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Fired U.S. Attorney In Washington Files Case That Should Overrule Whatever Remains Of Morrison v. Olson

Justice Scalia was right. Federal courts should not be allowed to appoint federal prosecutors who cannot be fired.

Josh Blackman | 7.21.2026 11:49 PM

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........

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