by John Fund
As Holder’s debasement of OLC demonstrates, his tenure as attorney general has been marked by a dangerous push to legitimize a vast expansion of the power of the federal government that endangers the liberty and freedom of Americans. He has taken such extreme positions on legal and constitutional issues before the Supreme Court that the Justice Department has uncharacteristically lost numerous cases before the U.S. Supreme Court. Historically, the Solicitor General normally wins about 70 percent of the Justice Department’s cases; yet in the 2012–2013 term, the department won only about a third of its cases before the Supreme Court. The same thing happened in the prior term—the government lost more cases than it won.
Even more unusual, and further evidence of the outlandish legal opinions he has advanced, is that since January 2012, the Supreme Court has ruled against Holder unanimously nine times. So even the liberal justices on the Court, including the two justices appointed by President Barack Obama, Elena Kagan and Sonia Sotomayor, have disagreed with Holder’s positions. As George Mason University law professor Ilya Somin says, “when the administration loses significant cases in unanimous decisions and cannot even hold the votes of its own appointees . . . it is an indication that they adopted such an extreme position on the scope of federal power that even generally sympathetic judges could not even support it.”19
Those decisions are very revealing about the views of the administration and Eric Holder: it is one of unchecked federal power on immigration and environmental issues, on presidential prerogatives, and the taking of private property by the government; hostility to First Amendment freedoms that don’t meet the politically correct norms; and disregard of Fourth Amendment protections against warrantless government intrusion. They are views that should alarm all Americans regardless of their political views, political party affiliations, or background.
The overt hostility to religion, particularly the Christian religion, that the Civil Rights Division has shown, was graphically illustrated by Justice in its argument in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,20 which dealt with whether antidiscrimination laws applied to church employees. In that case, Holder’s lawyers claimed that the federal government had the right to, as the Supreme Court termed it, “interfere” in a church’s employment decisions on the hiring and firing of its ministers and religious teachers. The justices of the court were astounded at the arguments being made by Justice that churches had no more protected rights than private clubs and that the Free Exercise Clause and Establishment Clause of the First Amendment, which provide religious freedom and bar the government from dictating religious practices, did not shield religious institutions from the government.
The Court unanimously told the Justice Department that it could not “accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” The Justice Department was pushing a view of the First Amendment that would allow the government to interfere “with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” But the radical position the government took in the case should come as no surprise since one of the principal authors of the brief filed with the Supreme Court was a relatively recent Justice hire: Aaron D. Schuham, formerly of Barry Lynn’s Americans United for Separation of Church and State.
In another case it lost nine to nothing, Sackett v. EPA, the Justice Department tried to prevent a family from defending itself and contesting a ludicrous order from EPA bureaucrats.21 The Sacketts owned a small residential lot in Bonner County, Idaho, that was separated from Priest Lake by several other built-on lots. Before beginning construction of their new home, the Sacketts filled in part of their lot with dirt and rock. The Environmental Protection Agency issued an order to the Sacketts under the Clean Water Act making the claim that their lot was a “wetland” and their actions violated the prohibition against “the discharge of any pollutant” into “navigable waters.” The EPA directed them to cease construction, “restore” the lot, and give the EPA access to it. Failure to comply with this administrative order would subject the Sacketts to a fine of up to $75,000 a day!
The Sacketts were forced to sue the EPA in federal court after this out-of-control federal agency refused to give them an administrative hearing to contest the order. But the Justice Department actually argued that the Sacketts had no right to go to court to contest the order! Justice claimed the Sacketts would only be able to contest the order when the EPA filed a lawsuit against them for noncompliance. As Senator Ted Cruz says, “DOJ effectively wanted to put the Sacketts into a Catch-22: either the Sacketts complied with the EPA order or they faced fines of up to $75,000 per day while waiting for EPA to sue.”22
The Supreme Court threw out the Justice Department’s outrageous claim that would have deprived the Sacketts of basic due process and access to the courts to contest the EPA’s order. The Court disagreed with DOJ’s claim that the Sacketts could not initiate a lawsuit but instead would have to wait for the EPA “to drop the hammer” while accruing “$75,000 in potential liability” every day. Contrary to the Department’s view, the Court ruled that the Clean Water Act was not “designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”
As Paul Larkin, a former Justice Department lawyer who argued numerous cases before the Supreme Court says, the “Sacketts are not Fortune 500 companies running factories that daily pour out thousands of gallons of RBS (the acronym for what in the trade is known as Really Bad S#*t) into a river used downstream for drinking water; the Sacketts are private parties who want to build a home on their private property in a partially completed subdivision.”23 Yet Eric Holder unleashed the might of the Justice Department against them to deny their day in court.
