A Constitutional Question

Sunday, April 5, 2009

THERE HAS been much debate in the halls of Congress and on the streets of this town about legislation to give the District a vote in the House of Representatives. Now comes news that there are differences of opinion even within the Obama administration.

President Obama sponsored similar legislation when he was a member of the Senate and has said he supports the current measure. Attorney General Eric H. Holder Jr., a longtime District resident, is a staunch supporter of D.C. voting rights. But as The Post's Carrie A. Johnson reported last week, the Justice Department's Office of Legal Counsel (OLC) has concluded that the bill cannot stand up to constitutional scrutiny. The department has declined to make the opinion public, but most who challenge the legislation say that the Constitution endows only states with such representation and that a constitutional amendment is necessary to give the same right to the District. Scholars on the other side, including conservative legal luminaries Kenneth W. Starr and Viet D. Dinh, argue that the Constitution grants Congress exclusive powers over the District -- including the power to bestow upon it a House vote.

The bill has passed the Senate, and advocates hope that the House will follow this spring. It would then fall to the president to decide whether to sign the measure. The president should take into consideration the views of his OLC -- an elite section of the Justice Department that is responsible for, among other things, reviewing pending legislation for constitutionality. But the president is well within his rights to take into consideration other views, both inside and outside the administration, when deciding whether to sign a piece of legislation. A president should not sign a bill he considers unconstitutional, but as the support of Mr. Starr and Mr. Dinh demonstrates, there are solid arguments on both sides of this question. We strongly support passage of the legislation and would urge Mr. Obama to sign it and allow the matter to be fully and expeditiously decided by the courts.

Mr. Holder's handling of the voting rights matter gives us pause, however. When presented with the OLC's negative view of the bill, Mr. Holder took the highly unusual step of seeking the views of his solicitor general's office, which is tasked with a very different mission than that of the OLC. The solicitor general is obligated to defend any congressional act unless there is no plausible defense; this contrasts sharply with the OLC's mission of providing the attorney general with its views on the best, most legitimate legal interpretations and conclusions. Not surprisingly, the solicitor general's office informed Mr. Holder that it could mount a reasonable defense.

The attorney general is the ultimate decision maker at the Justice Department and as such is entitled to overrule opinions from the OLC. But such rejections should be based on well-thought-out differences of legal opinion and not on political preferences. Unfortunately, Mr. Holder's highly unusual solicitation of the solicitor general's office raises questions about what drove his actions. To dispel any concerns, Mr. Holder should order the release of all memos from the two offices on this subject and make his own views public as well.

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