by John Fund
Any professional, objective lawyer representing the government would look at this settlement as a severe setback and a loss. But that is not how the White House saw it. In a “Presidential Memorandum” issued on December 21, 2011, President Obama called the new regulation issued as a result of this settlement “a major step forward in my Administration’s efforts to protect public-health and the environment.”40 President Obama clearly welcomed the lawsuit and was glad that his lawyers had lost. But the regulatory process set up by the settlement engineered by Eric Holder’s lawyers in the ENRD was so rushed that the EPA’s proposed rule contained numerous errors. For example, a crucial conversion factor used by the EPA to determine the emissions history of power plants was “incorrect by a factor of 1,000.”41
The new regulatory process was called one of the “most far-reaching and expensive rules” in the history of the EPA, by the nonprofit trade association Utility Air Regulatory Group.42 In fact, the new rule issued through this collusive lawsuit is so onerous and so burdensome that an assessment by the North American Electric Reliability Corporation said that it could force enough shutdowns of major power plants in the future to threaten reliable electric service in some areas of the country.43
If and when that happens, it will be the fault of not only the Obama White House and its political appointees at the EPA, but the lawyers within the Justice Department who engineered a politically convenient settlement rather than carry out their professional duty to represent the American people in the highest traditions of the legal profession and the prior history of the Justice Department.
CHAPTER 3
A CONTEMPT FOR THE CONSTITUTION AND THE RULE OF LAW
One of the most unfortunate and dangerous hallmarks of the Obama administration has been its contempt for the rule of law and its sweeping view of executive power that is well outside the bounds of the Constitution and the legal mainstream. Eric Holder has been the president’s chief “aider and abettor and/or coconspirator” (to use the same language he approved in the search warrant application against Fox News reporter James Rosen) in this effort to bend, break, or ignore laws passed by Congress, since it is the Justice Department that not only makes decisions about the enforcement of federal laws, but also defends their constitutionality in court.
Jonathan Turley, a law professor at George Washington University who voted for Obama and agrees with many of his policy positions, nevertheless has expressed his grave concern over the unilateral actions of Obama and Holder, saying that the “actions of the Obama Administration challenge core principles of the separation of powers and lack meaningful limiting principles.” According to Turley, “when a president claims the inherent power of both legislation and enforcement, he becomes a virtual government unto himself.” Obama “is not simply posing a danger to the constitutional system; he becomes the very danger that the Constitution was designed to avoid.” Holder’s willingness to politicize his decision making on the enforcement (or in some cases nonenforcement) of federal law instead of carrying out his duties as the chief law enforcement officer of the United States guided by objective, nonpartisan standards of justice has directly aided Obama’s expansion of executive power. As Turley says, these actions “fit an undeniable pattern of circumventing Congress.”1
Holder revealed the politicized nature of his decision making almost as soon as he was confirmed as the new attorney general in February 2009. At that time, another push was being made in Congress to pass a bill that would provide the District of Columbia, the nation’s capital, with a voting member of the House of Representatives. Both President Obama and Eric Holder had made it clear in the past that they supported D.C. voting rights. In fact, Holder had cosigned a letter in 2007 urging the passage of a D.C. voting bill.2
Regardless of the merits of whether the residents of Washington, D.C., should have a voting representative, the legal issue is how to achieve that goal. This is where Holder demonstrated that his professional judgment was subordinate to his political views. The only way for the District of Columbia to gain representation is through a constitutional amendment, not a congressional statute. This is because Article I of the Constitution specifies that “Representatives . . . shall be apportioned among the several States,” which is confirmed by Section 2 of the Fourteenth Amendment. One of the qualifications to be a congressmen is to “be an Inhabitant of that State in which he shall be chosen.” Under the Constitution, the District is not a state, and therefore cannot have a representative.
In the past Congress itself recognized that the only way the District could get representation was through a constitutional amendment—it passed one in 1977 that failed to be ratified by the states The Twenty-third Amendment (ratified in 1961) gave District residents the right to vote for president. If that right could have been granted through legislation, there would have been no need to get thirty-eight states to sign off on a constitutional amendment. The courts have recognized this; in 2000, a federal court ruled that D.C. residents were not entitled to representation in Congress since the “Constitution does not contemplate that the District may serve as a state.” The Congressional Research Service concluded in 2007 that Congress doesn’t have the authority to grant voting representation to the District.3
As far back as the Kennedy administration, the Justice Department had agreed that any effort to give the District a vote in Congress had to be done by a constitutional amendment. That had been the consistent opinion of the Office of Legal Counsel (OLC), which is the high-powered office within the Justice Department that “provides authoritative legal advice to the President and all the Executive Branch agencies,” as described on its Web page.
