Published by The Lawfare Institute
in Cooperation With
In 1908, when Woodrow Wilson made the case for the vigorous exercise of presidential authority to lead the nation in “times of stress and change,” he sought to calm fears that doing so would upset the Constitution’s careful balancing of power between the president and Congress. Wilson argued that if Congress “be overborne” by an assertive chief executive, it would be “from no lack of constitutional powers on its part.”
In the years since, presidents of both parties have embraced and acted on a broad vision of their authority. This has led to the steady expansion of executive power—a trend the Justice Department’s Office of Legal Counsel (OLC) has helped facilitate by issuing legal opinions that support a broad understanding of the scope of the president’s powers. Congress not only has acquiesced to this expansion of power but also has ceded authority to the president, including by passing sweeping statutory authorizations for the use of military force unconstrained by sunset provisions or geographic restrictions.
Lawmakers have begun trying to claw back their powers. Bipartisan bills in the House and Senate seek to reclaim Congress’s role in determining when the United States uses force abroad. An omnibus package that passed the House in December 2021—the Protecting Our Democracy Act—aims to strengthen protections for inspectors general and Congress’s ability to enforce its subpoenas. And several provisions in the recently enacted Consolidated Appropriations Act enhance Congress’s power of the purse by requiring the Office of Management and Budget to make publicly available information on how it apportions the funds Congress has appropriated.
A slightly different but kindred proposal is also under consideration. During the 116th Congress, the House Select Committee on the Modernization of Congress recommended that the Government Accountability Office (GAO) study the feasibility of establishing a Congressional Office of Legal Counsel—a legislative counterpart to OLC that would respond to the growing body of executive branch legal opinions that undermine, and support executive action encroaching on, Congress’s powers. The committee has examined this idea again in the 117th Congress. And GAO recently agreed to take up the study, promising to begin its inquiry in 2022.
Although many scholars have documented how the executive branch has impinged on or narrowly construed Congress’s powers, the literature on how a congressional counterpart to OLC might help the legislature counteract that trend is comparatively limited. It lives primarily in congressional testimony, part of a recent book, a handful of law review articles, a Good Governance Paper and several legislative reports. GAO’s study stands to make a significant contribution to this body of research.
Whether establishing a Congressional Office of Legal Counsel is an effective way to help Congress counter the expansion of executive power raises a series of questions. First, what role has OLC played in expanding executive power at Congress’s expense? Second, what other tools does Congress currently have to respond to OLC opinions that narrowly construe its powers? Third, what are the shortcomings in those tools? And fourth, is creating a Congressional Office of Legal Counsel an effective way to address those shortcomings?
OLC’s Role in the Expansion of Executive Power
When Congress established the Office of the Attorney General in the Judiciary Act of 1789, it gave the attorney general the authority to advise the president and executive agencies on matters of law. The attorney general has since delegated that authority to OLC, which provides legal advice in response to requests for its opinion. That advice—which is considered binding on executive agencies unless overruled by the attorney general or the president—and the attorney general’s opinions together constitute, as former OLC deputy John McGinnis has put it, “the largest body of official interpretation of the Constitution and statutes outside the volumes of the federal court reporters.”
Over the years, OLC’s opinions have advanced a robust vision of executive power, often lending support to forceful assertions of that authority and narrowly construing Congress’s constitutional authority in areas such as war powers, appropriations and oversight. In opinions issued in 2009 and 2011, for instance, OLC contended that executive agencies may disregard certain statutory restrictions Congress placed on the use of appropriated funds because those restrictions encroached on the president’s constitutional authority to conduct America’s foreign relations. In opinions on oversight matters, the office has asserted that individual members of Congress and ranking minority members on committees lack the authority to conduct oversight of the executive branch, and that the doctrines of executive privilege and testimonial immunity insulate certain current and former officials from compelled congressional testimony.
OLC’s opinions on these and other issues inform the specific actions the executive branch may take and how it engages with Congress. The office’s opinions also influence how Congress thinks about its own powers and drafts legislation—such as the Inspector General Act of 1978. When OLC objected on constitutional grounds to the House version of that bill, which required the direct transmission of inspector general reports to Congress, lawmakers crafted and passed a compromise incorporating OLC’s view and requiring inspector general reports to be submitted first to agency heads, who then transmitted them to Congress.