While the collection by the National Security Agency of Americans’ telephone and Internet records got a great deal of publicity and raised great concern in 2013, in a little-noticed case, Holder’s position also posed a serious threat to the privacy of Americans. In U.S. v. Jones, the Justice Department essentially tried to convince the Supreme Court that the Fourth Amendment’s protections against search and seizure should not prevent the government from tracking any American at any time without any reason.24
Justice argued that the police should be able to attach a GPS device to your car without a search warrant or even any reason to believe you committed a crime. Fortunately for those who fear the ever-growing power of the federal government, particularly its abuse of new technology, all nine justices agreed that the Fourth Amendment prevents the government from attaching a GPS to your car without getting a warrant. As the author of the unanimous opinion, Justice Antonin Scalia, said, there was no doubt that the type of “physical intrusion” that occurred when FBI agents attached a GPS to a car sitting in a public parking lot “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
Even Justice Sotomayor, President Obama’s own nominee to the Court, agreed that the government had invaded “privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.” But Eric Holder wanted to ignore the Bill of Rights and believed that his agents should be able to track all of your movements in public by attaching a GPS device to your car without permission from a judge. This is a frightening view of government power enhanced by new surveillance technology that would have directly threatened our liberty. Fortunately, Eric Holder’s view did not prevail.
The Supreme Court also ruled against Holder unanimously in:
• Arkansas Fish & Game Commission v. U.S.,25 a case in which the Justice Department argued that the U.S. Army Corps of Engineers could temporarily flood and thus destroy the property of landowners (18 million board feet of timber) without having to pay any compensation; Justice Ruth Bader Ginsburg, one of the most liberal members of the Court, wrote an opinion tossing out the J
ustice Department’s argument that the Takings Clause of the Fifth Amendment, which requires the government to provide fair compensation when it takes property for public uses, did not apply to the deliberate and planned flooding caused by the government. If Holder had been successful, the government “would have the ability to tamper with a private citizen’s property without paying just compensation.”26
• Gabelli v. SEC,27 in which the Justice Department claimed that the government should be able to prosecute individuals for violations of the law that occurred years or even decades ago, despite the five-year statute of limitations; such statutes of limitations are imposed by Congress because as the Supreme Court pointed out, they “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” They are “vital to the welfare of society” and “even wrongdoers are entitled to assume that their sins may be forgotten.” In fact, given the heavy penalties the government can impose in its prosecutions, it “would be utterly repugnant to the genius of our laws” if such prosecutions could “be brought at any distance of time.” The Supreme Court dismissed Holder’s argument that the government should be able to in essence ignore a statutory limitation and prosecute cases whenever it “discovers” the problem.
• Arizona v. U.S.,28 in which the Court ruled against the Justice Department’s claim that President Obama’s policy choices should trump state law. The Court did find that three provisions of Arizona’s controversial immigration law were preempted by federal immigration law. But Holder lost unanimously on the provision of Arizona’s law that he and President Obama had publicly attacked the most vociferously: a provision that requires state law enforcement officials to check on the immigration status of individuals they arrest, stop, or detain if they have a reasonable suspicion that the person is in the country illegally. Holder argued that responding to such inquiries, despite a federal law that requires the federal government to respond to requests for immigration status from state officials,29 would interfere with President Obama’s immigration enforcement (or in this case nonenforcement) priorities—which is not to pick up illegal aliens detained by local authorities. This was really a breathtaking argument: Justice was claiming that the president has the ability to override state laws based on the whims of the executive branch. As Justice Alito said, the government’s claim that Arizona’s provision was “pre-empted, not by any federal statute or regulations, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.”
And three other similar unanimous cases where the Supreme Court ruled against the government: one in which the justices rejected the Justice Department’s arguments that the Internal Revenue Service could double-tax the income of a company based on a foreign government’s characterization of a tax (a clear effort to bend U.S. law to collect more taxes);30 another that a property owner couldn’t defend himself against a fine imposed against him but had to pay the fine first and then sue for compensation;31 and last, the position that a criminal law banning extortion as it has been understood in American and English law tradition for centuries should be expanded to include attempts to obtain not just money, but intangible benefits like a lawyer’s “disinterested legal advice,” an argument the Supreme Court said sounded “absurd, because it is.”32
Eric Holder has had no compunction about trying to manipulate the law, deny basic due process, or make absurd arguments to the Supreme Court. As Ilya Shapiro of the Cato Institute says, what these cases have in common is a view by the Justice Department that “federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be.”33
One other case should be mentioned even though the Justice Department’s loss was not nine to zero, but five to four. There has been a great deal of debate about the Supreme Court’s decision in Citizens United v. Federal Election Commission, in which the Court held that a ban against corporations and labor unions engaging in independent political speech was a violation of the First Amendment.34 Many believe this was a triumph of First Amendment values over government censorship, while critics have claimed this gives corporations and unions too much power to interfere in the political process, although it should be noted that the ban also applied to nonprofit corporations like the National Rifle Association and the Sierra Club, or in this case Citizens United, a conservative nonprofit advocacy organization. But what was indeed frightening was one of the arguments that was made by the Holder Justice Department that would have approved government censorship.
