DOGE Lawsuits May Occasion Scalia s Revenge – WSJ

Trump s executive orders and DOGE may go further in restoring the original vision of presidential power than anything even nine Antonin Scalias on the Supreme Court would have conceived, says Berkeley law professor John Yoo.  Unlike the past, Trump today is playing on a friendly legal ground, with a Congress that agrees with him, and a pro-executive Supreme Court. Agencies and officers that go to court to resist the president will join the Consumer Financial Protection Bureau in the dustbin of history.

Scalia s fullest expression of the view now being tested by the DOGE litigation came in his magnificent 1988 dissent in Morrison v. Olson. The Supreme Court upheld the appointment of an independent counsel to investigate a former Justice Department official. Scalia found it absurd that a man exercising prosecutorial power executive power could be largely unaccountable to the attorney general and president.

He summed it up with typical clarity: The Constitution says the executive power shall be vested in a President of the United States of America. This does not mean some of the executive power, but all of the executive power.

Though he was the lone dissenter in a 7-1 ruling, Scalia s side has gained adherents over the years. The plaintiffs now taking Mr. Musk to court are playing with fire by testing the point in this changed environment. They risk a Supreme Court decision that transforms Scalia s solitary dissent into reigning orthodoxy.

via www.wsj.com

William McGurn.