Justice Lawyers' Opinion Fails to Deter Backers of D.C. Vote Bill

By Mary Beth Sheridan and Nikita Stewart
Washington Post Staff Writers
Thursday, April 2, 2009; B01

Proponents of the D.C. vote bill said yesterday that they were not discouraged by an opinion by some key Justice Department lawyers that the measure was unconstitutional and believed it would not cripple efforts to get the legislation passed.

They were responding to a disclosure in The Washington Post that the department's Office of Legal Counsel had concluded this year that the legislation was unconstitutional. After learning of that, Attorney General Eric H. Holder Jr. sought a second opinion from the solicitor general's office, where a lawyer said the bill could be defended if it became law and faced a court challenge, The Post reported.

The measure is expected to go to the House floor this spring, the office of Majority Leader Steny H. Hoyer (D-Md.) said yesterday.

"This bill unfortunately has gone through the perils of Pauline, and this is the latest peril," said Rep. Gerald E. Connolly (D-Va.), one of the bill's co-sponsors. "But at the end of the day, as you know, Pauline gets saved."

The legislation, which has cleared the Senate, would give the predominantly Democratic District its first voting seat in the House of Representatives. A seat also would be added that would temporarily go to Republican-leaning Utah.

Some D.C. officials reached yesterday said they were unperturbed about the wrangle in the Justice Department.

"It sounds to me like we have the support of the attorney general. As long as our citizens have the support of the person in charge, I think it's great news," said Mayor Adrian M. Fenty (D).

Other officials, including Hoyer, suggested that Holder was simply being cautious. The attorney general "exercised prudence in seeking broad counsel on a question for which there are competing legal arguments," he said.

But what Holder did was more unusual, according to legal experts. The Office of Legal Counsel is an elite unit that gives legal and constitutional advice to the executive branch.

Holder, a D.C. resident, and President Obama (D) back the effort to give the District a vote in Congress. The bill has been opposed by most Republicans.

A spokesman for House Minority Leader John A. Boehner (R-Ohio) said the legislation was "clearly unconstitutional."

"We certainly hope that the news that the attorney general had to put partisan pressure on Department of Justice lawyers to ignore that fact will give supporters of the bill a moment of pause," said the spokesman, Michael Steel.

Sen. John Cornyn (R-Tex.) sent a letter to Holder yesterday demanding that he release the Office of Legal Counsel opinion. A Justice Department official said authorities did not release internal deliberations "because they're not the final, formal opinion."

D.C. Council member Mary M. Cheh (D-Ward 3) was one of the few city officials who expressed concern about the news. If the part of the legislation creating the D.C. seat was struck down, "we could have an extra vote for Utah, no gun regulation for D.C. and no vote for D.C," she said.

The D.C. vote bill was pulled from the House calendar a few weeks ago after pro-gun legislators signaled that they would try to attach an amendment weakening the city's firearms restrictions. Hoyer is trying to forge a compromise to satisfy them and D.C. officials.

Critics of the D.C. vote bill, including Bush administration lawyers, have argued that it violates the constitutional provision that House members be chosen "by the people of the several states." Because the District is not a state, it doesn't qualify, they say.

The bill's supporters say the more relevant constitutional clause is the one granting Congress sweeping power over the District. That would allow Congress to create a D.C. House seat, they say. Proponents also note that courts have frequently treated the District as a state for issues such as federal taxation or interstate commerce.

Legal scholars are divided: The American Bar Association supports the bill. The Congressional Research Service has said it is probably unconstitutional.

Holder's actions raised eyebrows because they appeared to politicize the legal review. During the Bush administration, lawyers in the Office of Legal Counsel were accused of shaping their opinions to suit superiors in the White House.

The opinion declaring the bill unconstitutional was approved by David Barron, an Obama appointee and Democrat who is serving as acting chief of the Office of Legal Counsel, sources said, speaking on condition of anonymity because they were not authorized to comment.

Del. Eleanor Holmes Norton (D-D.C.) dismissed concerns over the divisions in the Justice Department. She said that courts exercise a "strong presumption" in favor of the constitutionality of congressional legislation and that "the only question for the Justice Department is, can it be defended."

Hoyer said that the main complication in getting the bill passed was "the issue of guns, not the attorney general doing his job."

Staff writers Carrie Johnson and Bill Turque contributed to this report.

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