As arbiter of the constitutionality of executive actions, the Department of Justice Office of Legal Counsel (OLC) possesses vast authority over the operation of the federal government and is one of the primary vessels for the articulation of executive power. It therefore is not surprising that the OLC has found itself at the center of controversy across Democratic and Republican administrations. OLC opinions have justified the obstruction of valid congressional investigations, the targeted killing of an American citizen overseas, repeated military incursions without congressional approval, and, most infamously, torture.
These episodes have generated a significant body of proposals to reform, constrain, or altogether eliminate the OLC. All of these proposals can be categorized as either direct or indirect constraints on how the OLC operates. Direct constraints target how the OLC actually creates its legal work product. Indirect constraints instead focus on the OLC’s personnel or the public scrutiny the Office’s opinions will face.
This Note expands on this existing body of research, focusing on how one institution unstudied in this context, the United States Senate Judiciary Committee, can operationalize meaningful indirect constraints on the OLC. Unlike the other actors that scholars have examined, the Committee’s position outside the executive branch allows it to sidestep the President’s ever-expanding reach within the federal bureaucracy. At the same time, the Committee’s oversight powers and its central role in the nomination of both the OLC’s leader and Article III judges give it important constitutional and statutory authority to constrain the Office. Even in an era of close cooperation between the White House and congressional leaders of the same party, this Note’s proposal provides an avenue for Committee members to jealously guard their own constitutional prerogatives and nudge the OLC toward greater respect for the separation of powers and individual liberty.
* J.D., Stanford Law School, 2021. I am deeply grateful to Professors Bernadette Meyler and Norman Spaulding for their inspiration and support in the development, drafting, and redrafting of this Note. Thank you as well to my family, friends, and classmates, whose support throughout the writing process has been essential. And thank you most of all to the editors of the Stanford Law Review, especially Wesley DeVoll, Axel Hufford, Matt Krantz, Taylor Nicolas, Cameron Silverberg, Morgan Smiley, Jennifer Teitell, Sam Ward-Packard, and Jerry Yan, for your hard work on this Note.