The Office of Legal Counsel within the Department of Justice counsels the president on the legality and constitutionality of proposed executive action. In the early 2000s, the OLC authorized the Bush administration’s torture of foreign combatants. Scholars have deemed this an act of excessive deference and an aberration, attesting that the OLC has since reformed. The purpose of this Note is to examine whether the OLC continues to unduly defer to the president. The Note employs a case study and statistical analysis of 123 OLC opinions advising the president and 79 OLC opinions advising agencies, examining (1) the number of opinions approving the proposed action; (2) the subject matter of the opinion; and (3) subsequent history of the action. The Note finds that whereas the OLC approves the vast majority of the president’s proposals, it approves only a half of agency proposals. The Note also finds that this discrepancy remains robust in the presence and absence of national crises, and despite the president’s broader authority over foreign affairs or agencies’ narrower statutory authority. Moreover, this Note finds that when the president or an agency undertakes the proposed action and that action is challenged, the court overturns at a much higher rate the president’s action than agencies’ actions. The findings suggest that the OLC may be systematically deferential to the president. Reform to the OLC may be necessary to curb abuses of executive power.
To read more of the Partiality Norm, click here.
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