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Holder vs. OLC:

The Washington Post story linked by Orin below, if accurate, suggests that the new Administration has not ended the politicization of the Department of Justice. According to the Post account, Holder sought to circumvent an unfavorable OLC opinion by seeking a more favorable answer to a different question from elsewhere in the department. Asking the Solicitor General's office whether a statute's constitutionality can be defended in court is not the same thing as asking whether a statute is, itself, constitutional.

Holder may wish to (re)read the recent white paper on the proper role of the OLC, Principles to Guide the Office of Legal Counsel, drafted by AAG for OLC nominee Dawn Johnsen and endorsed by nineteen former OLC attorneys. This paper explained the nature of the legal advice that OLC should provide, distinguishing it from the sort of advocacy advice Holder sought.

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action.
As Attorney General, Holder's first obligation is to uphold the law of the land, even when politically inconvenient. Based upon the Post account, Holder did not like the result produced by an "accurate and honest appraisal of applicable law," so he sought out assurance that "plausible legal arguments" -- not the best legal arguments -- supported his predetermined position. To overrule OLC on the merits is one thing. To seek out a fig leaf of support for such a move, as Holder reportedly did, is quite another.

Holder was among those who criticized the Bush Administration for politicizing the Justice Department and undermining OLC. Before his confirmation, he promised things would be different on his watch. Perhaps they will be, but not yet.

RPT (mail):
But don't conservatives oppose Johnsen's confirmation?
4.1.2009 8:19pm
Gen P:
A somewhat more charitable explanation--perhaps too charitable--might be that Holder independently concluded that the bill was constitutional, but wanted some CYA in the form of assurance from the SG's office that they thought it was at least plausible (i.e. non-sanctionable) to argue that the bill is constitutional.

With a "you're not completely insane" pass in hand, Holder proceeds to advise the President that the bill is constitutional.

As someone who thinks the DC voting bill is clearly UNconstitutional, I have a little trouble typing this with a straight face, but it's at least a plausible explanation.

Fun thought experiment:
What if Dawn Johnsen is confirmed as head of OLC and starts issuing opinions that shut down a whole raft of valuable and also safely constitutional intelligence/counterterrorism programs? Assuming (as I think a lot of people do) that Elena Kagan is a far more serious and careful lawyer than Johnsen is likely to be, wouldn't we WANT Holder to pull a move like the one he did here?
4.1.2009 8:23pm
Bruce Hayden (mail):
Holder's rephrasing the question does seem to conflict with Johnsen's paper on the duties of OLC. Instead of trying to determine what the Constitution really says about this, he seems rather to be asking what can he do that won't be considered legally frivolous.

Of course, that is how many attorneys typically think, when it comes to litigation - how far can they go without being sanctioned. Holder's problem here was that he was vocal when he criticized the Bush Justice Department for just this sort of behavior.
4.1.2009 8:26pm
David Walser:
Whether conservatives opposed Johnsen's confirmation or not is irrelevant. The relevant questions are what is the OLC's proper role and is Holder demonstrating a proper respect for the constraints the Constitution places on government (in this case, the Congress' ability to add to its membership). In this case, it appears the OLC performed its job properly and that Holder is more concerned about partisan advantage than living within constitutional limits.
4.1.2009 8:29pm
KeithK (mail):
As much as I'd like to say Holder is horrible I still don't see what is so horrible about a political appointee making a political decision. Whether or not the OLC says this bill is unconstitutional won't stop Congress from passing it or Obama from signing it. If Holder or Obama disagree with the finding they should overrule or ignore it. Asking the SG's office is just political cover, which seems not inappropriate in politics.


As Attorney General, Holder's first obligation is to uphold the law of the land, even when politically inconvenient.

This is true. But the OLC's finding isn't quite the same as the law of the land. It's not like he is trying to ignore a federal court ruling on the issue.
4.1.2009 8:30pm
arthur (mail):
if the bill passes and the president chooses not to veto, the bill will be the law of the land unless an activist judge overturns it. to obey the law of the land holder has to be ready to defend. he is doing his job.
4.1.2009 8:56pm
martinned (mail) (www):
Q: Given that Holder apparently thinks this bill is constitutional, will someone get to ask him why before Congress votes on it? At least in a parliamentary system the minister would have to explain the constitutionality of the bill if there is doubt.
4.1.2009 9:02pm
Anderson (mail):
I think the concerns are well-placed, but if my alternatives are an OLC that rationalizes Congressional representation for unrepresented Americans, vs. an OLC that rationalizes torture and unchecked executive power, I'll settle for the former.

I am not sure what the AG's and the President's options are when they think OLC is simply wrong on the merits. Anyone know the answer to that?
4.1.2009 9:10pm
CMH:
Can't agree that this is problematic. Everyone has a duty to obey the law of the land, sure. But the constitutional issue is clearly a debatable one. Obama could very conceivably sign the bill believing it to be constitutional, supported by a lot of people who know a thing or two, OLC opinion to the contrary be damned.

