The professors argue that there is nothing wrong with President Obama’s decision to ignore the Office of Legal Counsel’s advice about Libya, despite criticism of the decision from both sides of the political spectrum.
“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,” Vermeule and Posner write. “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.”
Vermeule, an expert on constitutional law and theory, is the John H. Watson, Jr. Professor of Law at HLS. His most recent book, also co-written with Posner, is titled “The Executive Unbound: After the Madisonian Republic” (Oxford University Press, 2011).
Libyan Legal Limbo
By Eric Posner and Adrian Vermeule
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.