Has anyone in the Obama administration even read the Constitution?
Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.
A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.
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.
Both Andrew McCarthy and Ed Whelan have weighed in on this at NRO. Both men worked for Justice during previous presidents, and have a good grasp of what is and isn't improper in the role of the AG. Ed writes, in part:
According to the article, the new OLC—led by deputies (including very liberal legal academics) selected and appointed by the Obama Administration—reached the same conclusion that OLC had reached under the Bush Administration two years ago: the bill is unconstitutional. But dissatisfied with this answer, Holder turned to the Solicitor General’s office to ask it the very different question whether it “could defend the legislation if it were challenged after its enactment.”
Holder wasn’t asking the SG’s office for its best view on whether or not the bill was constitutional (a role that belongs to OLC, not to the SG). He was asking it merely whether the position that the bill is constitutional is so beyond the pale, so beyond plausible defense, so legally frivolous, that the SG’s office, under its traditional commitment to defend any Act of Congress for which any reasonable defense can be offered, wouldn’t be able to defend it in court. And based on the virtually meaningless answer from the SG’s office that it could defend the legislation, Holder overrode the OLC opinion. ...
From today’s Post story, it appears that on the D.C. voting rights bill Holder has ignored the “best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be” and has imposed a “political process” designed to advance his, and the Obama Administration’s, policy position in favor of giving D.C. a vote in the House of Representatives.
The Post article quotes me, correctly, as labeling Holder’s decision to override OLC’s advice a “blatant abuse” of OLC. That judgment of mine is based on the narrative above (which the reporter recounted to me). I recognize that OLC exercises authority delegated by the Attorney General to give binding legal advice and that Holder, as Attorney General, has the ultimate (and rarely exercised) authority to override OLC. But the Post story indicates that he has done so on improper grounds and through improper processes.
This is an unconstitutional measure. The District of Columbia is under the legal purview of the Congress. The Framers set it up that way for a reason. We both addressed the DC voting rights initiative last month; Marcie's post is here, mine is here. In both posts we explain the history behind this push, and the unconstitutionality of the Congress trying to push this through as a law rather than a constitutional amendment. That is the only way DC will legitimately get a vote in Congress because Article I, Section 8, Clause Fifteen can't simply be overruled by a simple law. It must be amended.
Eric Holder is out of line, but given the morons at the top of the ladder, do we expect anything less? After all, when the gatekeepers are this incompetent we can't really fault them for their inability to read. Hell, I'd be willing to be this bunch has never read the Constitution, ever.
HT to DrewM. at AoSHQ