The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory

Victoria Nourse
Publication Date: 
June 21, 2018

Critics of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election have argued that Congress may not limit the Executive’s power to remove the Special Counsel. Relying on a lonely dissent penned by Justice Scalia in the 1988 case Morrison v. Olson, these critics ignore the seven-Justice majority opinion authored by former Chief Justice Rehnquist that upheld Congress’ power to prevent a president from firing an independent counsel without cause.

In a new ACS Issue Brief, Georgetown University Law Center Professor Victoria Nourse argues that Morrison v. Olson remains good law and explains that the Supreme Court has never embraced the radical theory of presidential power known as the “unitary executive” that Justice Scalia championed. Nourse further warns: “The unitary executive theory is dangerous. . . . Once taken from the law journals and legal societies and handed to political agents, [it] appears to grant presidents license to dismiss the law, all based on a lonely dissent."