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Still More on the OLC Opinion Re: D.C. Voting Rights:

In another follow up story, the Washington Post provides more detail about Attorney General Eric Holder's decision to seek a second opinion after learning that OLC concluded that the D.C. representation legislation is unconstitutional.

After receiving a legal memo that declared the pending D.C. voting rights bill unconstitutional, Attorney General Eric H. Holder Jr. reached out to another lawyer on whose judgment he had relied for years.

Holder contacted Deputy Solicitor General Neal K. Katyal, who served as one of his advisers in the Justice Department during the Clinton era. Katyal gave Holder, who said he had already decided that the bill passed muster, an informal view that the measure could be defended in court if Congress passed it and the president signed it. . . .

As attorney general, Holder has broad authority to make judgments about the law and to reject conclusions from the department's Office of Legal Counsel, an elite team of lawyers who often have the final word on legal issues in the executive branch. Overriding an OLC ruling is rare, former Justice Department officials said.

Matthew Miller, a spokesman for Holder, said the OLC took up the issue this year as part of a routine process of examining legislation moving through Congress. Holder read the OLC memo, scrutinized research by other lawyers outside the department, and determined for himself that the measure is constitutional. He later reached out to Katyal not for a formal judgment from the solicitor general's office but rather "as a check on his own thinking . . . with a very smart attorney," Miller said.

The story also reports on the brewing controversy over whether the Justice Department should release the OLC opinion Holder overuled.
Justice Department officials said Wednesday that they will not release the memo, because it reflects internal deliberations and is not a "final" or "formal" ruling. But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document.

Aides to the attorney general said they have no specific plans to draft a new opinion on the bill, which could change yet again as it awaits passage by the House.

Given that OLC nominee Dawn Johnsen and other administration officials have argued that OLC should err on the side of disclosing all formal OLC opinions, some argue that the Justice Department should release the OLC memo at issue here. As much as I would like to see the document, it is not clear that the principle advocated by Johnsen and others applies in this case. It is one thing to demand the disclosure of documents that represent the Justice Department's definitive constitutional interpretations, binding on the executive branch. It is quite another to demand working drafts and internal memoranda articulating arguments and positions that are never adopted. So, for instance, while OLC has recently released quite a few Bush Administration opinions on various questions, it has not been releasing various drafts of opinions that were never adopted as the Department's official legal position.

Speaking of Dawn Johnsen, her nomination has received significant opposition, and she may have to wait several more weeks for a Senate vote on her confirmation. This is unfortunate. While I am quite certain I disagree with Professor Johnsen on a wide range of issues, I see no reason to oppose her confirmation. In my opinion, some critics of her nomination have focused on the wrong questions -- whether or not she is too "liberal" or too critical of the Bush Administration -- instead of whether has the necessary qualifications and temperament necessary to "provide an accurate and honest appraisal of applicable law" as her position would require. So even assuming, for the sake of argument, that some of the positions Professor Johnsen advocated as a NARAL attorney or academic are extreme or unwise, this does not make her unfit for the job. Just because she argued something in a brief does not mean she would advance the same argument at OLC. Based on what I have heard from those who worked with her at OLC in the past, I believe she understands the difference between the role of a legal advocate and an OLC attorney. Indeed, I suspect that, whatever her personal views of the subject, the OLC memorandum on D.C. voting representation would have reached the same conclusion were she in charge of the office.

Mike& (mail):
Just because she argued something in a brief does not mean she would advance the same argument at OLC.

