Posted by Orin Kerr:
Holder, OLC, and the Bill to Give DC Voting Rights Bill:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238603087
[1]The Washington Post reports:
Justice Department lawyers concluded in an unpublished opinion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.
I don't quite know what to make of this story, not being so familiar
with how OLC reviews proposed legislation. First, are OLC opinions
about the constitutionality of proposed legislation normally binding
on the executive? OLC opinions on interpreting enacted legislation are
binding on the executive branch, but I don't know if opinions on the
constitutionality of proposed legislation are generally treated the
same way. And what is the AG's usual role in reviewing OLC opinions
about proposed legislation? I'm not really sure.
Hat tip:[2] Ed Whelan, who has more on this.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/31/AR2009033104426_pf.html
2.
http://corner.nationalreview.com/post/?q=NDE3NWJhNTkxYzJmMmJkOTQ5ZWU3Y2U1ZTFlZDMxOTc=
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