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irst, this Article situates the Office of Legal Counsel ("OLC") within the context of a political system in which the executive has grown in power far beyond anything that the founders could have foreseen. As the chief legal advisor to the executive branch, OLC performs a critically important function in protecting our constitutional system and ensuring adherence to the rule of law, but OLC makes no final determinations on behalf of the United States and is subject to the supervision of the Attorney General. Second, the Article reviews the recent recommendations of the American Constitution Society concerning possible reforms of OLC. Among other things, those recommendations include a systematic review of existing opinions and greater transparency going forward. This Article generally concurs in those recommendations but also suggests the possibility of additional reforms such as a reduction in the number of political appointees in OLC and a focus on recruiting more experienced lawyers to fill its ranks. Third, and most important, the Article reviews the relevant case law and evaluates the possibility of a more fundamental reform, namely, giving a greater degree of independence to OLC by providing the Assistant Attorney General for OLC with a fixed term coterminous with that of the President. The Article concludes that such a reform is legally possible and worthy of serious consideration, whether as a matter of legislative enactment or administrative regulation.

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.

According to many social scientists, democratic institutions are subject to much discontent and distrust today. Citizens sense the existence of a substantial disconnect between the rhetoric of representative democracy and its reality—what citizens believe their proper role to be and what the realities of our government and society allow them to be. More to the point, citizens of all stripes believe that those who "represent" them live lives quite different from their own, and that those representatives are not seriously interested in the perspectives, ideas, or well-being of most people. The nature and extent of this discontent raises serious questions about the future of representative democracy and the conditions necessary for it to flourish. What, then, are the conditions of democracy? Among other things, citizens must share some sense of solidarity and common purpose. There must be a quality educational system committed to providing everyone—regardless of race or economic status—with an appropriate foundation for citizenship and personal fulfillment. There must be equal employment opportunity. Citizens must be well educated, and they must have access to credible news sources. Public officials must not be seen to cater to the rich or famous or seek short-term partisan advantage at the expense of long-term systemic values and stability. If a democratic society does not strive to satisfy these conditions, among others, representative democracy will either be brought down or so hollowed out as to become unrecognizable. Rather than attempting the impossible feat of addressing all of the conditions necessary for the flourishing of a democratic society, this Essay first explores what we mean to say when we talk about the concept of representative or constitutional democracy and then considers three of the ways in which our current governmental and political system may frustrate the practice of constitutional democracy. First, many Americans hold an idealized view of our democracy that prevents us from comprehending the full significance of the anti-democratic features of our constitutional system and hampers efforts to preserve and strengthen it. Second, our idealized view of American democracy prevents us from acknowledging that one important aspect of our constitutional tradition has been a preference for defining our political community in terms that are exclusionary, rather than inclusive. That, in turn, blinds us to the strong influence that this exclusionary preference continues to exert on our political life. Third, constitutional democracy requires nothing so much as a fair electoral system, but the ordinary political process often cannot ensure such fairness because politicians control the process and have little incentive either to draw maps that are fair or to undertake other necessary reforms. In many states, the people lack the power to assign these decisions to more disinterested agents, and, in recent years, the courts have tended to hold that such matters are unsuitable for judicial resolution. This Essay argues that these three obstacles must be overcome if representative democracy is to flourish.