Which also illustrates nicely the difference between asking the SG and OLC about a legal issue.
4.3.2009 1:38pm
martinned (mail) (www):
Yesterday, Andrew Koppelman posted on Balkinization about his clarification letter to Senator Specter. Let's see if it helps.
4.3.2009 1:41pm
Houston Lawyer:
It appears that the OLC has become redundant and that all of its employees should be let go. The only legal opinions that are binding on the administration are those issued by the Supreme Court. Everything else appears to be just political posturing.
4.3.2009 1:43pm
My Middle Name Is Ralph:
In what world would the opinion of the OLC about the constitutionality of a prospective law ever be binding?
4.3.2009 2:03pm
Greg Q (mail) (www):
In my opinion, some critics of her nomination have focused on the wrong questions -- whether or not she is too "liberal"

In America today, to be "liberal" is to be dishonest. Once you've decided "the Constitution is a Living Document", which is to say once you've decided that the Constitution means whatever 5 left-wing justices think they can get away with saying that it means, you've permanently forfeited any claim of being able to "provide an accurate and honest appraisal of applicable law".

I'm sorry her confirmation is being held up. She should be testifying in front of Republican senators, who should be asking her:

1: What's her position on the Constitutionality of the DC voting bill?
2: Should the OLC Opinion be released?
3: What's her opinion of Holder doing an end-run around the professional staff of the OLC when they told him something he didn't want to hear?

"Liberals" believe that any means are permissible when you are pursuing the "right" (which is to say their) ends. It's time they received what they've been dishing out.
4.3.2009 2:07pm
My Middle Name Is Ralph:
Professor Adler, I think it's pretty clear that the principle advocated by Johnsen does not argue for the disclosure of drafts. But, that doesn't seem like the issue. Was this opinion really just "preliminary" or "informal?" Being signed by the acting head and sent to the AG makes it sound pretty final and formal to me.
4.3.2009 2:09pm
Steve:
The only legal opinions that are binding on the administration are those issued by the Supreme Court. Everything else appears to be just political posturing.

Are you suggesting that the only two options are: (1) abolishing the OLC, or (2) outsourcing the veto power to them?

The idea that the President is required to veto a bill if the OLC opines that the courts would find it unconstitutional strikes me as bizarre. It may be an educated prediction by the OLC, but it's still just a prediction.
4.3.2009 2:09pm
martinned (mail) (www):

"Liberals" believe that any means are permissible when you are pursuing the "right" (which is to say their) ends.

Apart from that first word, this sounds to me like a pretty accurate summary of the War on Terror.
4.3.2009 2:10pm
Bart (mail):
Holder is such a complete political whore. This is simply a redux of Holder's running interference on the reprehensible Clinton pardons of a felon campaign contributor and Puerto Rican terrorists.
4.3.2009 2:16pm
Oren:


The idea that the President is required to veto a bill if the OLC opines that the courts would find it unconstitutional strikes me as bizarre. It may be an educated prediction by the OLC, but it's still just a prediction.


If the President wants to go over the head of the OLC, he should draft an opinion and afix his own signature to it and make it public.

The OLC does not have any authority to constrain the President, but he should at least be forthcoming about when he decides to override them.
4.3.2009 2:16pm
Greg Q (mail) (www):
Shorter version: no one who claims to believe that the US Constitution is a Living Document can ever be anything other than an advocate for his or her personal political beliefs. They've explicitly and affirmatively said "I don't care what the Constitution actually says, all I care about is what I think we can get away with."

No such person can be trusted to faithfully carry out the duties of non-partisan position.
4.3.2009 2:18pm
Richard W. Painter (mail):
Giving DC the vote is a good idea, but if it is unconstitutional lets amend the Constitution. We just finished a discussion here last week about what happens when OLC opinions are tailored to please political appointees. There is nothing wrong with asking for a second opinion, but the Attorney General should make it clear that OLC is expected to come up with the right answer, not the answer that pleases him or the Administration.

Dawn Johnson should be confirmed to head OLC. However, it is important that OLC not be dominated by political appointees. Career OLC lawyers should have an important role in opinion writing.

