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Jed Shugerman on Scalia's Morrison v. Olson Dissent
Michael Ramsey

At Slate, Jed Shugerman (Fordham): Stare Scalia: Republican senators’ obsession with Antonin Scalia is leading them to make sloppy mistakes.  From the introduction: 

On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong.

For a while, many conservatives and a handful of law professors have been trying to revive Scalia’s dissent, despite the fact that the court has continued to cite Chief Justice William Rehnquist’s majority as good law. Some even claim that it is one of the greatest dissents of all time. Unfortunately for their position, Scalia’s dissent was fundamentally wrong about American history, which should be a fatal flaw on his own originalist terms. ...

I do not find, however, that the subsequent discussion fulfills introduction's promise.  Moreover, it does not grapple at all with the centerpiece of Scalia's Morrison dissent, which is the Constitution's text -- that is, what does it mean to say that the "executive Power shall be vested" in the President?