Weaponizing the Offiffice of Legal Counsel

This Article argues that the Office of Legal Counsel (OLC)-an office within the Justice Department that issues legal opinions that govern executive branch actors-arms the executive branch with a powerful weapon to deploy in its conflicts with Congress. Despite its reputation as a neutral arbiter of constitutional questions, OLC's separation-of-powers opinions do not simply describe the executive's view of the law; they actually augment executive powers vis-a-vis Congress. This novel argument emerges from two descriptive claims laid out in this Article. The first is that OLC's institutional design guarantees that its separation-of-powers opinions will articulate a decidedly pro-executive view of the law. The second is that these executive-friendly legal analyses not only guide the actions of executive officials, but also shape the legal landscape outside the executive branch. In other words, OLC makes its own legal reality: its separation-ofpowers opinions first envision a world that values executive branch prerogatives over congressional interests, and then, by their very existence, help realize that vision. The result is that OLC provides the executive with a powerful weapon in its inter-branch disputes with Congress-a phenomenon that to date has gone unremarked. After identifying the mechanisms through which OLC places a thumb on the executive's side of the scale in inter-branch disputes, this Article suggests several ways that Congress could level the playing field.