As Eric Holder leaves office, I want to remind readers of a decision that was a startling breach of legal regularity. It concerned the Attorney General’s core obligation to help the President carry out his constitutional duty “to take care that the laws be faithfully executed.”
The incident arose from a bill that purported to give the District of Columbia voting representation in the House of Representatives. Because the President has a constitutional duty to sign or veto bills, the Office of Legal Counsel (OLC) at the Department of Justice reviews all serious bills for their constitutionality. (I myself oversaw this process for several years in the Reagan and first Bush administrations.) It was widely reported that at the beginning of the Obama administration OLC opined that this bill was unconstitutional. That position is not surprising. The Constitution gives only states voting representation chosen “by people of the several states.”
Attorney General Holder disregarded the OLC opinion to permit the administration to support the bill. He could have legitimately overruled the Office of Legal Counsel and stated that the bill was constitutional, if that were his reasoning under law. The Office of Legal Counsel is only the delegate of the Attorney General, and Attorneys General themselves have issued many opinions over the course of our history. But Attorney General Holder wrote no opinion and instead shopped around for another view. The Acting Solicitor General told him that the law giving D.C. statehood could be defended in court, although there is no evidence he committed this view to writing.
The statement that a law can be defended is a far cry from saying that law is constitutional. The first question is one merely of professional responsibility, the second is crucially one of legality. The Solicitor General traditionally focuses on the first question, whereas the OLC answers the second. The difference in bureaucratic functions reflects a key difference in the standards for signing legislation and defending legislation that has already been enacted. OLC is helping the President to “take care that laws be faithfully executed,” assuring that the Constitution takes precedence over proposed legislation in his decision about whether to sign or veto a law. The Solicitor General, in contrast, writes briefs in which the Supreme Court will decide questions of constitutionality. The Attorney General’s action showed that he was willing to subordinate the rule of law and the bureaucratic structure that protects it to his policy preferences.
I cannot imagine an Attorney General’s behaving in such a fashion in administrations in which I served. I know of no similar instances in which the Attorney General overruled OLC on this basis in any other administration since OLC was separated from the Solicitor General’s Office in the 1930s. And I am confident that if such an action occurred in a Republican administration, we would have heard a lot more adverse comment from the press and the professoriate.