Tuesday, June 28, 2011

To Whom Should President Obama Look for Legal Analysis?

The Obama Administration has recently come under fire for contending that the War Powers Act does not apply to the United States intervention in Libya, thus permitting the President to continue the effort without Congressional authorization. (Stephen Colbert sarcastically defended the Administration by arguing that American bombs are not hostilities but merely "laser-guided constructive criticism" and that the US effort is rightly viewed as a "heavily-armed semester abroad"!)

On Slate's excellent year-end Supreme Court wrap-up (here), Walter Dellinger focuses his criticism less on the substance of the President's decision than on the process by which it was reached.

Dellinger argues that the President should look to the Justice Department (in particular, the Office of Legal Counsel) for legal advice on significant matters such as the Libya intervention. He says that lawyers at the Office of Legal Counsel are positioned to provide more sound (and less political) legal guidance to the President because of their institutional detachment from day-to-day political considerations. In light of the legalistic stretch that the President had to make on the Libya/War Powers question, the point is well-taken.

Here is an excerpt from Dellinger's argument:
I am distressed that the White House press secretary keeps saying it was a fine process because the White House counsel had informal opinions from lawyers from all the relevant departments and the president signed off on the final decision.

That would be a fundamentally flawed process. A president should get his primary direction on major questions of domestic law from the Department of Justice, not from the White House counsel or from any of the operational departments of the government. And within the Department of Justice, the dispositive role should be played by the Office of Legal Counsel.

It may not be immediately obvious why it matters so much which lawyers decide. But it matters greatly. The Justice Department is a far superior place to make legal decisions. I served for a few months (in 1993) in the White House counsel's office and for a few years (1993 to 1996) as head of the Office of Legal Counsel in the Department of Justice. In my experience, the difference in institutional setting makes a significant difference. It is much easier to get legal questions right at OLC.

Everyone in the White House is a political appointee. The lawyers serving there swim in a pool that is dominated by policy and politics. There is no shame in that: Politics is the way we govern ourselves in a democracy. But it is not now and never has been a proper place for making legal decisions binding on the executive branch.

I can attest that OLC in administrations of both political parties has many times said "no" to requests urgently pressed upon the office by officials from the White House or other agencies. The institutional constraints on OLC are highly conducive to sound legal judgment. The OLC lawyers do their work in a setting that is full of career attorneys who are (or should be) consulted on every major legal decision. And OLC is guided by both institutional precedent and a long tradition of careful process. None of these critical elements exist in any White House counsel's office, in any administration.

There are outstanding lawyers in the White House, at the State Department, and in the Pentagon. Their views are properly sought out and given great weight by OLC. But in the end it is the Justice Department that should decide questions of domestic law. The Justice Department does not tell the State Department how to conduct diplomacy or the Defense Department how to conduct military operations. And those departments and the White House counsel's office, all of which have operational responsibilities other than getting the law right, should not be telling the Justice Department and OLC how to decide legal questions.
Stephen Colbert, Legal Commentator and All-Around Funny Person