Justice Scalia’s Dissent in Morrison
The Senate is considering legislation that would make it more difficult for the President to fire Robert Mueller. This bill is unlikely to become law, but one noteworthy aspect of the debate involves the Supreme Court’s decision in Morrison v. Olson, which upheld the validity of the Independent Counsel statute that was in force from the late 1970s until the late 1990s. (Mueller’s position does not rest on a freestanding statute.)
Some Republican Senators have come out against the legislation by arguing, in part, that the bill is flawed under the analysis of Justice Scalia’s dissent in Morrison. They contend that Justice Scalia was correct and that the Court wrong. For taking this view, they have been criticized by some Democrats and legal scholars.
I think that this criticism is misplaced. First, a member of Congress can when voting on proposed legislation take a view of the Constitution that is different from the Supreme Court’s view. (So can a President in using his veto power, as Andrew Jackson did in vetoing the Second Bank of the United States as unconstitutional notwithstanding M’Culloch.) Second, Justice Scalia’s Morrison dissent advanced several policy arguments against insulating independent counsels from presidential control through legislation. I’m not sure if every Senator citing the Morrison dissent is doing so on constitutional grounds or on the more general idea that Justice Scalia was right in a broader “spirit of the Constitution” sense. Third, Morrison is a underwhelming opinion, largely because it was written by Chief Justice Rehnquist. (As one conservative former Supreme Court clerk told me years ago, the only problem with Seminole Tribe is that Rehnquist wrote the opinion.)
At present, a fear of getting routed in the midterm election is providing Mueller with adequate protection from being fired.