That scenario raises the next question: Obama wants to sign the bill, can he get away with it and defend it in court? Seems to me that's an entirely different question for whether the bill is constitutional or not, and a question that falls squarely within the expertise of the SG's office. Not uncommon for different questions to call for different answers from people with different skill sets. And the second question (is it defensible) is an entirely appropriate one.


In this case, it appears the OLC performed its job properly and that Holder is more concerned about partisan advantage than living within constitutional limits.


Not sure I see the "partisan advantage" here. As proposed, the bill gives DC a seat (presumably Democratic) and Utah an additional seat (presumably Republican). Absent the trade off, this bill goes nowhere. So where's the partisan part come in?
4.1.2009 9:11pm
Public_Defender (mail):
Holder did not politicize OLC. He accepted that their advice was their advice, and then sought an answer to a different question from his SG--could he plausibly defend the proposed law in court? Bush would have made coerced OLC to issue a new opinion reflecting his view.

Where does it say that the AG and President have to accept OLC's opinion as to he constitutionality of a bill? If a bill becomes law, the DOJ has a duty to defend it as long as it has non-frivolous grounds to do so.

The President should get the unvarnished advice of the OLC. But in the end, constitutional calls are the President's to make. Bush was too cowardly to make his own calls, so he coerced his lawyers to change their advice. Holder's approach is far more honest.
4.1.2009 9:22pm
BlackX (mail):
Hope, Change, Transparency!
4.1.2009 9:23pm
Terrivus:
Not sure I see the "partisan advantage" here. As proposed, the bill gives DC a seat (presumably Democratic) and Utah an additional seat (presumably Republican). Absent the trade off, this bill goes nowhere. So where's the partisan part come in?

1. Utah only gets the seat for one census. Then, it's subject to reapportionment, just like any other seat. So it's not comparable to the seat that DC gets.

2. Even if Utah permanently had the seat (which it does not), the chances that it would remain "presumably Republican" are far, far lower than the chances that DC's seat would remain "presumably Democratic." Utah may be pretty Republican right now, but population shifts, immigration trends, and other demographic factors will change that -- just look at Colorado, which was solidly Republican for decades and now leans Democratic (many other western states have been trending Democratic as well). Compare this to DC, which will almost certainly remain Democratic (or its liberal equivalent) for as long as the nation exists.
4.1.2009 9:42pm
CMH:

1. Utah only gets the seat for one census. Then, it's subject to reapportionment, just like any other seat. So it's not comparable to the seat that DC gets.

2. Even if Utah permanently had the seat (which it does not), the chances that it would remain "presumably Republican" are far, far lower than the chances that DC's seat would remain "presumably Democratic." Utah may be pretty Republican right now, but population shifts, immigration trends, and other demographic factors will change that -- just look at Colorado, which was solidly Republican for decades and now leans Democratic (many other western states have been trending Democratic as well). Compare this to DC, which will almost certainly remain Democratic (or its liberal equivalent) for as long as the nation exists.



I could maybe buy into either of these if they didn't both rest on assumptions about what might happen in the future. If the claim is going to be made that this is a partisan ploy based on what will happen after the 2010 census, then make the claim after the 2010 census. Until then, it's just throwing darts.
4.1.2009 10:24pm
John Burgess (mail) (www):
Hardly throwing darts. DC is the most Democratic city in the country. It will become not Democratic when the Second Coming follows the invasion from Mars, right after the Flying Spaghetti Monster makes an appearance.

If there is anything that is a lock, a slam-dunk, it's that DC will remain a city in the hands of the Democrats.

Oh... there's one thing that might change it: Get rid of federal tax for non-voting DC residents.
4.1.2009 10:33pm
LM (mail):
I'm missing something here. How is getting a second opinion analogous to fabricating the first one?
4.1.2009 10:40pm
Garth:
that article is a perfect of example of drumming up a mountain out of a molehill.

first, this is a piece of pending legislation. so what if the OLC thinks a piece of pending legislation is unconstitutional? how exactly is Holder "over-riding" their opinion by asking another informed party whether there were non-frivolous arguments that could be made in favor of constitutionality.

second, asking the SG for advice like this is unusual, but "not unprecedented." given the novelty of the issue this is could be fairly construed as warranting additional input.

finally, the allusion to warrantless wiretapping and war crimes are way off the mark. let's not forget we are talking about the more mundane issue of equal representation before we get our panties in a twist over the politization of the DOJ under Holder.
4.1.2009 10:55pm
Terrivus:
I could maybe buy into either of these if they didn't both rest on assumptions about what might happen in the future.

