The President’s Law Firm
The Office of Legal Counsel from Roosevelt to Trump
Summary
Excerpt
Table Of Contents
- Cover
- Title
- Copyright
- About the author
- About the book
- This eBook can be cited
- Contents
- Preface
- 1. Introduction
- Organizational Structure of the Justice Department and the OLC
- General Organization
- Justice Management Division
- Functions of the OLC
- Origins of the OLC and Evolution of the Justice Department
- Thesis of the Book
- Research Methodology Utilized in the Book
- Outline of the Book
- Chapter 1—Origins and Background of the OLC
- Chapter 2—Franklin D. Roosevelt and Harry S. Truman Administrations
- Chapter 3—Eisenhower Administration
- Chapter 4—Kennedy and Johnson Administrations
- Chapter 5—Nixon and Ford Administrations
- Chapter 6—Carter Administration
- Chapter 7—Reagan and George H.W. Bush Administration
- Chapter 8—Clinton Administration
- Chapter 9—George W. Bush Administration
- Chapter 10—Obama Administration
- Chapter 11—Trump Administration
- Chapter 12—Conclusions
- References
- 2. Franklin D. Roosevelt (1933–1945) and Harry S. Truman (1945–1953) Administrations
- Background
- Selected Memorandum Opinions under Roosevelt
- Gold Clause
- Pocket Veto Case—3/16/1934
- Constitutionality of Law Conferring Einstein a Citizenship—4/09/1934
- Exercising the Pocket Veto—6/26/1934
- Legality of an Executive Order Making Requirements of Certain Departments—09/25/1934
- Removing the Assistant Secretary of Commerce 6/10/1935
- Other Memorandum Opinions under Roosevelt
- Wartime Memoranda
- Roosevelt’s Final Years
- Memorandum Opinions under Truman
- Conclusions
- References
- 3. Eisenhower Administration 1953–1961
- Background
- Selected Memorandum Opinions under Eisenhower
- Balanced Budget 8/16/1955
- Public Land Availability for National Defense 7/12/1956; 2/24/1958
- Authority to Blockade Cuba 1/25/1961
- Other Memorandum Opinions under Eisenhower
- Brown v.Board of Education, 347 U.S. 483 (1954)
- Conclusions
- References
- 4. John F. Kennedy (1961–1963) and Lyndon B. Johnson (1963–1969) Administrations
- Background
- Selected Memorandum Opinions under Kennedy
- Authority to Blockade Cuba 1/25/1961
- Intervention by States and Groups in Affairs of Another State 4/12/1961
- Authority to Take Action over Soviet Missile Bases 8/30/1962
- Selected Memorandum Opinions under Johnson
- Conclusions
- References
- 5. Richard M. Nixon (1969–1974) and Gerald Ford (1974–1977) Administrations
- Background
- Selected Memorandum Opinions under Nixon
- Tricky Dick and the Checkers Speech
- Development of the 25th Amendment: Presidential Disability and Succession
- The OLC and Potential Impeachments
- Additional Memorandum Opinions under Nixon
- Effect of Repeal of the Tonkin Gulf Resolution
- Authority to Enter Cambodia-Vietnam Border Area
- Destruction of Vietnamese and Cambodian Sanctuaries
- Self-Pardon of a President
- Memorandum Opinions under Ford
- Conclusions
- References
- 6. Jimmy Carter (1977–1981) Administration
- Background
- A General Discussion of Memorandum Opinions under Carter
- General Lack of Familiarity with Process
- Dealing with Iran
- Selected Memorandum Opinions under Jimmy Carter
- Role of the Solicitor General
- Congressional Access to Tax Returns
- Removal Power or Disciplinary Action of Presidential Appointees—Constitutional Law
- Amending the Constitution by Convention
- Convention for Proposing Amendments
- Conclusions
- References
- 7. Ronald Reagan (1981–1989) and George H. W. Bush (1989–1993) Administrations
- Background
- A General Discussion of Memorandum Opinions under Reagan
- Memorandum Opinions under George H.W. Bush
- Conclusions
- References
- 8. William Clinton (1993–2001) Administration
- Background
- Selected Memorandum Opinions under Bill Clinton
- Constitutionality of Health Care Reform
- Deployment of US Armed Forces into Haiti
- Balanced Budget Amendment
- Summary of Additional Memorandum Opinions under Bill Clinton
- Conclusions
- References
- 9. George W. Bush (2001–2009) Administration
- Background
- Selected Memorandum Opinions under George W. Bush
- Physician-Assisted Suicide
- Authority to Conduct Military Operations against Terrorists
- Summary of Additional Memorandum Opinions under George W. Bush
- Conclusions
- References
