“It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal). This post is to address its relevance in the context of a specific recent event, namely the revelation that the Office of Special Counsel (OSC) has opened an investigation into Jack Smith, a former special counsel (though, confusingly, not the kind of special counsel who serves in OSC).
Scalia’s Dissent
Scalia’s dissent may be thought of as having three parts. The first consists of an extensive and vivid dissection of the independent counsel statute, the constitutionality of which was the issue before the Court in Morrison. Briefly stated, Scalia thought the independent counsel statute effectively allowed Congress to compel criminal investigations of high level executive officials and encouraged the overzealous pursuit of criminal charges against such officials by politically unaccountable prosecutors who were likely to be biased against them. This resulted in a fundamental unfairness which institutionalized “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Morrison, 487 U.S. at 728 (Scalia, J., dissenting) (quoting a speech by Robert Jackson while serving as attorney general). [note: all cites to Morrison hereafter are to Scalia’s dissent].
The second part of Scalia’s dissent consists of his argument that the independent counsel act violated the principle of the unitary executive, which he derived from the first sentence of Article II, that “[t]he executive Power shall be vested in a President of the United States.” This principle requires that all executive power (or at least, as Scalia repeatedly put it, all “purely executive power”) be in the “full control” of the president. There are a number of problematic aspects of this theory, which are the subject of my larger project, but for today we will assume that the theory is correct and that the independent counsel statute, by vesting (purely) executive power in a prosecutor who was largely beyond the direct or indirect control of the president, violated the unitary executive principle.
This brings us to the third part of Scalia’s dissent, which is his attempt to draw a connection between the ills of the independent counsel statute and the constitutional violation. Scalia postulates that presidential control will make less likely that there will be prosecutorial abuse against individuals covered by the law. This is no doubt true since the whole point of the law was, as Scalia notes, to ensure independent investigation “when alleged crimes by [the president] or his close associates are at issue. Morrison, 487 U.S. at 710. Congress feared that prosecutors subject to presidential control would be less likely to vigorously investigate such crimes, and it is a simple logical corollary that they would therefore be less likely to abusively or overzealously investigate them. (By the same token, one could say that federal judges would be less likely to unfairly rule against the president or his friends if he had the power to fire them. Not that I am trying to give anyone ideas.)
But what is Scalia’s basis for suggesting that presidential control of prosecutors will, in general, lead to less prosecutorial abuse? Scalia’s argument requires some reason to believe that presidents are likely, on balance, to restrain rather than encourage such abuse. Otherwise the fact (if it be a fact) that the unitary executive theory requires striking down the independent counsel law is nothing more than a happy coincidence.
Scalia does not explicitly consider the possibility that presidential control could result in overenforcement of criminal law, but he does acknowledge the possibility that presidents will underenforce the law when they or their friends are involved. Morrison, 487 U.S. at 710. He offers this by way of reassurance:
The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.
Morrison, 487 U.S. at 711 (citations omitted).
Whatever the effectiveness of the first set of checks, they seem equally potent with regard to an independent counsel as to a president. An independent counsel could be impeached and removed from office. A case brought by an independent counsel could be dismissed for malicious prosecution like any other case. Moreover, unlike a president, an independent counsel could be removed (by the attorney general) for cause. Thus, these structural checks against abuse by an independent counsel were at least as significant as those against presidential abuse.
As for the second set of checks, it is true that independent counsels did not have to worry about how public opinion would affect their next election. But the same is true of presidents in their second term. Moreover, while presidents are subject to political pressure that can cause them to change course (as the appointment of special prosecutors for Teapot Dome and Watergate illustrate), independent counsels were hardly immune from such pressures. After all, they required funding by Congress and could not survive without political support. An independent counsel facing a backlash from public opinion would likely lose political support far more quickly than a president. There thus appears to be little reason to believe that constitutional structure would make presidential abuse of the prosecutorial function less likely than abuse by an independent counsel.
