Keywords
Executive power, United States. Department of Justice. Office of Legal Counsel
Abstract
This study shows that the Office of Legal Counsel does not offer "detached, apolitical legal advice" in practice. Rather, the OLC is deeply and systematically deferential to the President. The implications are grave considering the OLC's de facto lawmaking power, a result of its position as legal adviser for the executive-- "the judgment of [the OLC] . . . becomes the law." Moreover, the OLC "is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts--a circumstance in which OLC's advice may effectively be the final word on the controlling law." Whether the OLC facilitates the extra-constitutional and extra-legal expansion of executive powers depends on the implementation of sufficient remedies for the problem of partiality.
Recommended Citation
Adoree Kim, The Partiality Norm: Systematic Deference in the Office of Legal Counsel, 103 Cornell L. Rev. 757
(2018)
Available at: https://scholarship.law.cornell.edu/clr/vol103/iss3/5
Included in
Constitutional Law Commons, Law and Politics Commons, President/Executive Department Commons