In the course of its usual task of reviewing pending legislation to
identify constitutional problems, OLC determined that the D.C. voting rights
bill, which would give the District of Columbia a voting member in the House of
Representatives, is unconstitutional. The acting head of OLC, David Barron -- a
liberal Harvard law professor appointed by Holder -- signed an opinion setting
forth OLC's conclusion. That conclusion is no surprise, as it has been the
Department of Justice's consistent position, under presidents of both parties,
at least as far back as Attorney General Robert F. Kennedy in 1963 and as
recently as two years ago.
The OLC followed consistent prior findings of the Justice Department that the proposal to give the District of Columbia a voting member in the House is unconstitutional.
The Attorney General overruled that decision. The Attorney General certainly has that authority the Office of Legal Counsel only acts pursuant to delegation of authority from the Attorney General. However, Whelan contends that there is a right way and a wrong way for the Attorney General to overrule the OLC.
Attorney General Eric Holder took the wrong course. "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."
Instead, Holder simply asked the Deputy Solicitor General if his office could defend the statute in court. Since the test of such defense is simply whether a colorable argument exists that can be made without embarrassment, he got the response he wanted. Of course, the Solicitor's office could defend the statute in court.
That was not the proper question to provide a basis for overturning the considered judgment of the OLC that the statute was unconstitutional.
