so fast. What the April 3 story actually says: "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House." (emphasis added).

The clear import is that a new opinion may be forthcoming once the bill is finalized.
4.8.2009 9:43am
Just an Observer:
Whelan, in the new blog post linked above, concludes:

Tushnet seems, nonetheless, to think that there's no action that the AG could possibly have taken yet. The facts, admittedly, are unclear, which makes it rather odd that Tushnet maintains that he knows that "nothing has happened." One obvious possibility is that OLC prepared a bill comment for transmission to the Office of Legislative Affairs and that the AG ordered OLC not to send the bill comment to OLA or ordered OLA not to abide by the advice.


Speculative though that is, at least it is a hypothesis that can be tested by further inquiry. (I find Whelan's point here much more interesting than the phony analogy to war-on-terror controversies that he was flogging earlier.)

Who will make such an inquiry? Is the DOJ press corps (other than the Washington Post, which Whelan cites as his only source) pursuing such questions?

Or will anyone in Congress with oversight over DOJ, or an interest in the pending legislation, press the matter?

Senate Judiciary is an obvious oversight venue, but the bill has already passed the Senate with the support of the chairman and ranking member (not to mention senior conservative Orrin Hatch). At least John Cornyn -- whom I often dismiss as a knee-jerk partisan who adds little substantive value to discussions -- has focused on the transparency issue by asking that the OLC opinion be released. And in the Senate, the bill was actually reported by Homeland Security and Governmental Affairs.

In the House, controlled by partisan Democrats, I rather doubt that the leaders will underwrite any move that would embarrass Holder or cut against the D.C. vote bill.

Someone should ask Holder to testify about this. Who knows? Perhaps he would present a nuanced position that preserves OLC's independence but still manages personally to straddle the merits by supporting passage of the bill and eventual judicial review. If the AG did that -- and did it openly -- I think his actions would be more defensible.
4.8.2009 9:55am
MJH21 (mail):
This whole thing is becoming quite Orwellian. The issue is not whether the AG broke the law or even if he did something a little out of the normal as far as the usual reliance the AG places on the OLC's legal opinions. IT'S ABOUT HYPOCRISY.

Holder exalted from on high during his confirmation hearing about needing an apolitical justice department - a direct swipe at the previous administration. That is inarguable.

Many of us pointed out at that time that it was quite hypocritical for Mr. Holder to say that given the fact that he went around - if not outright subverted - the normal DOJ/OLC channels for seemingly obvious political reasons on the FALN and Marc Rich pardon issues when he was last in the DOJ.

Mr. Holder then takes office and within a few months takes a "legal" position that overrules 45+ years of the OLC's legal view on an issue that - surprise! - appears to be in his party and the President's political interest. That is what the controversy is about: the AG has a pattern of doing exactly this type of thing when it is in his party or the President's political interest, yet he said this was exactly the kind of thing that he would not do when he was seeking confirmation.

Getting down into the weeds on the inner workings of the OLC or seeking out the history of the handful of times that an AG has overruled an OLC opinion are simply a distraction from the real issue: Mr. Holder has acted in accordance with his track record and contrary to what he said at his confirmation hearing.
4.8.2009 11:00am
Christopher Cooke (mail):
I think this is much ado about nothing: the House hasn't finalized its bill yet. I see nothing improper in waiting to see if the House changes the bill before rendering a final opinion by the DOJ on its constitutionality.

By the way, temoc has this right: the controversy, on both sides, is about politics. DC votes Democratic, so you have a bunch of Republican-affiliated commentators saying any bill that would enfranchise DC citizens by giving them Congressional representation is unconstitutional, while you have Democratic-affiliated commentators saying it is not. The other influence here, may be below the surface, is race. DC is overwhelmingly African American. Maybe Holder is uniquely sensitive by efforts of Republicans to deny Congressional representation to a territory that has an African American majority electorate? Maybe Obama is also.

Funny how no one talks about this issue. Kind of proves Holder's point that we are cowards when it comes to race issues.
4.8.2009 2:53pm
Crackmonkeyjr (www):
I think that, before you accuse Holder of politicizing the DOJ, you really have to see how his report is worded and why he went to the SG's office.

