Holder, OLC, and the DC Voting Rights Bill:
The Washington Post
Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.
A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.
In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.
Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.
I don't quite know what to make of this story, not being so familiar with how OLC reviews proposed legislation. First, are OLC opinions about the constitutionality of proposed legislation normally binding on the executive? OLC opinions on interpreting enacted legislation are binding on the executive branch, but I don't know if opinions on the constitutionality of proposed legislation are generally treated the same way. And what is the AG's usual role in reviewing OLC opinions about proposed legislation? I'm not really sure.
Hat tip: Ed Whelan,
who has more on this.
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.
D.C. Voting Rights & OLC:
Thursday's Washington Post had a follow up story on the OLC opinion that legislation to provide voting representation for the District of Columbia in the House of Representatives is unconstitutional. According to the story, the OLC opinion was approved by a political appointee, namely Deputy Assistant Attorney General David Barron. The story also notes that Senator John Cornyn (R-TX) sought a copy of the OLC, but was rebuffed on the grounds that it was a preliminary document, and "not the final, formal opinion."
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.
Tomorrow's Washington Post will feature an op-ed by former OLC deputy Edward Whelan strongly criticizing Attorney General Eric Holder
At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department's high standards. He specifically promised not to politicize DOJ's legal positions: "We don't change OLC opinions simply because a new administration takes over," he said. Any review "will not be a political process, it will be one based solely on our interpretation of the law."
Alas, less than two months into his tenure as attorney general, according to accounts in The Post last week, Holder has abused OLC for partisan political purposes. . . .
it's legitimate, if exceedingly rare, for an attorney general to contest OLC's advice. The office is, after all, exercising the advisory function the attorney general has delegated to it. But there's a right way to overrule OLC, and then there's Holder's way. The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder's position was in fact the best reading of the law — an extremely unlikely conclusion, in my judgment — then Holder would sign a written opinion to that effect.
Holder instead adopted a sham review that abused OLC's institutional role. . . .
This episode recalls Holder's conduct regarding the Marc Rich and FALN pardons when he was Deputy Attorney General, and fails to meet the standard Holder set for himself at his confirmation hearing.
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 John McGinnis comments on Attorney General Eric Holder's treatment of OLC over the constitutionality of legislation to grant D.C. representation in the House of Representatives.
If the Attorney General believed that this opinion was wrong, he could overrule it. Attorneys General previously have themselves rendered legal opinions. An opinion would provide a measure of accountability because General Holder would have to sign his name to a legal document that purported to show how to get around the Constitution's clear requirement. Indeed, the Obama administration has argued that increasing the transparency of the legal process within the executive branch will increase respect for the rule of law. What better testament to that transparency than to allow us to compare the reasoning of the Attorney General with that of his own legal counsel?
Instead, the Attorney General asked the office of Solicitor General at a time when there was no confirmed Solicitor General whether that office would be willing to defend the statute, if passed. The Solicitor General's office has a long history of defending legislation if there is any credible basis for doing so. But it never opines on the constitutionality of pending legislation, because the question for the President in signing a bill is not whether the legislation might be defended by some argument in Court but whether the legislation is constitutional, not whether some Court might uphold it, but whether the President should give it his own unique constitutional imprimatur.
Holder's Obligations and the DC Voting Rights Bill:
A lot of conservatives are criticizing AG Eric Holder for apparently taking the position that the DC voting rights law is constitutional when OLC thinks it is not. There's an angle to the story that I haven't seen addressed, though, at least on the right: Does Holder have an obligation to oppose the bill if he thinks its passage is the best step to a constitutional amendment to add DC voting rights?
Here's my thinking. We know that AG Holder favors voting rights for DC as a matter of policy. Let's also assume that he knows that the bill is probably going to be struck down. If that's right, Holder may logically believe that the best way to get a constitutional amendment passed to secure DC voting rights would be to have this bill passed into law and then struck down. If the bill is passed, and the Supreme Court strikes it down, the publicity and focus of a Supreme Court case may go a long way towards gathering political support for a constitutional amendment. Rick Hasen recently made this argument in Slate
Rejection by the court would put the issue on the front burner. Obama could then push for quick passage of a constitutional amendment in Congress and the states. He could remind people that many of our most important advances to voting rights have come through constitutional amendment, including enfranchisement of African-Americans, women, 18-year-olds, D.C. residents (in presidential elections), and those too poor to pay a poll tax to vote in federal elections.
