Former OLC Lawyers Offer Principles To Guide That Office
Nineteen former Office of Legal Counsel attorneys, including four former Assistant Attorneys General and eight former Deputy Assistant Attorneys General have submitted a memo to the Justice Department and White House Counsel offering guidelines on the proper role of the OLC.
The Memo explains that, since the Supreme Court cannot issue advisory opinions to the President, the OLC serves this advisory role by objectively telling the Executive branch what the law is. According to the memo, the OLC's role is not to engage in advocacy in order to justify the President's policies. As the Executive is Constitutionally obligated to "preserve, protect and defend" the Constitution in its entirety, the OLC's duties also include ensuring proper respect for the Legislature and Judiciary's co-equal roles in goverance.
Since the OLC fills a gap created by the Supreme Court's prohibition on advisory opinions, the memo argues that the OLC's duty to refrain from advocacy is most important when it considers an issue which is non-justiciable, or an issue where the courts grant substantial deference, such as in matters of national defense. The memo criticizes the notion that "lawful" equates with "likely to escape judicial condemnation," instead arguing that the OLC provides a separate and independent check on the President's powers under the Constitution.
Given the OLC's unique interpretive role, which sometimes includes acting in lieu of the judiciary, the memo also calls for deference to the decisions of past administrations, and for a presumption that OLC opinions should be publically disclosed. This public disclosure is especially important in the rare instances when the OLC's good faith interpretation of the Constitution differs from that of the other branches. Finally, the memo recognizes that sometimes, such as when OLC lawyers are asked to assist the Solicitor General, it is necessary for the Office to engage in advocacy. In these instances, the memo says it is important for the Office to expressly state when they have assumed such a role, and that this role is taken outside of their advisory capacity.
Written By:Kasper On December 22, 2004 2:35 PM Written By:T-Money On December 22, 2004 3:35 PM
They make a few good points, but the whole thing reads like a lecture to a 6-yr-old. If this is really a well-intentioned "offering of principles" instead of a partisan maneuver, you'd think that they could have found more than one person whose tenure wasn't entirely circumscribed by Clinton's presidency.
If this is really a well-intentioned "offering of principles" instead of a partisan maneuver, you'd think that they could have found more than one person whose tenure wasn't entirely circumscribed by Clinton's presidency.
Because clearly no idea that comes out of the Clinton Adminstration can possibly have merit.
How about you attack the actual issues presented? Even if it is a strictly partisan manuever, that does not take away from the substantive issues.
The "principles" offered by the former OLC lawyers conflict with the understanding of our system of separation of powers as explained in The Federalist, notably No. 51.
JOHN S. BAKER, JR.
DALE E. BENNETT PROFESSOR OF LAW
LSU PAUL M. HEBERT LAW CENTER
Mr. Baker, do they teach the difference between "law" and "persuasive authority" at the Paul M. Herbert Law Center, or are your students under the impression that the Federalist #51 is actually binding upon the Justice Department?
But even if the Federalist were anything more than the sometimes informative rantings of a tiny minority of the framers, I'm still unclear just what part of Federalist #51 has arised your ire, but I can only guess you are refering to the fact that #51 suggests the three branches must be independent of one another, and thus the Executive should not base its actions on the will of the Judiciary.
While it may be amusing to consider what America would look like if the President ran around completely unconcerned with the will of the other branches (we tried that once, it's called a monarcy), I fail to see just what harm there is in expecting the Executive branch to form an office devoted to ensuring that branch fulfils its duty to uphold the Constitution.
But of course it is impossible for me to speculate on your actual meaning based on your very short and cryptic comment. Perhaps you would care to elaborate?
Mr. Baker, do they teach the difference between "law" and "persuasive authority" at the Paul M. Herbert Law Center, or are your students under the impression that the Federalist #51 is actually binding upon the Justice Department?
Man, that's cold.
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Here, here on the call for openness. One wonders what possible justification there could be for keeing legal opinions secret.