Attorney General Holder is Subverting the Constitution

Attorney General Eric Holder is violating his oath and subverting the Constitution for political purposes:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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

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.

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

“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.”

Attorney General can argue that he thinks this is bill is constitutional until he’s blue in the face, but his won’t be the final decision. His job is to uphold the law, not to interpret it the way he wants based upon his political proclivities. It’s the judiciary’s job to interpret the law and it will be the judiciary that has the final say on whether this bill is constitutional, not AG Holder.

Andy McCarthy weighs in and takes Holder to task for his attempts to maneuver around the Constitution:

The job of the Justice Department, in any event, is to uphold the Constitution and explain the existing legal terrain so that policy-makers may pursue their preferences within the bounds of the law. That is what OLC does — and what it did here. Holder didn’t like the answer because it didn’t jibe with his partisan political preference. So in an unusual move, he asked for input from the solicitor general (who usually does not weigh in before there is a legal challenge to an enacted statute in court). The SG’s office apparently told Holder it could plausibly defend the D.C. voting-rights legislation. That may be literally true (depending on your definition of “plausible”) in the sense that lawyers are trained to argue both sides of any issue; but it doesn’t mean the legislation should be defended — the Justice Department is supposed to take the most legally sound position, not any position preferred by the president that may pass the laugh-test.

Andy also notes that there are other ways of allowing those who live in DC to have representation in the House: amending the Constitution, DC statehood, and retrocession by Maryland. McCarthy also asks if Holder is so keen on circumventing the Constitution in order to allow representation for DC, why not for Guam, American Samoa, US Virgin Islands, and Puerto Rico as well? That’s a good question, and I would argue the answer is based in politics: it probably wouldn’t benefit the Democratic party to do so.

Update: McCarthy expands further on Holder’s history in the Justice Department:

Nevertheless, Miranda — a truly preposterous legal decision — is a sacred cow of the Left. If the Justice Department had abandoned it, major Democrat constituencies would have gone nuts. So Holder’s Department refused to defend the statute and actually argued in the Supreme Court that a conviction and sentence won by its own federal prosecutors should be reversed. As is apt to happen when the Justice Department discredits its own case, the justices went along for the ride.

When enforcement of a patently defensible statute would undermine the progressive agenda [not mirandizing a suspect when he voluntarily confessed], the statute goes under the bus; when enforcement of a patently unconstitutional statute would further the progressive agenda, the presumption of validity lives and the statute need only pass the laugh-test (though I don’t think the D.C. voting-rights bill meets even that low bar).

But other than that, Holder would never play politics with the law, nosiree.

Mr. Jefferson
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