Help with interesting "cert denied"

[Neil Kinkopf]

There are important differences that flow from the applicability of notions of deference.  The courts are properly deferential to the judgment of the political branches that a new arrangement will not impermissibly undermine the ability of either of them to perform their constitutional roles.  Imagine, for example, Congress were to enact an Inspector General for the White House.  An attorney in the Office of Legal Counsel would properly raise arguments about how this would in fact operate to undermine the presidency.  If the President goes ahead and signs the bill, the Court would properly accord great deference to the President's judgment that the legislation does not unconstitutionally undermine the President.  Justice Scalia's (himself a former head of OLC) powerful arguments in Morrison v. Olson are a good example of the sort of considerations executive branch lawyers properly take into account.  Chief Justice Rehnquist (also a former OLC head) exemplify the deference that courts typically extend to such schemes once enacted.

Neil Kinkopf
Assistant Professor
Georgia State University
College of Law

>>> MGRABER at GVPT.UMD.EDU 10/08/01 14:57 PM >>>
Sandy Levinson writes, "I'm taking the liberty of sending this to the list, because I would *strongly* urge Howard and other teachers who do "moot courts" in their
undergraduate courses at least on occasion ask their students to imagine
themselves working in the Office of Legal Counsel of the Justice
department, where most separation of powers issues are actually fought out,
and that they have been asked to "argue" to the head of the OLC what the
Office's position should be with regard to a given issue.  Students must be
informed that constitutional decisionmaking occurs outside of the courthouse."

*----

A follow-up point inspired by Whittington, Constitutional Construction.  Is the exercise merely to relocate the argument?  How will and should their argument differ because they are arguing to the head of the OLC rather than Justice Rehnquist (and how many of us in moot courts really argue to the Rehnquist Court?)

Mark A. Graber
mgraber at gvpt.umd.edu