Posted by Jonathan Adler:
McGinnis on Holder's Treatment of OLC:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239050252
Over at [1]Executive Watch (a truly excellent blog sponsored by the
Duke Law Program in Public Law), former Deputy AAG [2]John McGinnis
comments on Attorney General Eric Holder's treatment of OLC over the
constitutionality of legislation to grant D.C. representation in the
House of Representatives.
If the Attorney General believed that this opinion was wrong, he
could overrule it. Attorneys General previously have themselves
rendered legal opinions. An opinion would provide a measure of
accountability because General Holder would have to sign his name
to a legal document that purported to show how to get around the
Constitution�s clear requirement. Indeed, the Obama administration
has argued that increasing the transparency of the legal process
within the executive branch will increase respect for the rule of
law. What better testament to that transparency than to allow us to
compare the reasoning of the Attorney General with that of his own
legal counsel?
Instead, the Attorney General asked the office of Solicitor General
at a time when there was no confirmed Solicitor General whether
that office would be willing to defend the statute, if passed. The
Solicitor General�s office has a long history of defending
legislation if there is any credible basis for doing so. But it
never opines on the constitutionality of pending legislation,
because the question for the President in signing a bill is not
whether the legislation might be defended by some argument in Court
but whether the legislation is constitutional, not whether some
Court might uphold it, but whether the President should give it his
own unique constitutional imprimatur.
References
1. http://executivewatch.net/
2. http://executivewatch.net/2009/04/06/an-end-run-around-the-rule-of-law/
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