The secret Supreme Court

There is the regular Supreme Court, and then there is a secret Supreme Court that makes secret laws and hears disagreements about the secret laws and makes binding decisions to resolve the disputes.  This secret Supreme Court is called the Office of Legal Counsel (OLC).

The OLC has accumulated, over the years, a body of legal opinions that have the force and effect of law but whose very existence is concealed from the public.  It’s impossible to estimate the size of this hidden corpus, but it’s perhaps useful to note that a case litigated by the ACLU two years ago uncovered, more-or-less by accident, the existence of almost a dozen OLC opinions whose existence the OLC had not previously acknowledged. 

Within the executive branch, the OLC’s opinions are accorded essentially the same status as opinions of the U.S. Supreme Court.  The OLC is “frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC’s advice may effectively be the final word on the controlling law.”  In litigation, the OLC describes its final opinions as advisory, but in fact it views these opinions as binding on federal agencies, and this is how the agencies view them, too.  Many OLC opinions are better characterized as law than as legal advice.

The OLC has published some of its written opinions and they are available here:
https://www.justice.gov/olc/opinions-volume

See also "The New Era of Secret Law".