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OLC Dissents

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Ken Rhodes says:

    I’m afraid I disagree with this, not as a lawyer (which I’m not) but as a business analyst commenting on the way decisions are made and business is conducted.

    The President is a decision-maker. Executive Department is responsible for “execution.” The OLC is an advisory function within the President’s organization, not a decisionmaking body. Therefore the concept of “public dissent” is anathema to the business functioning of the Executive Department. OLC opinions should *never* be published, except by the President, if he chooses to do so. They are *his* advisors, not Congress’ advisors.

    As an analogy, consider the Office of Management and Budget. They are part of the Executive Department, working for the President. Congress has the CBO, and that office is independent of the President, but they don’t get to put “moles” in the OMB. This separation seems critical to me to preserve the balance of powers in our government.

  2. I suspect that if OLC had this role, that only reliably partisan yes-men and yes-women would be appointed to be head of OLC.

  3. Ken Rhodes says:

    …and I suspect the opposite.

    If the President has to deal with the fact that OLC opinions can be treated by Congress (and the press) as though they are an independent body, and that their opinions carry weight as independent spokespersons for the “true law,” then his only defense is to stack them with spokespersons who agree with him.

    If, on the other hand, the President can solicit their opinions in private, and utilize those opinions as *one* of the inputs to his decision making process, without fear that those opinions will be thrown back in his face if he decides to go against them, then he will be more free to solicit disagreements, and the OLC will be more free to offer disagreements.

  4. Joe says:

    As to the first comment, the OLC provides legal advice to the President, including his power and responsibility under the law. This affects how the President executes his powers, including in ways that affects third parties.

    If the OLC explains, e.g., how the President can tell a federal agent to use deadly force in such and such situation, are you saying that the reasoning should only come out if the President wishes to do so? What if the opinion involves the Capitol grounds?

  5. Joe says:

    My comment presupposes the President follows a specific OLC legal memoranda. It is quite another matter to require the OLC to release legal reasoning not used. The President gets the final say here. In each case, there might be dissents. It is not our right to be a party to all the views, including the ones rejected, examined. It would in fact discourage reasoned deliberation if such disputes were made public.

  6. Gerard Magliocca says:

    Well, let’s put it this way. An OLC dissent can be disseminated through leaks to the Washington Post or through a published opinion written according to a set procedure. Which option is better? It’s kind of naive to think that the contrary advice given to the President will never come out.

  7. Joe says:

    The press generally is not too interested in OLC proceedings except in special cases. Even there, leaks will be selective, not all dissenters likely to leak to the press.

    Leaks will always be present and they provide a safety valve. They are present when classified information is involved too. This doesn’t mean classification is a bad idea.

    The official rulings can in my view be required to be made public as a general rule. The rulings should cover the main alternative arguments, if only to refute them. When released, critics can vet the official rulings, raising alternative arguments.

    Releasing dissenting OLC views to me seems an unnecessary infringement on inter-executive deliberations.

  8. Gerard Magliocca says:

    I suppose it depends on whether you view the OLC as quasi-independent or as just another arm of the Executive Branch staff. If it’s the former, then it should be subject to congressional oversight. If the latter, then not.

  9. Joe says:

    “Congressional oversight” doesn’t necessarily mean your proposal is the best policy.

    On the face of it, I didn’t think the OLC is quasi-independent: http://www.justice.gov/olc/

    But, I’m not sure if that necessarily decides the question at the end of the day anyways.

  10. Joe says:

    The OLC analysis on the recess appointment controversy has been released, and fwiw, “considered several counterarguments to [its] analysis.”

    http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

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