On October 16, 1997, in conjunction with the Section's Fall meeting, the Section hosted a dinner honoring former Assistant Attorneys General for the Office of Legal Counsel of the U.S. Department of Justice. In addition to the distinguished former holders of that office, the Section was honored to have Associate Justice Steven Breyer, Attorney General Janet Reno, and the nominee for the office, Beth Nolan, present at the dinner.

To most of the legal world, the Office of Legal Counsel is an unknown entity. Indeed, Chief Justice Rehnquist, one of the former Assistant Attorneys General honored at the dinner, commented that, when he was called by the Attorney General and offered the job, he asked what the office did; he had never heard of it. Its relative obscurity, however, is at odds with its importance.

The Office began in 1933 as an outgrowth of the New Deal. The proliferation of new agencies, each with their own lawyers, made coordination of legal issues increasingly difficult, and, while the Attorney General could control litigation by all agencies through the Solicitor General, there was no corresponding entity to coordinate legal views between and among agencies before litigation. The answer was the creation of the office of the Assistant Solicitor General, which in 1950 became the Executive Adjudications Division, and in 1953 it took its current name -- the Office of Legal Counsel.

If the Attorney General is the President's lawyer, then the Assistant Attorney General for the Office of Legal Counsel is the lawyer for the President's lawyer's. The men who have held that position (as yet there have been no women, but Beth Nolan, a Deputy in the Office, is the current nominee) have come from a number of backgrounds, although several prepared for the Office in academia, including Roger Cramptom (1972-73), Robert Dixon (1973-74), Antonin Scalia (1974-77), and Walter Dellinger (1993-96). Some have gone on to judicial appointments, such as Charles Fahy (1940-41), Malcolm Wilkey (1958-59), William Rehnquist (1969-71), Antonin Scalia (1974-77), and J. Michael Luttig (1990-91). At the same time, there has been a substantial connection between the office and the Section of Administrative Law and Regulatory Practice. Not only have two of the Assistant Attorneys General of the office been Chairs of the Section (Antonin Scalia and Frank Wozencraft), but many of our current Section leaders began their careers in the Office, including Chair Warren Belmar, former Chair Thomas Susman, Council Members Daniel Troy and Harold Bruff, News Editor William Funk, and the Administrative Law Review's Chair of the Faculty Board Thomas Sargentich.

The work of the Office of Legal Counsel, employing approximately two dozen attorneys, has remained relatively consistent -- fulfilling the Attorney General's duty proclaimed in the Judiciary Act of 1789 to "give his advice and opinion upon questions of law when requested by the President or . . . by the heads of any of the departments." This modest language, however, belies the significance of its work. One of its early opinions involved the exchange of U.S. destroyers for bases in England prior to our entry in World War II. Lacking any statutory authority for such an exchange, the opinion found authority in the President's power as commander-in-chief, his foreign relations powers, and a statutory grant of authority for acquiring sites in foreign countries for consular, diplomatic, and naval establishments. Although many might think that the exigencies of the time dictated the outcome of the opinion, few know that earlier a plan to send 20 new "subchasers" to England was scrapped when the office opined that it would violate existing statutes to simply transfer ships to a belligerent party.

This opinion relating to the President's foreign affairs powers and role as commander-in-chief falls into one of the major categories of OLC work. Later, other issues involving these powers would come before the office. Thus, it was an Office of Legal Counsel opinion that advised the President that blockading Cuba during the Cuban Missile Crisis was consistent with international and domestic law. During the Vietnam war Assistant Attorney General Rehnquist provided a legal opinion to President Nixon concerning the entry of U.S. forces into Cambodia. It concluded that historical examples and Congress's authorization of the use of troops in Vietnam in the Tonkin Gulf Resolution together provided ample authority for the President as commander-in-chief to deploy the troops as necessary to fulfill the terms of the Resolution. The Iranian hostage crisis occasioned another significant series of opinions from the Office, from opinions relating to the seizure of Iranian assets both in the U.S. and abroad to opinions as to the lawfulness of the final agreement, later upheld by the Supreme Court in Dames & Moore v. Regan, 453 U.S. 654 (1981).

Another major area of constitutional law practice for the office has sounded in separation of powers concerns. It was the Office of Legal Counsel that played the primary role in developing and maintaining the Executive Branch's position on legislative vetos. In 1941, Congress attached a two-house veto to the Lend-Lease Act, which authorized wider powers to the President to provide aid to countries engaged in a war to which the United States was not a party. Attorney General Robert Jackson was not particularly concerned about the provision, but President Roosevelt believed it to be unconstitutional and feared the precedent of signing the bill with the provision in it. Accordingly, he asked the Attorney General to draft a legal opinion that the President could attach to his signing statement, explaining that but for the emergency need for the bill he would have vetoed it as unconstitutional. The opinion was drafted by the then Office of the Assistant Solicitor, but rather than being issued by the Attorney General to the President, it was signed by the President as a memo to the Attorney General. The opinion was later published in the Harvard Law Review (Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953)). Thereafter, as Congress continued the inclusion of one-house and two-house vetoes, the Office of Legal Counsel continued to counsel Presidents as to their unconstitutionality, and Presidents from Truman through Reagan resorted to vetoes of legislation or strong statements as to the unconstitutionality of the provisions. In 1975, Congress introduced bills to extend the legislative veto to all administrative rulemakings, and OLC Assistant Attorney General Antonin Scalia led the Administration's response, testifying before several committees that the provision was unconstitutional. Finally, in 1981 when the Chadha case arose, OLC Assistant Attorney General and current Section Delegate Theodore Olson helped to craft the Justice Department's litigating strategy.

Another recurring separations-of-powers subject that consumed much time and effort of the Office of Legal Counsel is the issue of Executive Privilege. Before the Supreme Court recognized a constitutional basis for the privilege in United States v. Nixon, 418 U.S. 683 (1974), the Office of Legal Counsel had articulated and defended the privilege on that basis under a number of Presidents. See, e.g., Robert Kramer and Herman Marcuse, Executive Privilege -- A Study of the Period 1953-1960, 29 Geo. Wash. L. Rev. 623 (1961). Interestingly, however, the ultimate denouement under President Nixon occurred without OLC participation. Nevertheless, ever since, OLC has been the official office in the Executive Branch designated to review proposed invocations of executive privilege. The office reviews the relevant documents and prepares a formal legal opinion that the Attorney General transmits to the President before the President invokes the privilege.

Other OLC issues can include a variety of matter. For example, the Twenty-Fifth Amendment, with its mechanism for presidential succession in the event that the President becomes unable to perform the duties of the office, has occasioned a number of OLC opinions and activities. It was to OLC that the White House turned when President Reagan was shot, and thereafter the office provided a thorough analysis of the requirements of the Amendment, including the actual forms by which the President could invoke the Amendment. The office also provided opinions as to the limits of what the President could delegate to others, including the Vice President, in the absence of invoking the Twenty-Fifth Amendment. They concluded that the President may not delegate his constitutional functions, but he may generally delegate his statutory functions.

Arkansas Governor Orville Faubus's obstruction of the integration of the Little Rock school system in 1957 raised novel issues regarding the ability of the executive to enforce judicial decisions in the face of state intransigence. The Office of Legal Counsel was the lead office in formulating and carrying out the government's strategy, and then Assistant Attorney General Malcolm Wilkey lead a team of lawyers to Little Rock to oversee the federal enforcement effort.