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Eric Holder and the Rule of Law

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.

Reader Discussion

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on October 03, 2014 at 12:22:26 pm

"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."

You are, indeed, a Master of Understatement!!!!!!!!!!

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gabe
on October 03, 2014 at 12:29:27 pm

I slightly modified this post to revise the description of the bill at issue. Thanks to Will Baude for spotting my mistake!

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John O. McGinnis
on October 03, 2014 at 13:10:05 pm

"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."

Is this related to the "take care" clause, or the President's duty to "preserve, protect, and defend the Constitution of the United States"?

The "take care clause" has to do with putting the laws into effect, no?

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Richard S
on October 05, 2014 at 13:55:20 pm

Section 7, Art II creates for the President a **discretionary,** not an obligatory function in the legislative process.

The complaint here seems to be that "expert" advice on the exercise (vel non) of that discretion should be (more?) determinative. That is neither a Constitutional requirement nor implication.

One might take this presentation of the concept of providing "expert" advice on the exercise of unlimited discretion as advocating the existence (or need for) some control upon that exercise.

Disclaimer: This writer is does not favor the trends for expansions of executive powers elicited to expand the Federal Administrative State.

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R Richard Schweitzer
on October 05, 2014 at 14:08:06 pm

Perhaps I should have first pointed out:

"Because the President has a constitutional duty to sign or veto bills" -McGinnis

"If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, . . . " Art. II, Section 7

That is provision for discretion - not "duty."

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R Richard Schweitzer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.