[With relatively minor oral argument updates; Nov. 8]
In my previous post in this series, I explained that Special Counsel Mueller is (at most) an “inferior officer” for purposes of the Appointments Clause—and therefore his appointment was constitutional—even though the DOJ Special Counsel regulations afford him considerable independence with respect to particular investigatory and prosecutorial decisions, and even though those same regulations sharply limit the grounds on which Acting Attorney General Rosenstein may remove Mueller from office. As the government persuasively explains in its brief (see especially pp. 27-29), and as Chief Judge Howell elaborated in her opinion in the Miller case (see pp. 48-56), Mueller’s status as an inferior officer follows a fortiori from Morrison v. Olson (1988), in which the Court held, 7-1, that independent counsel Alexia Morrison was an inferior officer for purposes of the Appointments Clause, despite the fact that her independence from control by the Attorney General was secured by statute (not merely by regulation) and was considerably more robust than the independence Mueller enjoys. The Court held that Morrison “clearly falls on the ‘inferior officer’ side of th[e] line” (emphasis added), even though she was not “subordinate” to the Attorney General (and the President) “insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act.” 487 U.S. at 671.
In her opinion in the Concord Management case, Judge Friedrich agreed (p.28) that “[u]nder Morrison . . . the Special Counsel is an inferior officer.” She expressed some doubt, however, about whether Morrison remains a governing precedent (p.26: “Morrison has been called into doubt by seemingly all quarters”), and she further reasoned that if the Court’s later decision in Edmond v. United States (1997) governs the case, rather than Morrison, the Special Counsel would not be “inferior” to the Acting Attorney General if Rosenstein is bound to apply the DOJ Special Counsel regulations. Judge Friedrich wrote (p.22) that “the Special Counsel is not truly inferior” if the removal protection in the regulations, 28 C.F.R. 600.7(d), “affords the Special Counsel substantial protection from removal,” such that “in certain circumstances the Acting Attorney General might be unable to countermand the Special Counsel and unable to remove the Special Counsel.”
As I explained in my last post, and as Judge Friedrich herself assumed (pp. 20-22), that is a fair characterization of how the regulations operate: As long as they are “applicable” to Mueller, which they are by virtue of Rosenstein’s May 2017 appointment order—Rosenstein is not authorized to countermand every decision Mueller makes, nor may he remove Mueller merely because he disagrees about Mueller’s exercise of his prosecutorial or investigative discretion. According to Judge Friedrich, this level of independence raises a serious question under the Appointments Clause. Indeed, according to her, Mueller is only an inferior officer under Edmond because—at least as she understands it (pp. 24-26)—Rosenstein is free to rescind or revise the regulations at any time to empower himself to countermand the Counsel’s particular investigatory and prosecutorial decisions and to remove the Counsel “at will” if Mueller does not accede to Rosenstein’s directives.
Although much of Judge Friedrich’s opinion is correct (including, most importantly, her understanding of the narrowness of what would constitute “good cause” for Mueller’s removal), several aspects of this particular portion of her analysis are doubtful or—in the case of the prospect of Rosenstein “rescinding” the DOJ regulations—focus on the wrong question.
1. The Status of Morrison
As Judge Friedrich herself acknowledges, none of her concerns are germane if Morrison remains good law and binding precedent, including with respect to its Appointments Clause holding and analysis.
It’s worth recalling that Morrison was not a closely divided decision. The vote was 7-1, and the majority opinion was written by none other than Chief Justice William Rehnquist, a staunch defender of presidential prerogatives. As Kevin Stack recounts in his terrific account of the case, Morrison, together with the Court’s decision in Bowsher v. Synar two years earlier, was a sweeping rebuke of the “unitary executive” theory that the Reagan Administration hoped that it could persuade the Court to adopt. The Court’s opinions in those two cases were designed to reaffirm the constitutionality of “independent” agencies. The central and most important insight in Rehnquist’s opinion in Morrison is that although Article II requires Congress to leave the President with adequate mechanisms to ensure that Executive officials, even “independent” officials, faithfully comply with the law, the Constitution does not afford the President the unbridled authority to control other officers’ lawful exercise of the statutory discretion that Congress has assigned to them, at least where (as in Morrison) Congress has made clear that such discretion should not be subject to “political” control of the President or other officials. And before reaching those holdings, Rehnquist also held, by the same 7-1 vote, that Congress could assign the appointment of the independent counsel to a “Special Division” of the judiciary—a “Court of Law”—because the independent counsel was an “inferior” officer for purposes of the Appointments Clause.
