The Right Coast

December 05, 2005
Alito and OLC
By Mike Rappaport

An interesting piece on the Office of Legal Counsel, where Sam Alito worked in the mid 1980s and for which he wrote his now famous job application letter. I was very familiar with that office, having started in the office right at the time that Alito was leaving in 1987.

The description of the office in the article is essentially correct. The article states:

"OLC was designed to be an objective appraiser of the law, a place inside a political administration where policy people can come and say, 'OK, we'll ask the lawyers what the law requires.' I don't know how many times I wrote this, but it was multiple times -- that 'whatever the policy merits of this idea, the law specifies the following.'"

There were plenty of people in the Reagan administration who thought the line-item veto was great policy. But the OLC said it was unconstitutional. The 1988 opinion "did not please Reagan at all," says Cooper, now a partner at Cooper & Kirk, who wrote the lengthy memorandum.

Ten years later, the OLC opinion was effectively validated by the Supreme Court, which ruled that the Line Item Veto Act of 1996 was unconstitutional. The line-item veto was not just a simple exercise in discretionary authority, the Court said; rather, by vetoing a specific line item, the president was, in effect, repealing a law that could really only be repealed by the regular legislative process.
Chuck Cooper was my boss at OLC and he is absolutely right about the lack of political interference. I did the work on the Line Item Veto opinion, along with another attorney, and we were asked simply to determine what was the correct answer, irrespective of which way it turned out. We wrote quite a long opinion holding that the Constitution did not confer a line item veto, and Chuck Cooper agreed when he reviewed the opinion. While the White House was not happy, the law was the law (and the law was the original meaning).