Structure Versus Norms
It is perhaps understandable that Scalia did not see it that way. He was writing in the context of a media and political environment shaped by memories of Watergate. The presidency was under a microscope, and any hint of White House involvement in prosecutorial decisions affecting the president or his associates would cause the press to cry “coverup!” President Nixon, after all, was driven from office in part for having a secret “enemies list” and occasionally suggesting (without much effect, as I recall) that those on the list should be subject to IRS audits or other inquiries.
The Morrison case, moreover, involved a criminal investigation arising out of a relatively routine congressional-executive information dispute, but the assertion of executive privilege caused the media to treat it as a mini-Watergate scandal. From Scalia’s perspective, all of the political incentives pointed in the direction of overenforcement of criminal law by independent counsels and against underenforcement of the law by the president when his own interests were at stake.
These historical circumstances, however, were not permanent fixtures of our system of government, and they were unrelated to the unitary executive. The criticisms Scalia made of the independent counsel in the first part of his dissent likewise had little or nothing to do with its alleged violation of the unitary executive principle. Similar criticisms could be (and were) leveled at the Watergate special prosecutors and others appointed before the enactment of the independent counsel statute. Nor, to put it mildly, has the expiration of the independent counsel and its replacement by the “special counsel” (whose appointment comports with Scalia’s view of the unitary executive) done anything to alleviate the perception that investigation of high-level executive wrongdoing reflects the “weaponization” of the prosecutorial function. To illustrate that point I need but remind you of the last three special counsels and their targets: Robert Mueller (alleged Russian collusion in the 2016 Trump presidential campaign and alleged obstruction of justice by President Trump); Robert Hur (alleged mishandling of classified information by President Biden); and Jack Smith (alleged crimes by President Trump in connection with January 6 and the 2020-21 presidential transition, and alleged mishandling of classified information by former President Trump in 2022).
Scalia’s attempt to connect with ills of the independent counsel statute to the unitary executive principle also suffers from his failure to consider how presidential control over prosecution can also lead to the same sort of overenforcement of criminal law. For example, presidential candidates often promise that they will prioritize prosecuting certain types of offenses or offenders, and sometimes they go as far as identifying specific crimes or individuals/organizations they intend to target. Presidential control over the prosecutorial function means that such promises can easily lead to precisely the same sort of overenforcement and unfairness that Scalia decries in his Morrison dissent. Even the establishment of a task force or a permanent section of the Justice Department to focus on particular types of crimes can have the same kinds of effects he describes. (Think here of the Public Integrity Section’s prosecution of the late Senator Ted Stevens). None of these problems are unique to the independent counsel, and Scalia does not provide any reason for thinking that presidential control over prosecutions tends to ameliorate them.
In truth, Scalia seems to have assumed that prosecutorial decisions outside the independent counsel context are invariably made in accordance with Justice Department guidelines and policies that provide some reasonable assurance against improper or abusive investigation and prosecution. See Morrison, 487 U.S. at 713 (suggesting that the independent counsel law requires investigations “not merely when the Justice Department in the application of its usual standards believes they are called for”). To the extent this assumption was correct, it reflected historically contingent norms which limited political or White House interference with prosecutorial decisions. These norms are not fostered by the unitary executive theory; to the contrary, it tends to undermine them. See generally Trump v. United States, 603 U.S. __ (2024).
Scalia made the very mistake he warns against in his dissent, namely confusing particular factual circumstances with the enduring effects of a constitutional process. See Morrison, 487 U.S. at 731 (“the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case”). Scalia acknowledged that a unitary executive might still permit isolated instances of abuse by prosecutors. Id. at 728-29. But he failed to consider that it also permits systemic abuse by presidents. It permits a presidential candidate to openly promise to use the law to protect his friends and punish his enemies, and then to follow through if elected. While in Scalia’s day such a scenario may have been unthinkable and would have doomed the candidate to defeat, this was a feature of temporary political norms and culture, not of the constitutional structure Scalia endorsed.