The Supreme Court has not called Morrison into question in Edmond or any other case.[1] Rather, the Court in Edmond applied an alternative test for “inferior” officer that likewise resulted in a holding that the officer in question there was “inferior.” The en banc D.C. Circuit itself was therefore correct when it recently confirmed that Morrison “remains valid and binding precedent.” PHH Corp. v. CFPB, 881 F.3d at 96.
OK, but even if it’s still technically binding, has Morrison nonetheless been “called into doubt by seemingly all quarters,” as Judge Friedrich wrote? Such claims of Morrison’s de facto, or imminent, demise have become commonplace, virtually a matter of received wisdom in some quarters. Then-Judge Kavanaugh, for example, wrote earlier this year that “the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake and that Justice Scalia had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty.” PHH Corp. v. CFPB, 881 F.3d at 176 n.3 (Kavanaugh, J., dissenting) (emphasis added). To similar effect, in a post last year, Adrian Vermeule wrote that Morrison “is probably no longer good law,” has become “anticanonical,” and that as long ago as 1999—when Congress permitted the Independent Counsel authority to lapse—a “bipartisan judgment had formed” that the law had been “a kind of constitutional Frankenstein’s monster, which ought to be shoved firmly back into the ice from which it was initially untombed.” According to Vermeule, this was “no mere policy judgment,” but instead a “bipartisan consensus” view that Justice Scalia had been right on the constitutional merits.
But just because this account is repeated frequently doesn’t make it so. In fact, it’s a nifty bit of revisionist history.
To be sure, there’s some truth to then-Judge Kavanaugh’s assumption that “the independent counsel experiment ended with nearly universal consensus that the experiment had been a mistake” as a matter of policy. There’s no basis, however, for his further assumption of a similar consensus that the independent counsel law was an “unconstitutional departure from historical practice.” The only evidence then-Judge Kavanaugh cited for this proposition was a friendly remark by Justice Kagan in 2015 that Justice Scalia’s dissent in Morrison is “one of the greatest dissents ever written and every year it gets better.” Justice Kagan made that remark, however, in an exchange at Stanford about good legal writing; she did not suggest that she agreed with the merits of Justice Scalia’s constitutional analysis, let alone opine that the independent counsel in Morrison was unconstitutionally appointed. Indeed, in 2001 Justice Kagan famously drew precisely the sort of policy/constitutionality distinction that then-Judge Kavanaugh elided, explaining that although she was “highly sympathetic to the view that the President should have broad control over administrative activity,” she also believed that “the Unitarians,” such as Justice Scalia, “have failed to establish their claim for plenary control as a matter of constitutional mandate.” “The original meaning of Article II,” she wrote,
is insufficiently precise and, in this area of staggering change, also insufficiently relevant to support the unitarian position. And the constitutional values sometimes offered in defense of this claim are too diffuse, too diverse, and for these reasons, too easily manipulable to justify removing from the democratic process all decisions about the relationship between the President and administration—especially given that this result would reverse decades’ worth of established law and invalidate the defining features of numerous and entrenched institutions of government.
In his post, Professor Vermeule cited the same Kagan quotation at Stanford discussed above, as well as a quotation from Walter Dellinger in a 1998 New York Times article and testimony to the Senate from Attorney General Janet Reno in 1999. Like Kagan, however, neither Dellinger nor Reno opined that the law had been unconstitutional, let alone that Morrison was wrongly decided or that the independent counsel had not been an inferior officer.
The Times quoted Dellinger as saying of the then-pending Starr investigation that “[t]he parade of horribles envisioned by Justice Scalia is now marching right down Pennsylvania Avenue”—an all-too-accurate description of the facts, and a perfectly good reason to oppose renewal of the law on policy grounds, but not a claim about its constitutionality or a criticism of the Court’s decision in Morrison.
And as for Attorney General Reno, she obviously did not testify, or even suggest, that she thought the law was unconstitutional—something that would have been quite extraordinary to do given that she was even then continuing to implement it, including in the context of the Starr investigation. To the contrary, she noted, without criticism, that “[i]n Morrison v. Olson, the Court made clear that the Act was constitutional because it required the Executive Branch, through the Attorney General, to play a critical role in these key decisions” (p.244).[2] See also former Attorney General Griffin Bell’s testimony, id. at 29 (“I am aware that the Supreme Court upheld the constitutionality of the statute in Morrison v. Olson, but the mere fact that it is constitutional does not mean that it represents good policy.”).
