On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.
In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong.
For a while, many conservatives and a handful of law professors have been trying to revive Scalia’s dissent, despite the fact that the court has continued to cite Chief Justice William Rehnquist’s majority as good law. Some even claim that it is one of the greatest dissents of all time. Unfortunately for their position, Scalia’s dissent was fundamentally wrong about American history, which should be a fatal flaw on his own originalist terms.
In Morrison v. Olson, Rehnquist wrote for a 7–1 majority that Congress could create the office of independent counsel protected from presidential removal. Scalia alone believed the statute was unconstitutional, relying on an originalist historical argument about the separation of powers. Scalia’s core position: “Government investigation and prosecution of crimes is a quintessentially executive function.” He continued: “We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.” (That’s Justice Scalia’s original emphasis on the word complete.)
Let’s set aside for a moment that the central constitutional problem in Morrison is not a problem in the current bill—the new bill sets limits on executive power rather than encroaching on the separation of powers remotely as much as the law in question in Morrison. Sen. Sasse and others are trying to expand the losing argument in Morrison, as part of a broader campaign to revive the “unitary executive” theory, that the president must have full control over the executive branch.
The Supreme Court has rejected this argument when administrative officers exercise a more mixed role of “quasi-judicial” or “quasi-legislative” authority. This rule permits our many vital independent agencies, like the Fed, the Securities and Exchange Commission, and the Federal Trade Commission, to function with a necessary degree of independence. But here, the unitary executives say prosecution has historically been exclusively an executive power, and thus the president must have an unfettered power to remove prosecutors at will. Historians have demonstrated that this view simply was not true in the founding era.
Other lawyers and academics, like Steve Vladeck and Eric Posner, have more fully explained why the bill is constitutional. It’s worth, however, delving deeper into Scalia’s historical misunderstandings of “complete” executive control over prosecution. Scalia’s dissent in Morrison is simply inconsistent with its originalist commitments and not worth resuscitating for that fact alone.
First, for most of English and American history, most prosecution was not an executive function at all, because it was a private enterprise. In England, the vast majority of criminal prosecution was by private parties, as historians like John Langbein, Patrick Devlin, and many others have explained. The English did not have a public official specifically assigned as a prosecutor until it created the director of public prosecution in 1879. The American colonies created the office of public prosecutor before the English homeland, mostly because they borrowed from Dutch and French colonial influences. Nevertheless, the vast majority of American prosecutions were still private through the mid-19th century, as Allen Steinberg and many other historians have demonstrated. The rough consensus is that the public prosecutor did not overtake private prosecution in America until after the Civil War, and yet private prosecution continued deep into the 20th century. Even today, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Virginia, and Texas allow private citizens to serve a role in criminal prosecutions.
Scalia hedged a bit by talking about “governmental” prosecutions. But even this fallback position is inaccurate. Congressional committees investigate crimes with subpoena power, and Congress has the power to enforce these powers with its own legislative contempt proceedings. Contempt of Congress is a criminal offense, and it historically has been prosecuted entirely within the legislature.
Other historians, meanwhile, have shown that the Judiciary Act of 1789 undercut Scalia further. It allowed deputy marshals to be removed by federal judges. Even today, federal judges have the power to appoint interim U.S. attorneys. (Scalia addressed this statute but not sufficiently on his exclusivity claim).
The first draft of the Judiciary Act also gave the Supreme Court the power to appoint the attorney general and gave district judges the power to appoint district attorneys. These provisions were deleted and not replaced, so their appointment reverted to the default under the Constitution: presidential appointment. But the first Congress showed in this draft that they did not think Scalia’s view was at all obvious, settled, or “quintessential.”
We can also find out how the founding generation understood the role of law enforcement by looking at its state constitutions. State constitutions adopted separate branches, and often declared a separation of powers explicitly, unlike the federal Constitution. Nevertheless, many state constitutions did not reflect Scalia’s formalism. In my own research, I have found that early state constitutions sometimes placed attorneys general and prosecutors under the judiciary article or judicial sections of their constitutions. These constitutions grouped attorneys general together with judges and judicial officers. These practices continued in many new frontier states established from the 1790s through the 1830s. Moreover, some of the constitutions assigned the power of appointment of law enforcement officials to the legislature with no role for the governor, and some assigned this appointment power to the judges. For example, Virginia’s 1776 Constitution, drafted by James Madison, George Mason, and other key figures of the founding, gave the governor the power to appoint justices of the peace, but gave the legislature the power to appoint the attorney general, and gave judges the power to appoint sheriffs, coroners, and constables. The founders clearly did not share Scalia’s opinion here.
Instead of his Morrison dissent representing Scalia’s greatness, I would suggest that his dissent reveals some of Scalia’s biggest flaws: too formalistic to see nuance, oversimplifying history in search of results, and not sufficiently engaged with the relevant historical literature.
Sen. Dick Durbin joked during Thursday’s proceedings: “Some senators would prefer stare Scalia to stare decisis.” Durbin is diagnosing part of the problem: Some have such faith in Scalia that they treat his vote as more important than all the other justices combined. But that’s not how law or history works. Great dissents can become canonical and overtake the original majority, but only if they are revealed to be fundamentally correct over time, both factually and morally. The great protest dissents of Justice John Marshall Harlan or Justice Oliver Wendell Holmes come to mind. Scalia’s dissent was wrong on its own originalist terms, and it still serves as a red flag against his kind of hyperformalist originalism. Given that Scalia’s dissent was unkind to the historical evidence, it is fair that history will be unkind to Scalia’s dissent, and history also might be unkind to the Republican senators relying on it to obstruct an important bill.