Adrian Vermeule at Lawfare: Morrison v. Olson Is Bad Law. From the introduction:
I've noticed, in a few recent discussions, rather uncritical reliance on the majority opinion in Morrison v. Olson (1988)—in support of a claim (quite hypothetical) that Congress could, if it spoke with sufficient clarity, subject President Trump to potential criminal liability for obstruction of justice.
… In anything but the most nominal sense, Morrison is probably no longer good law. Indeed, the best understanding is that it has long since become anticanonical.
I lack the time to substantiate this claim in the detail it deserves, but when the Ethics in Government Act and its Independent Counsel mechanism were allowed to lapse without re-enactment in 1999, no mere policy judgment was at work. Instead a bipartisan judgment had formed that the Independent Counsel was a kind of constitutional Frankenstein's monster, which ought to be shoved firmly back into the ice from which it was initially untombed. As Linda Greenhouse explained in a 1998 article:
It is telling that Democrats, who once praised the Supreme Court's 1988 decision upholding the law in the face of a constitutional attack by the Reagan Administration, find an eerie prescience in Justice Antonin Scalia's impassioned and solitary dissenting opinion. After 10 years of mouldering on law library shelves, the Scalia dissent in Morrison v. Olson is being cited and passed around in liberal circles like samizdat.
And she quoted Walter Dellinger, who observed that "[t]he parade of horribles envisioned by Justice Scalia is now marching right down Pennsylvania Avenue." Justice Scalia's dissent, of course, was based on constitutional objections; even his parade of horribles was no freestanding policy critique, but a claim that when the constitutional mechanism is deliberately thrown out of kilter, serious institutional damage will predictably occur. …
For a contrary view, see here from Rick Pildes, also at Lawfare.
Posted at 6:05 AM