Response or Comment
The Office of Legal Counsel (OLC) and White House Counsel’s Office (WHC) have both been the subject of much recent attention in legal scholarship, and both offices are at the center of the debate between Bruce Ackerman and Trevor Morrison that this paper addresses. However, these offices remain less representative of and less important to executive branch legalism than the substantial amount of attention these offices are receiving suggests. These offices matter, and matter more than any other individual legal office in the executive branch. However, there are limitations in using these two offices as a means of understanding the executive branch’s legal operations more generally.
Executive branch lawyering is still overwhelmingly lawyering by civil service lawyers who are not appointed by the President or substantially affected by the lawyers that the President appoints. In other words, the law created and shaped by civil service lawyers — what I call “civil service legalism” — is a crucial but increasingly unappreciated part of the legal presidency (and different than the law created and shaped by the more “political lawyers” in OLC and WHC). In particular, there are differences between OLC/WHC and the large majority of other legal offices in the executive branch in terms of their legal personnel: how do these lawyers come to work in the executive branch, and what are their incentives once they are working there? The executive branch is a “‘they," not an "it,’” and so too executive branch legality is more accurately described as executive branch legalisms — a plural and not a singular, with some important implications for our understanding of separation of powers.
David Fontana, Executive Branch Legalities, 126 Harv. L. Rev. F. (2012).