The Erosion of Norms
Which brings us to our current situation. It is hard to imagine that anyone today would, with a straight face, make the claim that we have “a government of laws and not of men.” The current occupant of the White House campaigned on a thinly veiled platform of protecting his friends and punishing his enemies. He promised pardon to those convicted of crimes committed on his behalf in connection with the January 6, 2021 attack on the Capitol, and in office he granted clemency even to those who assaulted police officers. Not content with this, he signed an executive order upon taking office that directed “appropriate remedial actions” against those responsible for the “weaponization of the federal government,” which included “the Department of Justice . . . ruthlessly prosecut[ing] more than 1,500 individuals associated with January 6,” and required a review of “the activities of all departments and agencies exercising civil or criminal enforcement authority of the United States, including, but not limited to, the Department of Justice, the Securities and Exchange Commission, and the Federal Trade Commission” for purposes of determining the appropriate “remedial action.” He orderedspecific investigations of officials from his first administration he deemed disloyal. He directed the pulling of security clearances from political opponents and perceived critics. He signed executive orders to target lawfirms that had opposed him in court or represented clients he disliked. He installed his personal attorneys in top positions at the Department of Justice to ensure that the law enforcement function would be a mere extension of his personal will. He made little pretense that the law applied to him at all, famously “truthing” after taking office that “he who saves his country violates no law.”
This wolf came as a wolf.
To solidify his grip on all aspects of the government, the president has asserted and purported to exercise the power to fire numerous government officials, including officers of “independent agencies,” inferior officers he did not appoint, and career officials protected by civil service laws. Many of these firings sweep beyond the scope of the unitary executive theory as set forth by Scalia in Morrison and some perhaps do not even comply with the more extreme versions of the theory floated in recent Supreme Court cases. However, regardless of whether these firings are ultimately deemed lawful, it should be apparent that they move us further from a “government of laws” and closer to a “government of men.” One in which the abuses Scalia feared pale in comparison.
The Office of Special Counsel
Take, for example, the Office of Special Counsel (OSC), which according to its website is “an independent federal investigative and prosecutorial agency,” whose “primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices (PPP), especially reprisal for whistleblowing.” In other words, it is an agency designed to protect federal employees against retaliation by their superiors when they disclose violations of law, gross waste or mismanagement, abuse of authority, or other types of wrongdoing at their agencies. Such disclosures can be embarrassing to political appointees and, by extension, to the man who appointed them.
To ensure that the functions of OSC would be carried out in a profession, ethical and independent manner, Congress required that the OSC be led by a “special counsel” (again, a different kind of special counsel than the “special counsels” who are appointed by the attorney general to carry out investigations previously conducted by independent counsels). The OSC special counsel (OSCSC) must “be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position.” 5 U.S.C. § 1211(b). The OSCSC is “appointed by the President, by and with the advice and consent of the Senate,” to serve “for a term of five years.” Id. The OSCSC “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” Id.
The OSC was originally established in 1978 as part of a civil service reform program that included the creation of the Merit Systems Protection Board (MSPB), which was to act as an independent and quasi-judicial body to determine when violations of law or other abuses of the merit system had occurred and to order appropriate corrective or disciplinary action. See Dellinger v. Bessent, No. 1:25-cv-00385, slip op. at 11 (D.D.C. Mar. 1, 2025). The OSC was to act as the investigative arm of the MSPB. Subsequently, as part of reform legislation to enhance whistleblower protections, OSC was made a separate agency with the “authority to ‘protect employees, especially whistleblowers, from prohibited personnel practices.’” Id. at 14 (quoting S. 508, 100thCong. §2(b) (1988)). These changes were made in part to address Congress’s concern that OSC needed to be more independent and vigilant in protecting whistleblowers from retaliation. See, e.g., 135 Cong. Rec. 4518 (1989) (statement of Sen. Charles Grassley) (noting that OSC “has been little more than a rubber-stamp for these reprisals against federal employees”); id. at 4516 (statement of Sen. William Cohen) (“The bill ensures the independence of the Office of Special Counsel and clarifies that it is the roll [sic] of the Special Counsel to act in the interest of whistleblowers.”).
