OLC's Opinion Writing Function: The Legal Adhesive for a Unitary Executive
![handle is hein.journals/cdozo15 and id is 359 raw text is: OLC's OPINION WRITING FUNCTION: THE
LEGAL ADHESIVE FOR A UNITARY
EXECUTIVE
Douglas W. Kmiec *
From the Judiciary Act of 1789 onward, the Attorney General's
primary duty has been to advise the President and the heads of the
executive departments on legal matters.' A biography of James
Monroe's Attorney General, William Wirt, suggests that it is the im-
portance of this opinion function which sets the Attorney General
apart from all others in the President's cabinet:
There is a peculiarity in the responsibilities of this officer, which
requires the exercise of more than common care in his selection.
He does not deal with ordinary routine of business which inferior
intelligence and system can manage, but when doubts and difficul-
ties intervene upon the powers conferred by law, or the rights in-
tended to be secured, the appeal is made to him.2
The Office of Legal Counsel (OLC) has been known through-
out government as the Attorney General's Lawyer.3 This is an apt
description of an office that has been delegated virtually all of the
Attorney General's contemporary opinion writing. OLC originated
as the Office of the Assistant Solicitor General, but was statutorily
separated in 1933 and renamed twenty years later.4 OLC has been
credited with guiding Presidents in many famous executive deci-
sions.'' Luther Huston offers the following examples:
[I]n 1940, the Lend-Lease opinion of Attorney General Robert
H. Jackson gave President Roosevelt legal authority to transfer
American destroyers to England in return for the right to establish
naval and air bases in British possessions. In 1957, the Office of
Professor of Law, University of Notre Dame; former Assistant Attorney General, Office
of Legal Counsel, United States Department of Justice.
1 28 U.S.C. §§ 511, 512 (corresponds to Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92-
93).
2 S.L. Southard, Discourse on the Professional Character and Virtues of William Wirt,
Pronounced in the House of Representatives, March 18, 1834, on the Occasion of the Death of
Attorney General William Wirt 32-33 (Gales & Seaton, Washington, 1834), cited in Rita Nea-
Ion, Contributions of the Attorneys General to the Constitutional Development of the Ameri-
can Presidency 35 (1949) (unpublished Ph.D. thesis, New York University, on file with
author).
3 A title respectfully borrowed for a recent book, DOUGLAS W. KMIEC, THE ATTORNEY
GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT (1992).
4 LUTHER HUSTON, THE DEPARTMENT OF JUSTICE 60 (1967).
5 Id.](ViewImageLocal?handle=hein.journals/cdozo15&div=29&collection=&method=preview&ext=.png&size=3)
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OLC's Opinion Writing Function: The Legal Adhesive for a Unitary Executive
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