As a general matter, I do not support the legislation currently before Congress that would grant the District of Columbia a voting representative in the House.  I oppose it not because I think DC residents should have no representation, or because I think such a law violates the Constitution.  I oppose it because it would also create another House seat in Utah, a state already undemocratically overrepresented by its two Senators.  This reminds me all too much of the sort of compromises struck before the Civil War that created new States two at a time–one free and one slave.  House representation for the District is either right or it isn’t, and should be passed on the merits, without a compromise intended to match a presumably liberal seat with a presumably conservative one. 

But Ed Whelan’s little screed in yesterday’s Washington Post (h/t DougJ at Balloon Juice) forces me to reevaluate.  If, after all, a “constitutional scholar” like Ed Whelan thinks the law is unconstitutional, there is probably a strong argument that it is not.

As of course, there is: the Constitutional provision giving Congress “exclusive legislation in all cases whatsoever” over the District, as well as other places purchased at the consent of state legislatures.  Whelan argues that the Constitutional qualification for membership in the House, which requires members inhabit the state in which chosen at the time of election, precludes House membership for DC residents, since the District is not a State.  This question has no clear answer, as even Kenneth Starr would agree.

But Whelan’s goal here seems to be less an argument against the constitutionality of this legislation than to take a shot at Eric Holder, a DC voting rights supporter who sought an opinion from the Solicitor General on whether he could defend the law in court, if it passed.  Because the Office of Legal Counsel had issued an opinion saying that giving DC a House member without making the District a State or passing a constitutional amendment would not pass constitutional muster, Whelan calls this politicization of the Department of Justice.

Included in this screed is an attack on Holder’s role in the Marc Rich pardon–as if his role in that affair generally disqualifies him from serving as Attorney General.  This is a classic wingnut attack in two ways: it has nothing to do with the issue at hand, and it fails to apply the same standard to conservatives–like Scooter Libby, who represented Rich for five years, and is arguably respondible for the pardon, or at least more so than Holder.

Whelan gets himself into high breathless dudgeon over the notion that the Attorney General would override the Office of Legal Counsel because it questioned the constitutionality of his preferred policy.  But Holder did no such thing: believing that the law would pass, and then be challenged, he sought an opinion from the Solicitor General about the merits of arguments on the other side.  He would, of course, have to have this information to give his boss good advice about a veto–if he felt the courts would strike it down anyway, he would have to advise President Obama to negotiate a different law or veto this one and send Congress back to work on the issue. 

Holder did not change the OLC’s opinion.  He didn’t even seek another opinion on constitutionality.  He only wanted to know the prospects of defending the law in court–quite a reasonable question.

Whelan is something of a right-wing whiner and crybaby.  He also holds the interesting view that courts attack marriage by…expanding it to new groups.  So we shouldn’t be surprised when he just tosses crap against the wall to see what sticks.  But the pot, who worked in the OLC when it issued torture memos and justified an enormous and unconstitutional hijacking of power by the President he liked, should resist the urge to call the kettle black by accusing Holder of politicizing Justice just because he is doing his job.

Tags: Congress, Wingnut Talking Points