Thanks to the Ken Starr investigation, there was a bipartisan consensus 20 years ago, as there is today, that Justice Scalia’s warning of a runaway, reckless independent counsel was all-too-prescient, and that therefore Congress did the right thing in failing to renew the independent counsel law. There was no such consensus, however, that Chief Justice Rehnquist and the six other Justices on the Morrison Court (Justice Kennedy was recused) were wrong about the constitutional analysis, let alone that the independent counsel wasn’t an “inferior” officer for Appointments Clause purposes.
And as I’ve explained (and as Judge Friedrich agreed), if Morrison remains binding and if Alexia Morrison was “inferior” vis-a-vis the Attorney General, then so, too, must be Robert Mueller, because he is subject to far greater supervision and control by the (Acting) AG than Morrison was.
- Is the Special Counsel a Principal Officer Under Edmond?
What about Edmond? Although the Court used slightly different “tests” in its Appointments Clause analysis in Morrison and Edmond—hardly surprising, given that Chief Justice Rehnquist assigned Justice Scalia to write the latter—there’s no inconsistency between the Appointments Clause holdings in the two cases. In any event, even if Edmond were to become accepted as reflecting the “better” analysis, Special Counsel Mueller would be an inferior officer under Edmond, as well.
Edmond held that, regardless of whether all of the Morrison factors are satisfied (not all of them were met in Edmond itself—see 520 U.S. at 661), an officer is generally “inferior,” and thus may be appointed by a department Head, if his or her work “is subject to direction and supervision at some level by Presidentially-appointed and Senate-confirmed officers,” id. at 663 (emphasis added), even if the supervising officer’s control is “not complete,” as it was not in Edmond itself, id. at 664 (noting that the Judge Advocate General could not “attempt to influence (by threat of removal or otherwise) the outcome of individual proceedings” of the Court of Criminal Appeals, whose judges the Court deemed to be “inferior” officers). The Edmond Court deemed it “significant” that the judges of the Court of Criminal Appeals at issue in the case could not “render a final decision on behalf of the United States unless permitted to do so by other Executive officers.” Id. at 665. That did not mean, however, that another officer had to approve the judges’ decisions before they were issued—it was sufficient for “inferior” officer status that the Court of Appeals of the Armed Forces (CAAF) retained a right to review those decisions after the fact, and even then only pursuant to a highly deferential standard: the CAAF was required to affirm a Court of Criminal Appeals judgment “so long as there is some competent evidence in the record to establish each element of the offense beyond a reasonable doubt,” id.
As the government demonstrates at length in its brief in Miller (see pp. 12-18, 21-22), the relationship between the Acting Attorney General and the Special Counsel easily passes muster under this Edmond analysis, even assuming the continued application of the DOJ Regulations that ensure the Counsel has a substantial degree of independence.
To be sure, the Court in Edmond noted that another superior officer there, the Judge Advocate General, could remove a Court of Criminal Appeals judge from his judicial assignment “without cause,” 520 U.S. at 664, something that was not true in Morrison and that’s not the case in Miller, either. The Edmond Court did not hold, however, or even intimate, that the authority for such at-will removal is a necessary characteristic for an inferior officer—a holding that would have necessitated overruling not only Morrison but other precedents, as well. Indeed, as I explained in my earlier post, such a holding would not only mean that Archibald Cox and Leon Jaworski were unconstitutionally appointed to supervise the Watergate investigation, but would also call into question the Court’s conclusion last term in Lucia that the SEC’s ALJs were inferior officers who could be appointed by the Securities and Exchange Commission. The Court in Edmond did not purport to issue a holding that would have such dramatic effects—not even close.
