Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Habib Olapade
Habib Olapade is a senior at Stanford University studying political science.
The Office of Legal Counsel (OLC) exercises the Attorney General’s authority under the Judiciary Act of 1789 to provide the President and executive agencies with advice on legal questions. This power is significant for three reasons.
First, the post-New Deal expansion of the federal government’s scope of administrative capacities allows the OLC to render advice on a diverse range of matters including aspects of foreign U.S. military involvement, executive appointments that modify traditional democratic processes, and legislative compliance (i.e. the use of force in Libya to the propriety of recess appointments to compliance with the notice requirements in the Administrative Procedure Act.) Second, many OLC opinions are not subject to judicial review because of rules limiting the invocation of the judicial power; these loopholes in the check-and-balance structure of the U.S. government meant to limit the power of each branch include judicial concepts such as standing, mootness, ripeness, as well as the political question doctrine. OLC opinions, therefore, can be just as binding as Supreme Court rulings because they are not always subject to judicial appeal. Finally, every agency in the executive branch must comply with issued OLC opinions; in other words it defines the executive branch’s role in government.
The OLC’s advising function and means of existing within the executive branch can create a conflict of interest that jeopardizes the objectivity of the appointed attorneys running the agency. On the one hand, the President swears to “take care that the laws be faithfully executed.” In the process of executing the laws, the President must interpret them as objectively and accurately as possible. Under this ‘neutral model,’ OLC attorneys must strive to render advice that reflects their honest judgment of what the law requires – even if that judgment conflicts with political expediency. On the other hand, the relationship between OLC and the President is somewhat analogous to the relationship between a private attorney and client. Under this ‘advocate model,’ solicited OLC attorney-advisers should offer any colorable argument to justify executive action notwithstanding the proposal’s actual legal merits. Should the matter end up in court, the argument runs, the adversarial process will allow judges to properly resolve the issue. History and policy support the efficacy of the former model in producing fair judicial outcomes.
The United State’s First Congress met in the late eighteenth century and, among other governmental modifications, it created the Office of the Attorney General in the image of its British counterpart. Both British and American law officers were tasked with representing their executives in court, engaging in private practice aside from official duties to supplement their meager salaries, and advising the executive on legal matters. Moreover, Sir Elwyn Jones, chief legal advisor to the English and Welsh government, adds that, historically speaking, Attorneys General did “not allow political considerations to affect their actions in those matters in which they had to act in an impartial….way.” It is more likely than not that the framers perceived executive legal advising to be a comparably an impartial pursuit. Samuel Johnson’s Dictionary of the English Language, the most prominent dictionary in late eighteenth-century America, defined ‘advising’ as presenting a “persuasion of mind.” Recitation of every colorable claim under the sun in support of a position is not likely to be compelling enough to persuade the mind, as it has no ground upon which to move a mind, or anything for that matter. Because this insensitive mode of argumentation is central to the advocate model, it follows that it is incompatible with the original understanding of the Attorney General’s advice rendering function in §35 of the 1789 Judiciary Act.
It is not clear, however, that the original intention for statutory provisions was for them to be static. After all, “a thing may be within the letter of [a] statute and yet not within [its meaning], because [it is] not within its spirit, nor within the intention of its makers.” For instance, Title VII of the Civil Rights Act of 1964 was originally understood to allow employment practices that have a negative disparate impact on racial minorities or women so long as the practice was not adopted for discriminatory purposes. However, in Griggs v. Duke Power Co. the Supreme Court explicitly declined to interpret Title VII this way for policy reasons. Therefore, some advocate model critics may argue that the meaning of a statute changes over time allowing courts to respond flexibly to new problems in the face of congressional inaction. Ostensibly, §35 is no exception to this rule. Since policy considerations play a determinative role in what the current statutory meaning should be in U.S. legislation, comparisons between the American and the English Attorneys General become inapposite.
There are, however, strong policy reasons for the OLC to adopt the neutral model. The OLC is not permitted to render legal advice on an issue affecting an agency without prior permission. OLC resembles a federal court in the sense that it is passive, or only reacts to situations after they have arisen. Agencies do not have to solicit advice from the OLC but do so voluntarily because the branch has a reputation for producing work that is fair, neutral, and scholarly. If OLC attorney-advisers begin issuing opinions that employ every colorable argument to support executive action, the office will lose its valuable reputation and, subsequently, its client base. In addition, most agencies already employ a general counsel capable of marshaling a bouillabaisse of arguments to support a proposed course of action. Given that an agency’s general counsel is more accessible than an OLC attorney, why would an agency solicit the former’s input? Impartial legal advice must be one of many possible and persuasive answers.
Every branch of the national government must interpret the Constitution in the course of its duties. Unfortunately, judicial supremacy has made it quite fashionable for lawmakers to ignore this obligation. Thus, today the OLC stands as a bulwark against the executive’s complete abdication of critical interactions with the nation’s governing document, by evaluating legal issues in a neutral manner. This neutrality serves the institution’s purposes by maintaining its clientele, and, more importantly, it saves federal executives from themselves by curbing their natural urges to sacrifice legal propriety for political expediency. To deride the OLC for its neutrality is to deride Ulysses for tying himself to the mast in order to save himself from the alluring, yet treacherous song of the Sirens.
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