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Daphna Renan, The Law Presidents Make, 103 Va. L. Rev. 805 (2017).

Abstract: The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That conception of executive branch legalism did have a brief heyday in practice. But its institutional underpinnings are unstable. A different approach to executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—is today on the rise. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism ought to become more court-like. They have mourned what they perceive to be a disappearing external, legalistic constraint on the presidency. But executive branch legalism has never been an exogenous or external check on presidential power. It has always been a tool of presidential administration itself. The needs of the president have simply shifted. While earlier presidents looked to executive branch legalism to buttress public legitimacy through a more insulated, more court-like design, the president today looks to executive branch legal review to augment discretion at the retail, or issue-specific, level—to forge pathways to policy and political compromise in highly-contested, consequential, and legalistic terrain. There is much at stake in that transformation. But it is not the disappearance of law as an external constraint on the presidency. Rather, it is a reformation of executive branch legalism as an instrument of presidential power. Exploring that transformation sheds light on presidential power, the making of executive branch law, and the interrelationship between them.