From the outset Congress insisted on ensuring the independence of the OSC by giving the OSCSC a fixed term and protection against removal except for cause. This reflected a recognition that “[b]ecause the Special Counsel may be called upon to investigate prohibited personnel practices in the executive branch, and to bring disciplinary actions against executive branch officials, . . . it is essential that the Special Counsel be independent of presidential direction and control.” S. Rep. No. 95-969, at 29 (1978) (Senate Comm. on Gov’t Affairs) (emphasis added); see also id. at 134 (views of Sen. Charles Mathias and Sen. Ted Stevens) (in order to “initiate, thoroughly investigate, and then take actions which by their very nature could prove embarrassing to the administration,” OSC “must be insulated from overt and subtle influences of the president and his appointees”). During the nearly half century of OSC’s existence, there appears to have been little if any controversy in Congress about the wisdom or constitutionality of insulating the OSC from presidential influence in this manner.
While the executive branch did from time to tie express reservations about the constitutionality of the restriction on removal, this did not prevent presidents from repeatedly signing and supporting legislation containing this provision as well as enhancing the authority of the OSC and funding its operations. See Dellinger, supra, slip op. at 12-29. For example, in 1988-89, after Congress unanimously passed the reform package for OSC, the Reagan and George H.W. Bush administrations raised various constitutional objections, including to the removal provision. In the course of subsequent negotiations with the Justice Department, Congress agreed to certain modifications, most importantly the limitation of a provision giving OSC independent litigation authority. The removal provision, however, was notably not changed, and President Bush nonetheless supported and signed the revised legislation. See Dellinger, supra, slip op. at 15-17. (Here it should be noted that the other changes to the legislation, by reducing the OSC’s “executive” authority, may have assuaged the constitutional concerns regarding the removal provision).
Congress, meanwhile, had complete confidence in the constitutionality of the removal provision, particularly given the Supreme Court’s 8-1 decision upholding the independent counsel statute. Thus, Senator Carl Levin declared that the “removal provisions . . . are clearly constitutional in light of the decision of the Supreme Court last year in Independent Counsel case—Morrison v. Olson.” 135 Cong. Rec. 4510 (Mar. 16, 1989); see also id.at 4512-13 (memorandum of Mort Rosenberg of the Congressional Research Service) (noting, among other things, that Morrison had “dealt a severe blow to the notion of a unitary executive”). Obviously the provision would be much more vulnerable under the reasoning of Scalia’s dissent, but even then it was not clear that the OSCSC wielded the type of “purely executive power” that would invalidate the removal provision.
Dellinger’s Firing
Until this year, no president had attempted to remove an OSCSC prior to the expiration of his or her term. That changed on February 7, 2025, when President Trump (via an email sent by a White House staffer) purported to fire Hampton Dellinger, who had been nominated by President Biden and confirmed by the Senate to a five-year term as OSCSC beginning March 6, 2024. No cause was given, and it is undisputed that the firing did not comply with the statutory restriction on removal. The Trump administration contends, however, that this restriction constitutes an unconstitutional infringement on the president’s authority over the executive branch and therefore the removal was valid.
On February 11, 2025, Trump designated Doug Collins, who had been confirmed a few days earlier as secretary of veterans affairs, as acting OSCSC. At least the Department of Justice, in this court filing, stated that such a designation had been made. Somewhat peculiarly, no executive order or other formal record of this designation was attached to the filing.
