Appreciation: The Perfect OLC Opinion
It was prepared in 2005 by Deputy Assistant Attorney General Howard C. Nielson, Jr.
Under the original Judiciary Act of 1789 (passed by the 1st Congress of our Republic four score and one year before creation of the U.S. Department of Justice), the Attorney General of the United States (then a part-time government officer who could keep a private law practice on the side) was given just two core functions: (1) to represent the United States in cases before the Supreme Court, and (2) to render opinions on questions of law for the President and the heads of executive departments. The former function is now performed by the Solicitor General of the United States, the latter, under delegation from the Attorney General, by the Assistant Attorney General for the Office of Legal Counsel (a Senate-confirmed position).
Both functions remain essential to the President’s ability to carry out his responsibilities under Article II of the Constitution and to the effective operation of the entire Executive Branch. The President cannot faithfully execute the law without having his own reliable interpretation of what the law requires—he can’t delay implementing a new statute just because it hasn’t yet been interpreted by the courts or avoid answering a critical constitutional question until the Supreme Court has decided the issue. In either case, the legal question may take years to work its way through the courts or may never be addressed directly by the Supreme Court. Similarly, the President can’t preserve and defend the Constitution and carry through on the programs and policies of the Executive Branch without the ability to defend his legal interpretations and executive policy decisions against challenge in the Supreme Court.
Like the Solicitor General’s Office, OLC is part of the gearbox at the hub of the Executive Branch. OLC is a small office with fewer than 25 attorneys located on the fifth floor of the Main Justice Building next to the Attorney General’s suite. Functioning like a super general counsel for the Executive Branch, OLC is where the buck stops on some of the most difficult and consequential legal questions facing the President and senior executive officers—questions of the President’s authority, novel issues of statutory construction involving laws not previously interpreted or application of laws to situations not previously considered by the courts, separation of powers questions touching on the division of roles between the Executive Branch and Congress or the Judiciary, and other matters of constitutional, statutory, and international law unlikely to be answered in the near term by the Supreme Court. OLC opinions have no precedential force outside the Executive Branch (other than the persuasive force of their reasoning), and OLC does not provide legal opinions to Members of Congress or to private parties or State officials or anyone else outside the Executive Branch. But within the Executive Branch (and this is of fundamental importance to the functioning of our Government), the opinions of OLC are treated as authoritative and are binding on all executive officials, subject only to the higher authority of the Attorney General and the President (or unless superseded by a controlling decision of the Supreme Court). Because its judgment on legal disputes is treated as dispositive and final within the Executive Branch, OLC coordinates its work closely with the Counsel to the President (who heads up the White House Counsel’s Office) and the Attorney General, and these are OLC’s principal clients. The senior career attorneys in OLC are among the most valuable advisers and assets of the entire Federal Government. The Deputy AAGs who serve as political appointees in the Office are typically serious scholars of the Constitution and American history who’ve clerked for Justices on the Supreme Court, and they come from accomplished careers in private practice or as law professors. Many of the younger Attorney-Advisers who work in the Office go on to clerk for Supreme Court Justices—indeed, OLC is a reliable “feeder” of law clerks for the Supreme Court. Given the importance of OLC, the nature of the legal questions the Office is called upon to answer, and the quality of the attorneys in the Office, it’s easy to see why heading up OLC is something of a dream job for constitutional law nerds.
I had the great privilege of serving as the Principal Deputy AAG for OLC beginning on April 18, 2004, and as the senior appointed officer in charge of the Office from February 4, 2005 until the end of the Bush 43 Administration on January 20, 2009. The President nominated me to be the AAG for OLC on June 23, 2005, and under the Vacancies Reform Act, I had the title of Acting AAG from my nomination until April 2007, when the statutory time limits on use of the Acting title expired. I continued to function as the head of OLC from April 2007 until January 2009 in my capacity as Principal Deputy AAG, the highest appointed official in the Office. Some Senators challenged the legality of that arrangement, but, after looking into the issue, GAO, the Government Accountability Office, a part of Congress, agreed with the Justice Department that my continued tenure as the leader of OLC was consistent with the Vacancies Act and lawful in all respects.
