Institutional Advocacy, Constitutional Obligations, and Professional Responsibilities: Arguments for Government Lawyering without Glasses

Abstract

In Stare Decisis in Office of Legal Counsel, Trevor Morrison provides valuable insights into work of Office of Legal Counsel (OLC) that scholars examining executive power or practice should thoroughly consider. His previous work, Constitutional Avoidance in Executive Branch, is required reading for those studying constitutional avoidance doctrine generally, or its use in 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 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, proper effect of an OLC attorney’s individual ethical and legal obligations. Potentially problematic OLC practices include its identification of opinion-requesting agency — President and/or executive branch — as client. This causes OLC, in Morrison’s words, to view law through a particular lens, and not to give the best view [of law] but best view of law. Other institutional considerations, such as OLC’s legitimacy within 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 interpretive value of OLC precedent, and thereby propriety of applying judicial stare decisis principles to OLC legal opinions.