quote:IT DOES NOT often happen that the U.S. solicitor general refuses to defend an act of Congress. Nor should it. But every now and then Congress passes a law so flagrantly in disregard of constitutional norms that a defense is impossible. Rep. Ernest J. Istook Jr.'s attack last year on free speech in the Metro system is a good example. The acting solicitor general, Paul D. Clement, made the right call in informing Congress recently that he "does not have a viable argument" in defense of the law and would not appeal a lower-court decision striking it down.
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But sometimes Congress just runs amok. This law came about because Mr. Istook (R-Okla.) was outraged by ads in Metro facilities promoting decriminalization of marijuana -- particularly an ad that declared, "Enjoy better sex! Legalize and Tax Marijuana." Mr. Istook stuck into an appropriations bill a provision that cuts off federal transportation funding to any transit system "involved directly or indirectly in any activity that promotes the legalization or medical use of any" illegal drug. As a result, while other advocacy groups can be heard in Metro's public spaces, the ads of those advocating liberalization of drug policy have been rejected. This is classic viewpoint discrimination, and the courts have been crystal clear that, except under the most unusual circumstances, it is flatly impermissible under the First Amendment. It was, consequently, no surprise that U.S. District Judge Paul L. Friedman batted the law down last June. It would have been the easy political course for a conservative administration to fight to the end on a culture-war issue such as drug legalization. Mr. Clement is correct not to waste the courts' time defending unconstitutional legislative temper tantrums.
This law was indefensible from the first - it was attacking the advocacy of a public policy, the most protected form of speech. The Post is right to raise the caution, but they're also right that no credible defense of this law can be made.
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It also shows many of the problems with our legislative process. I'd be very surprised if a majority of legislators wanted that amendment passed.
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One of the reasons I like the European Union system -- the legislators pass policy law, which is limited and understandable, and the specifics are implemented by the "executive" (that's not quite the right term) using administrative law, which must only act to fulfill the expectations of policy law. This system has its own problems, and would likely need some thought before it could be applied to criminal law (which the EU legislative system doesn't really deal with, exactly), but on the whole I like it better, in part because it means the legislators can and do familiarize themselves with at least the basics of every policy they pass, and the "detail laws" that are usually where idiocy like this slips through the cracks are easily slapped down if they're idiotic.
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I don't have a huge problem with that as long as specific administrative decisions can be overriden by the legislature and as long as tax and spending amounts are set by the legislature, although in general enough terms to allow the administrators to do their thing.
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