Posted by Orin Kerr:
OLC in the Clinton Era and Today: A Response to Eric Posner:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235372523
Eric, I'm puzzled by [1]your post below on OLC in the Clinton era. If
I follow your argument correctly, you start with several cases in
which the Clinton OLC concluded that the President had a particular
power; you then note that alumni of the Clinton OLC were critical of
the Bush OLC for concluding in different cases that the President had
a set of powers; and then you suggest that the Clinton OLC alumni are
probably hypocrites because they were pro-Presidential power under
Clinton but not under Bush.
The problem with this argument is that the legal opinions under OLC
in the two eras were on quite different issues. Given that, I don't
think it works to just compare the number of times OLC publicly said
"yes" or "no" in the general category of Article II powers. (I'm
reminded of the pro se defendant who thought the judge biased because
his motions were denied every single time.) More broadly, positions on
Presidential power are not binary: It's not like folks are either
"100% for" or "100% against." Jack Goldsmith's experience is helpful
here, I think. Goldsmith is no slouch when it comes to Presidential
power, but it seems that he shared many of the criticisms that the
Clinton OLC veterans had for the OLC under many periods of the Bush
Administration.
As I wrote before, I suspect the Obama OLC will see itself as trying
to shift back to more of a [2]middle ground position. That will end up
leading to results that mirror those of the Bush OLC in some cases.
But I don't see that as grounds for concluding that it's just 'meet
the new boss, same as the old boss.'
References
1. http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235367053
2. http://volokh.com/posts/1234246394.shtml
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