How does (1) rest on an assumption about "what might happen in the future"? There's no dispute about what might happen in the future: once the next census occurs, the seat that the law currently gives to Utah -- which is the supposed "balancing" mechanism of the law -- goes back into the apportionment mix. DC's seat, however, can never go back into the mix, because it always gets at least one seat.
4.1.2009 11:22pm
Just an Observer:
I am not at all sure that the quoted passage from the Johnsen-authored Principles to Guide the Office of Legal Counsel is applicable here. Read in full, that passage is mostly about advice regarding "the administration's pursuit of desired policies" and "the President's constitutional obligation to ensure the legality of executive action."

That is a different question than whether a congressional bill is constitutional. (Other than signing or vetoing the bill, the President really would have role in implementing this as an act of Congress.) I suppose the OLC might also advise the president on such questions of legislative constitutionality, but that would be a different situation.

Reading the Principles document, I don't see that it addresses such a situation, although it generally is consistent with a non-adverserial and objective view of constitutional law.

The particular "Principle" that jumps out at me is this one: "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." Why did it take a leak for us to find out about this?

In defense of Johnsen -- whose own opinion on the D.C. voting rights question is not known -- she has not yet been confirmed, and thus has not had a chance to implement the Principles within OLC.
4.2.2009 12:15am
Andy Bolen (mail):
Garth, you put the word "overriding" in quotation marks as if someone had used it.
4.2.2009 12:15am
advedopomyday (mail) (www):
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4.2.2009 12:42am
Public_Defender (mail):

I'm missing something here. How is getting a second opinion analogous to fabricating the first one?

This is my question, too. It just took me a lot more words to say basically the same thing.
4.2.2009 4:52am
ThomasD (mail):
I still don't see what is so horrible about a political appointee making a political decision.

You might have room to make that argument had Holder not specifically promised to do otherwise.

Apparently expiration dates apply not only to Obama's promises, but also those of his appointees.
4.2.2009 8:18am
KilgoreTrout_XL (mail):
ThomasD: So Holder said that he would blindly follow the opinion of the OLC on each and every issue on which they gave him advice and promised that he would never seek a second opinion, on anything, during his entire appointment?

Can you provide a source for that?
4.2.2009 10:52am
A.S.:
Let's face it: if this had happened in the Bush Administration, every single commenter here defending Holder would have said this is evidence of how Bush was a terrible, terrible President completely misusing DOJ and that Bush and the Attorney General ought to listen to the unbaised professionals in OLC.

It's hilarious to see the utter reversals of opinions from all of the usual suspects commenting here.

If only Marty Lederman was still blogging. I would have looked forward to him taking hypocrisy to new heights by defending Holder.
4.2.2009 11:24am
A.S.:
Got to love the lefties new vision for DOJ:

Step 1: Ask the experts at OLC if a law or bill is unconstitutional.

Step 2: Compare OLC's answer with your preferred political position.

Step 3(a): If OLC agrees with your preferred political position, tout OLC as confirming everything you want politically.

Step 3(b): If OLC disagrees with your preferred political position, ignore OLC and ask SG if there is any possible way to save your preferred political position.

In other words, OLC is to be used solely and only as a cover for your political positions - you may ignore OLC any time you like if they harm your political positions. OLC is now a adjunct of the Democratic National Committee - to be used to advance Obama's political positions when possible, and to ignored when it cannot go along with advancing Obama's political positions.
4.2.2009 11:30am
A.S.:
It's also interesting to see the difference between Democrats in office and Republicans:

A Republican President contemplates ignoring OLC's advice - half a dozen top DOJ officials threaten to resign in protest if he does so.

A Democrat President ignores OLC's advice - all top DOJ officials happily concur!
4.2.2009 11:33am
Joe T Guest:
I don't have a problem with it, but think that it's a good topic of conversation just so that we can watch the people who were ranting and raving about the politicization of DOJ a couple months ago squirm uncomfortably for a while.
4.2.2009 11:34am
A.S.:
I guess this all points to how weak an AG Ashcroft was.

Let's remember the whole wiretapping episode. Goldsmith at OLC thinks it was illegal. Comey concurs. But the White House wants it continued. What is Ashcroft to do?

Obviously, what the Holder defenders think Ashcroft whould have done is ignore Goldsmith and Comey and ask Ted Olson whether the wiretapping program could be defended in court (not whether the program was illegal). Presumably if Ted Olson said that it could be defended, Ascroft could safely have ignored Goldsmith and Comey's advice that it was illegal and told Bush to go ahead. But stupid, stupid Ashcroft decided not to do this. What a moron that Ashcroft was.
4.2.2009 11:48am
Joe T Guest:
Right on, AS. No matter what happens, what we all need to remember at all times is, BLAME ASHCROFT!

There's a chill wind blowing. Only in John Ashcroft's grim vision of America, would an attorney general stand up to the WH and tell it to go pound sand on one of the President's pet projects.

Thank God we've moved past those dark days.
4.2.2009 11:56am
Spitball:
It is indeed amusing to see the Bush-bashers contorting themselves to defend the AG's actions. While there is nothing illegal about the AG (or the President) ignoring OLC's advice, it is a clear breach of longstanding practice and custom.

