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Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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