Constitutional Counselors: Casey and Kenny on Executive Branch Lawyers

Adrian Vermeule

Harvard Law School

Professors Casey and Kenny have given us an admirably clear-minded treatment of high executive branch lawyers. The subject is a difficult and elusive one. The relevant institutions are informal and ill-defined; for the most part, in the four constitutional systems they survey, there are few constitutional and statutory provisions that structure executive branch lawyering. It is more a question of informal practices and expectations that do not even rise to the level of constitutional conventions. Furthermore, the choice of counselors is itself endogenous. The highest executive actors in the polity have partial or in some cases total discretion to appoint their legal counselors as they see fit, or at least to decide which legal counselors they will consult and for what purposes — a case in point being President Obama’s decision-procedure before the Libya intervention, which bypassed the Office of Legal Counsel (OLC) in the Department of Justice. OLC, supported by the Department of Defense, was understood to be likely to conclude that the intervention would amount to “hostilities” within the meaning of the War Powers Act. Instead, Obama relied on a contrary conclusion by the State Department’s chief legal adviser. The practices, then, are at least in some cases a choice variable for the executive, which makes them inherently fluid. In light of these difficulties, Casey and Kenny sensibly limit themselves to providing an illuminating analytic taxonomy of four dimensions of institutional role that describe the relevant practices.

If I have a constructive thought for the authors, it is that on what is perhaps the most crucial of their taxonomic dimensions — the difference between “technocratic” lawyering and “political” lawyering — there is a third category that deserves attention. I will call this category “constitutional judgment,” and its practitioners “constitutional counselors.” I suggest that constitutional judgment is not the same as technocratic lawyering or “political” lawyering, at least for ordinary low senses of the polyvalent term “political.” Nor is it simply a combination or uneasy mix of technocracy and politics; it is a different type of decision-making, calling for different virtues and capacities. Let me explain.

At least in Washington DC, there are three familiar types who inhabit the space of executive lawyering. On the one hand there are technocratic lawyers, often fresh from Supreme Court clerkships. These serve at lower levels of high institutions (for example, junior line attorneys in the Solicitor General’s office, or OLC) and tend to display rather more faith in the determinacy of legal texts, and in the force of clever technical argument, than do their more experienced elders. On the other hand, there are the political-appointee lawyers, found perhaps at the White House Counsel’s office, who are political in the sense that they give advice calculated to advance particular policy initiatives of the administration, and sometimes, perhaps, can justly be said to give advice that just happens to track the partisan interests of the administration.

There is, however, also a third type: the lawyer-qua-constitutional counselor. This is often a senior figure who exudes gravitas, who although affiliated with a party has a reputation for being “principled” and “independent,” who is often found in the higher reaches of the Department of Justice (above the OLC), and whose stock-in-trade is that elusive quality, judgment. I take “judgment” to be the capability, when making decisions under uncertainty, to weigh imponderables in their due proportion, neither exaggerating nor minimizing the importance of any one factor; constitutional judgment is thus a kind of constitutional correlate to justice, the constant will to give every person their due. In matters of high constitutional debate of the sort that Casey and Kenny put in the foreground, judgment is perhaps the faculty most prized by the recipients of advice, yet it is also the faculty that is most difficult to know whether counselors do or do not possess. Because the high occasions that call for constitutional judgment tend to be different from one another, even unique, the usual approach of the recipients of advice — judging counselors by their track records over time — is unusually difficult. Hence the constitutional counselor signals possession of the faculty of judgment indirectly, by a certain sobriety of manner, by moderation of speech, and by a conspicuously judicious statement of imponderables on all sides of the issue.

We can perhaps add at least a bit of content to the category of constitutional judgement with some classical concepts. The three types of legal counselors I have identified correspond to different criteria of right counsel, and (hence) different virtues. The technocratic lawyer stands for validity in the thin positivist sense; he believes that the law (understood as rules laid down by an authorized lawmaker) is one thing, that “morality” is another, and that the office of the lawyer is simply to identify the legal constraints and to let the politicians decide what to do within those constraints. I have argued at length and on multiple occasions that this is a patently inadequate way of thinking about “law,” and need not rehearse those arguments here, but it is especially inadequate in the sorts of cases Casey and Kenny describe, in which “the rules” are unclear and great conflicts of constitutional principle come to the fore. The political lawyer, on the other hand stands for reliability, in the low-political sense; he or she somehow manages, with a straight face, to advise the government that whatever suits its immediate policy purposes or partisan interests just happens to line up with the law. Over time, of course, informed observers will realize that the political lawyer never contradicts his masters, but the broader public or even non-legal elites, rationally inattentive to such matters, remain impressed by the facade of legal advice. 

The constitutional counselor differs from both of these. He or she stands, neither for validity nor for political reliability, but for prudence, right reason applied to practice. Specifically at issue in constitutional counsel is regnative prudence, the virtue of orientation to the common good appropriate to those who wield authority and public power. Regnative prudence comes to the fore when the legal materials are unclear or ambiguous, especially in great cases. What the constitutional counselor adds is prudence at the level of constitutional principles when those principles are conflicting or ambiguous. In the case of Libya, for example, the relevant judgments involve not merely the technical meaning of “hostilities” under the War Powers Act, but broader questions about the role of the President in foreign affairs, the division of responsibilities and constitutional powers between the President and Congress, and the precedents and practices of the American state. The sorts of prudential judgments that are at issue in such cases require weighing and balancing of such principles in circumstances that are almost by definition unique; they cannot be reduced in any straightforward way to either technical or “political” decision-making. If I have any advice for Casey and Kenny, then, it is to consider constitutional judgment as a tertium quid. This would only further complicate their analysis, to be sure, so my advice is constructive only in a Pickwickian sense.

Adrian Vermeule is the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School.

Suggested citation: Adrian Vermeule, ‘Constitutional Counselors: Casey and Kenny on Executive Branch Lawyers’ IACL-AIDC Blog (14 February 2021) https://blog-iacl-aidc.org/wmps-gatekeepers/2023/2/14/constitutional-counselors-casey-and-kenny-on-executive-branch-lawyers.