A little while ago I linked to the opinion of the Office of Legal Counsel on the President’s authority under the Commander in Chief Clause to use force in Libya without congressional authorization. Michael J. Glennon of the Fletcher School and a longtime supporter of congressional power when it comes to warmaking and foreign affairs matters, has written a short and very readable piece criticizing OLC’s opinion. Glennon takes OLC to task for many things, pointing out that OLC is hardly any sort of impartial decisionmaker:
One would not expect OLC to make the case against the President’s actions. Its opinion on Libya, like its other opinions, is an effort to put the best legal face on those actions. The President is entitled to no less. But no one should mistake OLC’s advocacy as a disinterested evaluation of competing constitutional claims. It is, in truth, not an opinion at all but a brief.