If that's what Holder is doing, then it seems to me that the debate over his decision is really about the somewhat academic question of the nature of an Attorney General's constitutional obligations, rather than the question of whether Holder is "politicizing" DOJ.
Challenging the Constitutionality of the D.C. Representation Bill:
Some defenders of the proposed legislation to grant the District of Columbia voting representation in Congress argue that whether the statute is constitutional is a question that should be left to the courts. I find this problematic on multiple grounds. First, all three branches have an obligation to ensure that their actions are constitutional -- all take an oath to uphold the constitution. Second, not all federal government actions are amenable to judicial resolution (see, e.g., the post below). Some questions about the constitutionality of executive or legislative action can only be resolved by the political branches. Thus, if the executive does not make an independent effort to ensure that it is acting in accord with the constitution, there will be instances in which there is no assurance that the Executive is, in fact, acting constitutionally, because there is no judicial oversight.
While it may be appropriate for the executive branch to show some degree of deference to the independent determination of the legislature about a bill's constitutionality -- as some Founders did -- the Executive still has an independent obligation to assess the constitutionality of proposed legislation, particularly where (as here) the Executive may be the last word on proposed legislation's constitutionality. This does not mean that the President is obligated to follow OLC's lead, but it does mean the President does have an obligation to consider the constitutionality of legislation before he signs it (and, in my view, the President has an obligation to veto legislation he believes to be unconstitutional -- an obligation quite a few Presidents have violated).
In the present case, it is unclear whether anyone would have standing to challenge the constitutionality of the proposed legislation. In Raines v. Byrd, the Supreme Court held that members of Congress did not have standing to challenge the constitutionality of legislation creating the line-item veto, even though the legislation had the effect of lessening their political influence. I think Raines is potentially distinguishible, as there is a more direct "vote dilution" claim here, but it's anything but an open and shut case.
Calvin Massey is more optimistic that either House members, or perhaps a state, would have standing to challenge the bill. He writes:
There are several possible entities with standing. After Massachusetts v. EPA states have standing, as parens patriae, to secure the benefits of federal union to their citizens. One of those benefits is a Congress composed of representatives of the states, and only the states. A Congress that includes representatives from the federal district is not such a Congress. Any state has standing to challenge the validity of the act. It is also possible that members of the House have standing to challenge the validity of the act. In Raines v. Byrd members of Congress lacked standing to challenge the Line Item Veto act on the ground that their votes were rendered ineffective, because their votes "were given full effect. They simply lost that vote." But in this case, a House member's vote is not given full effect, because it is diluted by the vote of an imposter -- a "member" who is not entitled to be a member.
These are reasonable arguments. (I particularly like the reliance on Mass v. EPA
.) Still, I wonder whether the Court would insist that a party asserting standing identify a specific instance in which the diultion of their vote had an influence on specific legislation, much as the Supreme Court waited for a plaintiff to identify a specific vetoed item before hearing a challenge to the line-item veto act. Perhaps we'll see.
Constitutional Obligations and Signing Statements:
In the wake of the controversy over Eric Holder's apparent decision to support the DC voting rights bill despite its likely constitutional problems, a lot of conservatives are advocating a position of strict constitutional duty: If the executive branch believes that part of a bill is unconstitutional, the executive must vote against the legislation. To do otherwise is to subvert the constitution and violate the constitutional oath.
If you identify as a conservative and you feel that way, I have a question: Where were you during the Bush Administration? President Bush repeatedly signed legislation accompanied by signing statements
indicating that the President believed that many parts of the laws were unconstitutional. As I understand it, the Bush Administration's approach was to sign the legislation despite the constitutional defects, with the stated intention to not follow the parts believed to be unconstitutional. To conservatives who think Holder's apparent support for the DC voting rights law subverts the constitution, I'm curious, what did you think of the former President Bush's regular practice of approving legislation he thought was unconstitutional?
