an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
People who should know better have been writing op eds and blogging about the politicization of the Department of Justice, as illustrated, they say, by Attorney General Holder's "overruling" an opinion of the Office of Legal Counsel that legislation giving the District of Columbia a seat in the House of Representatives would if enacted be unconstitutional. The scare quotes and "if enacted" indicate qualifications that any lawyer with an ounce of brains would take into account in thinking about these events -- even more so when, as some have said, somehow the President's duty to care care that the laws be faithfully executed has been violated (or is about to be violated).
The first thing to note -- I would have thought it obvious -- is that NOTHING HAS HAPPENED. As far as we know, the Attorney General has not directed the Office of Legal Counsel to change or shape its legal analysis to fit the administration's policy views, which was at the heart of the claim about the politicization of the Office of Legal Counsel in the prior administration. As far as I can tell, nothing has been done by either the Office of Legal Counsel or by the Attorney General that is inconsistent with the principles that Dawn Johnsen and others developed to guide the Office's actions (with the possible exception, on which the facts are unclear to me, of the timing of the formal release of the OLC opinion -- see Principle Six, which refers to timeliness). Indeed, one characteristic of the events is that the Obama OLC seems to have given weight to prior OLC opinions on the same question even though those opinions reached conclusions inconsistent with the administration's policy preference.
Next, the Attorney General's constitutional duty is only to give his opinion (when requested, in writing) on the constitutionality of the pending legislation. I would have thought it obvious that that duty came into being when, well, he was asked to give his opinion -- which, again I would have thought, would occur after the legislation is adopted by both houses. (I'm speaking here about constitutional and legal obligations, not politically prudent actions.) In arriving at that opinion, the Attorney General can rely on advice from any source; he could call me, or you, or his second cousin, to get advice. There's no legal rule that opinions of the Office of Legal Counsel (his subordinates) are binding on the Attorney General or the President, although of course it's good practice to say something -- issue an opinion of the Attorney General -- explaining why the Attorney General disagrees with that advice. But, again, the time to issue that opinion is when there's actually something for the Attorney General to do, such as recommend a veto or not.
And the situation facing the Attorney General is different when legislation is pending in one or both houses (the current situation) from the one facing him after a bill has passed both houses and awaits presidential signature, veto, or inaction. As Walter Dellinger wrote in his 1994 memo on the President's duty to enforce or refrain from enforcing enacted statutes that in the President's judgment are unconstitutional, when the President is presented with a bill that in his independent judgment is unconstitutional, the President "should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation." (I mention the Dellinger memo to point out that there actually are legal materials available for use in analyzing these questions, not that anyone actually seems to care.) In particular, it is at least open to the President to say, without violating his Take Care obligation, "In my judgment the bill is unconstitutional, but out of respect for the power of the House and Senate to reach their own independent judgment I am refraining from vetoing the bill, and will leave it to the courts to determine the constitutional question." And, prior to taking that position, and again out of deference to a coordinate branch, the President might reasonably ask whether the claim -- remember, here Congress's claim -- that the bill is constitutional is so implausible that his lawyers could not defend its constitutionality in any court challenge. And indeed that is the question Attorney General Holder asked the Solicitor General's office to answer.
Finally -- although I'm sure there's more to a truly lawyerly analysis of the issue -- I observe that the President has three, not two, options when presented with a bill. He can sign it or he can veto it, of course, but he can also refrain from acting. If the bill is presented near the end of a congressional session, this is the classic pocket veto, but the other side of the coin is that if a bill is presented well before a congressional session ends it becomes law without the President's signature. The Dellinger memo implies, I think correctly, that it does not violate the Take Care clause for a president to sign a bill that he believes to be unconstitutional so as to set up the opportunity for a judicial resolution of the constitutional question (on which, the Dellinger memo assumes, the President has reached a conclusion at odds with the one implicit in the passage of the bill by both houses). I would think that that conclusion holds, perhaps even more strongly, if the President refrains from signing the bill.
Now, everything that I've said is a straight-forward analysis of the relevant law in light of the actual circumstances. Of course I believe that in some deep sense law is politics. But the discussion of the politicization of the Department of Justice has not proceeded on that level. Rather, the discussion has assumed that only mean, ordinary, everyday, "where are the votes?" politics is at work. And maybe it is. But until something legally relevant -- some formal action taken by somebody with relevant authority -- happens, a more careful legal analysis of the state of play seems to me required, at least when people are waving the flags of "rule of law" and constitutional duties. Posted
by Mark Tushnet [link]