Eric Posner Argues Nothing Wrong with Obama Ignoring OLC's Advice on Libya

Libyan Legal Limbo
Eric Posner and Adrian Vermeule
Slate.com
June 27, 2011

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.

The critics exaggerate the historical independence of OLC, whose heads traditionally talk impressively about their own detachment and then, by and large, offer legal views that dovetail closely with whatever the president's agenda happens to be. Thus in 1999, under President Clinton, OLC found that Congress had implicitly authorized the president's bombing campaign in Serbia by appropriating funds for troops already in action, despite the inconvenient details that Congress had voted down a request for such authority, and that the War Powers Resolution expressly denies that funding statutes can confer authority to make war.

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