The Senate Judiciary Committee approved my nomination (with Sen. Dianne Feinstein providing the deciding Democratic vote in my favor), but five Democratic Senators put holds on my nomination because of controversies generated by earlier OLC opinions and press coverage of those opinions, and my nomination to be AAG never came to a vote on the floor of the Senate. With the 2006 election, the Democrats assumed control of the Senate, and my nomination was returned to the President a total of five times (per Senate rules, pending nominations are returned to the White House automatically absent unanimous consent whenever the Senate goes into an extended recess, like the August recess, or recesses sine die, as it does between Sessions). On each occasion, the President resubmitted my nomination. Toward the end of the Bush 43 Administration, Senate Majority Leader Harry Reid instituted the unprecedented tactic of so-called “pro forma sessions” of the Senate as a means, he explicitly explained in a Senate floor speech, to prevent President Bush from recess-appointing me to the position of AAG of OLC. These “pro forma sessions,” which have since been upheld by the Supreme Court and have become institutionalized in the Senate regardless of which party is in the majority, involve recruiting a single Senator (usually a local Senator from Maryland or Virginia) to come down to the well of the Senate all alone to gavel the Senate into “session” and then immediately to gavel the Senate back into adjournment, and to go through the motions of this mock gavel-in-and-gavel-out pro forma ceremony once every 72 hours while all the other Senators are long gone, out of town, back to their home States. These pro forma mock sessions are effective as a stratagem for blocking the President from treating the Senate as truly in recess (which, of course, it actually is) and from exercising his express authority under the Constitution to make temporary recess appointments to fill vacant offices. As a result of these machinations to avoid a floor vote (which likely would have resulted in confirmation, given Sen. Feinstein’s support), I believe I set the record up to that time for the longest pending nomination of any Executive Branch officer in the history of the Nation (in other words, not including nominations for judges)—3 years, 5 months, 28 days.
In the politics of Washington, the legal analyses supporting the policy decisions of the President often become bones of contention between the parties, especially when one or both Houses of Congress are controlled by the opposite party from the President’s. Inevitably, OLC gets caught up in the push and pull between the parties and between the Branches, and often the nomination of the AAG gets entangled in those controversies. My experience certainly wasn’t the first or the last example of this phenomenon. There is, however, a cost to the inter-Branch political frictions in Washington, and especially the politicization of legal issues: Sometimes, the refusal of the Senate to act on the President’s nomination of a senior legal officer, like the AAG for OLC, can make it harder for the Executive Branch to secure the strongest, most candid legal advice—which is critical to the ability of the Federal Government to carry out its important business in service to the American people.
In my case, though, I can affirm that I never felt compromised at all in my ability to provide the best, most complete and unvarnished legal opinions I could, even on the most contentious and fraught questions that I might’ve preferred to avoid addressing if that had been possible. No one ever suggested to me that my nomination depended on what I concluded in any legal opinion, and I never felt pressured by the President, the Vice President, the Attorney General, or any senior adviser to any of them (or by anyone else for that matter) to reach a particular conclusion or to shape or modify my legal advice in any way. Every opinion I signed for OLC, without exception, represented my own best judgment of what the relevant law in effect at the time required. I give a lot of credit to President Bush and Attorney General Alberto Gonzales for ensuring the independence and objectivity of OLC through a challenging and politically contentious period.
During my tenure as head of OLC, on May 16, 2005, I signed a memo describing the best practices to be followed by the Office in the preparation of a legal opinion. (The leaders of OLC during the subsequent Obama Administration reaffirmed and reissued this memo with certain modifications in a new version in 2010.) Our memo stated that the opinions of the Office must be “clear, accurate, thoroughly researched, and soundly reasoned,” that “[t]he value of an OLC opinion depends on the strength of its analysis,” and that OLC must always give “candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers.” Following these principles in the preparation of OLC opinions is critically important because OLC advice is not an academic exercise. An OLC opinion can have concrete consequences in the real world: once the necessary legal okay is given by OLC, executive policy decisions can be implemented if approved by senior policy makers or the President—enforcement actions can proceed, assistance can be delivered, boots may hit the ground, troops can march, and bombs may fall. In other words, the OLC opinion provides the needed legal predicate for the exercise of the awesome power of the Executive Branch of the U.S. Government.