OLC has some of the best lawyers in the entire federal government and is considered one of the most prestigious offices to work for within the Justice Department. It is tasked with acting as counsel to the president and the attorney general, including giving them legal opinions on the constitutionality of proposed legislation in Congress. Just two years before Holder became attorney general, the deputy assistant attorney general for OLC, John Elwood, reiterated OLC’s long-held legal opinion in congressional testimony that “[in the absence of a constitutional amendment, therefore, the explicit provisions of the Constitution do not permit Congress to grant congressional representation to the District through legislation.”4
Because of criticism over the legal memos it had issued on enhanced interrogation techniques during the Bush administration, Holder was specifically asked about the legal opinions of OLC during his confirmation hearing in January 2009. Holder guaranteed the sanctity of the formulation of those opinions and promised not to politicize them when he said that “[w]e don’t change OLC opinions simply because a new administration takes over. The review that we would conduct would be a substantive one and reflect the best opinions of probably the best lawyers in the department as to where the law would be, what their opinions should be. It will not be a political process, it will be one based solely on our interpretation of the law.”5 Yet Holder proceeded almost immediately to break that guarantee of professionalism to run “roughshod over OLC,” as it was characterized by OLC veteran Ed Whelan.6
Because supporters of the D.C. effort know that there is insufficient support nationwide to amend the Constitution to give the District a voting member of Congress, they had resorted to trying to get a bill passed in Congress in 2009. This was also a clear power grab since the supporters know, given the political makeup of the District, that this would be a permanent Democratic seat.
David Barron, a liberal Harvard law professor and Democrat, was appointed by Holder to be the acting head of OLC. In reviewing that pending legislation, he signed an opinion concluding that the D.C. voting bill was unconstitutional, in complete accord with five decades of OLC opinions by both Republican and Democratic administrations.7 Because of his (and the president’s) support for the D.C. legislation, however, Holder acted to override OLC’s opinion so that the Justice Department’s official position woul
d instead be that the legislation was constitutional.
There is no question that an attorney general can disagree with an OLC opinion, since OLC is “exercising the advisory function the attorney general has delegated to it.”8 Although this is rare, it has happened on occasion. But in those circumstances, previous attorneys general have conducted extensive reviews of the legal issue in question and then signed a written opinion explaining their position. Instead, Holder contacted another one of his political appointees, Neal K. Katyal, the deputy solicitor general, who is responsible for representing the Justice Department and the government before the Supreme Court. Holder asked whether the solicitor general’s office could defend the D.C. legislation in court.
As Ed Whelan says:
Holder instead adopted a sham review that abused OLC’s institutional role. In particular, the answer he solicited and received from Katyal was virtually meaningless. Holder didn’t ask for Katyal’s best judgment as to whether the D.C. bill was constitutional. He instead asked merely whether his own position that the bill is constitutional was so beyond the pale, so beneath the low level of plausible lawyers’ arguments, so legally frivolous, that the Solicitor General’s office, under its traditional commitment to defend any federal laws for which any reasonable defense can be offered wouldn’t be able to defend it in court.9
The question for the president that OLC and the attorney general are supposed to answer is not whether a law can be defended in court; it is whether the legislation is constitutional, because the president has his own separate and unique duty to uphold the Constitution. Holder deliberately and intentionally bypassed and disregarded the established internal procedures at the Justice Department that were carefully designed to give the attorney general and the president the best objective, nonpartisan advice on the constitutionality of proposed congressional action. And Holder did so almost immediately after promising in his confirmation hearing that he would not engage in such misbehavior. But he took such action because OLC’s opinion did not match his (and the president’s) political goals.
This was almost an exact mirror of Holder’s prior misconduct during the Clinton administration, when he disregarded established Justice procedures and recommended pardons for more than a dozen terrorists and fugitive financier Marc Rich, against the recommendations of the Pardons Office and Justice Department prosecutors. Ultimately, the D.C. voting bill passed the Senate, but it never passed the House of Representatives.
