The lawless presidency

By joining George W. Bush in blazing novel legal pathways for super-presidentialism, Obama’s break with the War Powers Act suggests a deeper pathology. There is something wrong with the basic system through which presidents get their legal advice. Without fundamental reform, we can expect repeated scenarios in which top administration lawyers rubber-stamp power-grabs even when they are in blatant violation of fundamental laws…

But even OLC isn’t what it used to be. Until the 1970s, its staff was composed largely of longtime government lawyers, with only two slots reserved for political appointees. But Jimmy Carter broke this pattern, reserving all top jobs for political appointees, aided by a group of brilliant young lawyers who soon move on to even better jobs. This leaves only three or four long-timers on the staff. This transformation will make it easy for future administrations to copy the Bush example, and put their own versions of John Yoo into key posts.

We have a double problem: When, as in the current case, the Office of Legal Counsel demonstrates legal integrity, it can be overruled by the politicized White House Counsel’s office; but some of the time, the Justice Department group will find itself so politicized that it will do the president’s bidding on its own. The danger of rubber-stamping is greatest when, as in the war-powers area, the Supreme Court is unlikely to intervene to resolve the key legal issues.