Some in Justice Department See D.C. Vote in House as Unconstitutional

By Carrie Johnson
Washington Post Staff Writer
Wednesday, April 1, 2009

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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

A finding that the voting rights bill runs afoul of the Constitution could complicate an upcoming House vote and make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted. The bill, which would give the District a vote in the House for the first time, appeared to be on the verge of passing last month before stalling when pro-gun legislators tried to attach an amendment weakening city gun laws. Supporters say it could reach the House floor in May.

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.

Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration's position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general.

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."

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.

Questions over the constitutionality of a D.C. voting bill have dogged the proposal throughout its journey through Congress. Some legal experts say that because the District is not a state, the proposal does not square with a constitutional requirement that House members be chosen "every second year by the people of the several states." Others argue that the Constitution gives Congress broad power over the District, including the ability to grant it a full House seat.

Both Holder and Obama have expressed support for D.C. voting rights in the past. In an interview earlier this year, Obama described himself as a "strong proponent" of giving the District voting representation in Congress. As a U.S. senator, he co-sponsored a similar measure two years ago. Signing the legislation would represent a political victory for him, even if the Supreme Court later reversed the law, said sources who spoke on the condition of anonymity because the controversy is sensitive and ongoing.

Holder, who has lived in the District for more than two decades, co-signed a 2007 letter with other prominent lawyers supporting D.C. voting rights legislation.

The measure would create two new permanent seats in the House, one for the District and one for Utah, although that seat could transfer to a different state based on the results of the 2010 census.

In 2007 testimony before the Senate, Bush lawyer John P. Elwood said that the D.C. voting rights legislation was not constitutional because the District is not a state.

"In the absence of a constitutional amendment, therefore, the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation," he told lawmakers.

Advocates of the measure note that its constitutionality has been endorsed by powerful legal voices, including the American Bar Association, former federal appellate judge Kenneth W. Starr and former Justice Department lawyer Viet D. Dinh. Starr and Dinh have written a legal brief supporting the bill.

Supporters note that courts have often treated the District as if it were a state, addressing, for example, questions of whether D.C. residents are subject to laws governing federal taxation, interstate commerce and the right to a jury trial.

The Office of Legal Counsel remains a source of intense interest in the legal community and on Capitol Hill, where Senate Republicans have delayed a vote to confirm Dawn Johnsen, an Indiana University law professor nominated to lead the office. Johnsen, who served as acting leader of the office during the Clinton administration, has been a vocal critic of political influence there and has advocated for more transparency in the work of its lawyers.

A dispute over advice from the office inspired one of the most dramatic episodes of the Bush administration, when then-White House counsel Alberto R. Gonzales rushed to the bedside of ailing Attorney General John D. Ashcroft in 2004, in an unsuccessful effort to get him to overrule OLC opinions about the government's warrantless wiretapping program. More than half a dozen law enforcement officials threatened to resign if the president ignored OLC conclusions that the program was illegal.

At his confirmation hearing in January, Holder promised to review OLC opinions issued by the Bush administration. "We don't change OLC opinions simply because a new administration takes over," he said. "The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law."

Staff writer Mary Beth Sheridan, research editor Alice Crites and researcher Eddy Palanzo contributed to this report.

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