In February I wrote to suggest that the DC Voting Rights Act poses a significant challenge to the view expressed by many regarding the need to “de-politicize” the Justice Department and the Office of Legal Counsel in particular. The reason is that this view squarely conflicts with the political imperative of supporting the Act, which is, to put it mildly, of dubious constitutionality.
Today’s Washington Post reveals that Attorney General Holder consulted with OLC regarding the DC Voting Rights Act and, to my pleasant surprise, OLC adhered to its previously expressed view that the Act is indeed unconstitutional. More unpleasantly but less surprisingly, Holder then proceeded to get an answer that he liked better:
“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.”
Here it should be noted that there is a big difference between asking whether a law is constitutional and asking whether the Solicitor General’s office can defend it. The longstanding position of the Justice Department and the SG’s office is that “[t]he Department appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.” Letter of Attorney General William French Smith to the Honorable Strom Thurmond and the Honorable Joseph R. Biden, Jr., 5 O.L.C. 25 (Apr. 6, 1981). Unless the statute infringes on executive power (which is not an issue regarding the DC Voting Rights Act), the “Department has the duty to defend an act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts.”
Whether or not the DC Voting Rights Act meets this deferential standard, this is not the standard that applies (or should apply) when the Justice Department is asked for its actual opinion on the constitutionality of proposed legislation. This made clear by the “Principles to Guide the Office of Legal Counsel” issued in 2004 by a number of former OLC lawyers, including Dawn Johnsen, President Obama’s nominee to head OLC. The first principle states:
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.
By rejecting OLC’s advice, Holder is clearly signaling that the Obama Administration is no more interested in getting legal opinions inconsistent with its policy preferences than was the Bush Administration. Indeed, his actions compare unfavorably with those of former Attorney General Ashcroft, who famously refused to overrule OLC and other Justice Department lawyers on the issue of warrantless wiretapping, despite intense pressure from the White House to do so.
As for those who believed that the Obama Justice Department would base its decisions on “the rule of law” rather than politics, today’s news provides the following clarification: April Fool!