- 10. Barack Obama (2009–2017) Administration
- Background
- Selected Memorandum Opinions under Barak Obama
- Memorandum Re-Considering Existing Decisions
- Decisions from the Second Year in Office: 2010
- Summary of Additional Memorandum Opinions under Barack Obama
- Conclusions
- References
- 11. Donald Trump (2017–Present) Administration
- Background
- Selected Memorandum Opinions under Donald Trump
- Early Decisions
- Travel Bans
- Additional Memorandum Opinions under Trump
- Summary of Additional Memorandum Opinions under Trump
- Conclusions
- References
- 12. Discussion and Conclusions
- Background
- Emoluments Clause
- Deference to the OLC
- Modern Role of the OLC
- Conclusions
- References
- References
- Recommended Books and Journals
Preface
The subject of this book is the Office of Legal Counsel (OLC) in the U.S. Department of Justice (USDOJ). This book is intended to be a comprehensive study of the Office, including its history, functions, and impact on governmental decisions. While the impact of the OLC is mainly on the office of the President, and on the legal positions of the executive branch, the OLC’s actions also influence legislative decisions of Congress and judicial decisions in court cases. Overtime, the OLC has extensively evolved. Today, the office straddles the line between politics and law, as well as interacting with the rest of the Department of Justice. The Office of Legal Counsel provides an essential role for both the President and the rest of the national government, but it does not receive nearly the attention or scrutiny it deserves. This book is intended to illuminate the inner workings of the OLC, its importance to other branches to the government, and the impact that the OLC makes behind the scenes on the lives of everyday Americans. The title of the book is a reference to the nickname often given to the OLC. Although the Office had various names over the years, for clarity, the name Office of the Legal Counsel, or OLC, is used throughout the book.
←xi | xii→The central audience of this book is likely to be legal practitioners and scholars. Lawyers, judges, and law professors will likely find this book helpful, but scholars of law and politics will hopefully find this book to be an excellent supplement to more traditional sources of information. Upper-level undergraduates, graduate students, historians, and professors of American politics will find this book useful, but it may be in terms of constitutional law, legal history, and public law that this book provides the strongest contribution. While the book is written in such a fashion that general readers and other interested observers of the American legal system can understand it, the material itself is somewhat dense and technical. This book is mainly a scholarly text, but it will be valuable outside of the classroom for supplemental reading in courses that specialize in judicial politics, process, or the legal profession at either undergraduate, graduate, or law school levels.
The author of this book is a tenured political science professor specializing in American politics, public law, and legal history. The Office of Legal Counsel has long been a fascination of the author. It was a particular interest as a graduate student during the George W. Bush administration. The use of executive orders has become a focal point for both scholars and the public in recent years. It seems clear that many people, whether in the legal field or simply interested in the state of politics today, wish to understand the significance of the Office of Legal Counsel, and why the OLC seems to be involved in so many of the ongoing situations that are discussed by the media. The desire to learn more about the OLC, combined with a lack of success in finding quality sources of information, provided plenty of inspiration for the author to write this book.
Chapter One
Introduction
By delegation from the Attorney General (AG), the Assistant Attorney General (AAG) in charge of the Office of Legal Counsel (OLC) provides reliable legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance where two or more agencies are in disagreement. The Office also is responsible for advising on issues of constitutionality, reviewing pending legislation, and providing the Executive branch with legal advice.
