The Stage Is Set -- SCOTUS Should Now Affirm Presidential Control Over Executive Branch Officials And Policy

It will represent vindication for the late Justice Antonin Scalia, whose solo dissenting opinion in Morrison v. Olsen in 1988 laid the foundation for what may be about to happen.

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 "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently 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.

Justice Antonin Scalia, alone in dissenting in Morrison v. Olsen (1988).

Here is how Justice Scalia’s “wolf” comes dressed “sheep’s clothing.”

The Special Counsel acts as an ombudsman, a clearinghouse for complaints and allegations, and after looking into them, he can encourage the parties to resolve the matter among themselves. But if that fails, he must direct them elsewhere. And along the way, while he is required to inform the President of certain findings, the statute also specifically directs him to report directly to Congress….

The Office of Special Counsel is not assigned responsibilities that include furthering the administration’s agenda; it is the Special Counsel’s job to look into and shine light on a set of specific prohibited practices so that the other bodies, in the appropriate exercise of their constitutional authority, can take whatever action they deem to be appropriate. To do this as Congress intended that he should, he must remain entirely free of partisan or political influence, and that is why the statute survives scrutiny even under the most recent precedent.

In sum, it would be antithetical to the very existence of this particular government agency and position to vindicate the President’s Article II power as it was described in Humphrey’s Executor: a constitutional license to bully officials in the executive branch into doing his will.

U.S. District Judge Amy Berman Jackson, Order Granting Summary Judgment, Dellinger v. Bessett, March 1, 2025.

Get it? The Office of Special Counsel is just an “ombudsman.” It encourages the parties to resolve disputes. It only reports his findings to other agencies, and has no power to make final decisions. It produces reports to Congress. The Office’s function does not include “furthering the administration’s agenda.” It must remain “free of partisan or political influence.” It is the bulwark against a President’s desire “to bully officials in the executive branch into doing his will.”

God forbid that the officials in the Executive Branch would be made to do the will of the Executive who has been elected to oversee their work.