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.