Politicizing the Justice Department?

[ProSense]

Tuesday, April 07, 2009

Politicizing the Justice Department?

Mark Tushnet

People who should know better have been writing op eds and blogging about the politicization of the Department of Justice, as illustrated, they say, by Attorney General Holder's "overruling" an opinion of the Office of Legal Counsel that legislation giving the District of Columbia a seat in the House of Representatives would if enacted be unconstitutional. The scare quotes and "if enacted" indicate qualifications that any lawyer with an ounce of brains would take into account in thinking about these events -- even more so when, as some have said, somehow the President's duty to care care that the laws be faithfully executed has been violated (or is about to be violated).

The first thing to note -- I would have thought it obvious -- is that NOTHING HAS HAPPENED. As far as we know, the Attorney General has not directed the Office of Legal Counsel to change or shape its legal analysis to fit the administration's policy views, which was at the heart of the claim about the politicization of the Office of Legal Counsel in the prior administration. As far as I can tell, nothing has been done by either the Office of Legal Counsel or by the Attorney General that is inconsistent with the principles that Dawn Johnsen and others developed to guide the Office's actions (with the possible exception, on which the facts are unclear to me, of the timing of the formal release of the OLC opinion -- see Principle Six, which refers to timeliness). Indeed, one characteristic of the events is that the Obama OLC seems to have given weight to prior OLC opinions on the same question even though those opinions reached conclusions inconsistent with the administration's policy preference.

Next, the Attorney General's constitutional duty is only to give his opinion (when requested, in writing) on the constitutionality of the pending legislation. I would have thought it obvious that that duty came into being when, well, he was asked to give his opinion -- which, again I would have thought, would occur after the legislation is adopted by both houses. (I'm speaking here about constitutional and legal obligations, not politically prudent actions.) In arriving at that opinion, the Attorney General can rely on advice from any source; he could call me, or you, or his second cousin, to get advice. There's no legal rule that opinions of the Office of Legal Counsel (his subordinates) are binding on the Attorney General or the President, although of course it's good practice to say something -- issue an opinion of the Attorney General -- explaining why the Attorney General disagrees with that advice. But, again, the time to issue that opinion is when there's actually something for the Attorney General to do, such as recommend a veto or not.

And the situation facing the Attorney General is different when legislation is pending in one or both houses (the current situation) from the one facing him after a bill has passed both houses and awaits presidential signature, veto, or inaction. As Walter Dellinger wrote in his 1994 memo on the President's duty to enforce or refrain from enforcing enacted statutes that in the President's judgment are unconstitutional, when the President is presented with a bill that in his independent judgment is unconstitutional, the President "should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation." (I mention the Dellinger memo to point out that there actually are legal materials available for use in analyzing these questions, not that anyone actually seems to care.) In particular, it is at least open to the President to say, without violating his Take Care obligation, "In my judgment the bill is unconstitutional, but out of respect for the power of the House and Senate to reach their own independent judgment I am refraining from vetoing the bill, and will leave it to the courts to determine the constitutional question." And, prior to taking that position, and again out of deference to a coordinate branch, the President might reasonably ask whether the claim -- remember, here Congress's claim -- that the bill is constitutional is so implausible that his lawyers could not defend its constitutionality in any court challenge. And indeed that is the question Attorney General Holder asked the Solicitor General's office to answer.

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