OLC is the office within DOJ that was established to advise the President on constitutional matters. OLC gives advice that is contrary to the AG's (and the President's) personal views on DC voting. In fact, OLC has studied this issue for over four decades and has consistently held since RFK's days that such a bill is unconstitutional. So the AG ignores the advice and forum-shops for a more palatable answer by asking a litigating office a completely different question -- i.e., not whether or not in their best judgment that the bill is constitutional, but whether there is a plausible argument to defend it in court and not be subject to sanctions.

Imagine how DOJ or Congress would react if the general counsel of a corporation asks its longstanding and pre-eminent outside corporate law firm whether a proposed action is legal. The law firm says that it has been its longstanding view that such an action is illegal. So the GC then goes to a different law firm -- a litigation boutique -- and asks whether it would feel comfortable defending the company if the proposed action was challenged as illegal. The litigation boutique says yes. So the GC moves forward. DOJ and Congress would want the GC's head on a platter.
4.2.2009 1:38pm
zuch (mail) (www):
A couple things of note here:

1).
This legal question is quite public and certain to be reviewed in court should the law pass (and ultimately decided there, regardless of what the OLC predicts). And everyone can weigh in, in the form of amicus briefs or whatnot, should they disagree with either opinion (OLC or SG).

This puts it quite apart from the secret OLC memos of the Dubya maladministration, which served as the secret basis for executive actions ... actions which the Dubya maladministration used every means of keeping out of the courts and beyond judicial review, meaning that the OLC memos were the de facto "final decision" and not just prescriptive advice.

2).
The OLC's reputation here is not sullied even if the allegations of politicisation are true (hardly proved, though). The SG weighed in (and as Adler notes, on a different question), but Holder didn't require the OLD to rewrite an opinion he disagreed with (or pressure them to come up with justification for his course of action contrary to their traditional role as dispassionate analysts of the law). Thus, Adler's comment, "Holder may wish to (re)read the recent white paper on the proper role of the OLC", is a bit unfair.

Cheers,
4.2.2009 2:42pm
zuch (mail) (www):
Terrivus:
Not sure I see the "partisan advantage" here. As proposed, the bill gives DC a seat (presumably Democratic) and Utah an additional seat (presumably Republican). Absent the trade off, this bill goes nowhere. So where's the partisan part come in?
1. Utah only gets the seat for one census. Then, it's subject to reapportionment, just like any other seat. So it's not comparable to the seat that DC gets.
DC could go Republican in 2022. ;-)

Cheers,
4.2.2009 2:48pm
My Middle Name Is Ralph:
I asked this on the prior threads but no conservative seems to want to step up to the plate and assert an answer:

What precisely is Holder (or Obama) supposedly doing wrong?

The OLC issued an opinion that the DC Voting Bill is unconstitutional (I happen to agree). No hint that OLC was asked or pressured to give anything other than its best opinion about what the law is and no suggestion that it did otherwise or that its opinion is total crap. Obviously, this differentiates this situation from Bush/Yoo/torture.

Holder asks the SG for an opinion about what the SG does--defend US laws in the courts. The SG gives its opinion that they can in good faith defend the law (I'm not sure I agree with that, but let's assume that's their honest opinion and acknowledge that there is some not insubstantial opinions of the same view, such as Starr, et al.).

The OLC opinion is not in any way binding on whether Obama can sign the bill if it passes; right? This also differentiate this situation from those in which the OLC interprets a statute and its opinion is considered binding on the administration unless overruled by the AG.

So, where's the problem?
4.2.2009 2:54pm
My Middle Name Is Ralph:

I think the concerns are well-placed, but if my alternatives are an OLC that rationalizes Congressional representation for unrepresented Americans, vs. an OLC that rationalizes torture and unchecked executive power, I'll settle for the former.


The OLC is not rationalizing anything in this case. It is of the opinion that the DC Voting Bill is unconstitutional. No one suggests that the OLC was improperly influenced or asked to do anything or did anything other than give its best opinion as to what the law is.
4.2.2009 2:57pm
My Middle Name Is Ralph:

The particular "Principle" that jumps out at me is this one: "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." Why did it take a leak for us to find out about this?


Now that's a fair criticism.
4.2.2009 3:02pm
Just an Observer:
A.S.: Presumably if Ted Olson said that it could be defended, Ascroft could safely have ignored Goldsmith and Comey's advice that it was illegal and told Bush to go ahead. But stupid, stupid Ashcroft decided not to do this. What a moron that Ashcroft was.

You presume a lot. If the surveillance program had been defensible in court, the Bush administration could have facilitated a test case quite readily. But the entire strategy of the administration was to avoid judicial review -- both before the showdown with Ashcroft and Comey, and after. No litigator in the administration wanted to come close to a courtroom defending Yoo's bizarre theories.

