Executive Power

Morrison v. Olson Is Bad Law

By Adrian Vermeule
Friday, June 9, 2017, 8:14 PM

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.

The problem with citing Morrison v. Olson is that it's a bit like citing the discredited Palmer v. Thompson (1971), for which the Trump administration was recently excoriated in the travel ban litigation. 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.

This constitutional position did not remain samizdat. It in fact became the stated position of the Clinton administration. As Terry Eastland recounted,

When the statute came up for renewal in 1999, the Clinton administration, through the Justice Department, changed its position. "Having worked with the act," attorney general Janet Reno told the Senate Committee on Governmental Affairs, "I have come to believe—after much reflection and with great reluctance—that [it] is structurally flawed and that those flaws cannot be corrected within our constitutional framework." Reno went on to discuss the separation of powers and the lack of accountability on the part of independent counsels for exercises of power that are plainly executive. "Here," she said, "I am paraphrasing Justice Scalia's dissent in Morrison."

For anyone with a view of constitutional law that is even partly departmentalist, this bipartisan consensus should carry real weight.

Finally, the bipartisan condemnation of the Morrison majority, and praise for the dissent, extends to Justices as well. Justice Elena Kagan, in an event at Stanford,

called Supreme Court Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), in which he argued that the Independent Counsel Act should be struck down because it was a wolf in wolf’s clothing, “one of the greatest dissents ever written and every year it gets better.”

It is familiar that a case may be good law in some senses but not in others. Morrison v. Olson remains on the books, not formally overruled. Then again, so do other cases that have long since entered the anticanon, like Palmer v. Thompson. The bipartisan condemnation of the majority opinion, and elevation of Justice Scalia's dissent to canonical status, means that in all likelihood the Court would discard Morrison or distinguish it into oblivion, should another occasion present itself. Both in the departmentalist sense of law, and in Holmes's sense of law as a prediction of judicial behavior, Morrison is discredited.

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