The Corner

Re: Obama’s New Deal

Jonah (in his update) raises a point I wish I had thought of earlier, and it dovetails with the double-standard that Hans was personally victimized by and which I got clobbered by — though over a legal issue, not by personal attack.

Here on the Corner back in January, Ramesh and I were discussing the circumstances under which DOJ should defend an Act of Congress. We were talking about enacted legislation that had been signed into law, but what I am about to contend would be equally applicable to the anticipated enactment of the D.C. voting-rights bill which, especially now, will almost surely become law.

As I noted back in January, I was involved back in 1999 — i.e., the last time Holder was running the Justice Department — in an intra-Department dispute over Dickerson v. United States. The case involved a recidivist felon who had been convicted of bank robbery based on a confession obtained voluntarily but without proper Miranda warnings. The Miranda violation was totally irrelevant to the voluntariness of the confession — this guy had been arrested so many times he could have recited the Miranda warnings better than the cops. 

Significantly, for 30 years, the Supreme Court had been holding that Miranda was not part of the core Fifth Amendment guarantee against coerced confessions; it was merely a “prophylaxis” around the core right not to have one’s will overborne by the police. What was little known, however, was that the year after the Warren Court decided Miranda, an outraged Congress reversed the ruling by a statute (Section 3501 of the federal penal code), which basically held that if the police did not comply with Miranda, a confession could still be admitted at trial if the court was convinced that it had been given voluntarily. No one knew about the law because the Justice Department, under both parties, ignored it and police institutionalized Miranda — so the issue of voluntary, non-Miranda confessions didn’t get litigated all that often.

But it did come up with Mr. Dickerson. A number of us knuckle-dragging types pleaded with the Clinton Justice Department to defend this act of Congress. By law, courts accord federal statutes a presumption of validity that is overcome only if there is no plausible construction that would save the statute from constitutional infirmity. Quite apart from this presumption, there was, as described above, a very strong argument that Section 3501 was constitutional: Where the Supreme Court holds that a procedure it fashions — i.e., invents — is not part of a constitutional guarantee, Congress is at liberty to amend or repeal it as Congress sees fit. At stake, furthermore, was the conviction of a dangerous criminal; if vacated, the criminal would be back on the street, preying on the public. 

Nevertheless, Miranda — a truly preposterous legal decision — is a sacred cow of the Left. If the Justice Department had abandoned it, major Democrat constituencies would have gone nuts. So Holder’s Department refused to defend the statute and actually argued in the Supreme Court that a conviction and sentence won by its own federal prosecutors should be reversed. As is apt to happen when the Justice Department discredits its own case, the justices went along for the ride.

See the pattern? When enforcement of a patently defensible statute would undermine the progressive agenda, the statute goes under the bus; when enforcement of a patently unconstitutional statute would further the progressive agenda, the presumption of validity lives and the statute need only pass the laugh-test (though I don’t think the D.C. voting-rights bill meets even that low bar). 

But other than that, Holder would never play politics with the law, nosiree.

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