My op-ed on Whitaker and a century of crony Attorneys General - from *both parties* undermining the rule of law - and a reform proposal.
In today’s print @washingtonpost opinion page. And a thread here to explain my view of OLC’s big and small errors. 1/
washingtonpost.com/opinions/think…
In today’s print @washingtonpost opinion page. And a thread here to explain my view of OLC’s big and small errors. 1/
washingtonpost.com/opinions/think…
2/ Let me first note there are reasonable statutory and constitutional arguments on both sides. I have found @steve_vladeck @AJosephOConnell @KDbyProxy @alegalnerd @EricColumbus especially thoughtful, pointing out nuanced arguments for Acting AG discretion and catching my errors.
3/ E.g., @steve_vladeck last week on Eaton. Steve writes that the Whitaker appointment was a "Bad Choice but a Legal One." (Thanks @nytimes for getting the headline right for Steve's nuanced message). I think OLC could've done at least a fraction of this. nytimes.com/2018/11/09/opi…
4/ @steve_vladeck also made good points about the VRA's text very early and caught my errors graciously.
I RT'ed last night @AJosephOConnell's thread, one of the most expert and enlightening explanations in favor of POTUS discretion for Acting AGs:
I RT'ed last night @AJosephOConnell's thread, one of the most expert and enlightening explanations in favor of POTUS discretion for Acting AGs:
5/ Unfortunately, I think the OLC memo, despite a large team of smart lawyers, made too many errors, large and small, some consequential, some not.
The OLC memo reads like a brief written to get to a political result from the start. It misses many counterarguments & problems...
The OLC memo reads like a brief written to get to a political result from the start. It misses many counterarguments & problems...
6/ The best piece so far- the most comprehensive account -is by @marty_lederman & @walterdellinger:
1) more generous to OLC memo than I am. That's fair.
2) find merit in OLC's statutory argument, despite finding gaps.
3) find major constitutional problems.
justsecurity.org/61483/initial-…
1) more generous to OLC memo than I am. That's fair.
2) find merit in OLC's statutory argument, despite finding gaps.
3) find major constitutional problems.
justsecurity.org/61483/initial-…
7/ I'll have more to say on OLC's specific problems. But I offer two bigger picture problems.
First, the OLC adopts inconsistent but highly convenient methods for its statutory and con law arguments:
VRA statute: narrowly textual.
Con law: Essentially no textual analysis.
First, the OLC adopts inconsistent but highly convenient methods for its statutory and con law arguments:
VRA statute: narrowly textual.
Con law: Essentially no textual analysis.
8/ Both statute and con law: No discussion of purposes.
We're supposed to be originalists, but there's no original public meaning of the Appt Clause. 1792 statute is close but not enough.
Overlooking statutory purposes, leg history, and con law text/context is really convenient.
We're supposed to be originalists, but there's no original public meaning of the Appt Clause. 1792 statute is close but not enough.
Overlooking statutory purposes, leg history, and con law text/context is really convenient.
9/ I'll have more to say on the relevance of legislative purposes and history, the Article II textual problems, and OLC errors in a blog post today. For now, I'll say that the OLC's errors and/or misleading passages are one reason it is a stain, even if the merits are debatable.
10/ Last big picture point: OLC stands for Office of Legal Counsel. It has a duty to provide legal counsel. Not just one-sided, narrow legal defenses. Govt lawyers have a duty to give prudent legal counsel. OLC had a duty to mention valid concerns or caveats. That's a stain.
11/ Oh, and my draft paper on Crony AGs and reform. With footnotes. See @LarryTye on the JFK/RFK “Nail down AG and IRS first” quote: shugerblog.com/2018/11/10/cro…
12/ I finally got a chance to collect my thoughts on the OLC Whitaker memo's constitutional problems. I found seven problems, some big, some small. But I am most troubled by the OLC's methodological and historical cherry-picking: shugerblog.com/2018/11/20/the…
