Not the Change We Need: Part VII in a Continuing Series

In a depressing turn of events, Attorney General Holder has overridden career lawyers at the Justice Department to determine that the bill currently pending in Congress that would give the District of Columbia a vote in the House is constitutional. From the Washington Post:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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.

The District of Columbia, as a principle of justice and democracy, is clearly entitled to voting representation in the Congress. It is unacceptable that this hasn’t been addressed earlier. However, an end-run around the Constitution is equally unacceptable. A constitutional amendment is the appropriate method to grant the vote.

That said, my concern is not that Eric Holder has reached a conclusion that it is constitutional. My concern is that he did so in conflict with the conclusions of the OLC. Political or policy ends must not be used to override sound legal reasoning. This is true whether that occurs within the OLC (as with the many Bush-era memos pertaining to detainee rights and Presidential power) or around it. There is a legitimate legal debate over the validity of this bill, and given the actions of the current Congress it appears it that the question will be heard by the courts.If so, the Justice Department should defend it as with other federal laws. However, it is very disappointing to see the Obama Administration override career lawyers for a political end. The OLC’s determination that the bill was unconstitutional could have scuttled its passage. Reversing the opinion to help get the bill through Congress is inappropriate.

A politicized Department of Justice is not the change we need.

Note: For those of you counting, part VI of this series (a special two steps forward, one step back edition) got lost in the shuffle and is thus outsourced entirely to Glenn Greenwald and Jonathan Turley (on Rachel Maddow).

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2 CommentsLeave a comment

  1. Q. If allowing the exercise of the inalienable rights of DC denizens to equal representation is unconstitutional, what is denying the exercise of these inalienable rights?
    A. Unconscionable
    B. Illegitimate
    C. Tyrannical
    D. All of the Above

    Correct Answer? D. All of the Above

    • Agreed.

      Unfortunately, we can’t go fixing injustices by circumventing the Constitution. There are other ways to give DC residents representation, whether though a constitutional amendment or retrocession. More importantly, this isn’t even equal representation, because they would remain unrepresented in the Senate. It is an intolerable injustice, but running roughshod over the Constitution to fix it is shortsighted. And, of course, there is no guarantee that the law would survive a court challenge, meaning years wasted that could be spent ratifying an amendment. Anything worth doing is worth doing well.


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