Collins did not remain in this position for long. On or about April 1, 2025, Trump apparently designated Jamieson Greer, the United States Trade Representative, as acting OSCSC. I say “apparently” because there also appears to have been no formal designation or announcement of Greer’s designation, and GAO (which is supposed to be notified of vacancies and the acting officials designated to fill them) still lists Collins as the acting OSCSC. However, OSC’s website, while not directly identifying anyone as the acting OSCSC, links to various letters and other documents signed by Charles N. Baldis, who is identified as “Senior Counsel and Designee of Acting Special Counsel Jamieson Greer.” Baldis is evidently the person actually running OSC.
This April 9, 2025 letter from four House Democrats criticizes Greer’s “surreptitious appointment[]” as acting OSCSC because, among other things, his multiple roles present a conflict of interest due to the fact that OSC has oversight over the Office of the U.S. Trade Representative. Similar criticism could equally be made (and was) of the Collins designation. Interestingly, however, no one seems to have questioned the legal authority underlying these designations.
On June 16, 2025, Trump nominated Paul Ingrassia, a 30 year-old lawyer who graduated from Cornell Law School in 2022, to serve a five year term as the OSCSC. What “demonstrated ability, background, training, or experience” makes Ingrassia “especially qualified” to serve as OSCSC, as required by statute, is a mystery. Ingrassia’s main qualification seems to be that his twitter account was so unbelievably sycophantic toward Trump that I thought it might be a parody. Certainly no one would describe him, as Scalia did Alexia Morrison, as a person “of accomplishment, impartiality, and integrity.” See Morrison, 487 U.S. at 731.
Despite Ingrassia’s evident unfitness for office and lack of the legally required qualifications, the Senate has yet to confirm him.
In the meantime, Dellinger brought suit to contest the legality of his removal. I do not want to belabor the arguments for and against the constitutionality of the restriction on the removal of an OSCSC. Suffice to say that the constitutional question was widely recognized to be open and rather close, even under the current caselaw which strongly favors the unitary executive. The OSCSC arguably does not fall within the category of officers who must be removable at will because it does not exercise “substantial executive power” within the meaning of recent Supreme Court decisions, much less the “purely executive power” Scalia had required in Morrison. To perhaps oversimplify a bit, the argument is that OSC is less like a traditional law enforcement or prosecutorial agency with power to subject individuals to investigation, prosecution and potentially conviction and punishment, and more like a glorified HR department with power only over federal agencies and employees in their official capacity. Recognizing these (potentially significant) differences between the OSCSC and other executive officers, the Supreme Court has twice explicitly reserved the question whether its unitary executive doctrine invalidates the removal restriction for the OSCSC. See Collins v. Yellin, 594 U.S. 220, 256 n.21 (2021); Seila Law LLC v. CFPB, 591 U.S. 197, 221 (2020).
U.S. District Court Amy Berman Jackson initially granted a temporary restraining order in Dellinger’s favor, ruling that his firing should be put on hold given the clear statutory intent to protect the OSC’s independence. The D.C. Circuit declined to grant the government’s emergency motion for a stay of the TRO, noting the government’s claim that the incursion on the president’s removal authority worked an “extraordinary harm” improperly presumed the unconstitutionality of a duly enacted statute. However, Judge Katsas, a well-respected Trump appointee whose views tend to closely approximate those of the conservative center of the Supreme Court (or so I am told), dissented, expressing the opinion that the OSCSC removal limitations were unconstitutional under the reasoning of recent Supreme Court cases like Collins and Seila Law.
The Supreme Court itself declined to weigh in on the TRO in light of the fact it was to be in effect only for a few more days, but Justices Gorsuch and Alito dissented. While they did not directly express a view on the merits of the constitutional issue, it does not take a great deal of reading between the lines to discern that they were skeptical of Dellinger’s position. See Bessent v. Dellinger, 604 U.S. __, slip op. at 4 (Feb. 21, 2025) (Gorsuch, J., dissenting) (noting that Dellinger was “an official . . . who wields significant prosecutorial and investigative power as the sole head of a 129-person office”).
