Sunday, September 1, 2019

Secret Law and Presidential Power

My recent op-ed in The Hill begins:

The recent saber rattling against Iran raises the question of whether the president can take the country to war on his own. Unfortunately, much of the legal advice that presidents have received on war powers remains in a veritable lock box in the Justice Department Office of Legal Counsel. When questions arise about what the government has the power to do, such as whether unilateral action is lawful, it is often the Office of Legal Counsel, not a court of law, that sets the scope of executive power. It builds on its own precedent over time, creating a form of law within the executive branch. But many Office of Legal Counsel opinions remain secret decades after the fact. Because of this, a body of secret law has become a building block of contemporary presidential power.

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