Bench Memos

And Now a Word on Behalf of President Obama

Over the weekend, various press accounts surfaced (here’s one) about an internal debate that took place among the lawyers in the Obama administration regarding that report sent to Congress, risibly claiming that our armed forces are not engaged in “hostilities” in Libya.  It seems that Jeh Johnson, the Pentagon’s general counsel, and Caroline Krass, the acting head of the Office of Legal Counsel in the Justice Department, disagreed with this assessment, insisting that we are in “hostilities” as that term is used in the War Powers Resolution.  Now it’s being reported that even Attorney General Holder took this line.  But Harold Koh, at the State Department, and Robert Bauer, the White House counsel, pushed the “no hostilities” line, and won. 

This has caused some high dudgeon in various quarters, on the grounds that the OLC is supposed to offer legal opinions that are “controlling” in the executive branch.  As Michael Isikoff reports:

For decades, [Robert] Chesney and other legal scholars said, legal and constitutional questions within the government have been resolved by the Justice Department’s Office of Legal Counsel (OLC). Just last year, a six-page Justice Department memo described OLC’s mission as providing “controlling advice” to executive branch officials on questions of law.

The memo spelled out how the office’s decisions were supposed to be reached: After receiving input from agencies throughout the government, OLC lawyers would provide “principled” legal analysis to executive branch officials, not opinions “designed merely to advance the policy preferences of the president or other officials.”

In a similar vein, Bruce Ackerman writes in today’s New York Times:

. . . the White House has shattered the traditional legal process the executive branch has developed to sustain the rule of law over the past 75 years.

Since the 1930s, it has been the job of an elite office in the Justice Department — the Office of Legal Counsel — to serve as the authoritative voice on matters of legal interpretation. The approximately 25 lawyers in this office write legal opinions after hearing arguments from the White House as well as other executive branch departments. . . .

. . . Mr. Obama’s decision to disregard [OLC’s] opinion and embrace the White House counsel’s view is undermining a key legal check on arbitrary presidential power.

I’m not sure how to put this delicately, but . . . the nonsense quotient in these complaints is very high indeed.  I think the president took bad legal advice in siding with the view advanced in the administration’s Libya report.  It may even be, for very good reasons of professionalism and (relatively) neutral analysis, a sound practice for presidents to be guided in legal matters by the advice of the OLC.  But while the OLC, acting in the stead of the attorney general, can be said to give “controlling advice” to other subordinate officers and agencies of the executive branch, that phrase is completely misplaced when it comes to characterizing OLC’s relationship with the president himself.  There is no officer of the executive branch who can, in the nature of things, give any form of counsel that is legally binding on the president of the United States.  Everyone in OLC, and in DOJ, and in every other agency not made “quasi-independent” of the president by statutory constraints on his appointment and removal powers, works for him.  All executive power belongs to him, every particle of it.  Just read the opening words of Article II of the Constitution.

So when professors natter on about “a key legal check on arbitrary presidential power” being undermined, or OLC being the “authoritative voice on matters of legal interpretation,” or when OLC itself issues a memo referring to its “controlling advice” without distinguishing whom it may control or whom it may not, they are blowing so much smoke.  Nothing but habitual practice undergirds the supposed “authority” of OLC, which over the president himself is actually no authority at all.  The president should follow the best advice he can get.  This time it came from OLC.  Maybe it usually does.  And it’s good to set up a shop in the executive branch devoted to dispassionate, learned advice as little affected by politics as possible.  But let’s not invent imaginary legal principles violated in this case.

When George Washington asked for Cabinet opinions on the constitutionality of the national bank, and got a pro-bank opinion from treasury secretary Alexander Hamilton, and two anti-bank opinions from secretary of state Thomas Jefferson and attorney general Edmund Randolph, he went with Hamilton because he thought his arguments were better.  He didn’t think for a minute that two opinions outweighed one, or that Randolph’s opinion carried more weight because he was attorney general.  And Washington would be quite rightly astounded at the idea that the “advice” of subordinates can constrain presidential power.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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