It doesn’t get more blatant than this:
Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue.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.
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.
(Via Instapundit.)
I thought it was bad to politicize the Justice Department, or to override the OLC. What’s changed?
Anyway, Holder, bringing the chutzpah, actually claims this wasn’t political:
Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.
Yeah, right. With a bill less blatantly unconstitutional, you could make this argument fly. This is not such a bill; it sets aside Article 1, Section 2 (the Constitution’s second sentence after the preamble) and creates a new House of Representatives in its place. It’s not even close. There’s no way this decision had anything to do with the law.
This is also a misuse of the solicitor general’s office. The solicitor general’s job is to argue the administration’s opinion in court, not to render judgements on the law. Rendering judgements on the law is the job of the Office of Legal Counsel, which they did, twice, in two different administrations.
UPDATE: Jonah Goldberg notes that the solicitor general’s office recently argued before the Supreme Court that book banning is constitutional, which indicates that they are a particularly bad judge of what is constitutional.
UPDATE: Jonathan Adler expands on the inappropriateness of going to the solicitor general’s office for a second opinion when you don’t like the first. Adler notes that Holder’s action violates a recent paper, Principles to Guide the Office of Legal Counsel, written by President Obama’s OLC nominee and nineteen other former OLC attorneys.
UPDATE: Andy McCarthy notes a double standard in Holder’s application of the defensibility standard:
When enforcement of a patently defensible statute would undermine the progressive agenda, 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.
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