As Savage notes, the President has the authority under Article II to make legal determinations for the Executive branch. The process by which he reached this decision, however, was very unusual. The typical (and in my view best) process is for OLC to solicit the views of interested agencies and then offer its interpretation in a written opinion; then the President can, if he wishes, reject that considered OLC interpretation based on his independent judgment. This process has the virtue of placing the presumptive legal decision in the office – OLC – that is institutionally best suited to provide relatively detached legal advice to the President as well as the advice most consonant with Executive branch precedents and traditions. (I am not naïve about how detached OLC is, nor do I think it should be entirely detached; my complex views on this issue are laid out in The Terror Presidency and are summarized on pp. 195-97 of this essay.) OLC is also the government’s institutional expert on interpretations of the WPR. And it has not, traditionally, taken a narrow view of the WPR…

When the President effectively decides the legal question in the first instance based on the input of interested agencies, his legal judgment is inevitably skewed a great deal by wanting to uphold his policy. OLC (and any executive branch lawyer) faces this danger to some degree, but the danger is less pronounced when the initial decision is made in a relatively independent legal office in DOJ as compared to the Oval Office. And indeed in this instance, for reasons I explained here, the best reading of the law was clearly the one that OLC (and DOD) apparently gave the President.

It is interesting and unusual enough that President Obama, of all people, would take an aggressive view of his war authorities and interpret the WPR very narrowly. But the lawyers he relied on to reach this conclusion make the situation even more interesting and unusual.