NO VIABLE DEFENSE

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 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.

Congress, like everybody else, is entitled to a legal defense, and
solicitors general of both parties are therefore necessarily obliged
to defend laws they might not personally support. One mark of a good
solicitor general, in fact, is the willingness to go to bat for laws
he might not uphold were he the judge hearing the case. We would have
expected -- had Sen. John Kerry, D-Mass., won the presidential election
- -- that his solicitor general would defend the ban on "partial birth"
abortion, though we think it should be struck down. If even a remotely
plausible argument can be advanced on behalf of the legislature's
decision, the institutional obligation of the office is clear.

But sometimes Congress just runs amok. This law came about because
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."

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 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. Clement is correct not to waste the courts'
time defending unconstitutional legislative temper tantrums.