Comments on: An End Run Around the Rule of Law

By: Weekly Web Watch 07/27/09 – 08/02/09 « EXECUTIVE WATCH

Weekly Web Watch 07/27/09 – 08/02/09 « EXECUTIVE WATCH — Mon, 03 Aug 2009 02:53:22 +0000

[...] 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 [...]

By: Weekly Web Watch (4/5-4/12) « EXECUTIVE WATCH

Weekly Web Watch (4/5-4/12) « EXECUTIVE WATCH — Mon, 13 Apr 2009 07:10:03 +0000

[...] 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 [...]

By: Eric Holder and the Rule of Law « EXECUTIVE WATCH

Eric Holder and the Rule of Law « EXECUTIVE WATCH — Thu, 09 Apr 2009 15:02:21 +0000

[...] 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 [...]

By: Same old same old « No Cynics Allowed

Same old same old « No Cynics Allowed — Wed, 08 Apr 2009 00:22:21 +0000

[...] 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 [...]

By: The Volokh Conspiracy

The Volokh Conspiracy — Tue, 07 Apr 2009 22:28:57 +0000

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……

By: George Smith

George Smith — Tue, 07 Apr 2009 18:47:39 +0000

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.

By: Owen

Owen — Tue, 07 Apr 2009 12:34:46 +0000

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.

By: Brett

Brett — Tue, 07 Apr 2009 01:04:29 +0000

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.

By: Eric Rasmusen

Eric Rasmusen — Tue, 07 Apr 2009 00:04:29 +0000

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.

By: The Volokh Conspiracy

The Volokh Conspiracy — Mon, 06 Apr 2009 20:37:22 +0000

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 …