Eric Posner and Adrian Vermeule (Slate): 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 …. 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.
… suppose that OLC does provide independent legal advice. There is nothing objectionable about a presidential decision to adopt the views of one set of legal advisers over those of another. The procedure the White House followed – hearing from legal advisers in four offices, with diverse expertise and perspectives – seems a sensible approach to decision-making. Interpreting the War Powers Resolution is not like reading a speed limit sign; the statute is riddled with ambiguities….
… A president need not have or consult any legal advisers at all …. It is mysterious why it is controversial that a president should get to decide which, if any, of his own creatures he will deign to hear. OLC exists to serve the presidency, not the other way around.
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