Randy Barnett and I recently finished maxing out (to use the lingo of the day) the Separation of Powers chapter for the Fifth Edition of our casebook. We went back-and-forth about whether it was even necessary to keep Morrison v. Olson. Ultimately we decided to, in large part, because Chief Justice Rehnquist explains the line of precedents from Myers to Humphrey's Executor. Moreover, Justice Scalia's iconic dissent would later be vindicated in Slaughter. Students should not forget how we got to the present moment.
Still, we recognized that very little of Morrison survived. The Independent Counsel statute, as well as the special prosecutor regulations, barely survived Trump v. United States, and are dead after Slaughter. But one facet of Morrison remains: can federal judges appoint prosecutors who are not subject to presidential removal. Now, there is a case to overrule that last glimmer of Morrison.
The U.S. District Court for the Western District of Washington appointed Roger Rogoff as United States Attorney. Trump promptly fired Rogoff. Now Rogoff has sued Trump, seeking a preliminary injunction to invalidate the "purported removal." Rogoff argues that Trump's firing violates the Appointments Clause, even after. Slaughter.
