Solictor General to Congress: Get Another Lawyer

The congressional ban on anti-drug-war ads in mass transit systems that receive federal funding is so clearly unconstitutional that acting Solicitor General Paul Clement, who ordinarily defends acts of Congress that are challenged in court, has decided to sit this one out. Last summer U.S. District Judge Paul Friedman ruled that the ban, provoked by anti-prohibitionist ads in Washington's Metro system that upset Rep. Ernest Istook (R-Okla.), violated the First Amendment. The government initially indicated it would appeal, but in a letter he sent Congress last month Clement said "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision," citing "well established Supreme Court precedent" indicating that the law "amounted to viewpoint discrimination in violation of the First Amendment." Former Solicitors General Charles Fried and Seth Waxman told The Wall Street Journal this sort of decision is highly unusual, which means either that Congress rarely passes laws that are blatantly unconstitutional or that the government's lawyers can almost always find a "viable argument" to save them.