For these reasons, our 2005 best practices memo emphasizes that “[a]n OLC opinion is the product of a careful and deliberate process,” and:
The legal question presented should be focused and concrete; OLC generally avoids undertaking a general survey of an area of law or a broad, abstract legal opinion. There also should be a practical need for the opinion; OLC particularly should avoid giving unnecessary advice where it appears that policymakers are likely to move in a different direction. A formal opinion is more likely to be necessary when the legal question is the subject of a concrete and ongoing dispute between two or more executive agencies.
Furthermore:
An OLC opinion should focus intensively on the central issues raised by a question of law and should, where possible, avoid addressing issues not squarely presented. On any issue involving a constitutional question, OLC’s analysis should focus principally on the text of the Constitution and the historical record illuminating the original meaning of the text and should be faithful to that historical understanding. Where the question relates to the authorities of the President or other executive officers or the separation of powers between the Branches of the Government, past precedents and historical practice are often highly relevant. On questions of statutory and treaty interpretation, OLC’s analysis will be guided by the text and will rely on traditional tools of construction in interpreting the text. OLC opinions should also consider and apply the past opinions of Attorneys General and this Office, which are ordinarily given great weight. The Office will not lightly depart from such past decisions, particularly where they directly address and decide a point in question. Decisions of the Supreme Court and courts of appeals directly on point often provide guiding authority and should be thoroughly addressed, particularly where the issue is one that is likely to become the subject of litigation. . . .
In general, we strive in our opinions for clarity and conciseness in the analysis and a balanced presentation of arguments on each side of an issue. If the opinion resolves an issue in dispute between executive agencies, we should take care to consider fully and address impartially the points raised on both sides . . . . OLC’s interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not.
In my time in OLC, these attributes were exemplified to perfection by an opinion written for the Counsel to the President and signed on July 7, 2005, entitled Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It. The opinion was prepared and signed by Deputy AAG Howard C. Nielson, Jr. and is published in OLC’s bound volumes as 29 Op. O.L.C. 97 (2005). Howard Nielson, who had served as a law clerk to Judge J. Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit and to Justice Anthony Kennedy on the Supreme Court, was a brilliant Deputy AAG and was among the very smartest, most distinguished, thoughtful, and careful attorneys in OLC and a great student of the Constitution. Today, he is ably serving the Nation as a United States District Judge for the District of Utah.
As its title makes clear, this opinion addresses a matter of great practical importance for the operation of our Constitution. Under Article 1, Section 7 of the Constitution, each enrolled bill passed by the House and the Senate must be presented to the President for his consideration, and the President is given ten days (not including Sundays) to consider the bill. If he signs it within that time, the bill becomes law; if he disapproves of the bill, he may veto it (again within the ten-day period) by returning it to Congress with his objections, and Congress may then reconsider the bill and may override the President’s veto with a two-thirds vote of both Houses. If the President does not sign the bill or return it to Congress within the ten-day period, the bill automatically becomes law without his signature, unless Congress has prevented the return of the bill by going into adjournment, in which case the bill does not become law (the so-called “pocket veto”). (By the way, Congress takes the view that a pocket veto can no longer occur because each House maintains a clerical office open to receive vetoed bills returned by the President even when the respective House stands in adjournment. Based on advice from OLC, the Executive Branch disputes the effectiveness of this procedure, however, and the Supreme Court has not resolved the disagreement.)
