June 11, 2012 9:58AM

The Obama Justice Department Didn’t Have to Defend Bush‐​Era Government Actions

No, I’m not talking about Guantanamo or interrogation techniques or anything else related to national security. I’m talking about various unconstitutional actions by administrative agencies and law enforcement that ultimately resulted in unanimous defeats at the Supreme Court, as I described in my Wall Street Journal op‐​ed.

That analysis — focusing on cases decided this year in the areas of religious liberty (Hosanna‐​Tabor v. EEOC), criminal procedure (U.S. v. Jones), and property rights (Sackett v. EPA) has generated plenty of positive reaction from a variety of perspectives. One criticism that I’ve seen a few times, however, is that I’m being disingenuous because in all three cases I dissect, the DOJ was merely defending actions and policies that originated when George W. Bush was president. “The Solicitor General, who is the government’s top lawyer, has, in almost all cases,” notes Media Matters, “an obligation to defend government actions and federal laws, including those actions undertaken by previous administrations.”

There is some validity to this point: Hosanna‐​Tabor did indeed involve an employment discrimination lawsuit filed by the EEOC during the Bush administration; Sackett involved an order issued by the Bush administration’s EPA; Bush’s Justice Department instigated the federation prosecution at issue in Jones.

Of course, these lower‐​level administrative actions probably didn’t reach the radar screens of actual Bush‐​era political appointees and policy makers — bureaucrats will do their own thing, trying to expand their own power regardless of who’s in the White House — and DOJ lawyers who actually represent an administration’s legal policy typically aren’t involved until the appellate stage (under Obama in these cases). But even if they had here, that doesn’t somehow excuse Obama’s Justice Department, which made dangerous legal arguments betraying an incredibly expansive view of federal power, ones that didn’t gain a single vote at the Supreme Court. Bush attorney generals John Ashcroft, Alberto Gonzales, and Michael Mukasey (or solicitor generals Ted Olson, Paul Clement, and Greg Garre) weren’t the ones filing these briefs.

Moreover, while the solicitor general’s office does indeed have the duty to make the strongest plausible legal arguments supporting federal laws, that doesn’t mean that the Obama administration as a whole was handcuffed. The solicitor general (be that Don Verrilli or his predecessors, Neal Katyal and Elena Kagan) could’ve decided not to seek Supreme Court review of cases that were clear losers for the federal government. Or he, along with his boss, Attorney General Eric Holder, could’ve settled the cases and worked to change the EEOC, EPA, and FBI policies that led to the unconstitutional actions.

Or, indeed, if the administration really thought that there were no less‐​ridiculous arguments to be made, President Obama could’ve instructed DOJ officials not to defend these cases any further — as he did with the Defense of Marriage Act.

Finally, even if the Bush administration had acted exactly the same way, making exactly the same legal arguments (impossible to imagine in Hosanna‐​Tabor and Sackett, at least), two constitutional wrongs don’t make a right. And I don’t think President Obama’s defenders really want to rely on the argument, “All administrations regularly violate the Constitution and get reversed 9–0 by the Supreme Court.”

In sum, I’ll stick with my claim that the legal arguments the Obama Justice Department has made before the Supreme Court “don’t pass the smell test” and constitute a fundamentally flawed vision of federal power.