Leviathan's Lawyers

The Office of the Solicitor General has traditionally defended the government. But should it?


In February, Attorney General Eric Holder announced that the Justice Department's Office of the Solicitor General would no longer defend the Defense of Marriage Act (DOMA) in federal court. Although the administration will continue to enforce DOMA, it won't defend the law against constitutional challenges. House Speaker John Boehner (R-Ohio) said a few days later that the House of Representatives will have its own lawyers do so.

President Barack Obama's willingness to repudiate a law he believes is unconstitutional raises some significant questions. What about federal cases that don't involve laws passed by Congress, such as cases where criminal defendants argue that their constitutional rights have been violated? If the president agrees with them, why not take their side, or at least not rush to defend the prosecution?

In cases that have come before the Supreme Court, the Obama White House, like previous administrations, has routinely sided with police and prosecutors, except for the rare case where it takes no position at all. In March, for example, Acting Solicitor General Neal Katyal argued that the Supreme Court should dismiss a lawsuit against former Attorney General John Ashcroft by Abdullah al-Kidd, a U.S. citizen who was arrested and detained as a material witness for 16 days in 2003. It is now clear that the government was holding al-Kidd because it suspected him of involvement with terrorist groups, although al-Kidd was never charged. (Nor was he ever called as a witness.) Obama's Justice Department is essentially arguing for an exception to the Fourth Amendment in federal terrorism investigations.

In cases like this, which directly affect federal prosecutors, it is unfortunate but not surprising that Obama would defend the powers he deems necessary to fight terrorism, enforce immigration laws, or disrupt the illegal drug trade. But the Obama administration also has advocated limiting the rights of the accused in state cases, even in states that afford less protection to criminal defendants than federal courts do.

In District Attorney's Office for the Third Judicial District v. Osborne (2009), the Justice Department urged the Supreme Court not to recognize a constitutional right to post-conviction DNA testing, even though Obama supported such a right, at least as a matter of policy, as a state senator in Illinois (where post-conviction DNA testing exonerated several men who had been condemned to death). In Skinner v. Switzer (2011), a case that poses the question of whether federal civil rights laws require such testing, the Obama administration did not file a brief for either side.

In Pottawattamie County v. McGhee (2010), the Justice Department urged the Court to protect prosecutors from lawsuits even in cases where they have manufactured evidence that helped to convict an innocent person. In three cases, Obama's Justice Department has urged the Court to limit Miranda rights, which require police to advise suspects of their rights upon arrest. In Kentucky v. King (2011), Justice Department lawyers argued that exigent circumstances permit police to enter a home without a warrant even if police unknowingly created those circumstances.

In Smith v. Alvarez (2009), the administration defended a provision of Illinois asset forfeiture law that allows police with little evidence to seize property they believe is connected to drug activity, then hold it for up to six months before the owner gets an opportunity to win it back in court. This position seems especially hard to defend given that federal civil asset forfeiture laws offer more protections for property owners. The Illinois law was modeled after the old federal forfeiture law, which Congress amended in 2000 to address forfeiture abuses. The Illinois law applies only to property valued at less than $20,000, meaning it also disproportionately affects the poor people of Illinois for whom Obama advocated during his early years in politics.

The usual response to criticism of an administration's positions in Supreme Court cases is that advocating on behalf of the government is the solicitor general's job. It only makes sense, then, that the office would regularly urge federal appeals courts to limit constitutional rights and expand the powers of police and prosecutors. This was the conventional wisdom during the confirmation hearings for Justice Elena Kagan, whose defenders said we shouldn't draw firm conclusions about her positions on constitutional rights and criminal law based on her work as solicitor general. When Chief Justice John Roberts was asked at his own confirmation hearings about positions he took while working in the Office of the Solicitor General during the Reagan administration, he replied that as a Supreme Court justice he probably would approach those questions differently than he did as a legal advocate whose client was the federal government.

It is true that the solicitor general's role has conventionally been understood in this way. But I'm not convinced it should be. As a client, the federal government is very different from an accused murderer or a patient in a medical malpractice case, because it is supposed to represent the interests of all Americans. And while it's true that one of the president's main responsibilities is to enforce the laws of the land, he also has a duty to uphold and defend the Constitution, which is not the same as latching onto whatever interpretation of the Constitution favors the government.

Imagine a president who is elected on a platform that stresses the Bill of Rights, arguing that the government routinely flouts the Fourth Amendment and disregards the rights of criminal defendants. (Bear with me here.) According to the conventional view of the solicitor general's role, this idealistic new president would be expected to staff that office with the country's brightest legal minds and task them with convincing the Supreme Court to interpret these constitutional protections as narrowly as possible.

To be fair, Obama is using the Office of the Solicitor General the way it has always been used, to defend and expand government power in general, federal power over state power, and executive power over the powers of the other branches. Despite the lasting ramifications of Supreme Court decisions, and despite the weight given to the government's position in Supreme Court cases (the Justice Department nearly always gets time in oral arguments if it asks), the Office of the Solicitor General has never really been seen as a place for a president to express his policy preferences. But perhaps it's time to start seeing it that way, and to start holding presidents accountable for the positions they instruct the office to defend. 

Radley Balko (rbalko@reason.com) is a senior editor at reason.