Office of Legal Counsel Opinions: Advice or Law?

(The Deputy Attorney General had instructed federal prosecutors to adhere to the opinion.) The district judge held that the OLC decision constituted "final agency action"; indeed, the government conceded that the OLC opinion culminated the Justice Department's review of the Wire Act. The Department ofJustice (DOJ) must give substance to constitutional provisions on which courts are unlikely to opine, as well as statutes constraining Government agencies (on which courts will also have little occasion to opine). [...]OLC opinions are often the final word on issues they address. The discussion of the term in the Attorney General's Manual on the Administrative Procedure Act (1947) ("Attorney General's Manual"), and the examples provided there, suggest two essential attributes of adjudications: (1) they involve factual development, mostly of historical fact, and resolution of the dispute based on factual findings; and (2) they resolve disputes between the government and private entities, either regulated entities or program beneficiaries. [...]OLC opinions do not address past behavior-they are intended to operate prospectively. [...]unlike adjudication, OLC opinions sometimes suggest alternative courses of action for agencies to achieve their objectives.