Implicit in the Modernization Committee’s recommendation that GAO study the feasibility of establishing a congressional counterpart to OLC is the idea that Congress currently lacks the ability to respond effectively to OLC opinions that undercut its powers.
Congress’s Legal Offices and the Tools Legislators Currently Use to Challenge OLC
Congress presently receives legal support and guidance from several in-house entities. The Office of Senate Legal Counsel and House Office of General Counsel represent their respective chambers in litigation and perform certain internal advisory functions. The House and Senate Offices of Legislative Counsel provide confidential assistance to members and committees drafting legislation. The Congressional Research Service publishes nonpartisan reports detailing the history and law relevant to an array of issues. And GAO evaluates federal programs, helps review draft legislation and provides Congress with analysis of potential violations of appropriations law.
These entities form the architecture onto which a congressional counterpart to OLC might be added. Two key components of that structure—the Office of Senate Legal Counsel and House Office of General Counsel, which articulate and defend their chambers’ respective institutional positions in litigation—did not begin to take shape until the 1970s. As the Senate Committee on Governmental Affairs wrote in a 1977 report, legal “representation of Congress and congressional interests” was until that time “provided on an ad hoc basis by the Justice Department and private legal counsel,” and occasionally by staff counsel on congressional committees. The report notes that Congress’s reliance on outside counsel “began as far back as December 29, 1818, when the House adopted a resolution authorizing the Speaker to hire private counsel to defend the Sergeant at Arms in the landmark case of Anderson v. Dunn, the first case upholding Congress[’s] contempt power.” By the late 1960s and early 1970s, many legislators considered the continued reliance on outside counsel and the “increasing conflict of interest” inherent in an executive agency’s legal representation of the legislature to be untenable.
Some lawmakers began proposing legislation to correct that problem. In the 1970s, members introduced bills to establish a joint office, then called the Office of Congressional Legal Counsel, to represent the interests and outline the legal positions of the legislative branch. Given the office’s authority to articulate and defend Congress’s overarching institutional interests and powers—as well as to represent individual houses of Congress, committees and members—the Office of Congressional Legal Counsel is the legislature’s closest historical analogue to OLC, as OLC articulates legal positions on behalf of the entire executive branch. There are important limits to this comparison. While the Office of Congressional Legal Counsel would have had certain internal advisory functions, including providing legal advice to congressional committees undertaking investigations, its primary function would have been to initiate, defend and intervene as an amicus in certain civil actions implicating Congress’s interests, powers and members.
Although the Senate supported establishing the joint office and included provisions to do so in the version of the Ethics in Government Act it passed, the House rejected that proposal. Representatives reportedly feared that a joint office would favor the Senate’s interests over the House’s. The Congressional Research Service also has written that House conferees “perceived the House and Senate to have somewhat different legal concerns,” rendering a joint office ill suited to serving their respective needs. The Office of Congressional Legal Counsel died accordingly in conference.
When that attempt failed, only the Senate took immediate action to provide for institutional legal advice and representation. Reworking the statutory provisions originally intended to create the joint office, the Senate established its own Office of Senate Legal Counsel with the House’s blessing in the Ethics in Government Act of 1978. The House took no companion action at the time and did not establish its Office of General Counsel until the early 1990s. Representatives adopted a resolution creating the office in 1992 and incorporated it into House rules in 1993.
In the absence of a legislative counterpart to OLC, those legal offices, various functions performed by congressional committees and certain powers exercised by individual members of Congress provide the legislative branch with the tools it currently uses to challenge OLC opinions that undermine or encroach on Congress’s powers. Some of these tools exist to secure a specific result in the world, such as the enactment of legislation closing an exploited gap in statutory text, the rescission of an OLC opinion or a judicial decision overruling OLC’s legal theory. Other tools give lawmakers space to interrogate OLC’s analysis and offer a countervailing legal perspective in the hope of shaping public, judicial and congressional views of the law.
