Today’s post is by guest contributor John O. McGinnis
Attorney General Holder has pledged to restore the rule of law, implicitly suggesting that it was weakened during the Bush Administration. But less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences. In a move that appears unprecedented, he has disregarded the opinion of the Office of Legal Counsel on the constitutionality of pending legislation without overruling OLC with his own reasoned analysis. If he recommends that the President sign the bill under these circumstances, he will be shirking the Attorney General’s primary duty—aiding the President in following his own oath to uphold the Constitution.
The bill in question provides voting representation to the District of Columbia. The Constitution provides that “The House of Representatives shall be composed of Members chosen every second year by the People of the several states.” The District of Columbia is not a state. Its proponents argue that Congress’ power to exercise legislative power over the District gives it authority to provide a Member from the District. But Congress must exercise its authority consistently with the express commands of the Constitution.
It is the long standing practice of the Department of Justice to provide constitutional analysis of any bill that may be presented to the President so that the President can fulfill his constitutional duty of signing only bills that are constitutional. As a result, the Office of Legal Counsel had previous occasion to conclude that this giving voting representation to the District is unconstitutional. According to uncontradicted news reports, the Obama administration’s OLC affirmed the same conclusion.