Shortly after the Supreme Court’s decision in Brown v. Board of Education, the attorney general tasked the Office of Legal Counsel (OLC), a small but powerful component of the Department of Justice, with assessing racial segregation in interstate transport and at land-grant colleges. In 1958, the OLC opined on the president’s authority to deploy and keep federal troops in Little Rock, Arkansas, an action to suppress resistance to the court-ordered desegregation of public schools. In hundreds of opinions issued in the years directly after World War II, the OLC was the executive branch’s authoritative voice on difficult and urgent questions relating to civil rights, labor unrest, and nuclear technology, quietly shaping the policies and practices of the federal government during a charged period in American history.
Details about the OLC’s part in these and other historical events have been locked away in the department’s archives for decades. Today, the Knight Institute is publishing 14 indexes cataloging the titles of more than a thousand unclassified opinions authored by the OLC between 1945 and 1958. These indexes, which were created by the OLC in response to our ongoing Freedom of Information Act (FOIA) lawsuit, outline the OLC’s unique role in shaping executive branch policy during the postwar period. Their release provides the most comprehensive view to date of the workings of an office that has largely operated in the dark.
Since its creation in 1933, the OLC has played a significant role in guiding executive branch decision making. Exercising the delegated authority of the attorney general, the OLC issues formal opinions that resolve complex and often contentious legal questions. These opinions are the federal government’s authoritative interpretation of the law, establishing a system of internal executive branch legal precedent that binds future government action.
Despite its outsized influence, the OLC has done this work in relative secrecy. While its final written opinions number in the thousands, the OLC discloses only a small subset of these important records to the public, and even then, only on a discretionary basis. The OLC does not even publish comprehensive lists of its opinion titles, making it impossible for the public to know the issues on which the agency has opined. Although it has previously released a redacted list of recent opinions, the OLC has never before disclosed indexes of its historical opinions.
The newly published indexes—which contain all unclassified OLC opinion titles from 1945 to 1958—demonstrate why public disclosure should be the norm for these records. They offer a rare peek into the inner workings of a secretive agency that regularly grapples with far-reaching questions about the scope of the federal government’s power and its obligations to its people. Opinions from this time period, for example, address federal responses to work stoppages at coal mines and railways, a frequent source of tension throughout the 1940s and 1950s. Others consider the sovereign interests of U.S. territories, define the scope of consequential executive orders, and review controversial wartime confiscations of private property. Many of these vexing legal issues were never resolved by courts and did not result in any judicial precedent. In those circumstances, the OLC appears to have provided, in effect, the final word on the extent of the executive branch’s authority.
The release of these 1,063 opinion titles is one aspect of a larger effort to secure public access to the OLC’s formal written opinions. The Knight Institute’s reading room now houses these indexes along with more than 350 OLC opinions from 1965, 1969, 1974, and 1981 that were obtained as part of ongoing litigation. The publication of these opinions was made possible by a 2016 amendment to FOIA that prohibits agencies from relying on the so-called deliberative process privilege to withhold records that are more than 25 years old—a strategy the OLC had relied on in other litigation to protect its opinions from disclosure. In addition to the release of these older opinions, we have argued in a long-standing case that affirmative disclosure of formal opinions isn’t just good policy, but mandated by FOIA’s “reading room” provision, which obliges agencies to proactively publish documents that have the force of law. A federal judge concluded last year that the OLC may be required to affirmatively release at least a portion of its opinions under this provision.
Access to the OLC’s opinions is necessary so that the public can understand—and respond to—a body of law that shapes government practice and policy. This is why the Knight Institute and other civil society groups have called on President Biden and Attorney General Garland to direct the OLC to proactively publish its opinions as a means of making this enormously influential office more accountable to the public it serves. Last year, when the American Constitution Society brought together former OLC attorneys and outside experts to consider how the OLC could better promote the rule of law, one of the group’s principal recommendations was for the agency to adopt a presumption in favor of the timely publication of its final opinions, especially those that the executive branch intends to rely on to justify major policy decisions.
Under a negotiated schedule, the OLC will continue to provide indexes of historical opinion titles to the Knight Institute over the course of the next six months (we recently received twelve new indexes, capturing opinions written between 1959 and 1972, which we plan to post in the coming weeks). We will also be asking the OLC to release some of the most significant opinions from these indexes in full. The release of the indexes will also make it possible for members of the public to request disclosure of the opinions that seem most significant. The series of indexes will span nearly five decades and nine presidential administrations and cover some of the most momentous events in U.S. history. They will help shed light on the unique role OLC has played in shaping the executive branch’s approach to the challenges of the 20th and early 21st centuries.
Xiangnong (George) Wang is a legal fellow at the Knight Institute.