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Lawyering the Presidency: Legal Counsel and Constraints on the Use of Force
Among its many profound effects on American life, the Trump presidency triggered a surge of interest in reforms that might better check the exercise of presidential power – from enhancing ethics and transparency requirements to reining in sweeping congressional delegations of substantive authority. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress often hamstrung by partisan polarization, scholars have focused on the experiences of executive branch lawyers to illuminate whether counsel functions as part of an “internal separation of powers,” an effective first-order constraint on the presidency. Yet while these descriptive accounts are invaluable, they are also limited to the attorney side of an attorney-client relationship, leaving much unanswered about whether and why presidential advisors might heed their advice. And while the search for signs of “constraint” is essential, this conceptual framing has tended to obscure other ways in which counsel may influence decision-making, dynamics that might prove essential for reformers to address if they are to achieve the change they seek. Aiming to help fill these gaps, this Article draws on an original survey of more than three dozen former senior U.S. national security policy officials, from the Cabinet Secretary level at the most senior, to National Security Council staff at the most junior, to examine when and why policy-making clients engage counsel’s advice surrounding the use of force, and how that advice may shape or reshape policymakers’ existing normative preferences. Among its findings, the depth and bipartisan breadth of officials’ sense of obligation to engage counsel suggests that the existing literature may be underestimating counsel’s capacity to influence. At the same time, as this Article describes, counsel is structu

Dec 9, 2021 03:30 PM in Pacific Time (US and Canada)

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Deborah Pearlstein is Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy
Professor of Law @Yeshiva University
Deborah Pearlstein is Professor of Law and Co-Director of the Floersheimer Center for Constitutional Democracy. Her work on the U.S. Constitution, international law, and national security has appeared widely in law journals and the popular press, including the University of Pennsylvania Law Review, the University of Michigan Law Review, the University of Texas Law Review, and the Georgetown Law Journal, as well as in The Atlantic, Foreign Policy, the Washington Post, and the New York Times. Professor Pearlstein has repeatedly testified before Congress on topics from war powers to executive branch oversight. In 2021, she was appointed to the U.S. State Department Advisory Committee on Historical Diplomatic Documentation, a 9-member board of historians, political scientists, and U.S. foreign relations law experts who help ensure the timely declassification and publication of government records surrounding major events in U.S. foreign policy.