Libyan Legal Limbo
Why there's nothing wrong with Obama ignoring some of his own legal advisers on Libya.
Updated Tuesday, July 5, 2011, at 6:17 PM
President Obama's decision to ignore the Office of Legal Counsel's advice about Libya has shocked and worried critics on the left and right. Yet the decision emerged from what was essentially a bureaucratic conflict—the State Department and the White House Counsel's Office said the U.S. military intervention in Libya was permissible under the War Powers Resolution, OLC and the Department of Defense disagreed—and the uninitiated may be forgiven for wondering what all the fuss is about. Isn't choosing among the views of his advisers what the president is supposed to do?
The president's critics say that in important legal matters, it's the job of OLC (which is part of the Justice Department) to weigh the competing views and issue an opinion that presidents are presumptively bound to respect. These critics praise the "independence" of OLC and paint a dark picture of a presidency that enforces "political" decisions, overriding the legal merits. In fact, OLC has been far less independent than the critics claim, and even if a truly independent OLC had ever existed, it would be objectionable anyway. There is no reason that the president—the sole officer of government constitutionally required to "take care that the laws be faithfully executed"—should be bound, even presumptively, by the legal views of those who are, after all, merely his servants.
The critics exaggerate the historical independence of OLC, whose heads traditionally talk impressively about their own detachment and then, by and large, offer legal views that dovetail closely with whatever the president's agenda happens to be. Thus in 1999, under President Clinton, OLC found that Congress had implicitly authorized the president's bombing campaign in Serbia by appropriating funds for troops already in action, despite the inconvenient details that Congress had voted down a request for such authority, and that the War Powers Resolution expressly denies that funding statutes can confer authority to make war.
What's striking about the most recent episode is not so much that the president overrode the OLC's view. It's that after orally giving its advice to the president, OLC did not back down on an important component of the president's foreign policy, and supply the legal justification that won out. OLC overstepped its traditional role—Keeper of the Presidential Fig Leaf—perhaps because the acting head takes the rhetoric of independence too seriously. The mistake will probably not be repeated, and the traditional equilibrium will reassert itself.
But suppose that OLC does provide independent legal advice. There is nothing objectionable about a presidential decision to adopt the views of one set of legal advisers over those of another. The procedure the White House followed—hearing from legal advisers in four offices, with diverse expertise and perspectives—seems a sensible approach to decisionmaking. Interpreting the War Powers Resolution is not like reading a speed limit sign; the statute is riddled with ambiguities. Where statutes address matters of great complexity and military and foreign policy, disagreement is inevitable even among the best lawyers, and various departments within the executive branch will hold different views. OLC is just another adviser, with no special claim to deference from the president, who alone is ultimately responsible for the administration's position.
Critics say that this regime allows a president to cherry-pick among the legal views of different advisers until he finds one that suits his desires, and that this undermines the constraints of law. The idea is that OLC should act like a court, or a competing branch, one that keeps the president in check by compelling him to comply with the Constitution and the laws. But that is not how our system of government works. Congress and the courts serve the checking function, and where they fail—as they often do in matters of foreign policy and war—public opinion plays that role.
The effort to elevate the importance of OLC reflects a general fear of presidential power. But it makes little sense to expect an institution staffed by appointees of the president to constrain him. A president need not have or consult any legal advisers at all; nothing prevents Obama from shutting down OLC and the other executive branch legal offices altogether and deciding the administration's legal positions for himself. The constraints of the War Powers Resolution or any other law, whatever they may be, are an entirely independent matter, unaffected by whether the president does or does not hear anyone else's views about how the law should best be understood. It is mysterious why it is controversial that a president should get to decide which, if any, of his own creatures he will deign to hear. OLC exists to serve the presidency, not the other way around.
Eric Posner, a professor at the University of Chicago Law School, is a co-author of The Executive Unbound: After the Madisonian Republic and Climate Change Justice. Reach him on Twitter at @EricAPosner.
Adrian Vermeule is a professor at Harvard Law School and co-author ofThe Executive Unbound: After the Madisonian Republic.
Photograph of Libya by Mahmud Turkia/AFP/Getty Images.