Powell spurs publication of historic OLC opinions

August 19, 2013Duke Law News

The foreword to a newly published collection of opinions from the Justice Department’s Office of Legal Counsel (OLC) credits Professor H. Jefferson Powell with the project’s conception. 

An expert in constitutional law, Powell has regularly punctuated his academic career with periods of government service.  In 2011, while serving as deputy assistant attorney general in the OLC, which provides legal advice to the president and high-level executive branch officials, Powell suggested the publication of its significant opinions dating from 1933, when the office was officially established, to 1977, when regular publication of these supplementary opinions began.  Having culled through archived opinions and memoranda to select candidates for publication, he is delighted to see the project come to fruition with the release of volume one of Supplemental Opinions of the Office of Legal Counsel in print and online.

“The current head of the OLC, Virginia Sykes, deserves great credit for making the decision to expend the resources to start the series.  It’s a tremendous public service,” says Powell, explaining that between 1933 and 1977 only a small set of opinions bearing the signature of the U.S. attorney general were published.  “So you have this huge gap where, if you are outside the Justice Department, you can’t easily access what the OLC had to say – and really what the Justice Department had to say, because OLC speaks, by delegation, for the attorney general.   It speaks with the AG’s authority and so its advice is binding within the executive branch.”  Only the president or attorney general can overrule OLC decisions.  Despite their importance, however, absent publication (or someone accessing them through the Freedom of Information Act) OLC opinions can essentially be lost to history and to the legal profession. 

“It occurred to me during my most recent time in OLC that this ought to be rectified.  These are tremendously important and interesting materials,” says Powell, who has long impressed his students with the utility of OLC opinions to practicing lawyers trying to anticipate, on behalf of their clients, what action the executive branch of the U.S. government might take in a given situation.

Several opinions in the collection address blockading Cuba at the beginning of the missile crisis. “They are important for understanding, for example, the ways in which executive branch thinking about the use of military force has evolved over time,” says Powell.  “They give us more context about what Presidents Eisenhower and Kennedy were being told by advisors and lawyers about their options.”

Other opinions offer a deeper understanding of very important areas of law.  “The first OLC head to deal with the Freedom of Information Act was named Antonin Scalia,” Powell points out.  “Assistant Attorney General Scalia’s opinions on ‘FOIA’ are crucial early documents about the development of the executive’s view of FOIA and its obligations.” 

Some of the newly published opinions, he notes, might spur a reconsideration of important figures.  In 1969, his first year as OLC head, William Rehnquist issued an opinion that directly contradicted President Richard Nixon’s claim of constitutional authority to impound funds.  The future chief justice of the United States found that the president has no such general impoundment power.

“William Rehnquist, a Nixon appointee, is generally viewed as having been a very conservative jurist,” says Powell.  “But he said ‘no’ to the president on a highly controversial matter.  This and other things Rehnquist wrote might lead you to reevaluate his jurisprudence because they show what the man is doing at an early stage of his career – to be sure, in a different place and with less freedom than he had as a justice to shape the law from his own perspective.”

Powell uses another Rehnquist opinion, on the legality of Nixon’s highly controversial 1970 order to send U.S. troops into Cambodia, to illustrate the value of publishing important – and precedential – OLC rulings.  Rehnquist concluded that Nixon’s order was legal as a tactical decision within the scope of the congressionally-authorized Vietnam war and based on the Cambodian government’s welcome of the Americans, but the opinion “directly and explicitly says that Congress has all sorts of powers to limit the president as commander in chief,” Powell says.

That opinion, he says, should have been taken into consideration more than three decades later by the Bush-era OLC lawyers who drafted memoranda that authorized the use of enhanced interrogation techniques against suspected terrorists. 

“The argument in the ‘Interrogation Memos’ is, on the face of it, a statutory construction.  It says the Torture Act must be construed in a certain way because otherwise it would violate the president’s constitutional authority as commander in chief,” says Powell.  That argument, he says, is “completely inconsistent” with Rehnquist’s 1970 preservation of “a highly significant range for congressional authority and for requiring executive attention to congressional limitations.”  The authors of the Interrogation Memos may not have felt a strong obligation to follow, or at least address, the earlier OLC opinion because it was unpublished, he suggests.

“Another benefit of this collection of opinions is that it keeps the executive branch, Democrats as well as Republicans, honest to what has been said in the past.  In that way, it actually increases the chances that the executive will get the law right.  One of the most important reasons for the attorney general and OLC – and presidents themselves – to follow past executive views of the law is doing so insures that instead of simply reacting to the felt needs of the moment, you recognize your responsibility to the ongoing tradition of the law.

“William Rehnquist felt the pressure of current events.  Assistant Attorney General Walter Dellinger [Duke’s Douglas B. Maggs Professor Emeritus of Law], who followed the Rehnquist position in a 1994 memo, felt the pressure to strain to enable the policymakers to do what they wanted. 

“The very thing OLC exists to do, and its value to the politicians, is to provide good legal advice,” adds Powell.  “The contribution that the political appointees and everyone else at OLC makes is one of attention to the law beyond the politics. The Rehnquist opinion, and many of the other opinions in this new volume of Supplemental Opinions, I hope and believe, will play an incredibly positive role in future executive branch internal legal discussion.”

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