In any event, that situation -- action by the executive branch in blatant violation of a statute -- was not comparable to the current question of whether a proposed bill with no direct effect on the executive branch is constitutional. OLC is not making a formal opinion binding on the executive branch. (I happen to think the D.C. vote bill is unconstitutional, but others ranging from Eric Holder to Kenneth Starr to Orrin Hatch think otherwise.)
4.2.2009 3:31pm
Just an Observer:



The particular "Principle" that jumps out at me is this one: "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure." Why did it take a leak for us to find out about this?


Now that's a fair criticism.


Here's some follow-up on that point from today's Washington Post:


Sen. John Cornyn (R-Tex.) sent a letter to Holder yesterday demanding that he release the Office of Legal Counsel opinion. A Justice Department official said authorities did not release internal deliberations "because they're not the final, formal opinion."

4.2.2009 4:03pm
einhverfr (mail) (www):
Ok, first a separation of powers question: why would the OLC's opinion be legally binding on the AG? Wouldn't that essentially move them from the Executive to the Judiciary branch? Isn't it reasonable to ask the SG's office if they can reasonably defend the statute in court a reasonable question if the OLC is really part of the executive branch?

Now onto the act... It seems to me that the general benefit of the seat switches is actually pro-Republican. Utah is the most Republican state in the country, and will no doubt remain so for the foreseable future. At the same time, one additional seat to each party could make overriding a veto that much harder for the Democrats. So the allegation that this is for partisan benefit also seems unfair.

I think DC is as likely to elect a Republican as Utah is likely to elect a Democrat, though in reality it is usually more of an up/down vote for the candidate of the party of choice, not so much a matter of voting the party rather than the candidate (having spent my childhood in central Utah.... at a time when my district DID elect a Democrat....). As long as the parties don't completely screw up, they will keep those seats for the foreseable future. Comparing with Colorado is not really fair, and if you ever lived in Utah, you would know this :-).
4.2.2009 4:10pm
einhverfr (mail) (www):
Spitball:

I don't see a problem with the AG's behavior. Until a court rules on something where reasonable people disagree on its Constitutionality, its Constitutionality is unsettled. Separation of powers mandates that the OLC's opinions are nothing more than advisory.

Where I would draw the line is if the AG and the President were to do everything in their power to avoid judicial review.

I hope this is passed, signed, and successfully challenged in court. This seems the best way forward.
4.2.2009 4:19pm
Spitball:
My Name is Ralph --

No one is saying that what AG Holder did was illegal; rather, what he did was a transparently political act to reach a result he wanted. Such an action is not the worst thing someone can do because frankly I'm not sure if you can completely remove politics from the decision-making process. But such an action does reek of hypocrisy, given that he has criticized the Bush DOJ of being politicized.

Asking the SG's "advice" was an obvious political fig leaf to ignore OLC's longstanding opinion about the bill's unconstitutionality. Anyone who's worked at DOJ knows that the SG's Office will say that it can and will defend a federal statute, unless doing so would risk sanctions. As long as a colorable argument can be made, the SG's Office will say it can defend a federal statute -- because, well, that is its job. That's a very, very low bar to meet.

Of course, the President (or the AG) can technically ignore OLC's opinion and act contrary to its advice, much like a CEO or a GC can technically ignore its longstanding outside law firm's opinion and act contrary to its advice. But I suspect that if the Bush administration did the same thing, there would be howls of outrage.
4.2.2009 4:31pm
einhverfr (mail) (www):
Spitball:

What is the AG's job when it comes to determining the Constitutionality of a proposed law?
4.2.2009 4:34pm
Spitball:
Einhverfr --

Members of the Executive Branch swear an oath to uphold the Constitution, and they must act in good-faith to abide by that oath.

If we use your standard -- as long as there is a colorable argument and the courts can ultimately review it, then the Executive Branch can do it -- then just about anything can be justified. Very few things in the law are completely settled. Even the most sweeping and well-settled opinion by the Supreme Court can be distinguished by the basis of individual facts in a case, by statements in later cases, etc.

Just because the courts may have the opportunity to review a bill doesn't give the other two branches free license to do what they want. They must to their best of their abilities determine what is constitutional and act accordingly (albeit the courts will have the ultimate say). And in the Executive Branch, OLC has a special institutional role of offering advice on constitutionality of bills.


Again, this isn't the worst offense someone can commit, but clearly this was a result-oriented action and the SG's "advice" was solicited to be used as political fig-leaf to ignore OLC's advice.
4.2.2009 4:43pm
Spitball:
Einhverfr --

The AG's duty in assessing the constitutionally of a bill is to solicit the views of OLC -- which has the special role in DOJ of giving such advice -- and then make a reasoned judgment.

There may be instances in which the AG decides to ignore OLC's advice. For example, OLC gave a quick advice under extreme time constraints. Or OLC in its opinion clearly said the issue is a very, very close call. Or maybe the AG thinks the opinion is a product of the idiosyncratic view of the head of OLC at the time.

