The OLC's Opinions
Opinions published by the OLC, including those released in response to our FOIA lawsuit
This Reading Room is a comprehensive database of published opinions written by the Justice Department’s Office of Legal Counsel (OLC). It contains the approximately 1,400 opinions published by the OLC in its online database and the opinions produced in Freedom of Information Act litigation brought by the Knight Institute, including opinions about the Pentagon Papers, the Civil Rights Era, and the War Powers Act. It also contains indexes of unclassified OLC opinions written between 1945 and February 15, 1994 (these indexes were created by the OLC and intended to be comprehensive). We have compiled those indexes into a single list here and in .csv format here. This Reading Room also contains an index of all classified OLC opinions issued between 1974 and 2021, except those classified or codeword-classified at a level higher than Top Secret (the OLC created this index, too, and intended it to be comprehensive).
The Knight Institute will continue updating the reading room with new records. To get alerts when the OLC publishes a new opinion in its database, follow @OLCforthepeople on Twitter.
Showing 231–240 of 2202
-
Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects
The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President's will. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-10-23-remov-ak-coord/download.
10/23/2009
-
Mandatory Registration of Credit Rating Agencies
The Administration's proposal for mandatory registration of credit rating agencies—which would exempt an agency if (1) it does not provide ratings of securities in exchange for fees or other forms of compensation from the securities' issuers; and (2) it issues credit ratings only in any bona fide newspaper, news magazine or business or financial publication of general and regular circulation—would comply with the First Amendment. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-10-22-credit-rating/download.
10/22/2009
-
Application of 5 U.S.C. 3110 to Two Proposed Appointments by the President to Advisory Committees
This opinion concludes that the federal anti-nepotism statute prohibits President Obama from appointing his brother-in-law to the President's Council on Physical Fitness and Sports and his half-sister to the President's Commission on White House Fellowships. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at https://justice.gov/olc/page/file/1009476/download.
9/17/2009
-
Authority of the Former Inspector General for the Federal Housing Finance Board to Act as Inspector General for the Federal Housing Finance Agency
The Federal Housing Finance Board Inspector General did not by statute automatically acquire authority to act as Inspector General for the Federal Housing Finance Agency at the time of the enactment of the Federal Housing Finance Regulatory Reform Act of 2008. The former Federal Housing Finance Board Inspector General cannot appoint employees to the Office of Inspector General for the Federal Housing Finance Agency. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-09-08-fhfa-ig/download.
9/8/2009
-
Stay of Military Commission Proceedings While Review of Detentions Is Pending
Although the meaning of the word "Review" in section 7 of Executive Order 13492 is not unambiguous, that section is best construed in light of the Order's text and purposes in a manner that treats a review as pending as to a detainee at the Guant√°namo Bay Naval Base when the detainee's case has been referred to but not finally resolved by the process under the formal protocol that the Departments of Defense and Justice have agreed upon and promulgated for further disposition of the case. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-08-28-rev-gtmo/download.
8/28/2009
-
Prioritizing Programs to Exempt Small Businesses from Competition in Federal Contracts
The Small Business Administration's regulations governing the interplay among the Historically Underutilized Business Zone Program, the 8(a) Business Development Program, and the Service-Disabled Veteran-Owned Small Business Concern Program constitute a permissible construction of the Small Business Act. The Small Business Act does not compel the prioritization of awards under the Historically Underutilized Business Zone Program over those under the 8(a) Business Development Program and the Service-Disabled Veteran-Owned Small Business Concern Program. The Small Business Administration's regulations permissibly authorize contracting officers to exercise their discretion to choose among these three programs in setting aside contracts to be awarded to qualified small business concerns. The Office of Legal Counsel's conclusion that the Small Business Administration's regulations are reasonable is binding on all Executive Branch agencies. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-08-21-sba-exempt/download.
8/21/2009
-
Additional Questions Concerning Use of the EINSTEIN 2.0 Intrusion-Detection System
The deployment of an intrusion-detection system known as the EINSTEIN 2.0 program on the unclassified computer networks of the Executive Branch is consistent with the federal and state laws discussed in this opinion. Under the best reading of the statute, the EINSTEIN 2.0 program would not violate section 705 of the Communications Act, because it would fall within section 705's exception permitting a person to "divulge" a communication through "authorized channels of transmission or reception," which allows either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication's disclosure, including by clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system. If section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0 program, the exception in section 2702(c)(1)(C) permitting disclosure based on "the lawful consent of the customer or subscriber" would also apply, because in this context the government, and no other party, should be understood as the "customer or subscriber" of the Internet service provider. If a state law imposed requirements on the EINSTEIN 2.0 program exceeding those imposed by these federal statutes, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-08-14-einstein-addl-qs/download.
8/14/2009
-
Reaffirming Use of the EINSTEIN 2.0 Intrusion- Detection System to Protect Unclassified Computer Networks in the Executive Branch
Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen-register and trap-and-trace provisions of 18 U.S.C. § 3121 et seq., provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws, which would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and be unenforceable under the Supremacy Clause to the extent that such laws purport to apply to the conduct of federal agencies and agents conducting EINSTEIN 2.0 operations and impose requirements that exceed those imposed by the federal statutes above. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-08-14-einstein-reaff/download.
8/14/2009
-
Eligibility of Retired Military Officer for Appointment as NASA Administrator
A retired military officer—and certainly one who has engaged in civilian pursuits after his retirement—qualifies for appointment as Administrator of the National Aeronautics and Space Administration under 42 U.S.C. § 2472(a), requiring that the Administrator be "appointed from civilian life." The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-07-08-nasa-admr/download.
7/8/2009
-
Constitutionality of the Matthew Shepard Hate Crimes Prevention Act
The prohibition in proposed section 249(a)(1) of S. 909, the Matthew Shepard Hate Crimes Prevention Act—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, "because of the actual or perceived race, color, religion, or national origin of any person"—would be a permissible exercise of Congress's authority to enforce the Thirteenth Amendment, at least insofar as the violence is directed at members of those religions or national origins that would have been considered races at the time of the adoption of the Thirteenth Amendment. The prohibition in proposed section 249(a)(2) of S. 909—against willfully causing bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, "because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person"—would be a permissible exercise of Congress's authority under the Commerce Clause, because it would require the government to allege and prove beyond a reasonable doubt in each case that there is an explicit and discrete connection between the proscribed conduct and interstate or foreign commerce. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-06-16-hate-crimes/download.
6/16/2009