Flake’s unconstitutional legislation could endanger, not protect, Mueller’s actions

Retiring Republican Sen. Jeff FlakeJeffrey (Jeff) Lane FlakeRubio vows to slow-walk Biden's China, Spain ambassador nominees Senate confirms Thomas Nides as US ambassador to Israel Flake, Cindy McCain among latest Biden ambassadors confirmed after delay MORE of Arizona tried to force his colleagues to pass legislation making special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE removable by cause only. Flake threatened to veto all judicial appointments in the lame-duck Senate session if he did not get his way. The legislation he supports clearly violates the Appointments Clause of the Constitution and thus is unconstitutional. Its adoption could actually endanger Mueller’s actions by rendering them unconstitutional from the day the legislation took effect.

The defenders of the legality of the Mueller appointment contend that he is an inferior officer who is supervised by Acting Attorney General Matthew Whitaker or by Deputy Attorney General Rod RosensteinRod RosensteinWashington still needs more transparency House Judiciary to probe DOJ's seizure of data from lawmakers, journalists The Hill's Morning Report - Biden-Putin meeting to dominate the week MORE. The U.S. Supreme Court has held in two cases that to be an inferior officer, you must have a boss who can fire you at any time. You cannot be “independent” of your boss and still be “inferior” to him. Yale law professor Akhil Amar, considered by many to be the greatest constitutional law scholar of his generation, testified to this effect before the Senate Judiciary Committee.


In Edmond, v. United States (1997), the Supreme Court held that to be an inferior officer it was necessary that one be supervised by a boss who can control what you do and who can fire you. The Supreme Court unanimously joined Justice Antonin Scalia’s opinion in Edmond, and Justice David Souter concurred, arguing (correctly, in my view) for an even narrower construction of the inferior officer appointment clause.

The court revisited the issue of what was required to be an inferior officer in Free Enterprise Fund v. Public Accounting Oversight Board (2010). Chief Justice John Roberts’s opinion for the court heartily endorsed the test of officer inferiority used in Edmond v. United States. The court again said one cannot be “independent” and “inferior” at the same time.  

These two precedents were affirmed as good law by Justice Elena Kagan in her six-justice majority opinion this past June in Lucia v. Securities and Exchange Commission (SEC). There are at least six, and possibly nine, justices who would hold Sen. Flake’s legislation to be unconstitutional. Mueller can be an inferior officer only if he has a boss who can fire him at will. Any other type of officer who is “independent,” such as the Federal Reserve Board chairman, must be an individual nominated by the president and confirmed by the Senate.

All of the commissioners on the independent agencies such as the SEC, the Federal Trade Commission, Federal Communications Commission, National Labor Relations Board (NLRB), and the Federal Reserve Board are individuals who have been nominated by the president and confirmed by the Senate. This makes them principal officers, rather than inferior officers. Since Mueller has not been nominated by the president or confirmed by the Senate, he is at best an inferior officer.

If Sen. Flake’s bill passes, that no longer will be true — and from the time that such legislation is adopted, anything Mueller does will be subject to a new and powerful constitutional challenge.

It would be extremely foolish for the Senate to adopt Sen. Flake’s clearly unconstitutional legislation. There are enough constitutional and ethical clouds overhanging the Mueller investigation without adding such lightning and thunder to the situation.

For example, under Myers v. United States (1926) and Humphrey’s Executor v. United States (1935), the president’s removal power can be limited only where a quasi-legislative or quasi-judicial function is being performed. Mueller, however, is a prosecutor and prosecution is a core executive function.

For this reason, as well, Sen. Flake’s bill is unconstitutional, underscoring that the Senate should not, under any circumstances, pass this legislation.

Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He worked in the Reagan White House, was a special assistant for Attorney General Edwin Meese III, and clerked for Justice Antonin Scalia on the Supreme Court.