The only reason there’s any question whatsoever about whether “good will” removal protection can affect the question of whether a particular officer is an inferior officer for Appointments Clause purposes is a 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, Intercollegiate Broadcasting Systems, Inc. v. Copyright Royalty Board, 684 F.3d 1332. In that case, the court read Edmond to have placed considerable weight, for Appointments Clause “inferior officer” purposes, on the presence of at-will removal authority. Id. at 1339-40. As explained above, that’s not a fair reading of Edmond, which only mentioned in passing that the removal authority there was not limited. In any event, the court in Intercollegiate Broadcasting acknowledged, citing Morrison, that the presence of a “good cause” removal restriction does not automatically “prevent a finding of inferior officer status.” Id. at 1340. More importantly, the court’s holding in that case—that the Copyright Royalty Judges there were “principal” officers—was importantly predicated on the fact that those judges were able to set default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music that were not in any way “reversible or correctable by any other officer or entity within the executive branch,” id. Indeed, that was the ground on which the court of appeals distinguished Morrison. See id.; see also id. at 1341 (“We further conclude that free removability constrains [the Copyright Royalty Judges’] power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in Morrison.”). In Miller, by contrast, as in Morrison, the Special Counsel has virtually no policymaking authority to govern the primary conduct of private parties. Therefore even if Intercollegiate Broadcasting’s reading of Edmond were correct (which is doubtful), that precedent doesn’t change the fact that the Special Counsel is, at most, an inferior officer.
- The Misplaced Emphasis on the Possibility of a Rescission of the DOJ Special Counsel Regulations
Finally, this Appointments Clause analysis is not dependent upon—indeed, it isn’t much affected by—the possible prospect that the Special Counsel regulations might be amended or rescinded.
To be sure, Judge Friedrich (and Chief Judge Howell, in the Miller case) was correct to note that no statute required the Attorney General to promulgate those regulations in the first instance. Indeed, the fact that the constraints on supervision contained in §§ 600.7(b) and (d) were self-imposed by the superior officer himself, the Attorney General—a politically accountable official—rather than dictated by Congress, and the fact that the Attorney General or (as here) the Acting Attorney General has complete discretion in the first instance whether to trigger those constraints by appointing a Special Counsel, are among the important reasons why the Special Counsel is (at most) an “inferior” officer.
Judges Howell and Friedrich were also correct that the Attorney General is generally entitled to jettison the regulations, or to amend them to eliminate the guarantees of Special Counsel independence in §§ 600.7(b) and (d), at least so long as he can provide a “reasoned explanation for the change,” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016), and the decision is not otherwise arbitrary or capricious. See In re Sealed Case, 829 F2d 50, 56 (D.C. Cir. 1987). But the theoretical prospect that § 600.7 might one day be rescinded or amended does not mean that the Acting Attorney General who supervises Counsel Mueller—Rod Rosenstein—has it within his own power to impose greater constraints on the Special Counsel’s decision-making if he comes to disagree with the way Mueller is exercising the discretion conferred upon him.
As the government acknowledges (U.S. Br. at 22), the decision whether to revoke or amend the Regulations is within “the Attorney General’s sole discretion.” Miller understandably seizes on this fact (see Reply Br. at 23-24), stressing that, absent a further delegation of authority, it is up to Attorney General Sessions, not Deputy Attorney General Rosenstein, whether and how to change or rescind § 600.7. (Rosenstein is only the “Acting” Attorney General for those investigations from which Sessions is recused, such as the Russia investigation—not for the vast majority of the Attorney General’s other functions within DOJ, including Sessions’s authority over most departmental regulations.)
And presumably Attorney General Sessions will not, and cannot, rescind or amend § 600.7 for the purpose of affecting the Mueller investigation itself, or to afford Rosenstein greater authority to countermand Mueller’s decisions, in light of his required recusal from the Russia investigation. On March 2, 2017, Sessions recused “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States.” Importantly, and as Sessions himself later explained to the Senate Intelligence Committee, this recusal was legally required under 28 C.F.R. § 45.2(a)(2), which bars participation in an investigation, or a related prosecution, of any DOJ employee who had a personal or political relationship with an organization (in Sessions’s case, the Trump Campaign) that has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution; see also 28 U.S.C. § 528 (requiring the AG to promulgate rules “which require the disqualification of any officer or employee of the Department of Justice” when participation in a prosecution or investigation “may result in a personal, financial, or political conflict of interest, or the appearance thereof”). Whether or not a decision by Sessions to amend the Special Counsel regulations for the purpose of affecting the Mueller investigation would technically be prohibited “participat[ion]” in that investigation under § 45.2(a), it would rightly be seen as a grossly inappropriate attempt to influence that investigation, resulting in at least the appearance of a conflict of interest.
