an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Illegal Immigration v. Islamic State: I didn't have space in my Los Angeles Times essay to reflect on a second salient difference between Obama's recent unilateral engagements on these two different fronts.
This contrast reveals a politically-inspired manipulation of the Office of Legal Counsel.
The OLC immediately published a careful 33 page opinion in support of the president's executive order on immigrants; but it has entirely failed to explain why he can defy the ninety-day time limit imposed by the War Powers Resolution, and continue on-going "hostilities" against the Islamic State despite his failure to obtain the consent of Congress.
To be sure, the White House has asserted that the Congressional Resolutions obtained by President Bush in 2001 and 2002 can be stretched to cover Obama's current campaign. But these assertions are not to be confused with a serious opinion, like the one OLC just issued on immigration, which confronts the formidable counter-arguments against the president's bare assertion of war-making authority.
For example, in the aftermath of 9/11, President Bush initially demanded authority “to
deter and preempt any future acts of terrorism or aggression against the United
States” (my emphasis). But Congress refused to grant Bush this carte blanche. It only authorized him to attack states and groups involved in the assault on the Twin Towers and the Pentagon -- requiring future presidents to return for a new authorization if they choose, as Obama has done, to open up a new front in the war on terror.
As I showed in a previous post on Balkinization, there is clear legislative history that Congress sought to deny the very authority that Obama has now claimed under the 2001 Resolution. At the very least. a serious OLC opinion would have to explain why this history does not bar the President from his latitudinarian interpretation of the 2001 text. In muzzling the OLC, the President is breaching a fundamental principle of the rule of law, requiring public accountability for his violation of the democracy-forcing mandate of the War Powers Resolution,
The central importance of this rule-of-law principle has been recognized by Obama's OLC itself. In a 2010 memorandum on best practice, David Barron, then the Acting Assistant Attorney General, explained that:
"in deciding whether an opinion is significant enough to merit publication, the Office considers such factors as the potential importance of the opinion to other agencies and officials in the Executive Branch, the likelihood that similar questions will arise in the future; the historical importance of the opinion, or the context in which it arose; and the continuing significance of the opinion to the Office's overall jurisprudence. In applying these factors, the Office operates from the presumption that it should make its opinions fully and promptly available to the public." [Memorandum, at p. 5]
To be sure, Barron's memo then goes on to say that "national security" might serve as a "countervailing" factor. [Id.] But this caveat did not prevent the Administration from publishing an edited version of Barron's OLC opinion on drone warfare to obtain his Senate confirmation as a judge on the First Circuit. It should not prevent the publication of a similar opinion supporting the legality of Obama's war on ISIS, when so much more is at stake.
Given the OLC's asserted "presumption" in favor of publication in cases like this, there is only one fair conclusion to draw from its continuing silence. If its opinion were issued, it would only serve to confirm the hostile reception that Obama's assertions have provoked from serious constitutionalists of all political persuasions -- creating another political hailstorm for the president as he continues to defy the commands of the War Powers Resolution.
To conclude: when the President has a strong legal case, as in his immigration order, he tells the OLC to proclaim it to the world; when he doesn't, he tells it to shut up. The best way for the legal community to respond to this maneuver is to apply a presumption of illegality whenever the president -- or any future president -- engages in such transparently political manipulations.
Obama is not the first president to play politics with the OLC. I trace the office's increasing politicization over the past decades in my Decline and Fall of the American Republic. But in voting for him twice, I had expected our law professor-president to bring the Office back to its origins as a serious guardian of legality within the executive branch. He has failed; and the best way to respond is with this rule: Whenever the Office of Legal Counsel violates its own presumption in favor of publication, Americans should answer by presuming the illegality of a seriously contested decision.