The "Unitary Executive", Update (Part 3)
A case that I had overlooked in the original two-part series demands attention
I wrote my two “unitary executive” articles back in 2024, before Trump became president and started pushing SCOTUS’s support for the unitary executive to the limit, getting Humphrey’s Executor overturned by SCOTUS — although losing his bid to extend its logic to the Federal Reserve Board (which could be a separate column on its own). And so I started citing my old articles to people — and immediately noticed an issue that I had failed to address in the original article.
I accept that, when I write a lengthy article about a complicated topic, such as the history and case law behind the “unitary executive” theory, I can’t cover everything. As written, the article covered the entire period from the first Congress to the New Deal, plus some cases running up to the U.S. Supreme Court’s 2024 term, as well as the history of the Civil Service, the rise of President James A. Garfield (my hometown hero), the political philosophy of President Woodrow Wilson (begone, demon!), a side look at the Prussian Empire, and even the link between a government operating in such a fashion and potential corruption (which Trump has illustrated in glorious if shameful Technicolor). . . .
It was simply too much to cover all of the case law dealing with the Supreme Court’s journey into the folly of trying to defend the rise of the administrative state after Humphrey’s Executor. [For those of you fortunate enough to have forgotten the articles that were published back in 2024 here at Salida, here are links to Part One and Part Two. They actually might put you to sleep, but who says that’s a bad thing?]
But I return to this topic now that the Supreme Court has finally overruled Humphrey’s Executor to share an article addressing one of the key cases on the road to that result that I had not mentioned previously — and that indicated that, at first, a Republican SCOTUS accepted the lack of a “unitary executive”. It was by no means inevitable that the Supreme Court would reach this point, and, for those of you who oppose “originalism/textualism”, you might be interested to know that, at one point less than 40 years ago, it looked unlikely that the Court would ever embrace this interpretation.
In a 1988 case named Morrison v. Olson, the Supreme Court (by an 7-1 margin; Justice Anthony Kennedy, who had just been confirmed, was recused from the case) took a sledgehammer to the unitary executive theory. The court at the time was comprised of seven Republican appointees (William Rehnquist, William J. “Little Bill” Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, and the aforementioned Kennedy) and only two Democratic appointees (Byron “Whizzer” White and Thurgood Marshall), and there was almost complete unanimity (in an opinion written by Chief Justice Rehnquist — but undoubtedly encouraged by the very liberal Justice Brennan) that, in essence, stated that the President did NOT possess all of the executive powers under the Constitution.
Since the entire point of my previous two-part article was to oppose that idea, I should have mentioned it. After all, that lone dissenter ended up winning less than 40 years later! Perhaps you might have figured out that the point of this discussion of the case is the lone dissent, which I didn’t write about in SCOTUS’s retreat from Chief Justice Taft’s support of the theory. And you’d be correct.
The dissent was written by Justice Scalia. I have sometimes criticized Justice Scalia for his willingness to abandon principle in some decisions (such as Gonzales v. Raich, where he refused (for picayune reasons, in my opinion) to vote to overturn one of the worst and most notorious SCOTUS decisions ever, Wickard v. Filburn, but in this case one phrase from his dissent in Morrison v. Olson — against this enshrinement of the administrative state — has become legendary among originalists and textualists:
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.
I left this case and quote out of the original article because I felt like it would take too much space and too much of a setup to explain why that quote resonated so strongly among so many libertarian and conservative practitioners (including me) who agreed with Justice Scalia’s argument.
But fortunately, in the newly-revitalized SCOTUSblog, which is part of The Dispatch (Jonah Goldberg and Steve Hayes’ online publication), a libertarian attorney and writer named Anastasia Boden has written an entire article about that subject. As Boden notes in her lead:
It became one of the great “I told you so” moments in Supreme Court history. Justice Antonin Scalia, dissenting alone in Morrison v. Olson, warned that letting Congress chip away at executive power in favor of unelected bureaucrats would come back to bite us – while giving us one of the most memorable judicial lines of all time.
The article can be found at this link: The Lone Wolf.
The case was about the creation of the office of the independent counsel, which in fact shared executive power under the Constitution with the President. In the wake of Watergate (which was a huge scandal 50 years ago but now just looks like an ordinary Saturday in the firehouse of corruption being promulgated by President Trump (who made $2 billion last year off his own followers in a crypto fraud)), Congress passed a bill (but not a Constitutional amendment) to create this office, and “living constitutionalists” shepherded it through the Supreme Court, getting everyone except Justice Scalia on board that a Constitutional amendment wasn’t necessary to amend the Constitutional separation of powers.
It’s worth noting, as Boden points out, that the controversy here was over a decision of EPA director Anne Gorsuch Burford (yes, Justice Gorsuch’s mother) to withhold documents related to the Superfund program that had been requested by Congress on the grounds of executive privilege. The independent counsel (Morrison) then subpoenaed the documents from Ted Olson (later the independent counsel himself, who investigated President Clinton), who refused to comply because he argued that the independent counsel’s office was unconstitutional because the President couldn’t fire the independent counsel (see the “Decision of 1789” in Part I), And no one could argue, as in Humphrey’s Executor, that the power to prosecute wasn’t a core executive power.
However, relying in part on the structure of Humphrey’s Executor (but not the holding), the majority opinion held that, because the independent counsel was not interfering with the President’s ability to do his job (a non-sequitur consistent with both Rehnquist’s functionalism and Little Bill’s living constitutionalism), the Constitution didn’t support Olson’s argument, even if the independent counsel did exercise executive power. Chief Justice Rehnquist wrote that “this rigid demarcation—a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the framers—depends upon an extrapolation from general constitutional language which we think is more than the text will bear.” [Note that, under the current textualism interpretation, the demarcation can indeed be altered, although doing so would require amending the Constitution — which hasn’t been done for over 30 years. (1992), although it was done four times between 1961 and 1971.]
As noted, the only dissent was from Justice Scalia, who argued that, although the right to fire wasn’t one of the flashy Constitutional rights that would seem to matter, the entire Constitutional scheme was structured to diffuse power, and in this case, Congress was trying to exercise power that the Constitution gave to the President.
It’s also worth noting that Scalia was just in his second year on the Court, while “Little Bill” Brennan had been there for 31 years and had a devoted group of supporters surrounding him, which might account for Scalia’s failure to carry the day. But, although Scalia lost that battle, he ultimately won the war (albeit a decade after his passing). Except: Congress has turned into a collection of servile lapdogs incapable of even complaining when the President steals its power (as in the tariffs case), which calls the entire “balance of power” provided by the Constitution and relied upon by Justice Scalia into chaos. Right now, the Supreme Court is the only body preventing the absolute tyranny of King Donald I, simply because of the “lapdog Congress”.
It would be difficult to overlook the importance of the 17th Amendment, adopted by the progressive Congress in 1913 and upsetting the Constitutional balance between the states and the federal government, in that Congressional passivity, but that’s a subject for another column. And discussing the birthright citizenship ruling that came down on June 30, 2026 (Trump v. Barbara) also will have to wait for another day, because I’m a little embarrassed that I omitted this discussion about Morrison v. Olson in the original lengthy two-parter.
Note that I’m still on hiatus from this Substack, despite publishing this today and teeing up two additional columns above. Perhaps it’s getting to be time to return to Salida.
Be seeing you.