Bench Memos

Defending the Indefensible

During Attorney General Eric Holder’s confirmation hearings, General Holder decried the politicization of the Department of Justice, declaring, “I will work to restore the credibility of a department badly shaken by allegations of improper political interference . . . Under my stewardship, the Department of Justice will serve justice, not the fleeting interests of any political party.” This echoed a similar theme that then-senator Barack Obama sounded on the 2008 campaign trail; he would not overly politicize the Department of Justice, and “was a constitutional law professor, which means that unlike the current president I actually respect the Constitution.”

The Supreme Court’s oral arguments last week in Arizona v. United States highlight one more instance of how much the Obama administration has failed at keeping these promises. As Byron York asked on Twitter last week, is DOJ’s Solicitor General “Donald Verrilli bad at his job or just burdened by having to defend the indefensible?” Evidence suggests the latter.

Arizona revolves around the constitutionality of the controversial Arizona immigration statute, that mandates local-police enforcement of federal immigration laws. The administration argued that the law violated the Supremacy Clause, which prohibits state laws that conflict with federal laws. 

As John Hinderaker pointed out on Wednesday, even Justice Sotomayor was openly skeptical of the DOJ’s argument, telling Solicitor General Verrilli to put aside an argument that was “not selling well,” and “try to come up with something else.” Later on, Justice Kennedy wondered if Verrilli was arguing that the “government has a legitimate interest in not enforcing its laws.” Justice Scalia followed up Verrilli’s largely incoherent response by asking if “we have to enforce our laws in a manner that will please Mexico.” 

The DOJ’s politicization is becoming a noticeable pattern. Their greatest hits include:

  • Defending the government’s ability to ban books. In the Citizens United oral arguments, a DOJ lawyer claimed that the national government can ban books published by corporations if they contain political advocacy. The Court was so disturbed that they scheduled a second oral argument, where the DOJ “clarified” their position.

  • Outright hostility toward religion. In Hosanna-Tabor, the Supreme Court unanimously rejected the DOJ’s argument that, for employment-discrimination cases, “the court’s analysis should be essentially the same whether the employer accused of discrimination was a labor union or a church.” As my colleague Carrie Severino explained, the DOJ’s position would implicate religious organizations, such as the Catholic Church, that “fire or refuse to hire ministers for ‘illegal’ reasons, such as sex or ethnicity . . .” Even the liberal justices understood how extreme this position was; during oral arguments, Justice Scalia characterized the DOJ’s position as “extraordinary,” and Justice Kagan added, “I, too, find that amazing.”

  • Rejecting judicial review. As I previously mentioned, in Sackett v. EPA, in another unanimous rebuttal, the Supreme Court rejected the DOJ’s argument that property owners have no right to judicial review of the EPA’s prohibition of certain land uses.

  • Flimsy legal argumentation in pursuit of political ends. As I’ve noted before, the DOJ pressured the City of St. Paul to drop a challenge to the “disparate impact” standard in Fair Housing Act litigation, for fear that the Court would accept their argument. Elsewhere, the DOJ filed such a weak case against a pro-life sidewalk counselor that the court fined the DOJ $120,000 for filing the suit in the first place. The judge was so incensed that he wondered if the DOJ was complicit in the abortion clinic’s use of the law to intimidate the pro-lifer. For the DOJ to waste our taxpayer dollars on a frivolous (and offensive) lawsuit is a disgrace.

Some DOJ defeats come with the job — they have to defend statutes to the best of their ability, which can be difficult. This is different. Instead, the Eric Holder DOJ is getting walloped for much stronger and farther-out-of-the-“mainstream” legal positions that are often times not necessary to fulfill their legal duty, or even competently advance their agenda within the contours of acceptable policy discretion. Hopefully President Obama and the Eric Holder DOJ will stop trying to defend the indefensible, and focus instead on competently enforcing our nation’s laws. 

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