The Solicitor General and the Office of Legal Counsel: Constitutional Consciences of the Executive Branch?

The excerpts here are from an early draft of a work in progress presented at a Georgetown University Law Center faculty workshop. The article has not yet been completed and submitted for publication.

The United States appeared in the Supreme Court in 1995 as amicus curiae and argued that the First Amendment barred cancellation of a public contract with a trash hauler for making political comments on his own time with which government officials disagreed. The case presented a relatively straightforward application of First Amendment principles to the context of government contracting. The Court ended up deciding by a clear majority that such a cancellation was indeed unconstitutional. The government's position nonetheless attracted special notice: During oral argument, Chief Justice Rehnquist leaned forward and glared at the Assistant to the Solicitor General before him and boomed, "Well, that's an extraordinary argument for the government to be making." The Chief Justice apparently thought that the United States had no place arguing in favor of constitutional constraints on governmental action, rather than seeking to minimize any such constraints.

The Chief Justice's comment highlights important questions about whether and how the government does and should interpret the Constitution to constrain itself - as opposed to relying on the courts to do so - in the name of protecting constitutional rights. In particular, the Chief Justice's comment raises questions about the roles of lawyers within the executive branch in putting the constitutional brakes on the political and policy initiatives of the executive.

The role the Solicitor General played in the contractor retaliation case was arguably an appropriate and salutary one. But explaining exactly why raises some hard questions about the practical and legal feasibility of independence on the part of the Solicitor General, what exactly that independence looks like, and whether as a normative matter it is desirable. Questions about the independence of the government's Supreme Court lawyer quickly spill over into parallel questions about the independence of its top non-litigation constitutional counsel: the Assistant Attorney General for the Office of Legal Counsel. Should the President's lawyers, in either or both roles, seek to interpret the Constitution in order to promote the institutional interests of the federal government? To facilitate what the particular President in office wants to do? Or should they read it in some other more detached, less client-centered, way - for example, as if they were sitting on an executivebranch court insulated from supervision, or at least striving to offer objective, best answers?

The question whether and how executive branch lawyers make independent constitutional judgments is especially highlighted against the backdrop of post- Realist legal thought. The bulk of academic legal theory in the United States over the past century has argued and/or assumed that there is no single, correct theory of justice. If we still believed in objective right answers in a scientific, Langdellian sort of way (and that such answers could reliably be discerned from existing texts), we would not focus on the interpretive scope available to government lawyers, and how they should act in light of it. Only once we understand existing law - and perhaps especially the Constitution - as often supporting at least some range of legal outcomes does it become meaningful to consider how a person in a particular role in the legal system should choose from within that range. If executive branch lawyers should, at least sometimes, read the Constitution independently, what guideposts should they follow? Where they face areas of constitutional uncertainty, ubiquitous in interpretation of broad constitutional terms like "due process," "freedom of speech," "equal protection," and even "executive power," how should they steer a course between important governmental prerogatives and other interests - in particular, the counter-majoritarian interests of members of the public?

Executive branch interpretive "independence" has tended to refer to several distinct concepts, which are often conflated. Upon closer examination they do not necessarily fit together, however, but are often in tension with one another. One concept of executive branch independence refers to autonomy from judicial interpretation. Autonomous judgments in this quasijudicial sense would be those reached with something akin to the freedom a Supreme Court Justice feels (or perhaps a whole parallel Supreme Court) in interpreting the Constitution. A related but more modest version of such autonomy recognizes that at least some conduct the Supreme Court does not forbid (due to institutional deference to the political branches, for example, or simply because the question had yet to reach the Court) might nonetheless be unconstitutional and thus properly off-limits to the executive.

That concept is distinct from a second notion of independence - one that focuses on insulation from executive branch control. A familiar and strong embodiment of this version is the independent counsel, deliberately shielded from executive supervision and able to make putatively impartial, binding legal judgments without meddling from superiors. Another example is the unsuccessful legislative proposal in the wake of the Watergate scandal to make the Department of Justice into an independent agency free from presidential control. Even a Solicitor General or head of the Office of Legal Counsel who closely followed the Court's precedents and thus did not see himself as independent in the first, "autonomy" sense could theoretically have final say on his decisions under this conception, insulated from reversal by the President.