One approach would be for the career lawyers to independently review an opinion and if they dissent the opinion is either (i) changed or (ii) summarizes the arguments advanced by the dissenters and the reasons why the opinion disagrees. In the instant case, if the opinion is by any chance changed after this request by the Attorney General, it should state the conclusions reached in the original draft and why the opinion believes those conclusions are wrong.
4.3.2009 2:20pm
Steve:
If the President wants to go over the head of the OLC...

I have to stop you right there. Seriously, it's like when the OLC offers an opinion that someone likes, they suddenly acquire some kind of incredible extraconstitutional status.

This is not a bill that would require any sort of enforcement on the part of the Executive Branch. There's nothing wrong with the President signing it and allowing the courts to sort out its constitutionality, any more than there's anything wrong with him asking the OLC for its opinion on what the courts are likely to do.
4.3.2009 2:24pm
PatHMV (mail) (www):
It is certainly correct that lawyers are not and should not be considered to personally support something for which they argued in brief. However, when a lawyer voluntarily chooses to work full-time for an advocacy group, and becomes substantially responsible for developing the legal and policy positions of that advocacy group, I think that it's fair game to suggest that the lawyer personally supports that cause and the positions the lawyer took in those briefs.

Obligatory reference to the different standards being set in the public eye for the Bush and the Obama administrations and their overruling of, or application of political pressure to, the OLC.
4.3.2009 2:30pm
einhverfr (mail) (www):
Absolutely the OLC should release the opinion. More dialog is always better.
4.3.2009 2:32pm
martinned (mail) (www):

There's nothing wrong with the President signing it and allowing the courts to sort out its constitutionality.

You don't think the Presidential oath, if nothing else, requires him to form at least the start of an opinion as to the constitutionality of what he's signing?
4.3.2009 2:35pm
einhverfr (mail) (www):
Richard Painter:

There is nothing wrong with asking for a second opinion, but the Attorney General should make it clear that OLC is expected to come up with the right answer, not the answer that pleases him or the Administration.


I completely agree with this. I further think the OLC opinions in the matter, even when overruled by the AG, should be a matter of public record. I would actually go further and say the OLC should be expected to submit amicus briefs to the courts in the event they disagree with the administration in such issues.
4.3.2009 2:35pm
Bob from Ohio (mail):

If the President wants to go over the head of the OLC, he should draft an opinion and afix his own signature to it and make it public.


The OLC serves the President, not the other way around.

This whole kerfuffle is amusing because it hoists Holder on his own petard but the equation of OLC with the Oracle at Delphi is silly too.

If any AG or any President wants to ignore OLC or go around them or get a second opinion or fire OLC political appointees, then they should. They, not OLC, have the responsibility.
4.3.2009 2:45pm
A.S.:
Speaking of Dawn Johnsen, her nomination has received significant opposition, and she may have to wait several more weeks for a Senate vote on her confirmation. This is unfortunate.

Why?

As far as I can tell, under the Holder regime, OLC is completely irrelevant anyway. If OLC provides opinions that help Obama politically, then they will be accepted; if OLC provides opinions that will hurt Obama politically, they will be rejected and Holder and Obama will turn to someone else to advise them on Constitutional matters.

So how does having Johnsen make a difference? OLC is irrelevant.
4.3.2009 2:50pm
Just an Observer:
As much as I would like to see the document, it is not clear that the principle advocated by Johnsen and others applies in this case. It is one thing to demand the disclosure of documents that represent the Justice Department's definitive constitutional interpretations, binding on the executive branch. It is quite another to demand working drafts and internal memoranda articulating arguments and positions that are never adopted.

You and DOJ may have a point there. What is not clear is the precise status of Barron's memo. If there really was not a formal OLC opinion, but rather, as DOJ reportedly says, "the OLC took up the issue this year as part of a routine process of examining legislation moving through Congress," would other such routine memos traditionally have been released?
4.3.2009 2:58pm
Steve:
You don't think the Presidential oath, if nothing else, requires him to form at least the start of an opinion as to the constitutionality of what he's signing?

