Balkin on Bush, Obama and OLC

Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization.  He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the OLC opinions it wanted on key questions related to the War on Terror. This was only the Bush Administration practice for a short period, however. Beginning with Jack Goldsmith’s tenure, OLC began to assume a more traditional role and, as a consequence, OLC issued some opinions that were definitely contrary to what the White House wanted to hear. In one infamous case, OLC concluded that prior opinions approving the constitutionality of a terrorist surveillance program were in error. Confronted with this information (and the threat of resignations from within the Justice Department), President Bush acquiesced, and the program was altered to conform with OLC’s understanding of the relevant constitutional constraints.

The Obama Administration has not repeated the Bush Administration’s early mistakes with OLC, but it is now clear it is making errors of its own. As John Elwood notes below, this is not the first time this Administration has overruled OLC when the office did not reach a desired conclusion. The Administration bypassed OLC’s determination that Congress could not grant full congressional representation to the District of Columbia absent a constitutional amendment.

Writes Balkin:

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.

Here is how Balkin concludes:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one’s own.