Judge Jackson then issued a decision upholding the constitutionality of the restrictions on the OSCSC’s removal, finding that Dellinger’s firing was therefore unlawful, and awarding him declaratory and injunctive relief. The government then again sought an emergency stay of Jackson’s ruling. This time a different D.C. Circuit panel granted the application for a stay, explaining in its cursory discussion that “the government has shown that the logic of [recent Supreme Court] cases is substantially likely to extend to the Special Counsel.” Recognizing that this opinion was less important as legal analysis than as an indication of which way the wind was blowing, Dellinger thereupon decided to drop his case. (He was undoubtedly influenced in this by the fact that one of the judges on the panel was Patricia Millett, an Obama appointee).
Now What?
It is important to stress that none of this means President Trump had the authority to designate someone as the “acting OSCSC.” First, no court has actually held that Dellinger’s firing was lawful and, if it was not, neither Greer nor anyone else can validly exercise the authority of the OSCSC.
Second, if in fact the removal provision of the OSC statute is unconstitutional, it is not clear the OSC should be able to continue to operate. I would argue that it should not. Congress created the OSC as an independent agency to operate free of presidential influence in order to protect whistleblowers and check wrongdoing and abuse in the executive branch. If, in the judgment of our robed oracles, Congress is prohibited from establishing such an agency, then the logical conclusion is that the OSC itself is unconstitutional and cannot validly exercise its authority. To allow OSC to continue t operate as a purported “independent agency” would be to sanction a fraud on the American people and federal employees who might be induced to rely on it.
After all, in Morrison the question was whether the independent counsel could operate constitutionally at all, not whether it could continue as an “independent” counsel who was removable at will. It is not like Scalia declared that the president could remove the independent counsel and direct her replacement to dismiss the investigation of Ted Olson and instead open criminal investigations into Representatives John Dingell and Elliot Levitas and the staff of the House Judiciary Committee. Compare Morrison, 487 U.S. at 699-701 (describing the congressional-executive confrontation which led to the independent counsel investigation).
In more recent cases the Court has performed a “severability analysis” to determine whether the invalidation of a removal provision should result in the agency in question itself being declared unconstitutional. In Seila Law, for example, the Court asked whether Congress would have preferred a Consumer Financial Protection Bureau (CFPB) headed by a director removable by the president to no agency at all. See Seila Law, 591 U.S. at 236. The Court’s affirmative answer in that case may well have been, as Justice Thomas contended, “based on nothing more than speculation.” Id. at 261 (Thomas, J., concurring in part and dissenting in part). But it was certainly premised on the assumption that a CFPB headed by a removable director would continue to carry out its statutory duties in more or less the way that Congress intended. See Seila Law, 591 U.S. at 236-37 (finding the removal provision for the CFPB director severable from the remainder of the statute because, among other things, eliminating CFPB “would trigger a major regulatory disruption and would leave appreciable damage to Congress’s work in the consumer-finance area”).
No such assumption can be made here. Congress feared that presidential control of OSC would prevent the agency from protecting whistleblowers whose information might be embarrassing to the administration and, as Senator Grassley put it, “rubber stamping” agency reprisals against such whistleblowers. In the current administration, there is barely a pretense that OSC will do anything else. Trump’s nomination of Ingrassia could not make it clearer that there will be no impartiality in the administration of OSC.
But it is worse than that. It was reported recently that OSC is investigating Jack Smith, the former special counsel who had investigated and indicted Trump for crimes committed both during his first term in office and during his post-presidency. If Smith is not at the very top of Trump’s enemies list, he is at least in the top five. The “dependent” OSC can thus be expected not only to protect Trump and his friends, but to pursue his enemies. Indeed, this is only one of many examples in the current administration of the president openly and publicly announcing, sometimes merely on social media but sometimes in formal executive decrees, the identities of the “people that he thinks he should get,” and then directing his subordinates to get them.
