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This is especially concerning because within the executive branch, OLC opinions are considered binding unless the president or attorney general overrules them. That gives OLC tremendous influence in setting the parameters of how the government acts. In fact, officials who act in accordance with an OLC opinion typically have immunity from punishment if their actions are later determined to be illegal.

Even worse, much of OLCs work goes on in secret. The office takes the position that its opinions are exempt from open records laws, and while it does proactively publish a certain number of them, there is often a substantial delay before the public sees OLCs justifications for government actions.

The offices tendency to expand presidential power has led to executive actions that have directly harmed people, undermined rights, and stifled Congresss efforts to oversee the executive branch.

The offices failings are best illustrated by its most notorious opinions. It advised the CIA that torture was permissible, despite federal and international law that explicitly prohibited it. The office approved warrantless surveillance of Americans communications despite the clear requirements of the Fourth Amendment. More recently, it signed off on a drone strike against a U.S. citizen abroad, despite serious constitutional concerns stemming from due process rights.

An exhaustive list of harmful OLC opinions would be far too long to print, but an additional smattering illustrates the massive scope of the offices damage. It has approved military action without congressional approval; barred the Food and Drug Administration from regulating the drugs used for lethal injections; blocked an inspector general from reporting to Congress the misconduct that led to former President Donald Trumps first impeachment; effectively nullified the laws governing succession of leadership at federal agencies; and in a line of opinionsdating back to the 1980s, blocked Congressfrom carrying out its constitutionally mandated oversight function at nearly every turn.

What measures are necessary to ensure the office consistently respects the rule of law? A good place to start is the recommendations in our recently published policy agenda for Congress and the new administration. There, we set out four categories of commonsense reforms to bring the office in line: increased transparency, a review of past opinions, process improvements within OLC, and congressional pushback.

First, Congress should require OLC to release all of its non-classified opinions. Increasing transparency at OLC has long been a Project On Government Oversight (POGO) priority, and has enjoyed support from both sides of the aisle in Congress in the past. If the public and Congress dont know how the executive branch is interpreting the law, they cannot hold it accountable or fix laws that are too vague. OLC, for its part, has said that such a requirement would be unconstitutional, but Congress, and if necessary the courts, have a say in that as well.

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Rubber Stamp or Rule of Law? - Project On Government Oversight