I don't think the President should sign something he believes to be unconstitutional. I think, however, that he is allowed to be unsure. And I don't think the OLC operates to constrain him in that regard.

Also, I think a greater degree of confidence ought to be required for the President to enforce a law than for him to merely sign a bill into law that doesn't require any enforcement by the Executive Branch.
4.3.2009 3:04pm
My Middle Name Is Ralph:

Obligatory reference to the different standards being set in the public eye for the Bush and the Obama administrations and their overruling of, or application of political pressure to, the OLC.


Obligatory correction of above-said obligatory reference pointing out that OLC has not been overruled or politically pressured on anything.
4.3.2009 3:05pm
Houston Lawyer:
Presidents should not sign laws into effect if they believe that they are unconstitutional. I believe that President Bush signed McCain Feingold into law believing that the Supreme Court would find it unconstitutional. Hence, a win-win for him. That worked out just peachy.

If Congress has plenary authority over DC, then move the Gitmo detainees there and tell the Supreme Court that the writ no longer applies in DC.
4.3.2009 3:06pm
martinned (mail) (www):

I don't think the President should sign something he believes to be unconstitutional. I think, however, that he is allowed to be unsure. And I don't think the OLC operates to constrain him in that regard.

Fair enough. Then again, maybe it would be a good idea to put the OLC in that position, or to create a new body to do so. Many European countries, including my own, have quasi-judicial independent bodies that evolved out of each country's Privy Council, which give advice on bills before they are sent to Parliament. (The most notable example is the French Conseil d'√Čtat.) Their advice goes into the constitutionality of the bill as well as its desireability. This advice is not binding on anyone, but it is public and normally when they are critical, the bill is amended.
4.3.2009 3:11pm
Daryl Herbert (www):
We have a President who wants to shred the constitution seven different ways (including giving DC voting rights and not having an "actual enumeration" for the Census). We need, now more than ever, principled, honest advocates at the OLC. Of course, Obama wants to stack the deck with left-wing hacks who will support his agenda no matter what. He's from Chicago. That's his M.O. He wouldn't nominate someone whom he did not think would back him up uncritically.
4.3.2009 3:36pm
My Middle Name Is Ralph:

I don't think the President should sign something he believes to be unconstitutional. I think, however, that he is allowed to be unsure. And I don't think the OLC operates to constrain him in that regard.

Also, I think a greater degree of confidence ought to be required for the President to enforce a law than for him to merely sign a bill into law that doesn't require any enforcement by the Executive Branch.


Totally agree. Would also add that the president should be less hesitant to sign a bill, even with doubts about the bill's constitutionality, when he knows that it will receive Supreme Court review before it ever goes into effect, such as the case with the DC voting rights bill.
4.3.2009 3:41pm
Brian G (mail) (www):
I am glad to see that Justice was only politicized under Bush and that under Obama everything is above board.

Seriously, the one thing I keep thinking of is that if this were under Bush, that "draft" would have been on the front page of the NY Times yesterday. Hell, I wouldn't be surprised if the Times had a copy of it right now and decided to sit on it.

Bottom line: The D.C. bill is unconstitutional. I don't think the diversity statute (28 U.S.C. 1332), relied on as support shows that D.C. is a state. D.C. was always meant to be a federal district not subject to the control of any other state.

Let's long at the big picture here. Give D.C. a seat, and Utah one, no one thinks that the Dems are trying anything sneaky because it all evens out. But, before you know it, the argument will be "well, if D.C. can have a House member, why can't it have Senators like everyone else? It's soooooo unfair!" At that time, no one can look for an even out because every state already has the maximum numbers of Senators. D.C. would get 2 guaranteed Democrat Senators. Which is the whole idea of this nonsense.
4.3.2009 3:43pm
Just an Observer:
Speaking of Dawn Johnsen, her nomination has received significant opposition, and she may have to wait several more weeks for a Senate vote on her confirmation. This is unfortunate. While I am quite certain I disagree with Professor Johnsen on a wide range of issues, I see no reason to oppose her confirmation. ...

