Re:FBI Kept Demanding Email Records Despite DOJ Saying It Ne...
by rayiner on Friday June 03, 2016 @03:37PM
(#11832657)
The three co-equal branches of government have the prerogative to independently interpret the Constitution. But Departments within the executive do not stand in the same place as the co-equal branches. They don't get to have their own interpretations of the Constitution--just the executive's interpretation. They do often have their own in-house counsel, but those are generally responsible for Department-specific issues, not generating independent opinions on matters of cross-cutting concern.
To stretch the corporate analogy, it's like a large company that might have regional or divisional legal departments in addition to a general counsel's office. While the divisional departments may have specific roles and expertise, they cannot go their own way on matters of company-wide concern.
Comparing OLC to outside counsel ascribes to departments an autonomy they don't possess. A company is an independent entity with the prerogative to ignore its outside counsel. But agencies like the FBI are not independent. They're mere organizational units of the executive.
Given that Congress constitutionally can, and does, assign functions directly to specific entities within the executive branch, the concept of the unitary executive, while not entirely lacking in validity, is limited even as a description of the Constitutional structure, much less practical and political reality.
> The OLC is like the executive's in-house legal counsel.
No, its not.
Its like outside (advisory but not trial, as the latter function is handled by, well, much of the rest of DoJ) counsel to executive branch entities other than DoJ, which all, in fact, also have their own in-house counsel.