On presidents v. special counsels, Justice Scalia got it right long ago
Late last week, the Senate Judiciary Committee advanced a bill that would create protections for special counsel Robert Mueller. The bill would require that the special counsel be fired only “for cause” as opposed to “at will,” and provide for expedited judicial review of any firing. Notwithstanding the objections of some Republicans, the bill passed committee with a favorable 14-7 vote.
Some of those objections are constitutional, rooted in Justice Scalia’s historic dissent in Morrison v. Olson. The Supreme Court, in a 7-1 decision, upheld the constitutionality of the “independent counsel” appointed to investigate and prosecute crimes committed by high-level executive branch officials. Justice Scalia’s lone dissent observed that Article II, Section 2 of the Constitution vested “executive power” in the president of the United States, that prosecution was a quintessential executive function, and that this function was therefore vested in the president and not any official independent of the president.
Sen. Dick Durbin (D-Ill.) thus quipped at last week’s hearing that “some senators would prefer stare Scalia to stare decisis.” As they should — because Justice Scalia was right.
There are two relevant constitutional provisions, both elucidated by a debate in the First Congress in 1789. Congress was about to establish one of the nation’s first executive departments, the Department of Foreign Affairs, and the question was what power did the president have over the removal of the head of that department. There were three plausible positions: the power to remove was coincident with the power to appoint, and thereby required advice and consent of the Senate; Congress had the power to confer a unitary removal power at its discretion; or the president had such a power by virtue of the Constitution itself.
James Madison and the Federalists made principally two constitutional arguments in favor of the president’s constitutional power. First, the executive power is “vested” in the president of the United States, except where it was specifically qualified — for example, by the requirement for advice and consent for treaties and appointments. Because the power to superintend, control, and remove officers was an executive power not otherwise qualified by the Constitution, it belonged to the president alone.
But the more convincing constitutional provision was the president’s duty to “take care that the laws be faithfully executed.” As Madison argued, “If the duty to see the laws faithfully executed be required at the hands of the Executive Magistrate, it would seem that it was generally intended he should have that species of power which is necessary to accomplish that end.” Indeed, how can the president ensure that the laws be faithfully executed if he has no ability to remove officers he believes is acting inconsistently with what a faithful execution of the law requires?
These arguments persuaded the other representatives, who voted to delete language in the bill that appeared to confer the removal power at Congress’s discretion, in favor of the following provision: “whenever the said principal officer() shall be removed by the President.” The implication, the author of the amendment explained, was a legislative “declaration of our sentiments upon the meaning of a Constitutional grant of power to the President.”
This decision has become known as the “Decision of 1789,” and stands for the proposition that the president has a unitary authority by virtue of the Constitution to remove executive officers.
More here:
http:// thehill.com/opinion/judiciary/385506-on-presidents-v-special-counsels-justice-scalia-got-it-right-long-ago