In short, the unitary executive is producing in fact what Scalia feared the independent counsel would produce in theory. As he explained in Morrison:
Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naïve, ineffective, but, in all probability, “crooks.” And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.
Morrison, 487 U.S. at 713. Substitute “Office of Special Counsel” for “Justice Department” and this passage well describes the Jack Smith investigation. And, unfortunately, many other investigation and weaponized use of governmental power that are occurring at the Justice Department and elsewhere.
Finally, even if the OSC is not legally disabled from acting at all, it should not be able to do so until it has a Senate-confirmed OSCSC. While Ingrassia in my view lacks the qualities and qualifications required for that position, the confirmation process at least allows the Senate to make that judgment. Designation of an “acting OSCSC” circumvents that process and allows OSC to operate without any input from the Senate at all. Here, moreover, the president has not even made a formal or public designation of the acting OSCSC (and may, for all we know, be unaware that the designation was made), and the presumptive designee has redesignated his duties to someone else. The situation seems designed to mock constitutionally required advice and consent, statutorily required qualifications and Scalia’s concept of “presidential accountability” all at the same time.
Although I am not aware of any formal assertion by the administration regarding the authority for designating an acting OSCSC, one presumes that it is relying on the Federal Vacancies Reform Act, 5 U.S.C. §3345. SeeDellinger v. Bessent, No. 1:25-cv-00385, slip op. at 26 n.8 (D.D.C. Feb. 12, 2025). That law authorizes the president to temporarily fill vacancies when “an officer of an Executive agency . . . dies, resigns, or is otherwise unable to perform the functions and duties of the office.” 5 U.S.C. §3345(a).
It is by no means clear that this provision applies when the president removes an officer, a situation which notably not mentioned in the text. It certainly should not apply when the president removes an incumbent in defiance of a statutory prohibition.
The president has no constitutional authority to fill vacancies, whether created by removal or otherwise, except under the Recess Appointments Clause (which does not apply here). Any authority he has must be granted by statute, as even Judge Rao acknowledges. See Aviel v. Gor, No. 25-5105, slip op. at 3 n.1 (D.C. Cir. June 5, 2025) (Rao, J., dissenting) (“the text and structure of the Constitution strongly suggest the President has no inherent authority to appoint officers of the United States”). Unlike the unitary executive theory, which rests on a series of increasingly tenuous inferences from constitutional text, history and judicial precedent, the congressional role in the establishment and appointment of officers of the United States is explicitly set forth in the Constitution, which provides that the president “shall nominate, and by and with the Advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S. const., art. II, § 2, cl. 2 (emphasis added).
If the courts applied this language as strictly as they apply the non-textual concept of the unitary executive, it is doubtful the president would be allowed to make temporary appointments even if Congress explicitly so provided. At a minimum, though, they should not lightly infer that Congress intended to delegate to the president the power to fill vacancies that occur due to the president’s violation of the terms on which the office was established by law. If the courts should nonetheless construe the FVRA to apply in situations such as this, the Congress must change the law to end this executive-judicial abuse.
Conclusion
As you may have inferred, I am (very) skeptical that the modern unitary executive principle can be fairly inferred from constitutional text or the intent of the Framers. But whether or not I am right about that, its imposition on top of a legal framework established by Congress under very different assumptions results in a government structure that was neither intended nor anticipated by Congress. And when layers on top of thatthe erosion of norms that once were assumed to hold the executive branch in check, we are left with a nightmare scenario many times worse than the dark vision laid out in Scalia’s Morrison dissent.
Hopefully the courts will help ameliorate this problem by limiting the president’s ability to commandeer independent agencies like OSC for his own purposes or, at a minimum, prevent him from doing so without a Senate-confirmed officer in charge. But whether or not they do, much more corrective action will be needed, including changes to congressional rules that discourage wanton removals, greater congressional oversight of “dependent” agencies, legislative reform, and perhaps even constitutional amendments. All that, however, is a subject for another day.