Finally, and relatedly, there is a view of independence that focuses on fostering disinterested advice, but without necessarily according the adviser the final say that a fully insulated lawyer like the independent counsel or agency would have. One illustration of this concept is a decision arrived at behind a "Chinese wall," untainted by client interests that might corrupt the lawyer's advice. Just as the scientific research conducted by a government or private entity with a particular agenda raises eyebrows, the disinterestedness of legal advice given by lawyers who "know what the boss wants to hear" may be suspect. In considering the desirability of such a shield, one must ask whether the goal is to shield against the political interests of the particular Administration, or the institutional interests of the executive branch over the longer term, or both. Each form of client interest raises distinct threats to impartiality. Under this model, unlike the preceding one, the client could be free to disregard the impartial advice; the focus is on assuring that relatively objective advice is obtained. Judgments that are independent in this third sense could, of course, end up in many cases favoring the interests of the Administration and/or the institution of government, but a good "test case" of such impartiality is the extent to which executive branch lawyers raise individual- rights objections to action the government would otherwise take.

The prospects for executive branch independence have significance for the broader debate about extrajudicial constitutionalism. I am broadly sympathetic with the scholarly movement emphasizing the values of extrajudicial constitutional interpretation. I start, however, with a recognition that the federal courts have generated a constitutionalism that is, in many respects, the envy of, and standard for, much of the world. I also sense that scholars like Mark Tushnet (who assails judicial review in his recent book, Taking the Constitution Away from the Courts) may not adequately account for salutary functions of judicial review. Disagreement with many of the Court's constitutional interpretations does not necessarily imply that judicial review is a bad thing. I see positive potential in expanded extrajudicial constitutionalism because I recognize that there are real costs to pinning on the courts our best hopes of justice. If the Constitution means only what the Supreme Court says it means, we are stuck with the Court's mistakes. Moreover, if we rely exclusively on the Court to enforce the Constitution, a whole range of structural limitations on judicial review will mean that the Constitution is substantially underenforced. A clearer focus on the conditions of extrajudicial constitutional interpretation - and efforts to improve them, if possible - stands to increase the practical effectiveness of constitutional constraints on government. More broadly, to the extent that we rely on the judiciary's constitutional decisions to ensure a just society, our national initiative, responsibility and imagination to assure justice through other than judicial means may whither.

There is much that is attractive in the notion of a constitutional dialogue enriched by voices beyond the Court's.

There may be some degree of unavoidable tradeoff between a more dynamic and plural constitutionalism and the stability and clarity afforded by the Supreme Court's traditional role as canonizer of constitutional principles. It is hard accurately to imagine what our legal and political life would be like - whether and how it would be better or worse - without judicial supremacy. That is not, however, my main focus here. This paper instead looks at the actual institutional workings of constitutional analysis on the part of the executive branch, with an eye to untangling the various strands of independence and identifying how they can, do, and should function within the executive branch. The principal aim of this paper is to add to an understanding of what kind of extrajudicial constitutionalism we currently have, and to consider how we might improve it. I conclude that, despite a great deal of attention to and praise for the "independence" of both the Solicitor General and the Assistant Attorney General for the Office of Legal Counsel, neither official currently engages on any routine basis in constitutional interpretation that is independent any of the three senses referred to above. Rather, both offices' ability to do so is severely constrained, for a range of (often good) reasons. In light of that reality, we must either look for ways to improve the independence of executive constitutionalism, or temper our confidence that the executive can assure respect for constitutional norms, and individual rights in particular, in areas that are not addressed by the courts.

A subsidiary aim of this paper is to consider how, in light of its distinctive features, the current practice of executive branch constitutionalism informs the broader debate about the constitution outside the courts. To the extent that proponents of greater relative authority on the part of the political branches to interpret the Constitution have pointed to the ability of the political branches to do a good job at that interpretation, understanding more about the practice and limitations of executive branch constitutionalism may help us normatively to assess those claims. The more mature and independent the political branches' practice of constitutional interpretation, the more promising are the claims of extrajudicial constitutionalists.

Part I, "The Private-lawyer Model of Office of Solicitor General and Office of Legal Counsel: Attorneys for a Client who Happens to Be Government," outlines a model of executive-branch lawyering that is analogous to private lawyering for clients, both in the context of litigation and legal advising. Viewing the Solicitor General as little more than a "hired gun" for the executive, and Office of Legal Counsel as akin to an in-house corporate counsel, casts the government as Holmes' proverbial "bad man" and implies a minimalist vision of constitutional enforcement that relies exclusively on the courts.

