Perhaps the greatest legal mind ever to sit on the Supreme Court, Justice Antonin Scalia was right as the lone dissenter in a case regarding the use of an independent counsel to conduct investigations in the federal government…the scenario we are witnessing today in Congress! In his opinion he stated correctly that it is simply unconstitutional and infringes on the balance of power that our Republic was founded on, in particular the Executive’s constitutional power… “governmental investigation and prosecution of crimes is a quintessentially executive function”.
What the left is doing today with their calls of an independent investigation is their attempt to weaken the constitutional powers of the Executive Branch of government, The Don, because they have lost pretty much all of their power in the government following the elections in November and have no other way to influence the future other than through obstruction…in this case, unconstitutional obstruction!
To The Don – No independent Counsel! Screw the liberals and screw the RINOs! Just as Obama did, claim Executive Privilege on everything you have done and will do and give them nothing but a kleenex to wipe the fake tears from their eyes!
The late justice Antonin Scalia thought his best opinion was his dissent in Morrison v. Olson, a case decided on June 29, 1988, when he was finishing just his second term on the Supreme Court. At issue was the constitutionality of the independent counsel law, first passed in 1978. By a vote of 7-to-1 (Anthony Kennedy recused), with Chief Justice William Rehnquist writing, the Court upheld the statute. Only Scalia was in dissent. In 1999, however, Congress declined to reauthorize the law. Scalia’s remarkable opinion influenced that eventual result, demonstrating just how important a single justice can be.
The independent counsel law was the first of its kind, a response to President Richard Nixon’s firing of the special prosecutor the administration appointed to investigate Watergate. The law provided for a special panel of judges who would appoint outside lawyers to investigate allegations of criminal conduct on the part of high-ranking executive-branch officials. The attorney general could remove an independent counsel but only for “good cause.” Congress designed the appointment and removal provisions, along with other “controls,” to ensure that the counsels were independent of the administration, as their title implies, and thus able to conduct investigations without interference from a president or his aides.
The law was challenged as a violation of the separation of powers. The Rehnquist majority dealt with the law’s appointment and removal provisions before turning to the separation of powers. Scalia said the majority’s approach to the case was “backwards” and instead began his opinion with a discussion of separation of powers that drew upon The Federalist. Scalia wrote that the principle “is the absolutely central guarantee of a just government” and that “without a secure structure of separated powers, our Bill of Rights would be worthless.”
Scalia identified the powers the Constitution vests in the three departments of government and declared, “That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that [quoting James Madison] ‘a gradual concentration of the several powers in the same department’ can effectively be resisted” and, by implication, our rights preserved.
“Frequently,” Scalia continued, “an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”
That last sentence is arguably the most famous passage in a Scalia opinion. The quarterly legal journal Green Bag produces bobbleheads of the justices. The collectibles have visual allusions to especially characteristic opinions, and Scalia’s bobblehead includes a wolf and has the justice standing on a dictionary, an allusion to his keen ability to use words—indeed, to his distinction as a master stylist, on display in this passage (and elsewhere) in his dissent in Morrison.
The legal writer Yury Kapgan points out that the metaphor of the wolf clad in sheep’s clothing does not convey the usual message that appearances can be deceiving but “just the opposite,” as the reader learns from the revelation at paragraph’s end that “this wolf comes as a wolf.” There is, writes Kapgan, “no disguise here, no sheep’s clothing, appearances are what they are—clear.” And precisely because “this wolf comes as a wolf,” there is really no need for “careful and perceptive analysis” for the simple reason that the potential of the asserted principle to change the equilibrium of power is immediately evident. “This wolf” will effect an unconstitutional change in the balance of powers.
In his analysis of the statute, Scalia relied on constitutional text, pointing out that Article II vests not some but all of the executive power in a president. And because it does, the independent counsel law must be unconstitutional “if the following two questions” are answered affirmatively: “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?” Scalia said they must be answered affirmatively: the first because “governmental investigation and prosecution of crimes is a quintessentially executive function,” the second because “the whole object of the statute” is to deny a president exclusive control over the exercise of purely executive power.
Scalia maintained that “it is ultimately irrelevant how much the statute reduces Presidential control,” since any such reduction violates the Constitution, which, again, vests all of the executive power in a president. Scalia asked the obvious follow-up question: whether it is “unthinkable that the president should have such exclusive power, even when alleged crimes by him or his close associates are at issue.” He conceded that “a system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” But he also pointed out that “while the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.”