It’s been the consistent practice of Presidents to sign bills into law with their own hands, and for most of our history, Presidents and their senior advisers did not question that the Constitution contemplated as much. Whenever the President had to travel on an extended overseas trip during an active legislative session of Congress, the White House fretted over elaborate arrangements either for delaying the timing of presentment of the enrolled bill to the President or for getting an enrolled bill to the President within the constitutional signature period. This problem arose, for example, during World War II when President Roosevelt flew unannounced in January 1943 to Trinidad, Brazil, then Gambia, and on to Casablanca to consult with American and British commanders during Operation TORCH (a multi-hop journey by seaplane, the “Dixie Clipper,” the first overseas flight for a sitting President); when he journeyed unannounced by ship and overland in November 1943 to Tunis, Cairo, Tehran, and Mediterranean bases for military conferences, including with Churchill, Chiang Kai-shek, and Stalin; and again in February 1945 when he flew on the “Sacred Cow,” the first dedicated presidential plane, to Malta, the Crimea for the Yalta Conference, Egypt, and Algiers. In later decades, the White House arranged to have a military transport plane on standby to bring an enrolled bill to the President, if necessary, whenever he was overseas. (Some pieces of legislation, such as appropriations acts and important programmatic and spending authorizations, address an urgent impending deadline and must be signed as quickly as possible after presentment; moreover, even apart from time urgency, Presidents always want their signatures on important enacted laws or to record their objections to vetoed billed, so that the public knows and history will record that they gave the Legislature’s work their personal due consideration.)
The historical assumption that the President himself must sign a bill into law and may not delegate the physical act of signing legislation was reflected in a short unsigned OLC opinion transmitted to the White House Counsel on March 20, 1969 by Assistant Attorney General (and future Supreme Court Justice and Chief Justice of the United States) William H. Rehnquist. The opinion primarily focused on documents other than bills and advised that there was no impediment to the President’s delegating authority to perform the simple act of signing his name to most types of documents. But it advised just the opposite for bills, and did so in cursory fashion with almost no analysis. Because Article 1, Section 7’s statement that the President “shall sign” a bill if he approves of it is “the only express requirement in the Constitution for the signature of the President,” the 1969 opinion pronounced that “the requirement for the President’s signature . . . approving a bill would appear to be non-delegable.” The same advice was given by a Deputy AAG of OLC in 1984 and again informally in 1999, and in both cases, the bill passed by Congress was flown by special plane to the waiting President overseas (to China in 1984 and to Turkey in 1999).
The question arose anew in November 2002, when Congress passed a joint resolution to continue Government funding, which was scheduled to run out one day before the President returned from an overseas trip. The White House Counsel asked OLC whether the President could direct an aide to sign the continuing-funding resolution for him in the event he was delayed in returning to Washington. The Principal Deputy AAG responded with another very cursory memo, just a page and a half in length, this time giving the opposite advice from AAG Rehnquist’s, concluding that the President could delegate the authority to sign his name on the legislation. As things turned out, the President got back to the White House in time to sign the funding resolution without any disruption to Government operations. It’s very doubtful the President would have acted in reliance on the short memo in November 2002 in any event: The Counsel to the President and other senior White House advisers, as well as the President himself, are appropriately reluctant to take any significant action that would be historically unprecedented and contrary to the consistent past practice of Presidents without having OLC conduct a very thorough analysis of the legality of the action and preparing a complete treatment of the question in a detailed, fully reasoned legal opinion. That’s especially true when there’s been inconsistent advice at different times from OLC.
The Nielson opinion in July 2005 finally provided exactly the sort of solid, thoroughly reasoned legal foundation that Presidents need and want in order to justify such an action. It confirmed and elaborated on the advice given in 2002 that the President may “sign” a bill into law, within the meaning of Article I, Section 7, “by directing a subordinate to affix the President’s signature to it, for example by autopen.” The opinion stressed that OLC was not suggesting that the President could ever delegate the authority to decide whether to approve a bill (it’s long been the consistent view of the Executive Branch that he may not), but only that, after deciding to approve a bill, he could delegate the authority to put his signature on it.
Consistent with the best practices for OLC legal analysis, the Nielson opinion began by addressing the original meaning and understanding of the relevant constitutional text. The first part of the opinion examined in detail “the legal understanding of the word ‘sign’ at the time the Constitution was drafted and ratified and during the early years of the Republic,” and determined that it was the established understanding at the time of the Founding and thereafter that a person could sign a document for all legal purposes by directing an authorized agent to put his signature on the document.