Based on what I have heard from those who worked with her at OLC in the past, I believe she understands the difference between the role of a legal advocate and an OLC attorney. Indeed, I suspect that, whatever her personal views of the subject, the OLC memorandum on D.C. voting representation would have reached the same conclusion were she in charge of the office.


Good for you. I regret that some extremely partisan commenters have already been spinning this incident against Johnsen's nomination, wholly without foundation.
4.3.2009 4:00pm
zuch (mail) (www):
Richard W. Painter:
Giving DC the vote is a good idea, but if it is unconstitutional lets amend the Constitution.
Agreed. That should be done, just so there's no question (or alternatively abolish DC and cure the problem that way).
We just finished a discussion here last week about what happens when OLC opinions are tailored to please political appointees. There is nothing wrong with asking for a second opinion, but the Attorney General should make it clear that OLC is expected to come up with the right answer, not the answer that pleases him or the Administration.
Good thing then that Holder didn't pressure them to revise their opinion, but rather asked someone else whether a 'good faith' argument could be made in court in support of the law.

Cheers,
4.3.2009 4:29pm
zuch (mail) (www):
Daryl Herbert:We have a President who wants to shred the constitution seven different ways (including [...] not having an "actual enumeration" for the Census).When did anyone say that? I thought that had already been hashed out in the Supreme Court, and I don't think anyone has said that should be "overturned" or ignored WRT apportionment (the other functions of the census are not Constitutionally mandated/specified, and can take whatever form they want).

Cheers,
4.3.2009 4:34pm
CJColucci:
Clients ignore their lawyers all the time. The lawyer's job is to give it to the client straight, not to fudge things because the client wants a different answer, but ultimately it's the client's call whether to follow the lawyer's advice. What's hard about this?
4.3.2009 4:57pm
Bruce Wayne:

Clients ignore their lawyers all the time. The lawyer's job is to give it to the client straight, not to fudge things because the client wants a different answer, but ultimately it's the client's call whether to follow the lawyer's advice. What's hard about this?


I wonder if it has anything to do with the fact that, when the supporters of new Genius-President are asked about his background and qualifications to be president, they tout him as a constitutional-law professor (in addition to being a community organizer). Perhaps Professor Genius-President should trust the OLC's advice, especially if he knows it to be very likely correct. Perhaps he shouldn't sign a bill that will cost a bundle in legal fees only to have the SCT ultimately tell him what the OLC lawyers told him in the first place.
4.3.2009 5:33pm
BGates:
I think, however, that he is allowed to be unsure.

"Hmm...this bill may conflict with the foundational legal document of the republic....Ah, what the hell, I'll sign it anyway."
4.3.2009 5:35pm
Eli Rabett (www):
Eli takes it that the Office of Legal Counsel remains a branch of the Federalist Society as it has been for the last eight years. This might be worth taking seriously once all the Regent University types have been cleared out.
4.3.2009 5:35pm
einhverfr (mail) (www):
Martinned:

I think it is fine to have lawyers advising the elected branches on Constitutional matters. However, I don't think this should be binding in the same way a court decision would be.
4.3.2009 5:41pm
David M. Nieporent (www):
The idea that the President is required to veto a bill if the OLC opines that the courts would find it unconstitutional strikes me as bizarre. It may be an educated prediction by the OLC, but it's still just a prediction.
While I agree with your direct claim that the President isn't required to veto a bill just because OLC says so, OLC is not making a "prediction." Neither the OLC's job nor the president's job is to predict what the courts would say. OLC is opining that the bill is unconstitutional, not that courts would find it unconstitutional.
4.3.2009 5:50pm
martinned (mail) (www):

I think it is fine to have lawyers advising the elected branches on Constitutional matters. However, I don't think this should be binding in the same way a court decision would be.