But none of the scenarios apply in this situation. OLC has studied this issue for over 40 years. Under both Democratic and Republican administrations, OLC has repeatedly said that such a bill is almost certainly unconstitutional.

Thus, the AG's decision to ignore OLC's advice in this case appears result-oriented.
4.2.2009 4:50pm
zuch (mail) (www):
Spitball:
No one is saying that what AG Holder did was illegal; rather, what he did was a transparently political act to reach a result he wanted.
What "result" did he want? Getting two opinions? It's not like he's passing this legislation or anything. Or secretly installing a Congressman and refusing to tell anyone about it or to defend such in court....

Cheers,
4.2.2009 4:56pm
Spitball:
Zuch --

The result that the AG wanted was to give political cover for the President to sign the D.C. voting bill. Obviously, there would be a political problem if the President signed a bill that his very own lawyers tasked with assessing its constitutionality advise him that it's unconstitutional. So the AG then asked the SG a very different question to another office -- i.e., can we make a colorable argument in court without being sanctioned -- to create the misleading impression that the President received two differing views on the issue and picked one view over the other.
4.2.2009 5:04pm
My Middle Name Is Ralph:

Now onto the act... It seems to me that the general benefit of the seat switches is actually pro-Republican. Utah is the most Republican state in the country, and will no doubt remain so for the foreseable future. At the same time, one additional seat to each party could make overriding a veto that much harder for the Democrats. So the allegation that this is for partisan benefit also seems unfair.


You are ignoring that DC will get a representative for an unlimited period of time. Utah will get an extra representative only until the next census and redistricting. So, Democrats get 1 rep for the foreseeable future and Republicans get 1 rep for two years (2010-2012). Democrats definitely get more from the bill. Of course, this doesn't necessarily mean that Democrats are getting more than they deserve. Putting aside the constitutional issue for the moment, I think DC getting a representative is just righting a wrong (no representation for DC voters) and that anything Republicans get out of the bill is unwarranted other than as a bribe to do the right thing.
4.2.2009 5:33pm
zuch (mail) (www):
Spitball:

As I pointed out above, pretty much everyone gets to comment on this, up to and including you, if you want to take the time. It's all being done in the open; any arguments will be made in court (or on the floor of Congress), not to mention newspapers, blogs, law review articles, etc.

He asked a couple questions. He got a couple of answers. He'll give his advice to the president (along with any caveats, I'm sure). The president will decide what to do (if it ever comes to that).

And as has been pointed out, various people (including such conservatives as Starr, although he's not high on my list of trusted authorities) are of the view that this legislation could pass Constitutional muster. It's not like OLC is the grand solons here. And OLC did what they were supposed to do, by all accounts.

This is a far cry from what the Dubya maladministration did (both with the torture and wiretapping, and also with the politicisation of the USAs). Pretending the two are the same or that Holder's being hypocritical is laughable on its face.

Cheers,
4.2.2009 5:38pm
bloodstar (mail) (www):
Really Mr Adler,

Do you think you can put down the partisan stick for a minute and not try to draw a false equivalence in order to try to score cheap and meaningless points that don't survive the harsh light of reality.

Sure it'll drive some page views, but not counting partisan hacks who'll soak up anything that shouts 'Democrat Bad, Republican Good' (or Vice versa for the Democrat Hacks out there), I'm sure quite a few of us come here to look for a bit of objectivity in posts.

or maybe I'm wrong and you think redstate is the paragon of objectivity.

kthxbai!
4.2.2009 5:44pm
My Middle Name Is Ralph:
Spitball, I appreciate your arguments. If I understand you correctly, they seem premised on the assumption that this quote from the WaPo article is truth challenged (a polite way of saying it's a lie):

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."


If Holder honestly believes the DC bill to be constitutional, then I still fail to see any valid criticism of him. If, on the other hand, he secretly believes the bill to be unconstitutional, then presumably he has a duty to so advise the President so that Obama can consider that advice in determining whether or not to veto the bill. Regardless, I don't think any legal opinion from either the OLC or Holder on the constitutionality of the law is binding on Obama's decision to veto the bill or not. Unlike where the OLC's interpretation of a statute is binding on the administration, the OLC's determination of whether the DC voting rights bill is constitutional has not legal significance that I'm aware of.
4.2.2009 5:50pm
zuch (mail) (www):
Prof. Adler:
Asking the Solicitor General's office whether a statute's constitutionality can be defended in court is not the same thing as asking whether a statute is, itself, constitutional.
If something is clearly and obviously unconstitutional, then it can't be legitimately defended in court. But even if the balance of opinion is that the law would be ruled unconstitutional, and this is what the OLC memo states, if a fair case can be made in favour of the law, the OLC opinion shouldn't be dispositive as to whether the law should be enacted or signed. Lawyers are allowed to attempt to persuade the courts as to their view, providing that "the claims [...] and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law". If Holder chooses to recommend signing -- in a fair faith effort to advance democracy rights for DC citizens -- under these circumstances, how is that unethical? Even if told it's unlikely he'll succeed, what is the problem with trying (much less asking the SG if such an attempt seems feasible)?

