Justice Department lawyers concluded in an unpublished opinion earlier this year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.
One can easily imagine the outcry if a Republican Attorney General had taken such an action against the advice of a Justice Department lawyers.
The story describes conflict within the departments in Justice:
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.
Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration's position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general.
The Office of Legal Counsel found the proposal to be unconstitutional, just it had under President Bush. Holder then asked the Solicitor General's Office for an opinion. They opined that they could defend the position in court.
These are radically different questions. A lawyer may recommend that a proposal is unconstitutional and should not be enacted but can be defended in court if it is enacted. The first represents their advice as a lawyer as to whether the action should be taken. That latter only requires that a good faith argument of constitutionality exists. The lawyer may readily agree that the court should rule against the position advocated, but still think that a good faith argument for the position exists.
If the Post accurately describes the Solicitor General's Office's opinion - "that they could defend the legislation if it were challenged after its enactment," General Holder should not have overruled the opinion of the Office of Legal Counsel. Doing so constitutes a gross politicization of the office of Attorney General.
The Post article includes this comment: "M. Edward Whelan III, who was a deputy at OLC during the Bush administration, said when informed of the matter that Holder's decision to override the office's conclusions amounted to a 'blatant abuse' of the office's purpose."
Clearly, the Attorney General has the authority to take the action he took. If the OLC indicates that the proposal is constitutional, he has some plausible argument to support his decision. If, however, it only says that an argument exists to offer to the courts, as indicated by the Post, he has no real support for his position, except his own unsupported opinion that is contradicted by his own lawyers.
