Recent debates over the constitutionality of Robert Mueller’s appointment as special counsel turn on whether he is a principal or inferior “officer of the United States.” Steven Calabresi contends that Mueller is in fact a principal officer, who, as a result, must be nominated by the president, and confirmed by the Senate.
Josh Blackman is an Associate Professor at the South Texas College of Law Houston, and the author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
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George Conway, writing in Lawfare a few weeks ago, forcefully rejected professor Steven Calabresi’s argument that the special counsel’s appointment was unconstitutional. I agree with his analysis as a general matter, though one of Conway’s particular conclusions strikes me as hasty: that “the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them.”
The outcome in Trump v. Hawaii should not have been much of a surprise. In December, a majority of the Supreme Court allowed the entirety of the travel ban to go into effect temporarily.
In a January 2018 memorandum, President Trump’s attorneys told Special Counsel Robert Mueller that without exception, “the President’s lawful exercise of his constitutional power ... cannot constitute obstruction of justice.” Full stop. The president’s lawyers have been making it for months, and we have all known that.
At the 2017 Federalist Society National Lawyers Convention, conservative and libertarian lawyers squeezed red stress balls that were adorned with the now-famous slogan: “But Gorsuch!” The Washington Examiner explained that the stress balls, distributed by the R Street Institute, would give relief to those “who seek reasons to remain hopeful amid Trump’s first year in office.” This meme has become a mantra: Everything is terrible, but at least
District courts in San Francisco and Brooklyn have issued nationwide injunctions barring the Trump administration from rescinding the Deferred Action for Childhood Arrivals program , President Obama’s 2012 deferred-action policy to protect certain young immigrants from deportation. Earlier this month, Texas and six other states challenged the legality of DACA in the U.S.
The Trump administration’s plan to wind down DACA, the deferred action policy that grants lawful presence to certain aliens, has been halted by several federal courts. While I have criticized such rulings in light of the deference due to the executive branch in this context, I freely concede that the government justification to rescind the policy was lacking.