Cheers,
4.2.2009 5:51pm
My Middle Name Is Ralph:
zuch,

I think I'm with you. I do believe Congress and the President have a duty, independent of the courts, to consider whether any particular law is constitutional. But, if I may put my Obama apologist hat on, I'd be willing to give the DC voting rights bill a little more leeway on this than usual. Unlike most laws, this one will not have any practical effect before its constitutionality is determined by the Supreme Court. Most laws can be on the books for years before there's any decision, effecting the decisions and actions of people the entire time. DC is not set to vote on a rep until November 2010 under the bill. The law's constitutionality should be decided before then. So, though I would generally oppose the idea of Congress and the President punting on constitutionality and letting the Court decide, this case is a little different.
4.2.2009 6:14pm
A.S.:
You presume a lot. If the surveillance program had been defensible in court, the Bush administration could have facilitated a test case quite readily.

That's silly. One would have to be a moron to voluntarily submit the program to a court - even if the DOJ was 99% certain that a court would uphold the program, there's always the 1%.

But it is unquestionable that the DOJ thought the wiretapping program was defensible in court. We know this because, when the program was challenged in court, the DOJ did, in fact, defend it.
4.2.2009 6:24pm
Just an Observer:
But it is unquestionable that the DOJ thought the wiretapping program was defensible in court. We know this because, when the program was challenged in court, the DOJ did, in fact, defend it.

That is simply not true. DOJ was quite happy to argue in political venues, such as the issuance of a 42-page press release called a "white paper," that the program was legal. But it relied completely on technical defenses of privilege and standing to avoid defending the merits of those "arguments" in a real court. In the ACLU case in Detroit, DOJ even refused to comply with the judge's request that the government brief on the merits.

It would have been quite easy to facilitate a bona fide test case, in civil cases or in the FISA courts themselves. But the Bush administration avoided mounting such a defense above all, because that would tee up the legal issues about violating FISA for the ultimate smackdown in the Supreme Court.

Eventually, in early 2007, the administration ceased operation of the extralegal program and did not resume it, even while claiming that cessation of the program without eventual legislative authorization for similar surveillance placed the country at great risk. If that was true, and Bush's lawyers still believed such a program was legal, he could have resumed it even temporarily.
4.2.2009 6:54pm
zuch (mail) (www):
A.S.:
But it is unquestionable that the DOJ thought the wiretapping program was defensible in court. We know this because, when the program was challenged in court, the DOJ did, in fact, defend it.
Ahhh, yes, with the well-known and time-honoured "NOYB defence".

Cheers,
4.2.2009 7:21pm
einhverfr (mail) (www):
A.S.

But it is unquestionable that the DOJ thought the wiretapping program was defensible in court. We know this because, when the program was challenged in court, the DOJ did, in fact, defend it.


Of course, whether it was defensible in court as a tactical matter or whether they thought it could withstand a ruling as a matter of law were entirely different questions....
4.2.2009 7:48pm
Garth:
over ride is in quotes because it is a quote from the article's description of Holder's actions as seeking an "over ride" of the OLC.

i just don't see this request for an opinion from the SG as an over-ride.
4.2.2009 7:53pm
Public_Defender (mail):
Bush/Gonzales did X.
Obama/Holder did Y.

Wingnut Conservatives: "You liberals are hypocrites for not complaining when Holder does Y even though you complained that Gonzales did X."

Liberals: "X doesn't equal Y."

Wingnut Conservatives: "You liberals are hypocrites for not complaining when Holder does Y even though you complained that Gonzales did X."

Again, he didn't try to hide OLC's advice or change it. He just asked for a different opinion on a similar but different question. And even if Holder is wrong, he'll just lose in court. Big deal. There's really no harm to error here.

Contrast that with twisting arms to get the opinion you want, hide the opinion, torture people, and then work to deny the people you torture any avenue to challenge your decision.


X doesn't equal Y.
4.2.2009 8:13pm
einhverfr (mail) (www):
Spitball:

If we use your standard -- as long as there is a colorable argument and the courts can ultimately review it, then the Executive Branch can do it -- then just about anything can be justified.


First, thanks for clarifying your viewpoints. Also I think you have my standard more or less correct as a matter of separation of powers.

Now I am going to defend my position in a little more detail. I see the separation of powers more or less as follows:

1) The legislative branch has the power to make law, but a duty to do so in the best interests of the country and within the limited powers set forth in the Constitution. Of course, sometimes, they do blatantly Unconstitutional laws because of political concerns (Pledge Protection Act, for example).