So far we're in agreement. But how about we make the advice mandatory and public?
4.3.2009 5:51pm
zuch (mail) (www):
David M. Nieporent:
While I agree with your direct claim that the President isn't required to veto a bill just because OLC says so, OLC is not making a "prediction." Neither the OLC's job nor the president's job is to predict what the courts would say. OLC is opining that the bill is unconstitutional, not that courts would find it unconstitutional.
A distinction of little significance, unless you think the OLC is the final arbiter of such. This will surely go to the courts should the law pass anyway, and in the end, it's the Supreme Court's view that will prevail. Unlike when the executive relies on OLC memos and then does everything in its power to prevent judicial review on the merits, including invoking privilege and secrecy to forestall all legal appeals.

I'd note the subtle irony there where the OLC has declared (in a memo) its own memos to be faulty, as Bradbury did in January. Obviously, at least one of the memos was wrong, and "shouldn't be relied on". Take it from the horse's mouth, David: OLC opinions are only as good as they withstand scrutiny, either by peer, the public, or the judiciary.

Cheers,
4.3.2009 6:17pm
einhverfr (mail) (www):
martinned:

So far we're in agreement. But how about we make the advice mandatory and public?


Sounds like a great way to foster dialog. I am all for it.
4.3.2009 6:36pm
M:
"This might be worth taking seriously once all the Regent University types have been cleared out."

You have no idea what you are talking about. "Regent University types" do not get hired at the OLC. Conservative, liberal, middle of the road -- they are all from the tops of their classes, from the best law schools, and either coming off of or heading to some incredible clerkships, or to become professors. Don't assume that those with whom you disagree are stupid or evil. You'll be at a disadvantage. (And I don't mean to imply Regent grads are stupid or evil -- they're not -- I just don't know how to make this point without seeming like I am.)
4.3.2009 8:19pm
Eric Rasmusen (mail) (www):
Certainly the Attorney-General can override an OLC opinion. Has an AG ever done that before, though?

It seems to me this should be a resigning issue for Dawn Johnsen, if she had been confirmed and her office's opinion had been overruled, based on her principles. Certainly a new confirmation hearing to ask her about the issue would be appropriate.

It seems the Democratic position is that the Bush Justice Department was at fault because it let a political appointee, John Yoo, write a memo, rather than just having the Attorney-Gernal make the decision without any legal reasoning at all.
4.3.2009 8:40pm
Eric Rasmusen (mail) (www):
Does anyone know if the liberal blogosphere has mentioned this issue at all? I keep checking Balkinization, which thought the OLC was so important under Bush, and there is zero mention. I am genuinely curious as to what they think about Holder's action. And, I admit, I am looking forward to seeing them squirm.

Maybe silence is their best policy, but it' not intellectually respectable. Attackers of John Yoo need to address this issue.
4.3.2009 8:42pm
Steve:
"Hmm...this bill may conflict with the foundational legal document of the republic....Ah, what the hell, I'll sign it anyway."

Let's not be childish. Of course any President takes any number of actions that he knows MIGHT be held unconstitutional by the courts. He's not required to be paralyzed into indecision by the mere possibility.

I swear, I really have to wonder where all these people who believe the President violates his oath of office if he disregards the wise counsel of the OLC have been for the last several years.

Neither the OLC's job nor the president's job is to predict what the courts would say. OLC is opining that the bill is unconstitutional, not that courts would find it unconstitutional.

This strikes me as very much a distinction without a difference. This bill involves an unsettled question of constitutional law that will surely be submitted to the courts if it passes. It's clear that no one indisputably has the "right" answer; indeed, at the end of the day, the only reason the Supreme Court will necessarily be right is because our system gives it the last word.
4.3.2009 9:52pm
tsotha:
I find it hilarious the same people who pilloried Gonzalez for opinion shopping are trying to claim Holder is on perfectly solid ground as he engages in the exact same behavior.

