A recent Supreme Court decision has led to misinformation spreading among left-wing legal scholars and editorial boards at major national newspapers, claiming that the executive branch can no longer regulate water, land, and air quality. However, the court’s ruling simply restored the state of administrative procedure law to its pre-1984 state, leaving the Clean Air Act and Clean Water Act, along with their related regulations, intact.
Similarly, after Judge Aileen Cannon dismissed special counsel Jack Smith’s classified documents case, critics are misinterpreting her decision as a blanket prohibition on the Justice Department’s ability to enforce federal law. In reality, Cannon’s 93-page opinion is a masterclass in constitutional and administrative law, demonstrating her commitment to unbiased jurisprudence.
Cannon’s opinion begins by examining the Constitution’s appointments clause, which outlines the process for appointing officers of the United States. She notes that this clause is a critical structural safeguard of the constitutional scheme, designed to prevent one branch of government from aggrandizing itself at the expense of another.
Cannon then reviews the statutory powers granted to the president and attorney general by Congress, including 28 USC Section 541 and 28 USC Section 543. These statutes demonstrate that Congress has explicitly authorized the president and attorney general to appoint certain officials, including U.S. attorneys and assistant attorneys.
In contrast, Smith’s special counsel office lacks a statutory basis, and Cannon methodically reviews the text and history of the four statutes he cites as justification, convincingly establishing that none were intended to grant the attorney general new appointment powers.
The dismissal of Smith’s appointment does not restrict the federal government’s ability to enforce the Espionage Act or any other federal law. The U.S. attorney for the Southern District of Florida is empowered to prosecute the same case, and the attorney general can even appoint Smith as an assistant to aid in the investigation. However, the executive branch cannot create an independent office of special counsel that is not authorized by Congress or inherent in Article 2 of the Constitution.
