The Attorney General’s approach to the enforcement of law at least has the virtue of novelty. Usually, the Department of Justice abides by Supreme Court rulings on matters of law, especially when it strikes down statutes that — at least in theory — prevent the government from enforcing them. If the Obama administration can ignore existing statutory law on the employer mandate for ObamaCare, though, perhaps the DoJ can enforce statutory laws that no longer exist.
I wonder if the federal courts will be willing to go along with that:
The Justice Department is preparing to take fresh legal action in a string of voting rights cases across the nation, U.S. officials said, part of a new attempt to blunt the impact of a Supreme Court ruling that the Obama administration has warned will imperil minority representation.
The decision to challenge state officials marks an aggressive effort to continue policing voting rights issues and follows a ruling by the court last month that invalidated a critical part of the 1965 Voting Rights Act. The Justices threw out a part of the act that required certain states with a history of discrimination to be granted Justice Department or court approval before making voting law changes.
In the coming weeks, Attorney General Eric H. Holder Jr. is expected to announce that the Justice Department is using other sections of the Voting Rights Act to bring lawsuits or take other legal action to prevent states from implementing certain laws, including requirements to present certain kinds of identification in order to vote. The department is also expected to try to force certain states to get approval, or “pre-clearance,” before they can change their election laws.
“Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to pre-clearance as necessary,” Holder said in a speech Thursday morning in Philadelphia. “My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”
Holder’s problem here, though, is that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated. The court left Section 5 in place, which has the enforcement mechanisms for the DoJ to use if Congress provides a rational formula for singling out states and other jurisdictions for the intrusive level of scrutiny pre-clearance imposes. However, with Section 4 invalidated, the DoJ literally has no jurisdiction at all to use Section 5 any longer anywhere, not until Congress provides it.
What Holder proposes to do is to tell Texas to get DoJ approval for its voting (and redistricting) laws before putting them in force, right after the Supreme Court told Texas and the other Section 4 states that they don’t need to do so. Holder can file a lawsuit to attempt to force compliance, but that’s just bluster. Texas isn’t going to comply, and it’s doubtful a federal court would do anything but laugh at the filing after the ruling last month. The DoJ has no more jurisdiction to tell Texas to get pre-approval for laws passed under its own sovereignty. This is grandstanding on a particularly demagogic scale.
Holder’s statement is nonsense on another level, too. The DoJ can enforce anti-discrimination laws under the Voting Rights Act, especially under Section 2 — but just like with the parts of the US that didn’t fall under Section 4 the last 50 years, the DoJ has to wait until actual discrimination takes place. That shifts the burden of proof to the DoJ to prove guilt, where it belongs, instead of onto the handful of jurisdictions to prove themselves innocent of discrimination before a law even gets applied.
The Attorney General has plenty of law on which to pursue discrimination when it arises. Perhaps he ought to just stick to doing that.