An End Run Around the Rule of Law

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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.

If the Attorney General believed that this opinion was wrong, he could overrule it. Attorneys General previously have themselves rendered legal opinions. An opinion would provide a measure of accountability because General Holder would have to sign his name to a legal document that purported to show how to get around the Constitution’s clear requirement. Indeed, the Obama administration has argued that increasing the transparency of the legal process within the executive branch will increase respect for the rule of law. What better testament to that transparency than to allow us to compare the reasoning of the Attorney General with that of his own legal counsel?

Instead, the Attorney General asked the office of Solicitor General at a time when there was no confirmed Solicitor General whether that office would be willing to defend the statute, if passed. The Solicitor General’s office has a long history of defending legislation if there is any credible basis for doing so. But it never opines on the constitutionality of pending legislation, because the question for the President in signing a bill is not whether the legislation might be defended by some argument in Court but whether the legislation is constitutional, not whether some Court might uphold it, but whether the President should give it his own unique constitutional imprimatur.

Sadly, General Holder’s disregard of established procedures suggests he has learned absolutely nothing from his conduct in the Marc Rich affair, which he himself criticized at his own confirmation proceeding. There he also stepped outside of the usual Department of Justice process and endorsed a pardon for the fugitive financier, He did so against the recommendation of the Pardon Attorney without even rebutting their considered view that fugitives should not be pardoned. Just as procedures for pardons help assure that pardon power is used for public regarding reasons and not to reward campaign donors, so the role of the Office of Legal in opining on bills helps assure that decisions about constitutionality are made by reading the Constitution rather than public opinion polls or campaign pledges.

But the incident damages more than Eric Holder’s reputation. The Framers established a Constitution of separated powers in part to provide citizens multiple protections from unconstitutional acts. The legislature reviews a bill when it passes it, the President when he signs it and the judiciary when it enforces it. In each of those decisions the constitutional actor must give his independent and reasoned judgment on the legislation’s constitutionality. The responsibility of all branches to evaluate dispassionately a bill’s constitutionality is particularly important in a case like this one, where no one may soon or even ever have legal standing to challenge it in Court. Any administration has a particular obligation to preserve the rule of law in instances where it may be the constitutional decision maker of last resort. The Attorney General’s recent action undermines the Constitution’s careful design for protecting all our liberties.

John O. McGinnis is a professor law at Northwestern Law School and a Deputy Assistant Attorney General under Presidents Ronald Reagan and George H.W. Bush.

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10 Responses to “An End Run Around the Rule of Law”

  1. The Volokh Conspiracy Says:

    McGinnis on Holder’s Treatment of OLC:…

    Over at Executive Watch (a truly excellent blog sponsored by the Duke Law Program in Public Law), former Deputy AAG …

  2. Eric Rasmusen Says:

    Has the Attorney-General ever overruled the OLC in this way? You seem to say he has– I wonder what an example would be, and when the last example was. It seems, from what you say, that no AG has overruled the OLC without giving reasons– is that true?

    It is certainly the right of the AG to overrule the OLC– I suppose he could even abolish it without congressional approval— so it is important to establish what the tradition is, and what the accepted procedures are.

  3. Brett Says:

    If you are saying that the constitutional system works best when the various actors are forced to explain their reasoning to each other, I think I agree with that. Still, the President is constitutionally required to sign (or refuse to sign) legislation, not publish airtight legal memos that explain his reasoning.

    Given that the OLC – let alone DOJ – did not exist until some time after the Framing, an invocation of the Framers seems a little overwrought. It is now common practice for OLC to produce high-quality legal memos on constitutional questions before the President signs a piece of legislation. But I doubt that it is constitutionally required – as opposed to being preferable as an internal, bureaucratic matter – for the President to follow the advice so provided, or for the AG to respond in full, in writing, whenever he or she disagrees with the advice. The OLC might weigh the relevant constitutional principles differently from the AG or the President, for example.

    It seems to me that what is really important here is not that Holder disagreed with the OLC on DC voting rights (which I gather everyone knew in advance), but that given the prior disagreement, the OLC still produced a memo that came out the other way. That shows me that neither the AG nor the President is pressuring the OLC to produce memos that reach the result they favor, even though this kind of intra-executive disagreement is likely to be embarrassing for the AG and the President.

  4. Owen Says:

    Holder’s conduct strikes me as classic forum shopping. Don’t like the answer you get from the body that has long been charged with, and effectively carrying out, the work of assessing constitutionality? Go ask a different (easier) question of another body that has no accountabiilty for its answer. In doing so, don’t explain yourself or try to reconcile your behavior with institutional norms and traditions, or even with common expectations about intellectual honesty. What a hack.

  5. George Smith Says:

    The necessity for Holder to provide a thorough written explanation of the legal basis for his position is especially critical here, because the most commonly asserted basis for the radical and unprecedented notion that Congress can simply legislate an additional seat in Congress for the the District of Columbia would open the door to extreme consequences beyond a single House seat for the District. That rationale is based upon what some refer to as the District Clause, but which is more accurately described as the Enclave Clause, U.S. Const. art. I, sec. 8, cl. 17. The theory is that Congress’s authority to legislate for the District under Clause 17 encompasses the authority to create a new seat in the House to benefit the District (put aside for the moment how odd it is that this authority remained undetected to the parade of history until it was suddenly discovered by District advocates in the early 21st Century). But whatever authority Congress may exercise on behalf of the District under cl. 17 it may also exercise on behalf of all other cl. 17 enclaves, such as federal lands and military reservations, as the Supreme Court explicitly stated in Paul v. United States and elsewhere. And the Supreme Court has also established that congressional authority over Puerto Rico, the Virgin Islands, and other territories under the Territories Clause (art. IV, sec. 3, cl.2) is equivalent to that exercised over the District and other enclaves under cl. 17. Without elaborating further in this limited forum, the rationale for Holder’s support for the District bill’s constitutionality is likely to provide the basis for creating both House and Senate seats by simple legislation not only for the District, but for the Territories and other enclaves as well. The untenable but inescapable consequences of his constitutional conclusion both explain the importance of an open written explanation and a possible reason why Holder has not provided one (if he has even thought that deeply about the issue). Wholly apart, of course, from the that his position flies in the face of constitutional text that is explicit and entirely unambiguous, but repeated througout the document to the point of redundancy.

  6. The Volokh Conspiracy Says:

    Tushnet on OLC & D.C. Representation Bill:…

    Mark Tushnet thinks the flap over the Attorney General’s handling of the OLC opinion on proposed legislation to grant D.C. voting rights is muc……

  7. Same old same old « No Cynics Allowed Says:

    […] old same old By Bill Can’t say that I’m surprised by this, but many are reacting with shock and horror that the Obama justice department would operate in the […]

  8. Eric Holder and the Rule of Law « EXECUTIVE WATCH Says:

    […] week, the Washington Post reported that Attorney General Eric Holder rejected the advice of the Office of Legal Counsel on the bill to grant D.C. a member of the House of Representatives.  (OLC reportedly advised Holder […]

  9. Weekly Web Watch (4/5-4/12) « EXECUTIVE WATCH Says:

    […] for Executive Watch, John McGinnis makes the case that Eric Holder politicized the DOJ by overruling an OLC opinion. Executive Watch’s Neil Kinkopf disagrees. Balkinization’s […]

  10. Weekly Web Watch 07/27/09 – 08/02/09 « EXECUTIVE WATCH Says:

    […] depoliticize the Department of Justice.  As examples, she points to the decision by Eric Holder to circumvent OLC and go to the Solicitor General when pursuing D.C. voting rights, several instances in which the AG refused to turn over […]

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