In addition to attempting to shape perceptions of OLC opinions through floor speeches and other rhetorical exercises, legislators actively challenge OLC opinions in at least three ways, including legislation, direct appeals to the executive branch and litigation. Legislating enables Congress to close gaps or eliminate ambiguities in statutes that executive branch lawyers have identified and used to the advantage of the executive branch. Lawmakers’ repeated attempts to repeal or update existing statutory authorizations for the use of military force, which the executive branch has interpreted broadly to justify military actions that arguably exceed the scope of the original force authorizations, are one example of this. And squarely asking the president to rescind an OLC opinion, as Sen. Chuck Grassley did in a 2017 letter and Rep. Carolyn Maloney did in a 2021 letter, exerts public pressure on the executive branch to reverse its legal position.
Litigation presents Congress with another means of challenging OLC opinions. The House, through the Office of General Counsel, regularly has used civil litigation for this purpose in recent years, as evidenced by the Judiciary Committee’s efforts in 2008 to compel the testimony of former White House Counsel Harriet Miers and in 2019 to compel the testimony of former White House Counsel Don McGahn, despite OLC’s view that Miers’s and McGahn’s status as former presidential advisers rendered them immune from compelled congressional testimony. Although these lawsuits primarily sought court orders directing the witnesses to cooperate with the Judiciary Committee, they offered the secondary (and admittedly more remote) possibility of a precedential ruling on the merits overriding OLC’s legal theory and vindicating Congress’s constitutional prerogative.
The remaining tools legislators use—those that fall in the second, persuasive category—are oriented more toward providing an alternative perspective on the law that shapes public, judicial and congressional views. These tools—including legislative and oversight hearings, House and Senate committee reports, and floor speeches—allow legislators to interrogate and rebut OLC’s analysis through public argumentation and questioning, witness testimony, and their own written analysis.
Shortcomings in Congress’s Tools
Although the aforementioned tools give legislators a number of ways to respond to executive branch actions and legal arguments that undercut or encroach on Congress’s powers, they largely fail to neutralize the effect of those arguments and to shape views of the law. This is true for at least four reasons. First, the existing tools poorly position Congress to invalidate the constitutional basis for the executive branch’s legal positions. Second, neither the House Office of General Counsel nor the Office of Senate Legal Counsel broadcasts its chamber’s institutional legal positions in a clear and accessible manner during and after litigation, hampering Congress’s ability to offer a compelling alternative to executive branch legal arguments. Third, Congress’s tools currently limit its ability to develop a cohesive, precedent-based body of legal analysis outside of litigation to support its positions on issues that are unlikely to be subject to judicial review, such as war powers. And fourth, limited congressional legal staff restricts Congress’s general ability to use the aforementioned tools.
As former OLC attorney-adviser Jonathan Shaub has argued, Congress’s tools poorly equip it to “override the constitutional foundation” for the executive branch’s legal positions. Although Congress can pass legislation to clarify or repeal existing statutory language that executive branch lawyers have interpreted broadly, statutory changes do not affect arguments rooted in the executive branch’s understanding of the Constitution’s separation of powers or its reading of the scope of the president’s inherent authority under Article II and Congress’s powers under Article I. To undercut the constitutional basis for such arguments, Congress must turn to the courts in the hopes of securing a precedential ruling on the underlying constitutional question. But litigation has proved to be an ineffective means of vindicating Congress’s constitutional prerogatives. This is due, in part, to courts’ narrow views of when legislators have standing to sue and their inclination not to decide broad constitutional questions, particularly where the political branches are concerned and where a narrower ruling is possible. Litigation also has proved ineffective because the purpose of Congress’s filing a civil action typically is to resolve, as quickly as possible, the specific dispute at issue in the case; it is not to wage, as Shaub describes it, “the fundamental battle … over the respective authorities of the two branches of government.”
Even when the House and Senate take institutional positions in litigation against the executive branch, their legal offices fail to broadcast those positions to the public in a clear and accessible manner, undermining Congress’s ability to offer a countervailing legal perspective. As Michael Stern, a former senior counsel in the House Office of General Counsel, observed in congressional testimony, information about the House’s institutional legal positions is not readily available to the public. Although the House Office of General Counsel “has a website with some information on areas of the law most relevant to its practice,” Stern explained, “this information is largely general in nature.” This problem is even more acute in the Senate, as the Office of Senate Legal Counsel appears not to have a publicly accessible website.