My own take is the president has both the right and duty to make up his own mind about the constitutionality of what he signs. It's certainly reasonable for him to take OLC's opinion into consideration, and it's reasonable to take court opinions into consideration. But nowhere in the constitution does it say the courts have the last word on constitutional issues. If the president feels something is constitutional he should sign it, even if he's alone in that opinion.

I doubt Obama actually believes Congress has the Constitutional authority to give voting Congressional seats to DC, but that's between him and his conscience. OLC doesn't enter into it.
4.3.2009 11:28pm
LibertyCowboy:
I think it is obvious to the casual observer that the provision on D.C. representation is unconstitutional.

Having said that, adding the new Republican representative would be lawful, and I suppose is a somewhat shrewd way of gaining a seat.

Of course, by the time the Republicans regained control of the house the entire country will owe more than it is worth.
4.3.2009 11:29pm
Oren:

I think it is obvious to the casual observer that the provision on D.C. representation is unconstitutional.

You should talk to Ken Starr. You will be shocked to find that not only does he disagree that casual observation is enough to conclude the bill is unconstitutional, but that he actually thinks it is constitutional.
4.4.2009 3:18am
davod (mail):

'Obligatory correction of above-said obligatory reference pointing out that OLC has not been overruled or politically pressured on anything."

?

When Johnson gets there Holder will be assured of getting The right opinion every time. They will probably be able to save a lot of money by sacking most of the attorneys and hiring a few polsters instead.
4.4.2009 4:14am
geokstr:

M:
Don't assume that those with whom you disagree are stupid or evil. You'll be at a disadvantage.

In my experience, that is precisely the attitude taken by the left towards conservatives and Republicans. Some, like Bush, are considered to be both stupid and evil. Have you ever seen heard a liberal give credit to either Cheney, or Rove, or Limbaugh, or anyone else on the right for anything other than being evil? I even see the comment here on occasion that if you are liberal, it's because you are intelligent, which is the real reason the left controls university faculties, not bias in hiring.

That attitude doesn't seem to have put them at any disadvantage, either. In fact, by considering the right to be evil, it gives them the perceived moral authority to do anything whatsoever to fight that evil. Sure worked for them last November.
4.4.2009 8:13am
Soronel Haetir (mail):
inhverfr,

In regard to your comment about OLC filing briefs against the administration's position, that would be a huge violation of the tradional unitary executive. Every executive function is supposed to repose in the president, there is just so much work that most of it get delegated. To have part of the executive branch directly thrawt the president's will would lead to terrible mischief.

If the OLC folks feel that strongly about an issue let them resign.
4.4.2009 1:15pm
Just an Observer:
Eric Rasmusen: Certainly the Attorney-General can override an OLC opinion. Has an AG ever done that before, though?

It seems to me this should be a resigning issue for Dawn Johnsen, if she had been confirmed and her office's opinion had been overruled, based on her principles.


I think the gravity depends on the situation.

If the act of overriding OLC would mean that the president or his subordinates would be committing a felony -- such as violating FISA -- that would be a serious matter indeed. An example of such principled dissent was the threatened resignations of Ashcroft, Comey, Goldsmith, Mueller, and the rest of the top echelon of DOJ in 2004.

But the only impact of this OLC non-binding opinion (or even the AG's own non-binding opinion) would be advisory, affecting whether the president might decide to sign or veto a bill -- a choice that ultimately is his own to make. Once this bill is enacted, I can't see what role the executive branch would even have in executing such a law.

The Congressional Research Service similarly has opined that such legislation is probably unconstitutional. Yet 61 senators -- notably including senators from both parties, and the chairman and ranking member of Senate Judiciary -- have voted in favor of it. Does that mean that the staff attorneys at CRS, or staffers who disagree with their senators on this matter, are obliged to fall on their swords? I don't think so.

