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Bush is no Reagan (and neither was Clinton).
Apropos of the front-page story in the NYT today about, inter alia, how Bush has trashed OLC by turning it into an advocate for the his (or the vice president's) policies:
- In his Con Law classes Kmiec (who also mentions the story in his excellent if expensive "The Attorney General's Lawyer") liked to relay this story: Ronald Regan dearly wanted a line-item veto. It was a huge priority for him, so he tasked OLC with determining whether a line-item veto was constitutional. After thorough research, OLC concluded that it was not. Thus, Kmiec had the ill fortune of going to the Oval Office to report the news.
Ronald Regan (Kmiec does a great impersonation) disappointedly replied: "Well, you did the best you could."
Could you imagine today's OLC telling Bush no? Could you imagine Bush, like Regan, saying, "Well, if that's what the Constitution requires, then so be it."
As a post script: Clinton got his line-item veto; and the Court struck it down. Whether OLC, ala Yoo/Bybee, gave Clinton the advice he wanted, or whether he ignored OLC is something I can't answer - though I do think Marty Lederman was in OLC during those years. Maybe he knows?
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“It was fortunate that so few men acted according to moral principle, because it was so easy to get principles wrong, and a determined person acting on mistaken principles could really do some damage." - Larissa MacFarquhar
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