Morrison v. Olson

[Vosem]

It was the correct decision based on Article II, Section 2, Clause 2, which allows Congress to vest the appointment of inferior officers (by implication those officers not covered earlier in the sentence: ambassadors, "public ministers" conventionally understood to mean formal representatives to international gatherings, consuls, judges of the Supreme Court, and heads of departments in the executive branch) in courts of law or in the heads of departments. Since the independent counsel was none of the above categories, Congress acted perfectly constitutionally by allowing a court to appoint him.

Scalia argued that the independent counsel was difficult to remove, but in fact the Attorney General had the right to remove him at any time. For cause, sure, but seems to include simple dissatisfaction with the job done. If removal is difficult for political reasons, well, them's the brakes.

There is room for quibbling on what is meant by "head of department", especially in the context of the modern administrative state, and I think the head of an independent agency, like the CFPB, probably is a head of department within the meaning of Article II. I think Seila Law was decided correctly. But it seems to ridiculous to suggest that the independent counsel -- basically a glorified prosecutor -- was a "head of department".