The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Since my last post about the role of Department of Justice lawyers in the refugee executive order, more information has come out, not all of it consistent. But Zoe Tillman of BuzzFeed News has finally found a "senior DOJ official" willing to say that the White House at least sought review by the Office of Legal Counsel for "form and legality" (which are magic words describing the traditional OLC role).
In any event, you might reasonably be wondering why, of all of the questions to ask this weekend, one would care whether OLC reviewed the order. After all, the order is what it is. It doesn't get better in substance if we learn more about where it came from. (Full disclosure: I interviewed, and was rejected for, jobs at OLC on two different occasions under two different administrations. But I don't think that affects my judgment.)
But understanding how the Trump administration works may help us predict how it will behave in the future. Those predictions have been particularly hard to make given the unprecedented nature of the administration, and so some of us are grasping at whatever info we can get.
With respect to lawyers in particular, here is what I mean. Consider two possible models of the Trump administration:
In the first model, the administration has two factions competing for power and attention—the "business as usual" folks, represented by the institutional Republican party, many of the folks who have been announced for DOJ positions, etc; and the "unusual" folks, represented most notoriously by Steve Bannon and others from the Trump campaign. Under this model, when we see unusual behavior by the administration, it is because the unusual faction has won that round. And if we wish to curb that behavior, we want to strengthen the power and status of the "business as usual" faction however we can.
If the executive order was the result of DOJ and other non-unusuals being cut out of the process, that suggests we are in the first model.
In the second model, there are no factions. Either all of the various actors are basically on the same page, or the forces at the top are sufficiently strong that no amount of factional competition can sway them. Under this model, there is no point in strengthening the power and status of DOJ or focusing on internal checks. Under this model, what you see already reflects the internal checks. It doesn't get better.
If the executive order was the result of traditional OLC review for "form and legality"—despite the drafting defects alleged here—that suggests we are in the second model.
I am not yet sure which model we are in.