To be sure, it’s theoretically possible Attorney General Sessions might one day choose to repeal or amend § 600.7 based upon a conclusion that “greater supervision of sensitive investigations [is] appropriate” across the board (U.S. Br. at 25)—that is to say, for reasons unrelated to the Mueller investigation in particular. It’s also conceivable that if Sessions leaves office, and his replacement as Attorney General is not recused from the Russia investigation, that future Attorney General (or Acting Attorney General) could rescind or amend the Regulation even for the purpose of establishing greater control over the Russia investigation. Nor is it out of the question—although it’s deeply unlikely, in light of the obvious appearance of a conflict of interests—that Sessions himself might delegate to Rosenstein the authority to decide whether to rescind or amend § 600.7.
Such remote possibilities, however, do not afford the current Acting Attorney General for the Russia investigation, Rod Rosenstein, any power to amend the regulations to increase the scope of his supervision of that investigation. [UPDATE: At oral argument on November 8, Michael Dreeben explained that pursuant to a general delegation statute, 28 CFR 0.15(a), the AG actually has authorized the DAG “to exercise all the power and authority of the Attorney General, unless any such power or authority is required by law to be exercised by the Attorney General personally.” Thus, as a technical matter, Rosenstein does have the power to rescind or amend any AG regulations–subject, of course (as Dreeben acknowledged) to the final say of the Attorney General in cases where he’s not recused. I think this is right, but that it doesn’t make much difference here: The notion that any DAG would ever actually rescind an AG regulation without the approbation of the Attorney General himself–or do so without such approval in a context in which the AG is recused–is extremely hypothetical, bordering on the fanciful. I doubt it’s ever a realistic option that a DAG might ponder.]
On the other hand, that does not mean that Rosenstein lacks any such power to affect his relationship to Mueller. In her opinion, Chief Judge Howell raised in passing (see p.31) a slightly different possibility—namely, that the Acing Attorney General might have the power to rescind or alter, not the Regulations themselves but, instead, the authorities that he conferred upon Mueller back in May 2017. Howell cited, among other things, subsection (c) of the Rosenstein Order, which is where the Acting Attorney General directed that Sections 600.4-10 of the DOJ Regulations are to be “applicable” to Mueller. Similarly, in the oral argument before Judge Friedrich in the Concord Management case, DOJ attorney Michael Dreeben mentioned that perhaps Rosenstein could “revoke” Mueller’s appointment or “convert” him to a different kind of official within the Department of Justice.
I think this raises a closer and more important question than whether Rosenstein might rescind the regulations. If Rosenstein were to “revoke” Mueller’s appointment (without “good cause,” etc.), presumably that wouldn’t be materially different from removing him from his position as Special Counsel—something the regulations themselves would prohibit as long as they are “applicable.” And if, as Chief Judge Howell suggested, Rosenstein tried to amend his May 2017 Appointment Order to provide that, e.g., Subsection 600.7(b) of the Regulations no longer applies (thereby allowing Rosenstein to assert “day-to-day supervision” over Mueller), that, too, would be inconsistent with the regulations (by definition). Therefore, whether Rosenstein can do either of these things depends, I think, upon whether the regulations automatically apply, of their own accord, to Mueller (in which case Rosenstein would lack the authority to ignore or “amend” them), or whether they apply only because Rosenstein provided they would do so, in subsection (c) of his May 2017 Order, in which case his authority to alter the terms of the Mueller appointment would be more robust.
I think it’s fair to read the “independence” protections of §§ 600.7(b) and (d) to apply of their own accord only to “Special Counsels” who are appointed pursuant to the regulations themselves. For example, the regulations did not apply to the Special Counsel for the Scooter Libby investigation, Patrick Fitzgerald, because he was appointed from within DOJ, and the regulations themselves were promulgated only for cases in which Special Counsels are appointed from outside the Department (see 28 C.F.R. § 600.3(a)). “[M]y conferral on you of the title of ‘Special Counsel’ in this matter,” Acting AG Comey wrote to Fitzgerald, should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.” See also United States v. Libby, 498 F. Supp. 2d 1, 7 n.12, 10 (D.D.C. 2007). (The Acting Attorney General in that case actually afforded Fitzgerald greater assurances of independence than the regulations prescribe, not fewer. See id. at 6-7, 10.)