Existing tools also render Congress ill equipped to develop a cohesive, precedent-based body of legal interpretation outside of litigation. Although certain disputes are likely to end up in court, other disputes over key constitutional issues, such as war powers and Congress’s power of the purse, are less likely to be subject to judicial review. Congress has some options to produce its own public-facing legal analysis. Reports by committee staff, for example, can commandingly break down the legal issues relevant to the exercise of key congressional powers. (Take, for instance, a 2020 Senate subcommittee memorandum analyzing the novel constitutional questions raised by remote congressional proceedings.) But the disaggregated nature of the tools at lawmakers’ disposal impedes Congress’s ability to develop a body of legal analysis akin to OLC’s, which is cohesive and centralized, and onto which executive branch attorneys easily can build.
The decentralized nature of Congress’s response reflects an inherent structural difference between the branches: that the legislature, with its 535 members, is decentralized in a way that the executive branch, with its single chief executive, is not. Although Congress’s decentralization can be a strength, it simultaneously constrains the legislature’s ability to defend its institutional interests—in this case, by expressing clear legal opinions that respond to the body of executive branch opinions that narrowly construe, or support executive action encroaching on, Congress’s powers.
Limited legal staff in Congress also restricts what legislators can accomplish. The House Office of General Counsel has seven attorneys on staff, including the House general counsel, and the Office of Senate Legal Counsel has six attorneys on staff, including the Senate legal counsel. (Although funding for the House Office of General Counsel has increased significantly overall since the late 2000s, it decreased between fiscal years 2010 and 2015, and only exceeded the fiscal year 2010 level beginning in fiscal year 2020.) Moreover, during the past four decades, the number of committee staff in both chambers either has fallen or remained almost exactly the same. In the House, the number of committee staff has decreased by 30.20 percent overall since 1977 and 40.89 percent since its peak in 1991. And in the Senate, committee staff has grown only 1.38 percent since 1977. The limited number of in-house legal and committee staff may contribute to Congress’s continuing to seek some external legal advice. For instance, Rep. Carolyn Maloney, the chairwoman of the House Oversight and Reform Committee, recently solicited outside legal analysis of a 2020 OLC memorandum concerning the Equal Rights Amendment, which she sent to President Biden to support her request that the OLC opinion be rescinded.
Issues for Congress and GAO to Consider
To succeed, a new congressional legal office will need a clearly defined role, situated in Congress’s existing legal support architecture; a carefully designed structure; and the legal authorities, staffing and resources necessary to meet its mandate.
Congress will need to consider what specific purpose a counterpart office would serve in the legislature’s broader effort to counteract executive encroachment and the legal arguments underpinning it. Would Congress’s establishment of a legislative counterpart to OLC aim to strengthen its ability to override the constitutional basis for executive branch legal arguments that undercut, or support actions encroaching on, Congress’s powers? Would it aim to enhance Congress’s persuasive tools, or its ability to shape how courts, the public and legislators view the law? Creating a congressional counterpart to OLC would not eliminate the inherent disadvantage Congress faces in countering forceful assertions of executive power. The executive branch will continue to control access to documents and testimony that Congress seeks in information disputes, and the president might still order the use of military force absent congressional authorization. But creating a congressional counterpart to OLC could enhance Congress’s ability to challenge the legal basis for such executive actions and perhaps lay the foundation for further responsive congressional action, such as legislation or resolutions designed to vindicate Congress’s constitutional authority.
Although the Modernization Committee has sketched the counterpart office’s overarching external-facing function—to “answer Department of Justice opinions”—neither the committee nor current scholarship has devoted much attention to the internal-facing role the office might play. For instance, it is conceivable that members of Congress might solicit and use the office’s legal opinions in disputes over the constitutionality of proposed legislation, just as Congressional Budget Office scores have become flashpoints in debates over the fiscal responsibility of certain bills.
A number of different structural configurations could serve a congressional counterpart to OLC well. These include establishing a joint office serving the whole Congress, standalone offices in each chamber, or offices housed within the House Office of General Counsel and Office of Senate Legal Counsel. Each option has merits and drawbacks, which GAO should explore further.
A joint office serving both chambers and issuing legal opinions on behalf of the legislative branch would be the most direct analogue to OLC. Such an office would, however, raise both constitutional and practical issues, many of which Congress and the executive branch debated when lawmakers considered establishing the joint Office of Congressional Legal Counsel in the 1970s. In a memorandum at the time, OLC argued that there are compelling reasons not to empower a single office to articulate unified congressional legal positions, including that creating a joint office to represent separate chambers of Congress may violate the framers’ intent to fragment the legislative power by creating a bicameral institution.
