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  • Obama Lawyers: D.C. Vote Bill Unconstitutional

    Chalk up a big loss for constitutional rule of law, thanks to an Obama Administration sleight-of-hand reported on the front page of today’s Washington Post.

    When the Executive Branch needs legal advice, it goes to the Office of Legal Counsel in the Department of Justice. OLC is like an in-house Supreme Court: it evaluates the constitutionality of pending legislation and issues binding opinions on the legality of different policy options. And like a court, OLC has a strong institutional memory and tradition; its legal opinions generally don’t change much from administration to administration. In most cases, when the OLC issues an opinion, that is the law, so far as the Executive Branch is concerned.

    But, reports the Post, when the OLC issued yet another opinion (there have been several in the past) explaining that the D.C. “voting rights” bill—favored by the Obama Administration and Democrats because it would create a House seat for the heavily Democratic District—would be in clear violation of the Constitution, the Administration decided to ignore its advice:

    Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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.

    So Holder approached the Solicitor General’s office—responsible for defending Administration legal positions before the Supreme Court—and asked whether it could defend the legislation in a court challenge. The answer: yes.

    But that doesn’t mean the legislation is constitutional. Ed Whelan explains:

    Holder wasn’t asking the SG’s office for its best view on whether or not the bill was constitutional (a role that belongs to OLC, not to the SG). He was asking it merely whether the position that the bill is constitutional is so beyond the pale, so beyond plausible defense, so legally frivolous, that the SG’s office, under its traditional commitment to defend any Act of Congress for which any reasonable defense can be offered, wouldn’t be able to defend it in court. And based on the virtually meaningless answer from the SG’s office that it could defend the legislation, Holder overrode the OLC opinion.

    Make no mistake: the D.C. “voting rights” bill is unconstitutional, the top lawyers in the Obama Administration share that view, and the Solicitor General seems not to have opined otherwise. Ignoring that conclusion on the basis of litigation strategy makes a mockery of the Constitution’s central role.

    Posted in Legal [slideshow_deploy]

    10 Responses to Obama Lawyers: D.C. Vote Bill Unconstitutional

    1. fiveost8, hawaii says:

      with the appoint of Koh, the obama admin is trying to move away from the constitution. americans better start opening their eyes.

    2. Frank D. Banta, Newn says:

      For the President to sign any bill authorizing Representation for the Seat of the Federal Government is a direct violation of his Oath of Office, for which he is subject to Impeachment.

      Congress is authorized to administer DC. Congress is NOT authorized to change the manner in which Representatives are allocated (only the people can do that by ratifying a Constitutional Amendment).

      DC is NOT a State. DC is NOT entitled to Representation. If the people living in DC want Representation, they are free to move to Virginia, Maryland or any other State. If they choose to live in DC it is with the understanding that they are opting to NOT have representation.

      Anyone who suggests that the Seat of the Federal government should be entitled to Representation clearly is incapable of understanding one of the most simple restrictions of the Constitution. They certainly have no business in any position of authority or responsibility in the federal government.

    3. Zapadac says:

      Why shouldn't people who live in Washington D.C. and pay taxes, and who are citizens of the United States, not be represented in Congress? What ever happened to "No taxation without representation?" Naturally, the republicans are against it because this would give the dems another seat in the House. But, your extremely shallow and biased article neglected to mention that part of the D.C voting rights deal would also give another house seat to a republican district in Utah to make it fair. But why should a district with a greater population than Sarah palin's Alaska not have a representative in congress? That sounds un-American to me.

    4. Zapadac says:

      "DC is NOT a State. DC is NOT entitled to Representation. If the people living in DC want Representation, they are free to move to Virginia, Maryland or any other State. If they choose to live in DC it is with the understanding that they are opting to NOT have representation."

      But they pay taxes. And, the article fails to mention that the additional seat for D.C. would be offset by a seat in a republican district.

      If you live in the United States, are a citizen and pay taxes, you have a right to a voice in our federal government. Why would anyone argue against that?

    5. george, ct says:

      In response to Zapadac, if it were considered a valid point of consitutional law, and what the founders wanted, dont you think it would have been done long ago? We dont need you or the Dem. solons to rethink things and try to sell it – simply based on their current majority.

      What is the impetus to do it now anyway? Does Congress need some more feelgood supporters who are on the dole?

      Their current poll numbers suggest the Majority should be ashamed of itself, if anything.

      If we did everything that congress wanted, i'm guessing there wouldnt be much a country left to tax and control.

    6. Geoffrey, South Caro says:

      Another broken promise of the Constitution. But Obama does not care about that just like he became Commander in CEO. This is about keeping the Democratic Party in there forever.

    7. citizenw says:

      The District Clause itself is at the root of the problem. Starr calls it Majestic" and "Plenary" . I read that as "Monarchical" and "Tyrannical". If you would, read, compare and consider both the Declaratory Act of 1766 and the District Clause. In each, a national legislature attempts to arrogate to itself unwarranted Absolute Power, "in all cases whatsoever", over an unrepresented minority of the national population. This is inconsistent with the fundamental bedrock principle of participatory (lower-case democratic or republican) government, known as "Consent of the Governed"

    8. David, Wisconsin says:

      The constitution is very clear on this point, DC is not a state. If members of congress disagree with this to the point that they want to change it, the constitution also has a provision for doing that.

      The reality is this, the constitution by virtue of legal president is null and void. It has been so thoroughly and so regularly disregarded that it no longer has any authority.

    9. citizenw says:

      Q. If allowing the exercise of the inalienable rights of DC denizens to equal representation is unconstitutional, what is denying the exercise of these inalienable rights?

      A. Unconscionable

      B. Illegitimate

      C. Tyrannical

      D. All of the Above

      Correct Answer? D. All of the Above

    10. Arnie Rosner, Founta says:

      There is no reasoning with a pact of rabid dogs!


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