Institutional Advocacy, Constitutional Obligations, and Professional Responsibilities: Arguments for Government Lawyering without Glasses
16 Pages Posted: 19 Mar 2013
Date Written: November 12, 2010
Abstract
In Stare Decisis in the Office of Legal Counsel, Trevor Morrison provides valuable insights into the work of the Office of Legal Counsel (OLC) that scholars examining executive power or practice should thoroughly consider. His previous work, Constitutional Avoidance in the Executive Branch, is required reading for those studying constitutional avoidance doctrine generally, or its use in the executive branch specifically. In this latest effort, Professor Morrison empirically demonstrates that OLC legal opinions serve as a form of binding precedent for that office, and posits that there are many good reasons for giving those opinions stare decisis effect.
This response addresses only the normative theoretical inquiry and makes one essential point: Professor Morrison’s analysis relies heavily upon institutional considerations and potentially problematic OLC perceptions of its role. He does not consider, and therefore potentially undervalues, the proper effect of an OLC attorney’s individual ethical and legal obligations. Potentially problematic OLC practices include its identification of the opinion-requesting agency — the President and/or the executive branch — as the client. This causes OLC, in Morrison’s words, to view the law "through a particular lens," and not to give "the best view [of the law]" but "OLC’s best view of the law." Other institutional considerations, such as OLC’s legitimacy within the executive branch, may also cause OLC to misidentify or to over-identify with its client(s). These factors may generate consistent, executive-friendly error in OLC legal opinions. Such error diminishes the interpretive value of OLC precedent, and thereby the propriety of applying judicial stare decisis principles to OLC legal opinions.
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