(Re)establishing a Congressional OLC, by Beau J. Baumann
During the 116th Congress, the House Select Committee on the Modernization of Congress recommended that the Government Accountability Office (GAO) study the feasibility of establishing a congressional equivalent to the DOJ’s Office of Legal Counsel (OLC). OLC is the much discussed component of the Department of Justice that issues legal opinions binding on Article II actors. This study mirrors a niche literature that has been calling for a congressional equivalent to the OLC for decades. Would-be reformers hope that such an equivalent could help Congress push back against executive and judicial aggrandizement. By creating an office that interprets the law with an eye towards Article I, reformers hope that Congress can reassert itself in our separation-of-powers dynamic.
This development caught my eye because Congress already had its own loose equivalent to the OLC. For the last three years, I have been digitizing and contextualizing the Opinions of the Offices of Legislative Counsel. From 1919 to 1969, the Offices of Legislative Counsel in the House and Senate resolved lawmakers’ constitutional, statutory, and drafting questions with Opinions preserved in memoranda. This practice, which produced almost 500 memoranda across a half century, has been lost to history because the memoranda were, with some exceptions, sealed under Senate rules until the last soliciting lawmaker died. That last soliciting lawmaker turned out to be Senator Byrd, who outlived almost everyone with any first-hand knowledge of the Opinions. The only Opinion I have released so far is The Turney Memo, but I plan to reproduce all the Opinions soon.
Of course, these Opinions did not “bind” lawmakers in any sense equivalent to the OLC. It is hard to imagine Congress creating a system that did formally bind members of Congress on legal and constitutional questions. Instead, the Offices developed a loose system of precedent that communicated which Opinions were authoritative. The Opinions played a pivotal role in helping lawmakers interpret the constitution and statutes, draft new statutes to accomplish congressional aims, and to help build out Congress’s various hard and soft powers. I will detail the role that these memos played in articles that I’m hoping to start releasing publicly next year.
With all this in mind, I alerted GAO to my work and to the archive I am reproducing. As I told the folks over there, the interesting question is not whether Congress could create an equivalent to the OLC. Both chambers already did that. The trickier question is how you reestablish a similar program in the Congress of today.
You may be wondering, what does this have to do with administrative law? This is Notice & Comment after all! The reason I’m bringing this to the attention of the Notice & Comment readership is that both the Opinions I have uncovered and whether Congress should reestablish an OLC equivalent are very consequential to the administrative law landscape. From 1919 to 1969, the Offices of Legislative Counsel were practically think tanks on administrative law questions. In one month in 1934, the Offices published three Opinions discussing recess appointments, temporary appointments, and executive reorganization. The Opinions were constantly focused on administrative law questions, many of which are still hot-button issues today. This includes The Turney Memo, which helped establish a drafting technique that would cue courts as to when federal agencies were acting with the force of law. A new equivalent to the OLC could be central to the administrative law field. As I wrote in Americana Administrative Law, “claims about Congress” necessarily “drive the administrative law canon.” Having legal opinions produced by Congress on everything from nondelegation, the major questions doctrine, removal, and Chevron, could have huge repercussions in the administrative law field.
GAO has yet to produce its report on the feasibility of a congressional OLC. And whether an equivalent is reestablished, the Opinions of the Offices of Legislative Counsel provide an insight into the role that Congress can play in interpreting the law. The project is of practical relevance to administrative law, as well as most public law fields. For all those who have called on Congress to play a greater role in our separation-of-powers dynamic, I would pinpoint the recreation of a congressional OLC as a potential avenue for reform.
Beau J. Baumann is an appellate attorney at the Department of Justice. He welcomes all comments via email.