The Law Presidents Make

Our current moment has brought into sharp relief longstanding questions about the role of law in presidential decision-making. I’ve just posted here a paper that explores the structures of executive branch legal review at work in that decision-making process. The standard idea in the scholarship has long been a quasi-judicial Office of Legal Counsel (OLC) dispensing formal, written opinions binding on the executive branch. While that conception of executive branch legalism did have a brief heyday in practice, 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 on the rise. I call it “porous legalism.”

Two dynamics help to explain the fragility of the OLC-centered model in contemporary governance. The first is a story about politics. Both the benefits and the costs of a formal and authoritative law-giver inside the executive have changed for the president, as a result of both structural and historical developments. Those include the growing significance of national security legal policy for the presidential team, reputational damage to OLC in the aftermath of 9/11, and a more active role for the courts and Congress in compelling the disclosure of OLC’s advice.

Changed political incentives tell only part of the story, however. Presidential decision-making is also affected by changes in legal culture. And the sociological authority of OLC lawyers to decide among potential legal interpretations—that is, of OLC supremacy as an approach to presidential decision-making—is itself unraveling. Moral and national policy dimensions of legal advice regularly converge with the deeply technocratic minutiae of complex legal frameworks. Contemporary legal culture, shaped by professional practice, legal doctrine, and the lived experience of executive branch lawyers, has made it more difficult for OLC to claim the authority to exercise decisive legal judgment —in particular in those national security contexts that simultaneously implicate the technical expertise of other agencies’ counsel and the moral and national strategic dimensions of presidential judgment.

There are still some domains where the OLC-centric model has a firm grip. For example, when presidential decision-making implicates statutes backed by criminal sanction (as we saw, for example, in the targeted killing memos). But the article describes the growing prominence of porous legalism. After describing the brief rise of OLC as a formal and authoritative source of centralized legal power inside the executive, the paper documents a decline in OLC opinion writing. And it details how the national security lawyers group, which others on this blog have discussed, has become a mechanism for the president to institutionalize the diffusion of legal power.

The two approaches—the OLC-centric conception and porous legalism—reflect very different ideas about the role of law and lawyers in presidential decision-making. So what should a reader concerned with the public interest desire from executive legalism? I suggest this set of goals: a publicly accountable and, where possible, transparent presidential judgment, informed by the legal assessment of capable lawyers engaging in rigorous legal analysis. Ultimately, constraint on presidential power is less about static boundaries of the legally permissible than it is about legal-policy development in a system with available moves and countermoves. Rather than a court-like structure using law to decide among reasonable alternatives, there is value in a more iterative and integrated legal-policy process. Capable lawyers should assess legal sources conscientiously and provide honest counsel about the boundaries of discretion, as they understand them. But the process should not be designed to foreclose reasonable legal options because a quasi-judicial actor inside the executive has deemed one to be preferable. Ambiguity in legal sources should rebound discretion to the president, not the lawyers. But legal texts (constitutional, statutory, and regulatory) should be thoroughly examined, forthrightly discussed, and responsibly incorporated into presidential decision-making. There will inevitably be presidential decisions that fall short of these goals, but the structure of executive legalism should be designed to help realize them. Just as importantly, executive legalism should help to create the conditions for other actors, including Congress and civil society, to assess the president’s decision and hold him to account.

I am not convinced that either model (the OLC-centric conception or porous legalism) is inherently more likely to improve the quality of legal analysis. Each poses distinct risks and embeds distinct biases. The two models do, however, privilege two very different approaches to governance. I offer a preliminary defense of a more porous role for law in the exercise of presidential judgment. Neither model, however, has to date achieved a desirable or durable approach to transparency. In setting out my concerns, I hope to suggest some directions for future work.

Ultimately, the story of executive branch legalism reveals a push to unbundle decisions—to separate out those legal questions of special salience to the president and the public and to shift them to a different, a more porous institutional mold. In this unbundled terrain, it is possible that rights or substantive values are ultimately more durable than structure. For example, it was a public outcry against substantive policies—opposition to torture, to unauthorized surveillance—that helped to destabilize the institutional structure of legal review that initially sanctioned those practices. The vitality of porous legalism might itself depend on the ability of a more porous, diffuse, and informal brand of legalism to safeguard core substantive policies or values of American governance—a question that will be tested anew in the current administration.