Part II, "Beyond the Solely Judicial Constitution: Opportunities for Executive Branch Constitutionalism," takes off from the observation that such a private-law, solely judicial model of constitutional enforcement fails to capture a core aspect of constitutional constraint of government. The many ways in which, as Lawrence Sager's classic article pointed out, the judiciary inevitably under-enforces the Constitution call for extrajudicial enforcement by the political branches. This is important, for example, in order adequately to guard counter-majoritarian rights. Judicial under-enforcement (and perhaps over-enforcement as well) thus highlights the question whether there is any "constitutional conscience" within the executive branch independently interpreting the Constitution. This section accordingly looks at the functions and duties of the Solicitor General and the Assistant Attorney General in the Office of Legal Counsel with an eye to identifying the opportunities of each to engage in extrajudicial constitutional interpretation.

Part III, "Images of Independence: The Consciences of the Executive Branch," canvasses the claims of those who assert that the Solicitor General and Office of Legal Counsel already operate as independent constitutional interpreters, and thus adequately perform the role of executive constitutional consciences. The Solicitor General is often characterized as a highly independent, principled official. Indeed, if independence is measured in terms of the freedom to make important decisions without Presidential consultation or approval, the Solicitor General is arguably more independent than the Attorney General. Traditionally, the Solicitor General makes judgments about which cases to pursue and the positions to take in appellate and Supreme Court litigation without much, if any, substantive supervision by the Attorney General or the President, and even when agency heads or other high-ranking officials might disagree with him.

Part IV, "A Closer Look: Derivative, Illusory or Incidental Independence," critically evaluates those claims, concluding that what is cast as "independence" is generally something quite different. The Solicitor General typically does not exercise independence in the sense of disinterested constitutional interpretation, but rather plays an occasionally client-checking role by relying on the authority of Supreme Court doctrine. The Office of Legal Counsel, too, attains authority to challenge client proposals by backstopping its constitutional judgments in the Supreme Court's doctrine. The Office of Legal Counsel's ability to stand as an alternative or supplement to the Court in the many areas in which the Court has not drawn limits is considerably more precarious, and depends largely on the ways in which Office of Legal Counsel very loosely and imperfectly structurally mimics the courts: specializing in legal interpretation, remaining somewhat institutionally insulated from the clients, passively waiting for matters to come to it, and generating and relying on a body of precedent.

Part V, "Implications of the Critique," considers the implications of the substantial shortfalls in the current abilities of the Solicitor General and Office of Legal Counsel to act as the executive's "constitutional consciences." First, it critically evaluates the potential for making the Solicitor General and Office of Legal Counsel more independent in any or all of the ways identified at the outset of the paper. Doing so is promising in many ways, but also turns out to be complex and problematic. An insulated Solicitor General acting disinterestedly rather than with an eye to client interests might second- guess the political branches' implicit judgments of the constitutional validity of statutory provisions (and by refusal to defend, might pretermit judicial consideration) much more frequently than he currently does. Some versions of increased Solicitor General independence thus could alter the balance of powers between the Court, Congress, and the Executive, in ways that depart from our traditional understandings of their relative roles - a shift that itself would raise a complex set of constitutional and normative questions. As for the Office of Legal Counsel, given that office's lack of mandatory jurisdiction, a practice of engaging in genuinely impartial and binding interpretation might deter clients from seeking the Office's advice. To play an effective checking role, an independent Office of Legal Counsel would need to have mechanisms with which to police constitutional trouble spots, and have adversarial rather than one-sided presentation of issues. Pervasive confidentiality of governmental deliberative processes regarding proposed governmental actions, however, makes it difficult to identify and gain input about potential constitutional defects in such proposals.

Finally, this section considers the implications of the foregoing analysis for the current debate about extrajudicial constitutionalism. I believe the executive can do, and in some cases has done, a decent job of engaging in constitutional interpretation that is moderately independent from either the president's short-term political interests, or the institutional interests of the executive branch. But I argue in earlier parts of the article that the independence of the Solicitor General and Office of Legal Counsel is largely derivative of or mimics the Court's, and depends powerfully on a tradition of judicial supremacy. Thus, pointing to the practice of independent constitutionalism within the executive branch as a reason to be comfortable with abandoning judicial supremacy is circular: If the executive is good at constitutionalism because it engages in interpretation against a backdrop of judicial supremacy, our confidence in the executive's current constitutionalism does not argue very effectively for abandoning judicial supremacy.

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