https://www.lawfareblog.com/originalist-presidency-practice> Perhaps even more fundamentally, any approach that privileges whichever branch can act and object more—as the gloss approach does—will systematically favor the president over Congress, because the president can act more easily and has invested in institutions like the Department of Justice’s Office of Legal Counsel (OLC), whose role is to object to perceived constitutional intrusions by Congress. Congress, meanwhile, lacks such an institution and has not had the incentive to create one. In short, as Prakash explains (and as other scholars have suggested), an interpretive method that treats consistent past practice and lack of objection as evidence of constitutionality will systematically privilege the president. And, as Prakash shows, so it has.
This point about investing in the OLC as a "deep state" institution seems important. Can it be true that Congress doesn't have anything similar? Would the CRS be a model for such? <
https://crsreports.congress.gov/> Or perhaps even play that role?
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glen ep ropella 971-599-3737
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