The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A lot has happened in the past 24 hours or so, as the refugee executive order has been released, confusingly implemented, passionately protested, and is now being enjoined in various respects by various district court judges into the night. There is a lot to be said about the substance of the order, mostly beyond my expertise (here is an indispensable post from Ben Wittes). But I am also pondering the role of lawyers in the administration so far, and going forward.
For the past 24 hours, my feeds have been awash with speculation that the order was never even reviewed by the Office of Legal Counsel or other DOJ lawyers, as this CNN story now purports to confirm. If true—and I have also heard some second-hand reports that it is not true—that is surprising and potentially troubling. Just ask OLC's website, which says that "All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality." Or take a look at this 1962 executive order requiring executive orders to be reviewed by the Attorney General (whose review is generally delegated to OLC).
To be sure, I don't have any great illusions that the Office of Legal Counsel is going to get in the habit of saying "no" to President Trump about anything he deeply cares about. (And debates about OLC's efficacy are not unique to this administration.) But lawyers make changes on the margin, and I would assess the next flurry of executive orders differently if I knew it reflected the advice of competent and respected lawyers—even though I am sure there is plenty I would still disagree with.
Now I have also heard speculation that the chaotic implementation so far is just growing pains—that OLC is understaffed and doesn't have time to provide substantive review right now, but that that will change. Maybe. Or maybe the administration intends to revoke OLC's role over executive orders. Or maybe OLC has been reviewing the orders, and they reflect OLC's advice. I just wish we knew what is going on.
In any event, it will also be important to watch a different form of review that is likely to occur over the next 24-48 hours, as the acting Solicitor General has to decide whether to try to immediately appeal any of today's various judicial rulings cutting back on the order's application to green card holders and other lawfully admitted arrivals. If DOJ has been cut out of the loop until now, the court orders might provide a welcome opportunity to refine the administration's position to something more defensible. Or maybe this situation already reflects DOJ's best efforts, and nothing is going to change.