Justice Antonin Scalia’s solitary dissent in Morrison v. Olson, widely regarded as a pivotal moment in U.S. Supreme Court history, has gained renewed attention as discussions surrounding the balance of power within the executive branch intensify. His fierce opposition was to the Ethics in Government Act of 1978, a post-Watergate measure. This Act enabled the appointment of an “independent counsel” for investigating and prosecuting high-ranking officials, an individual insulated from the usual executive oversight channels.
The core of Scalia’s critique lay in what he viewed as the dilution of executive power—a consequence of Congress creating a structure that limited the president’s control over prosecutorial functions, a traditionally executive task. Scalia argued that this shift disrupted the essential structure of the U.S. government, as defined by the Constitution, where executive power is vested wholly in the president.
His dissent underscored his belief in the unitary executive theory, which posits that democratic accountability is maintained by having all executive power centralized in a single, elected figure—the president. According to Scalia, the inability to remove the independent counsel at will undermined this principle, posing a threat to the constitutional balance of power.
While the Humphrey’s Executor v. United States decision had established limits on presidential removal powers for members of autonomous agencies, Morrison challenged the application of this principle to core executive functions such as prosecution. Scalia warned of a burgeoning “fourth branch” of unelected, bureaucratic power lacking electoral accountability, a concern that resonates today as the administrative state’s role comes under scrutiny.
In recent years, the Supreme Court appears to be revisiting Scalia’s concerns, as evidenced by rulings in Free Enterprise Fund v. PCAOB, Seila Law v. CFPB, and Collins v. Yellen, which have systematically reduced the insulation of various agency heads from presidential removal. These decisions signal a shift towards fortifying presidential control over executive functions, aligning with Scalia’s vision.
Scalia’s dissent has not been relegated to history, as it remains a vital touchstone in contemporary debates on the separation of powers. As the courts continue to address these issues, the potential for his lone dissent in Morrison to transform into the prevailing judicial stance appears increasingly plausible.