Release of legal memo on Obama’s action significant
WASHINGTON — Agree or disagree with Barack Obama’s executive action on immigration, the president did something important, laudable and with potentially long-lasting consequences in announcing the move: He released the Office of Legal Counsel memorandum outlining the legal justification for it.
This may sound like the nerdiest, inside-baseball-ist matter around. Maybe, but it also goes to fundamental issues of compliance with the rule of law and transparency in government.
To understand the significance of this action, it helps to know something about the Office of Legal Counsel, commonly known as OLC. This is an elite unit within the Department of Justice, entrusted with providing legal advice to the president and the executive branch.
Most of its work is obscure and, frankly, boring. But some of it — you may remember the “torture” memos written by OLC during the George W. Bush administration — is highly charged and consequential. Almost all takes place outside the public eye; the normal practice has been for OLC memos to remain secret for months and years, if they are ever released. This is an outgrowth of the governmental inclination toward secrecy and the lawyerly instinct toward protection, or over-protection, of attorney-client privilege.
The problem with this approach is that it ends up insulating important issues of executive authority from public scrutiny. Courts are understandably disinclined to referee disputes between the executive and legislative branches; legalities such as standing to sue keep these fights out of court. That is fine, but this also serves to keep much executive action unreviewable. Which is why the administration’s move to release the OLC opinion on immigration is so helpful.
You could look at this cynically: Why care that the president’s own lawyers have given him a green light? But OLC is the lawyer for the executive branch and the presidency, not for a particular president, and, like all good lawyers, it has a separate responsibility to counsel a client who is trying to go too far.
As a 2010 memorandum by David Barron, then the director of the office, put it, OLC’s advice should be “based on its best understanding of what the law requires — not simply an advocate’s defense of the contemplated action or position proposed by an agency or the administration.”
Thus, in the case of executive actions on immigration, OLC found that the Department of Homeland Security had authority, in the traditional exercise of prosecutorial discretion, to give priority to some deportations over others, and also to allow parents of U.S. citizens and legal permanent residents to remain — and work legally — in the country.
Before we get too carried away in cheering here, while the Obama administration has been better than its predecessor in terms of secret legal opinions — OK, not a high bar — it has been far from perfect.
Only under congressional duress and in the interest of winning Barron’s confirmation to a judgeship did it release a redacted version of a memo outlining authority to use drones to kill U.S. citizens. (The same thinking may be at play, pre-emptively, here. Releasing the opinion prevents it from being a pawn in hearings on Attorney General nominee Loretta Lynch.)
The administration has maddeningly argued in court against releasing OLC memos on the president’s use of his recess appointment power, contending that secrecy is “essential’ in order to “ensure the candor of executive branch deliberations.” This argument proves too much: But, if so, why publish any opinions at all?
The White House has also disclosed OLC opinions when convenient, only to ignore the office later. Before launching military operations in Libya, the administration happily brandished an OLC ruling that the president did not need to obtain prior congressional approval.
Then, when OLC differed with the president on whether its actions in Libya amounted to “hostilities” under the War Powers Act — and therefore required congressional approval to continue — the administration chose to bypass OLC.
Barron’s memo asserts that OLC, in deciding on release, “operates from the presumption that it should make its significant opinions fully and promptly available to the public.” Here’s hoping this action portends more times when that pretty theory is translated into practice.