UPDATE: Some commenters argue that the key difference is severability: It's okay to sign unconstitutional legislation if the unconstitutional parts are severable, but a violation of the constitution to sign legislation if the constitutional parts are not severable. It's an interesting idea, although I suppose it means that the arguments are much more technical than I had thought. Is that's the objection, then the DC Voting Rights Bill can simply be joined with another bill that is constitutionally uncontroversial.
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 much ado about nothing. Whereas some commentators may have overstated the case, I think Tushnet may be understating it.
Based on what we know, OLC issued a signed opinion reiterating its prior conclusion that the pending legislation is unconstitutional. Presumably this opinion was in response to a request from the Attorney General or someone else. Then, according to most press accounts, Holder sought other opinions, albeit on a slightly different question. Tushnet is correct that the AG may seek advice from whomever he likes, but it is certainly the case that OLC has traditionally been charged with researching these sorts of questions. Further, based upon press reports, and the opinions of former OLC attorneys (e.g. Ed Whelan and John McGinnis), Holder's actions were contrary to established procedures and undermined OLC's traditional role within the Department. Of course, these conclusions are based upon news reports, which may themselves be inaccurate. Thus, I've posted every story I've seen that sheds light on what occurred in this circumstance, and will continue to do so, and repeatedly noted that my conclusions are based upon what has been reported in the press or detailed by OLC alums.
According to Tushnet, there's nothing for the AG to do until a bill lands on the President's desk. I disagree. If OLC is to perform its historic role, it needs time to examine complex legal issues. Thus, it must begin to analyze potentially problematic legislation well before it is enacted. And, in fact, it is quite common for OLC to evaluate proposed legislation before it is enacted. By the same token, if the AG is inclined to overrule an OLC opinion — and if, as Tushnet notes, it is "good practice" for the AG to issue an opinion if he is disregarding or overruling OLC's conclusions — then he better get cracking well before legislation passes both houses of Congress, particularly if we expect such a memo to substantively address the relevant legal issues. In this case, it appears the AG did initiate such an examination, and sought to contain the damage of an unfavorable OLC opinion in what OLC veterans have characterized as a violation of established procedures. Again, this is what the press reports suggest, and Holder's actions here are characterized by former OLC attorneys as untraditional. If Holder's actions were different from what has been reported, then he may have done nothing improper.
I certainly agree with Tushnet that the President is free to disregard the AG's (and OLC's) advice, and that the rejection of an OLC memorandum does not, in itself, constitute a violation of the President's constitutional obligations. I also agree that the President can (and should) give some degree of deference to Congress on close constitutional questions. In this regard, I have little problem with the Dellinger memorandum. But I don't think this is what is at issue here. The question is whether Holder acted to undermine or overrule a signed OLC memorandum in an improper fashion for political reasons. Hence, the primary charge is that Holder is "politicizing the Justice Department," not that he is inducing the President to violate his constitutional obligations. I should also note that this episode resembles Holder's conduct with regard to the Rich and FALN pardons, in which he allegedly bypassed traditional procedures in order to smooth the way for a desired outcome, far more than it does the controversy over OLC's national security memoranda. Indeed, when John Ashcroft was Attorney General, he accepted OLC conclusions that went against administration policy, and backed OLC against the White House. (See, e.g., Angler by Barton Gellman.)
Let me also note another point on which Tushnet and I are in total agreement: There is no implication that OLC did anything untoward or improper in this case. Quite to the contrary, OLC appears to have operated in accord with its traditional obligations. Further, as I have said before, I have no reason to believe that the outcome within OLC would have been any different had Dawn Johnsen been at the helm of OLC.
UPDATE: Mark Tushnet responds in the comments below, and Ed Whelan adds his thoughts on Bench Memos.
For myself, let me just note that the April 1 Post story cites the Justice Department for the proposition that Holder has, in fact, rejected the OLC opinion, a point reiterated (again citing Holder's spokesperson) in the April 2 story. So, unless the Post is misrepresenting the Justice Department, the OLC memo has, in fact, been rejected. Further, the April 3 story reports "Aides to the attorney general said they have no specific plans to draft a new opinion on the bill." So, whatever else may or may not have occurred, it seems fairly clear at this point that Holder a) rejected the conclusion adopted in a signed OLC memo, and b) has not, and has no plans to, issue an opinion explaining the basis for his decision.