Legal News

Eric Holder and the D.C. Voting Bill, Part II

By Ashby Jones

The good folks over at the Volokh Conspiracy have recently added a couple nice items on the ongoing situation unfolding down in our nation’s capital concerning the bill pending in Congress that would give D.C. a congressional vote.

In two separate posts, George Washington’s Orin Kerr and Case Western’s Jonathan Adler wonder if AG Eric Holder has a duty to withhold support from the bill if the bill is likely to be struck down as unconstitutional.

We’ll get to both in turn, but for now, a little background. A bill pending in Congress would give the representative chosen by D.C. residents a full vote in Congress. Given that that representative would likely be a Democrat for the forseeable future, the bill would also add a representative to Utah, which leans strongly Republican. Click here and here for earlier LB posts.

But there’s one looming problem with the bill: it could be unconstitutional. According to a recent story in the Washington Post, Justice Department lawyers came to that conclusion earlier in the year. Unsatisfied, Holder, a longtime D.C. resident, ordered up a second opinion from the Solicitor General’s office. This time, the opinion got the constitutional thumbs up.

Holder has taken some heat for the move by some who feel Holder is immersing his own politics into the issue.

In his post, Kerr wonders if Holder should have an obligation to withhold his support of the bill even if he thinks the law’s passage would provide the quickest route to a constitutional amendment. If Holder is supporting the bill with that in mind, writes Kerr, “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.”

Adler pushes the ball forward a bit. He feels that the President has the duty to consider the constitutionality of a bill before he signs it, especially in instances in which nobody else might have standing to challenge the law — a problem the WSJ’s Jess Bravin wrote about in February.

Writes Adler:

In the present case, it is unclear whether anyone would have standing to challenge the constitutionality of the proposed legislation. In Raines v. Byrd, the Supreme Court held that members of Congress did not have standing to challenge the constitutionality of legislation creating the line-item veto, even though the legislation had the effect of lessening their political influence. I think Raines is potentially distinguishible, as there is a more direct “vote dilution” claim here, but it’s anything but an open and shut case.

Full post as published by Law Blog - WSJ.com on April 07, 2009 (boomark / email).