April 01, 2009

Eric Holder Opinion Shopping at DOJ

The Washington Post reports that Attorney General Eric Holder has rejected the opinion of Justice Department attorney's that the D.C. voting rights bill now pending in Congress is unconstitutional.  Holder, who supports the bill, is now left with shopping among other DOJ lawyers for an opinion he agrees with.  The Post notes the "what if Bush did it?" moment this creates for the Obama administration.

Holder's decision to get involved may expose President Obama's Justice Department to some of the same concerns raised by Democrats during George W. Bush's presidency.

Democrats claimed then that political considerations infused decisions on subjects including environmental regulations and national security policy. In particular, Bush's OLC drew criticism when lawyers allegedly shaped their analysis on harsh interrogation tactics and warrantless eavesdropping to fit the views of superiors in the White House.

M. Edward Whelan III, who was a deputy at OLC during the Bush administration, said when informed of the matter that Holder's decision to override the office's conclusions amounted to a "blatant abuse" of the office's purpose.

It may not matter what any of the lawyers say anyway, because Holder has apparently already made up his mind.

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."
I guess what the boss wants the boss gets. 

The Heritage Foundation takes up the issue of the bill's constitutionality.

Article I specifies that "Representatives . . . shall be apportioned among the several States," and this is confirmed in Section 2 of the 14th Amendment. One of the qualifications to be a congressman is to "be an Inhabitant of that State in which he shall be chosen."

Congress itself has recognized that the only way the District of Columbia could get representation was through a constitutional amendment -- Congress passed one in 1977 (the amendment failed to gain the approval of 38 states, and thus didn't take effect).

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