The Function of the Office of Legal Counsel

More on the Holder overruling of the OLC. The Washington Post reported

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....

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

"The attorney general weighed the advice of different people inside the department, as well as the opinions of legal scholars, and made his own determination that the D.C. voting rights bill is constitutional," Matthew Miller said. "As the leader of the department, it is his responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides of the issue, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress."

I finally found a leftwing comment on this. Mark Tushnet says that Holder has not taken any formal, legally binding, action, yet and the bill hasn't passed either, so nothing has happened.

It seems Tushnet is wrong, though. It is true there is not action yet, but that is like saying the "torture memo" was unimportant because when it was issued, no actual interrogation had occurred yet. What Holder has said is that for any DOJ action that depends on the legal question of whether the DC bill is unconstitutional, he is overruling the OLC and the Department is to act as if the bill is constitutional.

A VC comment of mine on AG Holder's decision to back the DC Representation bill in court:

This is of course a much clearer case than in the Bush Administration of the top political leaders overruling the civil service lawyers on a legal stance. So I hope the people who objected to John Yoo's stance call for AG Holder's disbarment even more strongly.

As for myself, though, I find it appalling that anyone thinks the civil service lawyers ought to be making these decisions instead of the elected leaders. The OLC is just a bunch of staffers (mostly civil service staffers-- i.e., lawyers who couldn't get better jobs and who probably have strong ideological preferences). Staffers are supposed to give their best technical expertise to the organization leader, who then makes the actual decision-- in this case, What Shall the Executive Branch's Position be on the DC Bill? I do think the bill is blatantly unconstitutional, but I didn't get elected President and I'm not on the relevant court. I say: Let Holder and Obama defend the position they want in court. And the opinion of his staffers should not be admissible there.