Posting wins at the Department of Justice

Anyone who watched Fox News during the 2012 election remembers the Obamaphone lady screeching into a camera, encouraging other welfare beneficiaries to go get their free cell phone compliments of Obama. There is in fact such a program, called Lifeline, overseen by the Federal Communications Commission and funded by a tax on everyone else’s phones.

Perhaps unsurprisingly, President Trump’s FCC chairman has discovered that the program has its fair share of waste, fraud, and abuse, especially on the part of dead Californians. FCC Chairman Brendan Carr has launched a rulemaking effort to ensure only lawful and living Americans receive their Obamaphone benefit—no more dead recipients and no more illegal aliens.

The rulemaking is admirable in itself, but its legal logic is built on the latest in a series of triumphs from the Department of Justice’s Office of Legal Counsel (OLC). In an administration stocked with bold conservative leaders, OLC stands out for its thoughtful and thorough legal analysis as a tool to advance the Trump agenda. As the departure of Attorney General Pam Bondi makes major headlines, we shouldn’t forget the ongoing day-to-day work of the OLC.

In just the last few months, the OLC has released opinions ending eligibility for aliens to receive welfare benefits (like Lifeline), supporting the Second Amendment, restricting abortion at government hospitals, and ending race-based grant programs in education. It’s a remarkable achievement in an administration that is not shy about exercising its muscles to enact its priorities.

The OLC holds a storied position in America’s legal infrastructure, essentially functioning as the “in-house general counsel” to the executive branch. Though they all have their own lawyers, the president and his cabinet turn to OLC for authoritative determinations of legal questions. OLC’s answers are often published as formal opinions, which then hold a level of respect as persuasive precedent. On many issues involving foreign affairs, there may never be a court case, so OLC is often the last legal word on matters of national security (such as the recent Maduro operation in Venezuela).

Because of its influence and importance, OLC has attracted the elite legal eagles of the profession, including lawyers who would go on to become Supreme Court justices (William Rehnquist and Antonin Scalia) and attorneys general (Bill Barr and Nicholas Katzenbach). The current incumbent is Elliot Gaiser, a rock-star lawyer and committed constitutional conservative.

In his first months as head of OLC, Gaiser has secured multiple major wins for conservatives. In December, OLC released an opinion for the secretary of education that determined several department programs were unconstitutional in light of Students for Fair Admissions v. Harvard, the Supreme Court’s landmark case on affirmative action in higher education. These grant programs subsidized colleges and universities based on the racial makeup of their student bodies. That sort of race-based set-aside, OLC determined, violated the race-neutral principle set forth in the Constitution’s Equal Protection Clause.

Shortly thereafter, OLC withdrew a Biden-era opinion permitting abortion in medical facilities operated by the Department of Veterans Affairs. Gaiser wrote that Congress had clearly set forth the policy that “VA may not provide abortions.” OLC’s new opinion overruled the Biden Administration’s attempt to evade Congress’s clear command as part of its pro-abortion agenda.

OLC also cleared the way for lawful gun owners to ship firearms through the mail. For nearly a century, federal law prohibited the use of the U.S. Postal Service to ship firearms. This was a major problem for gun owners, especially because commercial carriers like UPS, FedEx, and DHL made it exceedingly difficult if not impossible to use a shipping alternative. The OLC opinion determined that the law was a burden on gun owners’ Second Amendment rights and that it was “inconsistent with this Nation’s history and tradition of firearm regulation.” The ruling means that firearm owners can now ship their guns for hunting or self-defense in circumstances where interstate travel through buses or airports would have made it illegal to carry the gun along as luggage.

Finally, in a series of recent opinions relied on in the Lifeline proceeding at the FCC, OLC has ruled that a variety of federal benefits programs are welfare benefits under the bipartisan welfare reform act of 1996, which means that they are limited to American citizens and long-term legal residents.

Each of these decisions from OLC represents an important step forward. From combating DEI to ending taxpayer-facilitated abortion to protecting gun owners, Gaiser and his team at OLC are posting important wins on key conservative issues. I expect to see more victories from them in the years to come.