Why the OLC matters

This was in a NYT article in October,

In a newly disclosed legal memorandum, the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that hire only staff members who share their faith.

The administration, which has sought to lower barriers between church and state through its religion-based initiative offices, made the claim in a 2007 Justice Department memorandum from the Office of Legal Counsel. It was quietly posted on the department’s Web site this week.
...
several law professors who specialize in religious issues called the argument legally dubious. Ira C. Lupu, a co-director of the Project on Law and Religious Institutions at George Washington University Law School, said the opinion’s reasoning was “a very big stretch.”

And Marty Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel from 1994 to 2002, said the memorandum’s reasoning was incompatible with Supreme Court precedent. He pointed to a 2004 case, in which the court said government scholarships that could not be used to study religion did not substantially burden recipients’ right to practice their religion because they could still study theology with their own money.

In the same way, Mr. Lederman said, World Vision is free to have an antigang program that hires by faith without using taxpayer money.

I remembered this while writing the brief piece on the OLC and low and behold the man i put forth in that post is the man the Times went to for a quote on this story.

This is the type of decision that hopefully gets overturned and reversed by an Obama administration. I think it is a reasonable inference that the Bush administration went looking for a way to fund religious organizations with tax payer money and they used the OLC to justify it. Whenever that happens the legal reasoning is always going to be transparently thin.

This is an object lesson that activism in law is not done by the liberals alone. Conservatives are just as if not more active in power.

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Office of Legal Counsel

The office of Legal Counsel (OLC) is one of the many appointments that President Obama will have to make for his administration. This appointment may not be as high profile as a treasury secretary of secretary of defense but the appointed person plays a critical role in the executive branch, giving opinions of the legality of something. The numerous and infamous memo's suborning torture and infinite detention of "enemy combatants" were products of OLC. The person Obama appoints will have the chore of going through these legal memo's and bringing them into compliance with real law instead of the imaginary law that President Bush subscribed to.

The Anonymous Liberal explains what can happen when the person in charge of keeping it legal is unprepared and unqualified.

After 9/11, John Yoo used his perch at the OLC to authorize a number of illegal activities--from torture to warrantless surveillance--that are not only deeply troubling but have badly damaged America's image in the world. Yoo was allowed to do most of this because the head of the OLC at the time, Jay Bybee, was not familiar with the relevant executive power issues and therefore allowed Yoo to run amok.

When Jack Goldsmith took over the OLC in 2003, he discovered--to his horror--that a multitude of Bush administration programs rested on entirely indefensible legal opinions drafted by the OLC during his predecessor's tenure. He was forced to walk most of them back, a move that caused a major internal dispute within the Bush administration and nearly resulted in the total implosion of the administration just prior to the 2004 election.

Whoever President Obama selects to head the OLC will have a critically important job. Virtually every opinion the OLC has issued during the post 9/11 era--even those written after Yoo's departure--will need to be reviewed and, in all likelihood, rewritten. Moreover, many of the terrorism-related laws that have been passed in the last few years--relating to surveillance, detention, torture, etc.--are filled with ambiguities and language that will require careful interpretation. Many new legal opinions, opinions that will be of enormous consequence, will need to be drafted.

There is a lot at stake. Just as Obama has put together a team to review 200 Bush administration actions and executive orders that could be swiftly undone to reverse the president on climate change, stem cell research, reproductive rights and other issues there is going to be a lot of people working on fixing the legal system.

To fix these issue will take some time. Rewriting and Re-researching all the legal memo's that have come out of the OLC under Bush will take an army of lawyers and researchers. The person selected to oversee the office will need to be ready to go from day 1. AL, Glenn Greenwald and Orin Kerr all have one person in mind, Georgetown Law Professor Marty Lederman.

Professor Lederman is exactly the sort of person I would want in charge of this important task. First, he's deeply familiar with all of the relevant executive power issues, having written about them extensively over the last few years. He is also intimately familiar with the workings of the OLC, having worked there from 1994-2002. And most importantly, I think Lederman has a good sense of what the OLC's role should be (i.e., not merely rubber-stamping whatever the president wants to do).

Seems to make sense. Experienced, apparently competent and qualified. Those should be positives.

I must believe that Obama will not be trying to commit activities he knows to illegal. There is a world of difference between getting an opinion on what is an is not legal and deciding to do something and justifying it after the fact. With Bush gone we might return to the former.

something to keep in mind

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