The recent controversy over the President’s recess appointments and his interpretation of the War Powers Act in the Libya intervention got me to thinking–why shouldn’t the Office of Legal Counsel write dissents to White House decisions that it thinks are wrong?
The standard procedure seems to be as follows: If the President agrees with the OLC’s analysis, its opinion becomes binding precedent within the Executive Branch (whether it is published or not). If the President does not agree, though, then the analysis may never see the light of day (except in a leak to the press). Worse still, if the President thinks that the OLC will not accept his position, then he can refuse to ask for an OLC opinion and get one from the White House Counsel or the State Department Legal Advisor that is bound to be more friendly to executive power.
A better approach would be something like this: OLC opinions should generally be published, and if the President does not adopt a particular one it should be reported as a dissent. And if the President does not ask for an OLC opinion and gets one from some other part of the Executive Branch (to avoid a public OLC dissent), Congress should have the power to compel OLC to write an opinion setting forth its views on the matter.