Stare Decisis in the Office of Legal Counsel

Abstract

Legal interpretation within the Executive Branch has attracted increased interest in recent years, much of it focused on the Justice Department’s Office of Legal Counsel (OLC). The most significant centralized source of legal advice within the Executive Branch, OLC has also been plagued by charges of undue politicization - especially in connection with various issues relating to the “war on terror.” Yet there has been little consideration of the role in OLC of one of the main devices thought to constrain political and ideological preferences within the Judicial Branch - stare decisis. This Article provides the first sustained descriptive and normative examination of the role of stare decisis in OLC. Descriptively, it analyzes all of OLC’s publicly available legal opinions from the beginning of the Carter administration through the end of the first year of the Obama administration. The data show that OLC rarely openly departs from its prior opinions, but that an express request for overruling from the executive entity most affected by the opinion is a good predictor of such a departure. Normatively, the Article considers whether OLC should employ something like a rule of stare decisis with respect to its prior opinions, and, if so, in what circumstances it is justified in departing from those precedents. It argues that stare decisis has a legitimate place in OLC, but that OLC’s location within the Executive Branch affects both the weight it should accord its precedents and the circumstances in which it should depart from them.