The problem with the Bush administration is that they had lawyers in the OLC drafting politically charged memos as cover for government action. E.g., the torture memos allowed people accused of torture to essentially blame it on government lawyers who said that what they were doing was ok. This was at the very least unethical, as the point of those memos was to provide an unbiased view of how the law actually works, not to provide a legal shield to those violating the law.

Now it is possible that Holder is essentially forum shopping to find some government lawyer who will write a memo that could be used as cover if Obama is accused of signing an unconstitutional bill into law (not that he needs cover because there is no legal requirement that he veto unconstitutional laws). But it is also possible that he is trying to provide the fullest advise possible.

When you advise a client, there are really two questions that they need the answer to to decide how to act. One is what the likely outcome of pursuing an action might be, that is what the OLC answered - the bill is likely unconstitutional. The other is whether a defense of a particular action will be frivolous, which is what the SG's office answered. Both of these pieces of information are relevant for Obama to decide whether he will sign the bill, and so far, it only appears that Holder was attempting to get answers to both of these questions. I see nothing wrong with that.
4.8.2009 3:42pm
Gerry Wenham (mail):
So allowing over half-a-million DC citizens to equally participate in our participatory form of government is "Unconstitutional". But NOT allowing them to participate, to be involved in the making of the laws under which we all must live, is Unconscionable. Our founders (Mason, Madison, Franklin, to name a few) recommended that, in pursuit of a more perfect Union, we make frequent reference to fundamental first principles. There are few more fundamental bedrock principles underlying our system than "All men are created equal", than "Just power flows from the consent of the governed", and "Whenever any form of government becomes destructive of these ends, [and] evinces a design to reduce them under absolute Despotism ["in all cases whatsoever"], it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of [this colony]; and such is now the necessity which constrains them to alter their former Systems of Government."

Unwarranted power, asserted and exercised without the consent of those governed, as has been said by those better than me, remains unjust and illegitimate, even if it is, in a narrow technical sense, "constutional".

The concerns whether a government official has bent protocol pale compared to the issues of basic, fundamental principle laid bare here. Trust a bunch of lawyers to argue about how many angels can dance on the head of a pin, while ignoring their fundamental obligations as citizens to "form a more perfect Union" by assuring that our Constitution is properly implementing the bedrock first principles underlying our system.

An American sham, and an American shame.
4.9.2009 11:17am
Sebastian H (mail):
"So allowing over half-a-million DC citizens to equally participate in our participatory form of government is "Unconstitutional". But NOT allowing them to participate, to be involved in the making of the laws under which we all must live, is Unconscionable."

There is an easy remedy to this. Pass a Constitutional amendment.
4.9.2009 11:56am
Gerry Wenham (mail):
"easy remedy"... It was tried in the late 70's. Only 16 of the necessary 38 states ratified the Amendment. Easy. DC residents are outnumbered 600-1. Easy. Easy for YOU to say.

But that doesn't change the fact that the failure of America to allow ALL of it's people to participate is WRONG!

Apparently, an Amendment won't be passed until Americans are shamed into living up to the true meaning of the basic principles that this country was founded on: Among others, that "All men are created equal", and "Just power derives from the Consent of the Governed."

It's not clear what it will take to get that to happen.
4.9.2009 4:28pm
Chris L (mail):
Goodness, gracious, Gerry Wenham. While you wax poetic about the basic bedrock principles upon which this country was founded, you ignore the one that actually counts: Article I, Section 2, Clause 1. The residents of the District have known for more than 200 years that their place of residence came without a Representative and without two Senators. While I share your sentiments that we ought to revisit that matter, we best do so in a constitutional manner and a constitutional amendment appears to be just what the doctor ordered.
4.9.2009 11:19pm
My Middle Name Is Ralph:

"easy remedy"... It was tried in the late 70's. Only 16 of the necessary 38 states ratified the Amendment.


That amendment would have treated DC as a state for Congressional representation purposes. In other words, DC would have received 2 senators. The case for DC getting a rep in the House is overwhelming IMHO. I'm not convinced DC getting 2 senators is fair (and I'm left of center politically). Obviously, there was and is going to be much, much more resistence to an amendment shifting the balance of power in the senate and for which the justness is questionable. Just because that amendment failed, it is no reason to suppose that an amendment giving DC a rep in the House would also fail. The DC voting bill looks blatantly unconstitutional to me. DC deserves representation. The way to go is constitutional amendment.
4.10.2009 3:01pm

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