The Law Presidents Make

102 Pages Posted: 8 Apr 2017 Last revised: 13 Sep 2017

Date Written: April 6, 2017

Abstract

The standard conception of executive branch legal review in the scholarship is a quasi-judicial Office of Legal Counsel (“OLC”) dispensing formal, written opinions binding on the executive branch. That structure of executive branch legalism did have a brief heyday. But it obscures core characteristics of contemporary practice. A different structure of executive branch legalism—informal, diffuse, and intermingled in its approach to lawyers, policymakers, and political leadership—has gained new prominence. This Article documents, analyzes, and assesses that transformation. Scholars have suggested that the failure of OLC to constrain presidential power in recent publicized episodes means that executive branch legalism should become more court-like. They have mourned what they perceive to be a disappearing external constraint on the presidency. Executive branch legalism has never been an exogenous or external check on presidential power, however. It is a tool of presidential administration itself. Exploring changes in the structure of executive branch legal review sheds light on the shifting needs of the presidency, the role of law and lawyers in its institutional web, and the institutional variants of presidential control.

Keywords: executive branch legalism, presidential power, OLC, administrative law, national security

Suggested Citation

Renan, Daphna, The Law Presidents Make (April 6, 2017). Virginia Law Review, Forthcoming; Harvard Public Law Working Paper No. 17-10. Available at SSRN: https://ssrn.com/abstract=2948177

Daphna Renan (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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