The core of this analysis was an in-depth exploration of the common law meaning of the word “sign” at and around the time of the Founding of our Constitution. As the opinion explained, where the Constitution, like a statute enacted by Congress, incorporates a term “in which are accumulated the legal tradition and meaning of centuries of practice,” we presume, unless otherwise instructed, that the drafters knew of and adopted “the cluster of ideas that were attached to” the term, “the body of learning from which it was taken,” and “the meaning its use” would have conveyed at the time “to the judicial mind.” Based on a survey of relevant common law decisions from English courts during the 17th and 18th centuries and from American courts and legal commentators in the early 19th century, the Nielson opinion explained that under the “principle of signatures,” the common law recognized that a person could sign a document for all legal purposes not only with his own hand, but also by the hand of another who was properly authorized to affix his signature to the document on his behalf or who did so with his approval in his presence, and that a document thus signed in the principal’s name by the hand of an agent in either manner was just as effective legally as a document signed by the principal with his own hand. The opinion then reviewed the previous opinions of the Attorney General and the Department of Justice and found the same understanding consistently reflected throughout our history in opinions (such as the Rehnquist opinion) addressing statutory signing requirements in a variety of contexts.
Reading the constitutional text in light of this established legal understanding of the “principle of signatures,” the Nielson opinion concluded that “the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7.”
In the second part of its analysis, the opinion considered the settled interpretation of the related provisions of Article I, Section 7, which require that bills be presented to the President and that the President return to Congress bills he disapproves. OLC found that this interpretation, which had always recognized that the President could perform these required actions through the agency of aides and need not receive bills and return them physically himself, confirmed its view that the President could similarly perform the signing requirement through an authorized agent. In the final part of the opinion, OLC considered the historical practice and precedents relating to the constitutional signing requirement and explained why the practice and precedents did not foreclose OLC’s new conclusion.
The structure of its analysis, the thoroughness of the discussion, the clear explication of the relevant sources and reasoning, the objectivity of its treatment, the consideration of all potential contrary evidence and analyses: these attributes of the 2005 Nielson opinion allowed the Counsel to the President to understand the advice OLC was providing on this historically important question and to judge well and objectively the strength of the legal conclusion OLC had reached, and they made the opinion a suitable foundation for presidential reliance and action.
As it turned out, President Bush did not have occasion to make use of the 2005 Nielson opinion, but his successor, President Obama, did. On May 26, 2011, President Obama became the first President in the history of our Republic to sign a bill into law by autopen. While attending an international summit in France, six hours ahead of Washington time, President Obama awoke early to review a pdf copy of legislation Congress had just passed after contentious debate providing a four-year extension of critical PATRIOT Act national security authorities that were scheduled to expire at midnight Eastern Time. With minutes to spare before the midnight deadline, the President directed that his signature be put on the enrolled bill by autopen. And President Obama again relied on the Nielson opinion on January 3, 2013, when he directed his aides to use the autopen to sign the so-called “fiscal cliff” appropriations act into law while on vacation with his family in Hawaii. In neither of these instances was the use of the autopen challenged in court.
When President Obama took these historically unprecedented actions, his senior advisers were eager to point out to inquiring reporters that he was relying on an OLC opinion prepared during the Bush 43 Administration. Here we see an institutional tendency of White Houses of both parties that’s familiar to OLC: The Executive takes comfort and confidence in knowing that the legality of the President’s action is supported by OLC advice given when the White House and the Justice Department were controlled by a President from the opposite political party. Doing so helps to establish a continuity in the exercise of Executive traditions and helps to underscore that the constitutional and statutory bases on which the President is acting are above the immediate swirl of political expediency.
The validity and durability of many critical presidential actions under our Constitution, including the actions of Presidents to sign urgently important pieces of legislation by autopen, are supported and defended by well-constructed and thoroughly reasoned OLC opinions. Howard Nielson’s classic 2005 opinion is a perfect example.