Using the Constitution When It Suits

It’s safe to say that Jim Clyburn is not very happy with Governor Sanford and those that support the governor’s position on the stimulus funds. In fact, sometimes, it sounds like Mr. Clyburn is pretty damn mad that he cannot reach down into his carefully drawn district and make things happen the way he would like for them to happen. In that respect, to be fair, he’s not really much different from most of the elected-for-life politicians that inhabit Washington. Sometimes, it seems that personal relationships are more important that principal principle. And sometimes, politicians get a bit confused on which principles they stand on.

Here’s Rep. Clyburn, discussing the governor’s position, as quoted in a post from the Palmetto Scoop:

Whether or not you agree with Gov. Mark Sanford’s staunch opposition to accepting $700 million in federal stimulus money, this one thing is for certain: It has a lot of people on both sides of the issue angry.

Congressman James Clyburn — who has a propensity to “Hulk out” — was chief among those who has recently expressed outrage. Clyburn’s anger stemmed from the belief that Sanford’s rejecting the stimulus funds would result in up to 4,000 public school teachers losing their jobs.

Only, Clyburn’s directed the bulk of his rage at Attorney General Henry McMaster and Sen. Lindsey Graham.

Over the last several weeks and without even going to court—the proper venue to determine constitutionality of federal laws—[McMaster, Sanford and Graham] have gone out of their way to ensure that South Carolina continues its long history of providing a minimally adequate education,” Clyburn said, referring to measures by McMaster and Graham to clarify who, exactly, controls the discretionary money.

Got that? The federal courts are the proper place to determine the constitutionality of federal laws. Very reasonable position, in my humble opinion.

But then there is the issue of the legislation proposing statehood for the District of Columbia.  Rep. Clyburn has long been a supporter of statehood for the District despite the fact that the constituionality (there’s that word again) of the legislation is extremely doubtful. The Justice Department, over the past 40 years and several presidents, has cautioned that the proposed legislation will not pass muster in the courts. No matter. Observe in this report from PowerLine the willful disregard of the Constituion:

The Washington Post reported this morning that Attorney General Holder has rejected the legal opinion of the Department’s Office of Legal Counsel (OLC) that the D.C. voting rights bill pending in Congress is unconstitutional. As Ed Whelan explains, the new OLC–led by deputies selected and appointed by the Obama Administration–reached the same conclusion that the OLC has since the early 1960s (according to Ed), namely that the bill is unconstitutional.

Unhappy with that answer, Holder turned to the Solicitor General’s office to ask whether it "could defend the legislation if it were challenged after its enactment." Holder wasn’t asking the SG’s office whether the bill was constitutional, but rather whether a non-frivolous argument could be made in defense of its constitutionality. The SG’s office said one could be made.

But Holder is sworn to uphold the Constitution. One might have hoped that he would interpret this duty to mean taking positions consistent with office charged with making that determination for the Department (the OLC), an office that he testified "has probably the best lawyers in the Department." Alternatively, one might have hoped that, if Holder rejected the view of that office, he would do so based on sound advice that the bill in question is constitutional. Instead, as noted, he reversed the OLC based only on advice that a contrary view of the Constitution is not frivolous.

A lawyer representing an ordinary client is free, and may in some cases be obligated, to take weak but non-frivolous legal positions to promote a client’s interests. But the United States is not an ordinary client. And the Department of Justice should be what its name says, not the Department of Promoting the Political Goals of the President. As Andy McCarthy puts it, " the Justice Department is supposed to take the most legally sound position, not any position preferred by the president that may pass the laugh-test."

One does not expect to hear Rep. Clyburn demand, in the context of DC statehood, and with the words he used so powerfully when attacking Gov. Sanford and the state Attorney General, to wit: "… without even going to court—the proper venue to determine constitutionality of federal laws…" that the Congress of the United States follow the law of the land when acting in pursuit of their political goals.

Sadly, the pursuit of power trumps principle every time……

 

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