For all of the criticism from some about John Ashcroft’s tenure as attorney general, it is especially revealing that, unlike Eric Holder, when he was faced with a similar dilemma Ashcroft supported the OLC lawyers rather than give in to politics or the White House. In 2004, White House counsel Alberto Gonzales and chief of staff Andrew Card tried to persuade Ashcroft (who was in the intensive care unit of a hospital) to overrule OLC’s opinion that President Bush’s warrantless surveillance program was unlawful. This program allowed the NSA to monitor emails and phone calls between individuals in the U.S. and overseas if at least one of them was linked to a terrorist group. Ashcroft refused and threatened to resign, as did several other top Justice Department officials.10
Given that OLC had issued an opinion that Holder did not like shortly after he arrived, it should come as no surprise that David Barron, the acting head of OLC, was not the man put forward to become the confirmed head of the office. Holder and his boss, President Obama, clearly wanted someone who would produce opinions that allowed the attorney general and the administration to do what they wanted to do politically without regard to the law. They found the lawyer they needed in Virginia Seitz, a very liberal Democratic lawyer and longtime member of the leftist American Constitution Society, who was confirmed as the new assistant attorney general of OLC by the Senate in June 2011. Additionally, Seitz had the same distorted views on race that Holder would want in the head of OLC, having filed an amicus brief with the Supreme Court when she was in private practice arguing that the military academies should be allowed to take race into account in their admissions policies (effectively a form of racial discrimination) because it helped “military cohesiveness.”11
OLC’s transformation under Holder from a nonpartisan, professional office providing high-quality legal opinions to one that gives the attorney general political cover for the administration’s actions is illustrated in an opinion Seitz issued on January 6, 2012.12 It concerned one of the most controversial actions of Obama’s tenure: his “recess” appointment of three individuals to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau on January 4, 2012. The Constitution allows the president to make appointments without the normal Senate vote during a Senate recess. As the Senate has done for the past several years during the December and January holidays, the Senate does not recess, but instead holds a pro forma session, where every few days a senator would open the Senate and immediately adjourn, usually conducting no business. Without a recess, the president does not have the constitutional authority to make recess appointments,
While the OLC has always had an expansive view of presidential authority, including recess appointments, Seitz’s opinion, issued two days after the president’s action, was unprecedented: she said that the president has the ability to ignore the Senate’s own recognition that it was in session (albeit a pro forma session) and decide on his own that the Senate was in a recess. Three different federal appellate courts eventually disagreed with Seitz’s opinion that the appointments were constitutional.13 Former Tenth Circuit Court of Appeals judge Michael McConnell, who is now the director of Stanford Law School’s Constitutional Law Center, was very polite when he said that her opinion was not quite “frivolous,” but it is pretty clear that he thought she did not provide the “counterarguments” to her opinion that she should have. He concluded that there was not any “plausible legal argument to support President Obama’s recent recess appointments.”14
The OLC opinion ignored the fact that during its pro forma sessions, the Senate had indeed conducted business in spite of the declaration in the resolution designating the sessions that no business would be conducted. In fact, the Senate passed an extension of the payroll tax holiday on December 23, 2011, that was signed into law by President Obama during the very period that Seitz was opining that the Senate was in “recess.” She didn’t explain how that law, or a previous law passed during a pro forma session on August 5, 2011, could be valid if her opinion was correct. As Judge McConnell says, “the Opinion creates an implausible distinction between the legal efficacy of pro forma sessions for various constitutional purposes.” In other words, the Senate’s sessions were a “recess” when the president wanted them to be (when he wanted to make an appointment) but not a “recess” when he didn’t want them to be (when the Senate passed a bill he supported).
As former attorney general Edwin Meese and former OLC lawyer Todd Gaziano (who served in OLC under three different presidents, both Republican and Democratic) said, President Obama’s actions were “a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.” It was “constitutional abuse of a high order.”15 As a former OLC lawyer, Gaziano is even harsher than Judge McConnell, noting that Seitz’s opinion “makes claims that are demonstrably false and is at times, frankly embarrassing.” Not only does the opinion fail to prove that Obama’s “unprecedented act was constitutional,” but it “raises further questions about the legal advice process and the competence of those involved” in preparing it at OLC.16
Gaziano says he actually laughed at an argument that Seitz makes on pages 1 and 17 of her opinion, when she says that to defeat the president’s recess appointment power, the “Senate may choose to remain continuously in session.” In other words, under OLC’s new opinion, senators apparently have to “remain in their seat in the Senate chamber at all times” or “at least sleep in their offices, or within range of a 15-minute quorum call.”17 Otherwise,
the president apparently has the unilateral authority to make recess appointments anytime there aren’t enough senators in the Senate chamber.
Seitz nonchalantly issued an opinion disregarding the serious and substantial legal questions involved and ignoring “90 years of historical practice,” making conclusions “unsupported in law or the Constitution” according to Senator Chuck Grassley (R-IA).18 It was clear that Seitz’s opinion, delivered after the president had already acted, was simply written to give Obama political cover and did not provide an objective, professional assessment of the constitutionality of the president’s actions.
Holder has effectively eliminated OLC’s long and storied role as the office within the Justice Department that has always been willing to question the legality and constitutionality of the actions of the attorney general and the president, as it did over President Bush’s warrantless surveillance program, something that almost no one else was willing to do. This eliminated one of the few checks on the president’s authority within the executive branch.