When the President proposes to issue an executive order or proclamation, he cannot do so unilaterally despite the way that it may have been presented in the popular media. When a presidential candidate announces, for example, that their first act if elected will be to issue an executive order on a particular matter, the newly elected President cannot do so without the approval of the OLC. It is the OLC’s responsibility to ensure that executive orders and proclamations proposed to ←1 | 2→be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President’s formal approval.
Professor Arthur Garrison (2012, 2013), whose works were cited throughout this book, was kind enough to allow an interview on May 27, 2020. He emphasized that the Office of Legal Counsel is given the job of protecting the Office of the President as an institution. The OLC must also follow the rule of law and are intended to be as impartial as possible. The opinions of the OLC are considered to be definitive for everyone in the executive branch except for the office of the Solicitor General. The problem, of course, is that the opposite view, which is that the OLC must be loyal to the President’s policy objectives. In several recent presidencies this dichotomy has caused a huge dilemma and has resulted in a great deal of outcry, particularly because of incidents in the Bush administration (Garrison, 2020). This clash is discussed further in Chapter 9, in conjunction with a discussion of John Yoo’s 2001 memos, which supported President Bush’s view that he had the right to handle suspected terrorists as he wished.
Cover (2012) argues that the production of OLC memos is a collective action. He suggests that the current system fails to hold supervisory attorneys accountable for the contents of the opinions, and thus weakens the opportunity for an attorney to dissent with the presidential viewpoint. By holding the supervisory attorneys responsible for the legal opinions reflected in the OLC memos, there would be more accountability and thus more forethought before the memos were issued. The opinions would more nearly reflect a balanced perspective of the legal points, rather than merely reflecting the presidential view (Cover, 2012). Cover argues that the time has come to mandate a revision of the professional rules of conduct for those who oversee the OLC, in order to ensure that the advice given to the President reflects the law and not the President’s preferences.
From the beginning of the Carter Administration through the first year of Obama’s administration, OLC produced 245 opinions that were available to the public. Of these 245 opinions, 193 (or 79%) fully supported the President’s position. An additional twenty positions, or 8%, supported some portion of the President’s position. Thirty-two ←2 | 3→opinions, or 13%, were in opposition to the President’s stated viewpoint (Cover, 2012, 276; Morrison 2010 supra note 13, at 1476–79). However, as Cover pointed out, and other analysts have argued, it is very difficult to discover the true number of OLC memoranda for any time period, because the memorandum can be either classified or withheld from the public. Thus, the number of memos in support of the President’s opinion can be higher, or lower.1 Cover (2012) argues that the number of memorandum in opposition to the President are probably undercounted, simply because they have been withheld from the public and are thus unlikely to reflect the President’s opinion (276, note 36). Regardless of what the eventual outcome is, it is clear immediately that there must be some procedure implemented for numbering and accounting for executive orders and their content. Even if the order is classified, the subject of the order should not be, and the subject of the order(s) should not be withheld from the public in order to remain transparent.
It is important to understand that in addition to serving as, in effect, outside counsel for the other agencies of the Executive Branch, the Office of Legal Counsel also plays a special role within the Department itself. The OLC reviews orders that have been proposed by the Attorney General and also all regulations that need the AG’s approval before being released. It also performs any special assignments that might be referred by the Attorney General or the Deputy Attorney General (2017). Although executive orders existed prior to 1933, they were not numbered until Franklin D. Roosevelt’s stay in office. It would be difficult to determine how many orders actually existed, with any assuredness, until the orders began to be numbered.2 Table 1 reflects the issuance of orders from the beginning of Franklin D. Roosevelt’s presidency to the Trump presidency in September, 2019. It should be noted that the “years in office” is based on information taken directly from the Archives and may not reflect complete years. Thus, the “terms” column provides more detail.
Details
- Pages
- XII, 142
- Year
- 2021
- ISBN (PDF)
- 9781433184895
- ISBN (ePUB)
- 9781433184901
- ISBN (MOBI)
- 9781433184918
- ISBN (Hardcover)
- 9781433184888
- DOI
- 10.3726/b18011
- Language
- English
- Publication date
- 2021 (March)
- Published
- New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2021. XII, 142 pp., 1 b/w ill., 2 tables.
