Morrison v. Olson

Justice Scalia, the Court's lone dissenter, began his dissenting opinion by referring to the oft-quoted phrase "a government of laws and not of men," which originated from the Massachusetts Constitution of 1780--in a clause delineating the separation of powers doctrine. The framers of the Constitution knew what they were doing, Scalia indicated, when they incorporated the separation principle into their own document, and it was designed to address situations such as the one presently before the Court. "This is what this suit is about," Scalia wrote. "Power." Sometimes attempts to circumvent the separation of powers came to the Court "clad, so to speak, in sheep's clothing," with their intent hidden; "[b]ut this wolf comes as a wolf."

Scalia then proceeded to trace the history of the case, portraying it as a battle of wills principally between the president and Congress--a situation, that is, of men and not of laws. The present case addressed two questions: "Is the conduct of a criminal prosecution . . . the exercise of purely executive power?" and "Does the statute deprive the President of the United States of exclusive control over the exercise of that power?" The Court had "[s]urprisingly" answered in the affirmative to both questions, but had skirted what Scalia held was "the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void." It did not matter whether the statute in question reduced the president's power only slightly; that it did so at all meant that it violated the separations doctrine. As for the Court's claim that a member of the executive branch could not investigate that branch, Scalia asked,

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws.

He referred to the Civil Rights Act of 1964, which forbids discrimination in employment-- but exempts Congress, which passed the act, from its provisions.

Scalia addressed the Court's holding that the independent counsel was an "inferior officer," and observed, "The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small." In other words, an ambassador is an ambassador, whether he is appointed to the embassy of a superpower or a tiny nation such as Luxembourg; similarly, an independent counsel is not necessarily an "inferior officer" simply because the scope of her oversight is "small (though far from unimportant)."

Scalia then discussed the limitations of Article III, and noted that the Court's decision in the present case invalidated Humphrey's Executor v. United States (1935). The latter ruling, Scalia observed, had been made by a Court "bent on reducing the power of President Franklin Roosevelt." Given its overtly political purpose, "One can hardly grieve the shoddy treatment given today to Humphrey's Executor . . . But one must grieve for the Constitution." The present ruling would allow too much leeway to an independent counsel, Scalia held, and while he pointed out that he cast no aspersions on the character of Morrison or the other individuals involved, he was concerned about the broad powers accorded to them by the act. Most of all, however, he was concerned that the act- -and the Court's ruling--removed executive power from the place where such power belonged: in the executive branch.