Justice Department Finds D.C. Vote Bill Unconstitutional — Holder Reverses Conclusion and Declares Bill Constitutional

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.