In a somewhat unusual occurrence, there were two separate oral arguments before the Supreme Court. In the first argument, on March 24, 2009, Chief Justice John Roberts asked the deputy solicitor general, Malcolm Stewart, a question about the “electioneering communications” provision of federal law that the Court eventually threw out as unconstitutional. This provision banned corporations and labor unions from running an advertisement that named a federal candidate on radio, television, or cable and satellite channels within thirty days of a federal primary or sixty days of the general election, even if the ad had nothing to do with the election.
So if a labor union (or the NAACP or the National Organization for Women) wanted to run a radio ad telling the public to call Senator John Smith to tell him to vote a particular way on an upcoming bill, it would violate federal law if the ad ran within sixty days of the general election if Senator Smith was on the ballot. This particular provision could lead to completely absurd results. As the chief justice pointed out, if Wal-Mart had aired an advertisement selling candidate action figures and it actually used the names of the candidates, it would be committing a federal felony by airing that ad within sixty days of the general election.
Chief Justice Roberts noted that the electioneering communications provision only applied to broadcast ads. He asked Stewart whether Congress could amend the law to expand the ban to books and pamphlets. He specifically proposed the hypothetical of a corporation funding a five-hundred-page book about the American political system and at the end it says “and so vote for X.” Roberts wanted to know if it was the position of the Justice Department that Congress could ban such a book. The shocking answer from the Holder Justice Department, in defiance of the most fundamental First Amendment rights, was that the government “could prohibit the publication of the book.”35 There was a noticeable gasp from the audience when the deputy solicitor general actually said the government had the power to ban books.
Finally, Eric Holder has been part and parcel of the Obama administration’s repeated abrogation of the law, showing his disdain for the constitutional division of power between the legislative and executive branches. The Obama administration has been “unilaterally ordering major changes in federal law with the notable exclusion of Congress.”36 Holder has tried to defend his decisions not to enforce the law as the exercise of prosecutorial discretion. But prosecutorial discretion is the ability to decide whether a particular case should be prosecuted based on the specific facts of that case and the applicable law. It does not give a law enforcement agency the ability to simply ignore all violations of a law passed by the legislative branch and signed into law by the president because the head of that agency (or the president) does not agree with the law. That is an utter abuse and a complete violation of the attorney general’s constitutional obligation to enforce the law. But it does fit, as George Washington University law professor Jonathan Turley says, “an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications. What is most striking about these areas is that they are precisely the type of controversial questions designed for the open and deliberative legislative process.”37
A prime example of this wholesale nullification of federal laws occurred in 2011. The Obama administration has a habit
of announcing controversial decisions during or just before the start of holidays, when Congress is out of town and the news media are not paying attention. So on December 23, the Justice Department announced that it had completely changed its position on the 1961 Interstate Wire Act, which banned gambling over a wire. This law had been interpreted by prosecutors and the courts for years as a complete ban on Internet gambling, from lotteries to online poker. In fact, in 2007 the Justice Department said in congressional testimony that “all forms of Internet gambling, including sports wagering, casino games and card games, are illegal under federal law.”38 The Justice Department collected a record $300 million fine for Wire Act violations in 2010 from the cofounder of PartyGaming, an online poker company based offshore in Gibraltar.
But in a startling Christmas present to the online gambling industry, the Justice Department announced that its long-held interpretation of the law, previously upheld by the courts, was suddenly “wrong” and the only kind of gambling outlawed by the Wire Act was sports gambling. In fact, Justice said that the plans of New York and Illinois, President Obama’s home state, to provide online lottery sales were not “within the prohibitions of the Wire Act.” Both states had been heavily lobbying Justice to change its opinion. The president of Illinois’s state senate said that this change would allow Illinois to “organize the first major poker pool, garner worldwide popularity, and position itself as a ‘hub’ for multi-state and international iGaming.”39
This entire episode was bizarre and there really was no real explanation for the Justice Department’s complete about-face and reversal of its position on the Wire Act. In addition to benefiting the gambling states, the decision also “produced windfall profits for online lottery and gambling giants like Italy-based Lottomatica and Scientific Games.” The Government Accountability Institute, a private nonprofit that investigates government corruption, issued a report pointing out the curious connections between Eric Holder and his law firms and some of these companies.40 For example, an attorney at Holder’s former law firm, Covington & Burling, represented Lottomatica in a $4.8 billion acquisition of GTECH, whose chairman, Donald Sweizer, was a major Democratic Party donor and the former political director of the DNC.41 With this reinterpretation, Eric Holder transformed the Wire Act “into a vastly different law that potentially allowed billions of dollars’ worth of gambling operations on the Internet,” and that “radical change [was] made without congressional hearings or debate.”42