2) The executive branch has power and duty to faithfully execute the laws up through and including the Constitution. If the Executive branch believes that enforcing a law in a given case would not survive an as-applied challenge, I believe they shouldn't do so. However, they also have the duty to do this in line with the national interest.

3) The judicial branch has the power to interpret the law and, IMO, the duty to do as little as possible to create an interpretation of the law which is both consistent and effective.

Now, the overstepping Constitutional boundaries is inevitable by the first two branches of government (and in fact by all three, but I think the Judiciary is more immune from this than the other two), and this can happen for a number of reasons including differences of opinion as to what the Constitution mandates. I think that one should be reasonably deferential to the elected branches of government as to their intents when a law is proposed, passed, or signed. If there is an argument that can be made in good faith for the Constitutionality of an action, and the courts are involved in a reasonable way, then we should be reasonably deferential regarding the good faith of our elected officers.[1]

Now, in this case the OLC's job is to provide interpretative services to the executive branch. However, they are not the judiciary, so their decisions ought not to be fully binding (even IMO regarding statutory law). I think instead, the OLC's opinions should be routinely filed with the court where they conflict with executive judgement. This would seem to be to be sufficient as to help avoid separation of powers issue but ensure that the office's viewpoints are properly considered. The fact is that the OLC's opinions, as good as they may be in some cases, are not going to track perfectly with what the courts will do. Treating their decisions as binding IMO tramples on the Judiciary's authority in such matters.

When one goes to court, the adversarial process affects both matters of fact and of law. Since the OLC is not generally subject to such an adversarial process in an open forum (amicus briefs, etc), it is not reasonable to expect a level of reliability from them we might expect from a court. The courts, after receiving much wider input are not guaranteed to agree with the OLC on every issue. Therefore the question will inevitably become where one draws the line regarding where the OLC's opinions should be binding on the Executive. IMO, this ought to be limited to cases where reasonable people can't disagree in good faith (as may ARGUABLY be the case here, but I am not sure).

[1] As an example, I was one of the folks who, when the NSA wiretapping story broke immediatately condemned it on Constitutional grounds. Subsequent coverage of the FISC's involvement, for example in the Washington Post, have suggested to me that the program as overseen by the FISC may well have been Constitutional. At least there is a strong argument to be made that, as long as information gathered was not available for domestic law enforcement, nor the basis for ANY domestic warrants, that the search was not unreasonable. I don't know the statutes well enough though to know if it was legal or not.
4.2.2009 8:18pm
Nunzio:
There is an Attorney General

There is a Solicitor General

There is the Office of Legal Counsel

There is the White House Counsel

Which of these lawyers is going to review the warranty claims made by all the GM and Chrysler consumers?
4.2.2009 10:05pm
Spitball:
Einhverfr, Zuch and My Middle Name is Ralph --

It looks like we're repeating ourselves at this point, so I'll let it be. In short, I don't think this is the worst transgression, but it is a breach of usual practice. My opinion may be based in large part on my understanding that it is extraordinary for the AG to ignore OLC's advice. In any event, I've appreciated all of your thoughtful comments and, more importantly, your cordial tone. It's so easy on the internet to spew bile, so I appreciate the respectful exchange of views.
4.2.2009 10:24pm
New Pseudonym:

Now onto the act... It seems to me that the general benefit of the seat switches is actually pro-Republican. Utah is the most Republican state in the country, and will no doubt remain so for the foreseable future. At the same time, one additional seat to each party could make overriding a veto that much harder for the Democrats. So the allegation that this is for partisan benefit also seems unfair.



You are ignoring that DC will get a representative for an unlimited period of time. Utah will get an extra representative only until the next census and redistricting. So, Democrats get 1 rep for the foreseeable future and Republicans get 1 rep for two years (2010-2012). Democrats definitely get more from the bill. Of course, this doesn't necessarily mean that Democrats are getting more than they deserve. Putting aside the constitutional issue for the moment, I think DC getting a representative is just righting a wrong (no representation for DC voters) and that anything Republicans get out of the bill is unwarranted other than as a bribe to do the right thing.


Actually, Utah only gets a seat a couple of years early, since it expects to get one anyway after the census. The Democrats win here, since Utah would get its seat from a population-losing blue state, most likely. With the extra seat, that blue seat may not be lost after all. Net gain for the Dems +2 seats.
4.3.2009 8:14am
My Middle Name Is Ralph:
May or may not be Dem +2. The plan adds 2 reps to the house, so that it would have 437 reps on a permanent basis. One of those extra reps would be for DC. The other would be for Utah until the next census and redistricting. Which state benefits from the extra seat after redistricting is unknowable at this time. It could be a state retains a seat it otherwise would have lost (most likely, but not definitely, a blue state). It could just as easily be a state gains an additional seat it otherwise would not have gained (most likely, but not definitely, a red state).
4.3.2009 1:12pm
New Pseudonym:
OK, then Dem +1 1/2. Point remains, GOP is giving a seat in return for a tossup
4.3.2009 6:22pm

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