A joint office may also be infeasible in light of the House’s and Senate’s different institutional interests and storied interchamber rivalry. An infamous saying in the House offers that while the other party is the opposition, the Senate is the enemy. This spirit seems, in part, to have animated the House’s rejection of the joint Office of Congressional Legal Counsel proposed in the Senate version of the Ethics in Government Act. Former House General Counsel Steven Ross identified the basis for the House’s rejection of that office as “inter-house rivalry and the House’s not wanting its business connected with the Senate.” And Stanley Brand, another former House general counsel, relayed that the House feared it would be “given second fiddle.” However, detailed analysis by law professors Jesse Cross and Abbe Gluck highlights how other nonpartisan cross-chamber entities—such as the Congressional Research Service, GAO and the Congressional Budget Office—have successfully served and strengthened Congress as an institution, “provid[ing] the specialized expertise that helps make congressional lawmaking possible.”
Although creating nonpartisan standalone offices in either chamber, or housing congressional counterparts to OLC in the House Office of General Counsel and Office of Senate Legal Counsel, would neutralize the problems raised by a joint office, they raise issues of their own. The first issue concerns the breadth of their authority. Whereas OLC produces opinions that are considered binding on executive agencies, chamber-specific congressional counterparts could take legal positions on behalf of only part of a government branch. This could lead to the perception that their opinions are less authoritative than OLC’s. Moreover, establishing separate chamber-specific offices creates the possibility that the House and Senate might take different positions on identical matters of law or constitutional interpretation. Rather than help clarify Congress’s positions vis-a-vis the executive branch, this could create further confusion.
Establishing congressional counterparts to OLC as divisions within the House Office of General Counsel and Office of Senate Legal Counsel—or simply giving the House general counsel and Senate legal counsel new authorities to execute this function—would build out existing legal support architecture rather than standing up new structures. This option also would house the legal analysis required for both litigation and the issuance of advisory opinions in the same entity, creating a clear home in both chambers for analysis concerning the scope of and constitutional basis for Congress’s powers. Absent substantial staff increases, however, this addition likely would place a severe strain on these two offices.
This all assumes that the central legal authority such an office would have is the ability to issue advisory opinions. Both GAO and Congress will have to consider how such legal opinions would function in the legislative branch and what steps lawmakers could take to ensure congressional legal opinions are seen and treated as authoritative. They also will have to consider whether a counterpart office may require additional legal authorities.
Finally, any study of the viability of a congressional counterpart to OLC would have to examine the staffing and resources such an office would need to succeed. OLC derives its authority in part from the perception that it employs the finest, highest-credentialed attorneys. Even critics of the office, such as Sen. Sheldon Whitehouse, recognize that OLC is seen to be “a cut above” even the Justice Department’s “first rate” standard for lawyers. To maximize the legitimacy of a counterpart office, GAO and Congress would benefit from studying how the office could attract and retain top legal talent and ensure staffing levels are high enough for the office’s lawyers to conduct careful and detailed legal analyses—as well as considering the salary levels required to interest highly competitive candidates. Furthermore, the office will need adequate access to information. This will entail, among other things, ensuring attorneys can obtain the high-level security clearances they will need to review classified information pertinent to the legal issues that arise in the office.
Any effort to establish a congressional counterpart to OLC will have to grapple with the issues outlined above. It also is likely to face pushback from the executive branch and, if created, will have to weather the volatile politics of the modern Congress. These politics suggest that lawmaker support for a congressional counterpart to OLC likely will shift—perhaps dramatically—as control of Congress and presidential administrations change. For instance, it stands to reason that a Democratic majority will have more of an incentive to support a congressional OLC in disputes with the executive branch when a Republican holds the presidency than when a Democrat does.
These variables will influence the effectiveness and perceived authoritativeness of a congressional counterpart to OLC. But they do not change the central questions GAO has to answer and Congress must consider: Is creating a congressional counterpart an effective way to help strengthen Congress’s ability to respond to executive encroachment and the legal arguments supporting it? And what would the office need to meet that mandate? GAO’s study may shape, and certainly will enrich, the associated debate to come.