At last, a real lawyer in this job.

He was a and is a very smart lawyer, but he did not take the steps that he should have to clean out the stables and release all of the bogus Yoo, et al memoranda. Goldsmith failed.

I have always wondered how much weight ought to be placed on the word "faithfully" in Art II. That is, how does one resolve the situation where the law requires an outcome at variance with the political preferences of the administration. An interesting read.

It's a pretty common rhetorical technique to define your opponents as ontologically flawed: they aren't even lawyers (or whatever) at all. I remember John Ely described Roe v. Wade as (I am quoting from memory): "not just bad constitutional law; it displays no sign of even trying to be constitutional law." Though I doubt that Dawn Johnsen, former NARAL director, shares that particular view.

Being a disbeliever in Platonic essences, I never find this trope very persuasive, but I guess others do.

Reading Ms. Johnson's "principles" seems to me to be an exercise in wishful thinking on her part. It will be interesting to see when Ms. Johnson's OLC counsels that the executive branch does not have the power to take some action that the Obama Administration really wants to take. My prediction is that it will occur... never.

After all, it's been the modus operandi for OLC since before the Bush Administration that OLC basically blesses whatever the President wants, no matter how strained the legal argument. That was made completely clear to me when Clinton's OLC blessed the Kosovo war by saying Clinton didn't need to comply with the War Powers Act's requirement to stop the war after 60 days if it wasn't authorized when Congress voted an and failed to pass an authorization for the war. OLC's ludicrous justification for ignoring the WPA was that Congress had authorized the war by appropriating money for the action -- even though the War Powers Act explicitly states that appropriating money is not to be considered an authorization for war under the WPA. It's been clear to me for a while, then, that the idea that OLC is supposed to give independent legal advice constraining the President's actions is an outright joke. That's not been the case for at least a decade. And Dawn Johnsen was part of that Clinton OLC that failed to constrain the executive any more than the Bush OLC did.

But, as I say, we'll see.

A.S.: I would gather that Johnsen's principle (shared by every President in modern memory) is simply that a President can (indeed, must) decline to enforce statutes or portions of statutes that are unconstitutional, since the acts of Congress are subordinate to the requirements of the federal constitution. What she and many of "the Left" (really, much of the planet, of any political persuasion) object to is the practice of hiding such a claim in vague, expansive and dubious notions of inherent executive/Commander in Chief powers that lack a basis in the rule of law or what most scholars and laypeople consider reasonable constitutional understanding (this concept is sometimes (mis)labeled the "unitary executive branch" or theory in President Bush's signing statements--it's quite distinct, I understand, from the academic notion that goes under the same or similar labels).

Oren: I don't know, but don't think so. As far as I can tell, the linked OLC opinion basically provides that even if the WPA was valid, the President still had the power to engage in the Kosovo war past the 60 day limit set forth in the law.

AS writes

Dawn Johnsen explicitly approves of the idea that the President can ignore federal statutory requirements (principle #5).

This doesn't appear to be a fair interpretation of her "principle #5." I don't read her as making any normative judgment about Presidents ignoring statutory requirements. Rather, she states:

The precise contours of presidential power in such contexts are the subject of some debate and beyond the
scope of this document.

Instead, what she is saying is that Presidents sometimes do refuse to enforce statutes that they believe are unconstitutional and that, when they do so, at least they should be transparent about it.

According to Marty Lederman (somewhere at Balkinization, I believe; don't have time to look for it now), it did.

If Clinton's OLC did, it sure is odd that the memo I linked above doesn't mention anything about that determination.

@A.S.

If she didn't think it is lawful for a President to ignore a statute (absent a court ruling striking down the statute) ever, one might reasonably ask why she just calls for disclosure of such illegal acts.

From the same point (#5) is this quote:

"Indeed, federal law currently requires the Attorney General to notify Congress if the Department of Justice determines either that it will not enforce a provision of law on the grounds that it is unconstitutional or that it will not defend a provision of law against constitutional challenge."

Which suggests the question: If Congress didn't think it is lawful for a President to ignore a statute, one might reasonably ask why they just called for disclosure of such illegal acts?

If Clinton's OLC did, it sure is odd that the memo I linked above doesn't mention anything about that determination.

The whole memo is premised on that assumption. It would make no sense to write the memo otherwise.

Vermando,

It was Jim Comey who said that, not Goldsmith (although I think Gellman quotes to Goldsmith's book when he tells the anecdote) and it was "no good lawyer."

Also, I feel like Johnsen would politely tell Obama that if he wants an opinion at variance with the best advice of the OLC, he can sign it himself but I'm probably being too charitable.