That appears to be the case here, well. Because the Mueller investigation is in part a counterintelligence investigation—something the regulations do not contemplate—Rosenstein did not appoint Mueller pursuant to the regulations themselves; instead, he invoked solely the Attorney General’s statutory delegation authorities. Accordingly, it’s probably fair to infer, as I blogged here a few weeks ago, that the “independence” provisions of §§ 600.7(b) and (d) apply to Mueller only because Rosenstein ordered that they would do so—not because the regulations themselves require it.
And if I’m right about that, then Rosenstein would have the legal authority to alter the terms of his Appointment Order to change whether or how those regulatory authorities apply to Mueller. [UPDATE: At oral argument, Michael Dreeben confirmed that this is the view of the United States.] Indeed, as I wrote earlier, because §§ 600.7(b) and (d) apply by virtue of the Appointment Order itself, it means that even if the Attorney General (be it Sessions or a successor) were to rescind or amend the regulations, as Judge Friedrich suggested, that would not affect Mueller’s independence: the Acting AG would also have to rescind or amend the Appointment Order in order to alter the supervision and/or removal standards that apply to Mueller. In this sense, then, the focus in the district courts and the appellate briefing on a possible rescinding of the regulations really misses the important point, which involves Rosenstein’s authority to amend his own Appointment Order.
To be sure, Rosenstein almost certainly would never do such a thing—i.e., amend his Order to eliminate the protections of §§ 600.7(b) and (d)—because presumably that would mean reneging on an understanding he reached with Mueller as a condition of the appointment, and because there would (or should, anyway) be a huge political cost to making such a change. Nevertheless, the fact that Rosenstein has the legal authority to make such a change would mean that he does, indeed, have the potential for even greater control over the Mueller investigation than he currently exercises. [UPDATE: At oral argument, Judge Srinivasan suggested, and Michael Dreeben for the government agreed, that the court doesn’t need to decide whether an Acting Attorney General has the authority to rescind the Regulations, because his undoubted authority to amend the Appointment Order affords him the (theoretical) prospect of enhanced control that’s arguably at issue.]
Even so, the court of appeals need not dive too deeply into this thicket—and certainly should not hold that the theoretical prospect of such an amendment to the May 2017 Appointment Order is the linchpin of any Appointments Clause analysis, as Judge Friedrich suggested it might be. As the government explains in its brief, the current scope of Rosenstein’s supervision—even as cabined by §§ 600.7(b) and (d)—is easily sufficient to ensure that if Mueller is an “officer” for purposes of the Appointments Clause, he is “inferior” to the Acting Attorney General and therefore his appointment was constitutional.
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In my final post tomorrow, I’ll briefly discuss appellant Andrew Miller’s other two Appointments Clause arguments, each of which proceeds on the assumption that Special Counsel Mueller is an inferior officer:
— that Mueller’s appointment was unconstitutional because Congress has not “by law” vested the Attorney General with the authority to appoint such a Special Counsel; and
— that, in any event, the Deputy Attorney General, Rod Rosenstein, may not make the appointment because he is not the “Head” of the Department of Justice, even where, as here, he’s exercising the functions of the Office of the Attorney General because the Attorney General himself, Jeff Sessions, is recused from the investigation and is therefore unable to exercise those functions.
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Posts in this series:
The Constitutional Challenge to Robert Mueller’s Appointment (Part I): Introduction
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[1] Not surprisingly, Justice Thomas has taken some digs at Morrison. See DOT v. Ass’n of American Railroads, 135 S. Ct. at 1246; NLRB v. SW General, Inc., 137 S. Ct. at 947 n.2. No other Justice has joined those opinions, however.
[2] Vermeule points to Reno’s statement, a few seconds earlier in her testimony, that “I have come to believe—after much reflection and with great reluctance—that [the Act] is structurally flawed and that those flaws cannot be corrected within our constitutional framework” (p.243). Her point there, however, was that if there were any hope of enhancing public confidence in the fair and impartial administration of the criminal law in the covered cases, the Attorney General ideally would be removed from the process altogether —something that wasn’t an option under Morrison’s constitutional analysis. The Act’s “central role for the Attorney General was not just a congressional choice, but a constitutional mandate. . . . . [T]he very thing that makes the Act constitutional is also what prevents it from accomplishing its goals, for an Attorney General, after all, is a member of the President’s Cabinet, and as such his or her decisions will inevitably be second-guessed and criticized, no matter what decision is made” (p.244); accord id. at 253-54, 261, 271.