Balkinization  

Wednesday, February 18, 2009

Is the Office of Legal Counsel Constitutional? Some notes on the American Conseil Constitutionnel

JB

I wanted to use the occasion of the OLC's rejuvenation with very high quality lawyers to say a few words about this incredibly important body that is comparatively little known to the public.

The OLC may be one of the most important judicial bodies in the American government even though it sits in the executive branch. Think about it: The OLC writes opinions on how the law applies to the executive branch. Its opinions are binding on the entire branch-- which includes the entire federal bureaucracy, armed forces, and intelligence services. Moreover, its opinions are not directly reviewable by any court or other body, and remain in force until the OLC withdraws them or modifies them. Does this sound like a little like the Supreme Court to you?

In fact, a better analogy, as my colleague Bruce Ackerman has suggested, is the French Conseil Constitutionnel, which declares whether pending legislation is in conformity with the French Constitution.

What's Ackerman's point? Simply this: Since the earliest days of the republic, it's been assumed that the judiciary does not give advisory opinions. The judicial power extends only to cases and controversies in actual litigation. The French Conseil Constitutionnel, by contrast, only gives what we in the United States would call advisory opinions.

Thus the OLC violates the orthodox conception of judicial power (and the separation of powers) in three ways. First, it only gives advisory opinions. Second, it is not located in the judicial branch, but in the executive branch, and its members do not enjoy life tenure but can be removed by the President (I am speaking here of the political appointees rather than the career lawyers who are protected by civil service regulations.). Third, the OLC's decisions are ex parte (indeed no one appears before it) and often remain secret. In fact, the proliferation of secret law created by the OLC to legitimate torture and domestic surveillance was one of the Bush Administration's most worrisome excesses.

Do these facts make the OLC's work constitutionally dubious? Wait, you might point out: The Opnions Clause of Article II, section 1 of the Constitution specifically states that the President "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Since this clause appears in Article II what the OLC does is almost by definition an executive function.

Moreover, it is precisely *because* the OLC doesn't decide cases or controversies that it isn't engaging in judicial power under the meaning of Article III, and therefore it is perfectly correct for it to sit in the executive branch. The OLC's opinions are simply lawyers' advice to a client, which the client then chooses to follow. And surely a lawyer's advice to a client can remain secret. From this perspective, what is unusual is that the OLC ever makes any of its opinions public.

But this analogy is not really appropriate. The OLC is not just the President's lawyer. The President has many lawyers already. Rather, the OLC creates binding law for the Executive Branch. In theory, the President could decide to ignore the OLC's opinions, but in fact he never does. Instead, he just replaces the OLC's lawyers until they give him opinions he likes. (This, too, sounds remarkably like what the President does with the federal judiciary, although since judges serve for life, he cannot completely replace the members of the judiciary, but must wait until new vacancies arise.).

The OLC, in short, engages in quasi-judicial activity which produces (1) binding law for the Executive Branch through (2) analysis which does not allow competing claims to be raised in an adversary process and produces (3) advisory opinions by (4) persons without life tenure who serve at the president's pleasure; these opinions are (5) are often kept secret for many years or never revealed and (6) are among the most important legal decisions rendered in the federal government. Indeed, precisely because many decisions of the Executive are never reviewed in the courts, the decisions of the OLC are effectively the final word on the constitutionality or legality of the Executive Branch's actions.

The OLC has become more powerful over the years as the Executive has routinized its procedures and turned to it to legitimate (in both senses of the word) its proposed activities. The OLC came to the public's attention during the Bush Administration precisely because the Administration used the OLC to justify in secret its torture and surveillance practices; once some of these opinions were leaked, the public outcry focused attention on the lawyers who had issued the opinions.

Another feature of the OLC that is worth noting is that its lawyers (particularly the political appointees who run the office) are often relatively young, and early in their careers, and in the case of the political appointees, have little or no job security and are dependent on the good graces of the President and his advisors. Indeed, the Bush Administration gave John Yoo a post in OLC precisely because it believed that he would decide questions the way it liked. Once we start to recognize the similarities between the OLC and the federal judiciary, these facts about OLC appointments look increasingly anomalous. Rather than young and ambitious ideologues, you might think, the OLC should be staffed by seasoned lawyers and jurists with a decidedly judicial temperament who can offer impartial rulings. In fact, the best people at the OLC have had great lawyerly acumen and good judgment as well. But the example of the Bush Administration shows that there are no guarantees that the OLC will be so staffed. One reason for this is that the OLC has not been much in the public's consciousness until very recently, and therefore it has received far less attention than judicial appointments.

One of the ironies of the Bush years is that all this may be about to change. Precisely because the Bush Administration abused the OLC, and staffed it with a few individuals lacking in good judgment, and because it used the OLC to legitimate some of its worst policies, the public is now beginning to pay attention to what it does and who serves in it. We can expect that there will be more media attention to the president's appointees to the OLC-- although not yet the same as is given to Supreme Court nominees-- and that the nominees will be subjected to somewhat greater scrutiny by the Senate. In addition, although the President surely has the right to hire and fire members of the Justice Department, new practical understandings and guarantees of independence may be necessary in order to prevent future abuses of the OLC's enormous powers. That is to say, one of the Bush administration's legacies may be the reform of the OLC to make it more of an independent and quasi-judicial body in order to match the quasi-judicial functions that it already serves.

The bottom line is that the OLC has become one of the most important law making bodies in our constitutional system, creating binding law that affects what is by far the largest branch of our government. For this reason, we should begin to understand the OLC more in the way that we view the Supreme Court and the federal courts of appeals. That is, we should begin to think of it more and more as a quasi-judicial institution.

I emphasize the use of the word "quasi" here. In fact, the OLC is a hybrid institution, situated in the executive branch but issuing what are in effect judicial opinions in all but name. These opinions are treated as precedents in subsequent OLC opinions, much as courts treat their previous decisions.

We avoid recognizing the full weight of these facts by the legal fiction that the OLC merely provides "advice" to a "client." But the form of the advice, and its consequences, are markedly different from what ordinary lawyers do for their clients. (The Opinions Clause is certainly a plausible textual hook for what the OLC does, but that is true of every cabinet position, and of course this simply raises the central question of what "opinions" in a body constituted under Article II-- rather than the judicial power of Article III--should be.)

Legal theorists who argue that we should only abide by the understandings of the framers and should strictly preserve the separation of powers really should be aghast by the very existence of the OLC. After all, just as the Constitution declares that "the" executive power shall be lodged in Article II-- which is the basis of the doctrine of the unitary executive-- Article III declares that "the" judicial power shall be lodged in the Supreme Court and lower courts that Congress may establish. What is sauce for the executive goose, one might think, should also be sauce for the judicial gander.

Lest there be any doubt, let me state that the OLC is not unconstitutional in my view. But it is a constitutional construction and adaptation that makes little or no sense under the assumptions of the founding era and a classical conception of separation of powers. However, it makes perfect sense in the modern world, with an enormous federal bureaucracy and a Presidency that affects the lives of everyone on the planet. The OLC's job is a predictable outgrowth of the rise of the administrative state and the national security state. Its job is to be a court in situations where no Article III court will ever hear a case or controversy. As the Presidency grows ever larger and more powerful, we need checks and balances within the executive branch as well as among the various branches. The OLC, properly constituted and staffed, can help perform this valuable function.

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