The Value of OLC Opinions That Cite Precedent

June 26th, 2014

Justice Scalia, a former OLC Lawyer, casts doubt on OLC opinions that merely cite an earlier opinion, that itself had little analysis.

Legal advisers in the Executive Branch during this period typically endorsed the President’s authority to make intra-session recess appointments by citing Daugherty’s opinion with little or no additional analysis. See, e.g., 20 Opinions of Office of Legal Counsel (Op. OLC) 124, 161 (1996) (finding the question to have been “settled within the executive branch” by Daugherty’s “often-cited opinion”). The majority’s contention that “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes [intra-session recess] appointments,” ante, at 12, is thus true but mis­ leading: No Presidential legal adviser approved that prac­ tice before 1921, and subsequent approvals have rested more on precedent than on independent examination.

I’ve come across a similar question in judicial opinions. When one old court decision issues an obviously wrong precedent, and many courts cite it, without elaboration, it still has stare decisis value, at least for statutory or common law cases. But this may be the clearest judicial statement of the value of OLC opinions that merely rely on precedent.

In case you were curious, here is Justice Breyer’s string-cite:

We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinion of Office of Legal Counsel (Op. OLC) ___, ___ (2012), online at olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463, 466 (1960).