Posted by Orin Kerr:
Holder's Obligations and the DC Voting Rights Bill:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1238875040
A lot of conservatives are criticizing AG Eric Holder for apparently
taking the position that the DC voting rights law is constitutional
when OLC thinks it is not. There's an angle to the story that I
haven't seen addressed, though, at least on the right: Does Holder
have an obligation to oppose the bill if he thinks its passage is the
best step to a constitutional amendment to add DC voting rights?
Here's my thinking. We know that AG Holder favors voting rights for
DC as a matter of policy. Let's also assume that he knows that the
bill is probably going to be struck down. If that's right, Holder may
logically believe that the best way to get a constitutional amendment
passed to secure DC voting rights would be to have this bill passed
into law and then struck down. If the bill is passed, and the Supreme
Court strikes it down, the publicity and focus of a Supreme Court case
may go a long way towards gathering political support for a
constitutional amendment. Rick Hasen recently made this argument in
[1]Slate:
Rejection by the court would put the issue on the front burner.
Obama could then push for quick passage of a constitutional
amendment in Congress and the states. He could remind people that
many of our most important advances to voting rights have come
through constitutional amendment, including enfranchisement of
African-Americans, women, 18-year-olds, D.C. residents (in
presidential elections), and those too poor to pay a poll tax to
vote in federal elections.
If that's what Holder is doing, then it seems to me that the debate
over his decision is really about the somewhat academic question of
the nature of an Attorney General's constitutional obligations, rather
than the question of whether Holder is "politicizing" DOJ.
References
1. http://www.slate.com/id/2209979/
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