Although I do disagree with this legislation on the constitutional merits, I have to recognize that there are colorable argument for it which have been made by both liberal Democrats and conservative Republicans. And ultimately, everyone seems to agree, the Supreme Court will likely have the final word. (Although I wish someone would explain with surety who will have standing to challenge such an act in court.)

Some have argued here that a president cannot sign a bill about which he has any constitutional doubts. I don't believe that either. Just as a president might refuse to execute a law his thinks is unconstitutional to tee up a test case for ultimate judicial review -- under standing, formal advice from OLC that has been published -- I think a president might sign a controversial bill knowing that the Supreme Court likely will decide the matter.
4.4.2009 1:17pm
My Middle Name Is Ralph:

(Although I wish someone would explain with surety who will have standing to challenge such an act in court.)


I would think that, at a minimum, any member of the House of Representatives would have standing. By adding an allegedly unconstitutional extra rep, the vote of every other rep is diluted.
4.4.2009 5:43pm
My Middle Name Is Ralph:

Certainly the Attorney-General can override an OLC opinion. Has an AG ever done that before, though?


1. The OLC opinion is reportedly not a final, formal opinion. I myself have doubts about whether this is a dodge, but if you accept it, then it doesn't even make sense to talk about overriding something that hasn't even been finally decided.

2. Even if you believe the OLC opinion really is final and formal in all but name, I don't see how what Holder is doing is "overriding" it. The OLC opinion still exists. It hasn't, to my knowledge, been withdrawn or revised. It is not and cannot be binding in any sense with respect to the constitutionality of a prospective law or whether Obama decides to veto the bill, whether Holder "overrides" it or not. It's just an opinion meant to inform the President (albeit from some pretty smart people whose job is to do this sort of thing). Holder disagrees with the opinion, as do Starr, the ABA, and lots of other smart lawyers. Disagreeing and overriding are not the same thing.
4.4.2009 6:00pm
Oren:



In regard to your comment about OLC filing briefs against the administration's position, that would be a huge violation of the tradional unitary executive. E

The unitary executive refers to action, not opinion.
4.5.2009 8:28pm
Gerry Wenham (mail):
"All of this ink and time being spent on giving the residents of the District of Columbia a 'full voting representative' in the House of Representatives. What exactly have the residents of the District of Columbia been denied as a result of not having such a representative?"
Simple answer: They have been denied the exercise of their inalienable (innate, inherent, intrinsic) rights as citizens of this nation to participate equally in this participatory form of government which all other citizens enjoy. They are Governed Without Consent. They seek Equality, Nothing More, and will settle for Equality, Nothing Less.
They are denied recognition and respect for their inalienable right (which cannot be sold, traded, or taken away, an arbitrary, anachronistic, and artificial provision of the Constitution notwithstanding) to consent to the laws under which we all must live, to be heard in the national consensus which we develop via our national legislature.
Denying DC the opportunity to either grant or withold Consent over the laws under which we all must live (as exercised by all other citizens in the fifty states) leaves the power exerted by Congress over the District both illegitimate and tyrannical. Recall that our Constitution, as originally written, denied these same fundamental rights to blacks and women, too. We have corrected that over time as we strive for "a more perfect Union." The task is not yet complete.
4.6.2009 12:18pm
Gerry Wenham (mail):
Q. If allowing the exercise of the inalienable rights of DC denizens to equal representation is unconstitutional, what is denying the exercise of these inalienable rights?

A. Unconscionable
B. Illegitimate
C. Tyrannical
D. All of the Above


Correct Answer? D. All of the Above
4.6.2009 12:26pm
Oren:
Gerry, the question is not whether they deserve representation, but how to get from here to there. If our task it to create a more perfect union, you haven't explained how we might actually implement that task.

So, instead of giving us rhetoric about the current state of affairs, suggest a concrete plan of action that will take us to a better one.
4.6.2009 1:27pm

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