The nomination of hard-left crusader Dawn Johnsen to lead the Justice Department’s Office of Legal Counsel, the Department’s top legal adviser, is stalled in the Senate. No matter. Attorney General Eric Holder has simply taken the job of politicizing DOJ to reflect the Democrats’ partisan agenda into his own hands.
The Washington Post reports this morning that Holder has overruled OLC’s objective, well-reasoned, constitutionally rooted opinion that the controversial D.C. voting-rights bill pending in Congress is unconstitutional. OLC’s conclusion, if accepted by the attorney general, as is customary, would likely have doomed passage of the measure, which is strongly favored by President Obama and Democrats.
The bill would give the District of Columbia representation in Congress, specifically, one member of the House of Representatives — and, that accomplished, the way would be paved to add two Senate seats down the line. As the District is small and heavily Democrat, this would pull the Congress deeper into Democrat control. But the problem is that the Constitution clearly forbids the scheme. It expressly provides, in Article I, Section 2, “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” (Emphasis added.) The District of Columbia is not a State. It is thus ineligible for representation in the House. (By the way, Art. I, Sec. 3, similarly provides that senators shall come “from each State, elected by the people thereof.”)
As NR’s editors have observed (and as Matt Franck has recounted at NRO’s Bench Memos — see this post, which cites to several of his others), the point of creating a non-state district as the seat of the national government was precisely to avoid one state’s having too much influence over that government. Times may have changed — the national government is far more consequential now than it was then — but the Constitution hasn’t.
It is, moreover, simply preposterous to argue, as supporters of the legislation do, that the Constitution’s vesting in Congress of exclusive jurisdiction and rule-making authority over the District empowers it to award the District seats in a federal legislature expressly designed to represent citizens of the states. George Will aptly notes that if “Congress’ legislative power trumps the Constitution, . . . Congress could establish religion, abridge freedom of speech and of the press and abolish the right of peaceful assembly in the District.” To the contrary, “The grant of exclusive jurisdiction does not permit Congress to do anything that the rest of the Constitution forbids,” NRO’s editors wrote, “and the rest of the Constitution clearly forbids it to treat D.C. as a state.”
None of this means it is a bad thing to want Americans who live in D.C. to have representation in Congress. There are ways of accomplishing that: amendment of the Constitution, the grant of statehood to D.C., or retrocession to Maryland (part of the District having already been ceded back to Virginia). Aside from being legal, those methods would not create the host of problems that would result from the current legislation (e.g., Why only a member of the House but not two in the senate? Why voting rights for D.C. but not Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands?).
The job of the Justice Department, in any event, is to uphold the Constitution and explain the existing legal terrain so that policy-makers may pursue their preferences within the bounds of the law. That is what OLC does — and what it did here. Holder didn’t like the answer because it didn’t jibe with his partisan political preference. So in an unusual move, he asked for input from the solicitor general (who usually does not weigh in before there is a legal challenge to an enacted statute in court). The SG’s office apparently told Holder it could plausibly defend the D.C. voting-rights legislation. That may be literally true (depending on your definition of “plausible”) in the sense that lawyers are trained to argue both sides of any issue; but it doesn’t mean the legislation should be defended — the Justice Department is supposed to take the most legally sound position, not any position preferred by the president that may pass the laugh-test.
In the Washington Post article, Ed Whelan is quoted describing Holder’s decision as a “blatant abuse” of OLC’s purpose. Ed couldn’t be more right. Holder told the Senate he was strong enough to stand up to the president if the law called for it. But, as I argued prior to his confirmation, his craven performance as Clinton administration deputy AG showed Holder to be “a classic go-along-to-get-along careerist.” Obama and the Democrats want this unconstitutional legislation enacted, and Holder is at their service — and if OLC stands in the way, he’ll stampede OLC . . . just like he stampeded the Pardon Office and the U.S. attorney’s offices when doing Clinton’s bidding so required.