The Washington Post has revealed that an internal review has found that the D.C. Voting legislation is indeed flagrantly unconstitutional. However, Attorney General Eric Holder overruled the view of career lawyers and declared that the law is constitutional — thereby avoiding an embarrassing confrontation with Democrats. I waited to post this story because it could so easily be confused with an April Fool’s spoof yesterday. Holder’s actions, once again, show that political pressure and influence remains a problem at Justice. Rather than follow the dictates of the Constitution, Holder “corrected” the legal analysis by simply declaring the opposite conclusion to conform with political needs. Sounds like a prior attorney general.
The view of the Office of Legal Counsel joins not just the view of academics like myself but the Congressional Research Service and the prior Justice Departments.
What I particularly love about this article is how the editors at the Washington Post entitled it. The Post has been a staunch supporter of the legislation and has been accused of downplaying the constitutional problems as well as the overwhelming academic view that it is unconstitutional. Now, in reporting the finding of unconstitutionality, the Post ran the story as “A Split a Justice on the D.C. Vote Bill.” The split that it is referring to is the lawyers on one side and Holder on the other side. Holder said that he asked the Solicitor General’s office whether they could defend the bill and they said that they could.
The move represents trumps the views of the Office of Legal Counsel, which has traditionally been given deference on such questions. After promising to create an independent OLC, Holder has shown that he is prepared to simply ignore their independent judgment when it presents a political problem.
The interesting question is whether the Solicitor General’s office will now represent Congress on the trial level since attorneys at the Justice Department’s other sections may find it difficult to argue in favor of an unconstitutional scheme.
For her part, Eleanor Holmes Norton, delegate for D.C., has praised Holder for “going above and beyond” in overruling his own attorneys. This is one point in this debate that we agree. He certainly did go above and beyond, but we try to have attorneys general who do not go above and beyond the law. Yet, this is precisely the type of political manipulation of the work of Justice that both Del. Norton and I criticized during the Bush years.
The view of the career lawyers is an obvious set back for sponsors who continue to ignore the obvious constitutional infirmities of the legislation. I have testified five times on these constitutional problems, here and here.
For the Post story, click here.
Jill,
I had trouble last night getting the posts to show up as well. I am glad that you are looking at this issue in a different light. Have a great weekend.
rafflaw,
I’m having a lot of trouble with getting to this site and its comments. This may be a triple post. I think you have made a good point and I have to change my mind on this.
rafflaw,
You make a good point and I have to change my mind on this.
Sorry about the double posting.
I am a little confused how Holder’s actions compare to the politicization of the Justice Department under Bush. In this case, AG Holder disagreed with the OLC attorneys on a legal matter. Isn’t that what we wanted Gonzo to do when the OLC (Yoo et al) put out some ridiculous legal arguments that defied reality? If I remember correctly, AG Holder is also a career attorney and no legal slouch and this is an issue that probably needs the judiciary to be involved because experts like Prof. Turley and Prof. Dinh are on opposite sides of the issue. I may not agree with Holder’s view here, but it is a legitimate view that career attorneys can disagree on.
I am a little confused how Holder’s actions compare to the politicization of the Justice Department under Bush. In this case, AG Holder disagreed with the OLC attorneys on a legal matter. Isn’t that what we wanted Gonzo to do when the OLC (Yoo et al) put out some ridiculous legal arguments that defied reality? If I remember correctly, AG Holder is also a career attorney and no legal slouch and this is an issue that probably needs the judiciary to be involved because experts like Prof. Turley and Prof. Dinh are on opposite sides of the issue. I may not agree with Holder’s view here, but it is a legitimate view that career attorneys can disagree on.
mespo, thanks for the link to Prof. Dinh’s opinion. It is well-reasoned. I still disagree with his conclusions, however, based upon two stalwart old rules of statutory construction: (1) specific provisions prevail over general provisions; and (2) apparently conflicting provisions within the same statutory framework should be read in a manner which gives effect to both provisions. Based upon these rules I believe that the specificity of the Composition Clause prevails over the grant of general legislative authority in the District Clause. In addition, this construction eliminates any conflict in the interpretation of the respective clauses. But who knows? It will be interesting to see how this plays out.
I am no lawyer, but I believe that this law is unconstitutional as well. I’m sorry, but just because something may be a good idea, that doesn’t mean you can enact it without Constitutional compatibility. If you extend the logic, why not give US territories seats in Congress? I believe the citizens of DC should have a vote, but I think you have to do it with a constitutional amendment.
Attorney General Holder certainly seems to be making a name for himself, considering his decision to drop the case against Sen. Stevens and declare the DC Voting legislation constitutional. I’m not sure “political hack” is the appellation he was hoping for, however.
I am not convinced that his virtual “pardon” of Senator Stevens is normal either:
http://blogdredd.blogspot.com/2009/04/everybodys-got-holder-heart.html
What are they thinking?
Patrick:
You have a keen grasp of one clause of the Constitution, maybe you should read further. This matter has been hotly debated many times on this site and I won’t recapitulate the arguments now, but I’ll just refer you to Professor Dinh’s testimony which artfully lays out the issue and the arguments in favor of Constitutionality. While I am sure your credentials dwarf Professor Dinh’s* on the topic, maybe you will deign to at least consider his point of view, which even the most confident opponent would have to concede is a reasonable interpretation. That is, after all, the most that I was saying. Maybe you’ll learn–as most lawyers already know–that in law, nothing is ever “flagrantly unconstitutional,” until those nine gray-hairs say that it is, your considered opinion notwithstanding.
http://judiciary.house.gov/hearings/March2007/Dinh070314.pdf
*A.B., J.D., Harvard. After law school, where he was a Class Marshal and an Olin Research Fellow in Law and Economics, Professor Dinh served as a law clerk to Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and to U.S. Supreme Court Justice Sandra Day O’Connor. He was Associate Special Counsel to the U.S. Senate Banking Committee for the Whitewater investigation and Special Counsel to U.S. Senator Pete V. Domenici for the impeachment trial of President Clinton. He also serves as counsel to the Special Master mediating a number of lawsuits by Holocaust victims against German and Austrian financial institutions. His representative writings include “Codetermination and Corporate Governance in a Multinational Business Enterprise” in the Journal of Corporation Law, “What is the Law in Law and Development?” in The Green Bag, and “Financial Sector Reform and Economic Development in Vietnam” in Law and Policy in International Business.
Here’s some good legal news:
…a federal judge has ordered access to U.S. courts for three long-time detainees held at the Bagram Theater Internment Facility at Bagram Airfield in Afghanistan. Judge John D. Judge Bates writes that the case “closely parallels” the issues that led the Supreme Court, in its seminal Boumediene decision, to grant the right of habeas corpus review to the Gitmo detainees. Bates writes:
Applying the Boumediene factors carefully, the Court concludes that these petitioners are virtually identical to the detainees in Boumediene — they are non-citizens who were (as alleged here) apprehended in foreign lands far from the United States and brought to yet another country for detention. And as in Boumediene, these petitioners have been determined to be “enemy combatants,” a status they contest. Moreover, the process used to make that determination is inadequate and, indeed, significantly less than the Guantanamo detainees in Boumediene received. Although the site of detention at Bagram is not identical to that at Guantanamo Bay, the “objective degree of control” asserted by the United States there is not appreciably different than at Guantanamo. Finally, it cannot be denied that the “practical obstacles” inherent in resolving a Bagram detainee’s entitlement to habeas corpus are in some ways greater than those present for a Guantanamo detainee, because Bagram is located in an active theater of war.
The constitution says this about habeas: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
http://politics.theatlantic.com/2009/04/bushlaw_unraveling_at_bagram.php
If we assume that reasonable lawyers (not men) can disagree on the constitutionality of this bill, we’re making quite an assumption. The bill is, as pointed out above, flagrantly unconstitutional in that it ignores Article I’s requirement that House representation be apportioned among “States” and its explicit reference (I, 17) to a “district” controlled by Congress. A “district” is not a “state”.
Politically this may be a reasonable disagreement. Legally, it isn’t.
Look I understand that DC vote is a controversial issue from a Constitutional point of view, however I think the issue is fairly debatable. If we assume reasonable men can disagree (say Professor Dinh with Professor Turley) why can’t the AG pick a position contrary to his staff if it’s reasonable. Ultimately the Courts will decide the matter, and if the AG is wrong on the law he will join a long and distinguished line of reasonable people who were wrong. Nothing dishonorable or nefarious about that, especially in view of Justice Jackson’s definition of SCOTUS’ infallibility.*
*”We are not final because we are infallible, but infallible only because we are final.”
The willingness to go “above and beyond” is not a quality I wish to see employed in the interpretation of the Constitution. We are all witness to the results of that approach by Mr. Holder’s recent predecessors. As usual, it will be dropped in the lap of the judiciary, which will point out the constitutional infirmities in the legislation. The legislators will then blame the courts. I think I’ve already seen this movie.
Holder is channeling Gonzales. I thought you could only chanel the dead but I guess “dead” includes morally dead. Seeing as they share so much in common it should be a fairly easy channel. This is scary. We’ve seen where this leads. I don’t think Dawn Johson’s confirmation will mean anything other than window dressing.