Edwin S. Fruehwald has posted Was the Appointment of Robert Mueller as Special Counsel Constitutional Under the Appointments Clause? A Reply to Steven Calabresi on SSRN. Here is the abstract:
I originally wrote this essay for the Legal Skills Prof Blog, where I am an editor. I am publishing it here because of the great importance of this issue. After Professor Calabresi’s essay appeared in the Wall Street Journal, his conclusions were widely trumpted on cable tv, radio talk shows, and the press. For example, one headline read: “Mark Levin presents ‘overwhelming’ constitutional case against appointment of Mueller in a free episode of LevinTV.” (Conservative Review) Another declared, “ Law Prof.: Fire Rosenstein for ‘Most Gross Abuse of Power’ in DOJ History.” (CNS News)
Based on my examination of key Supreme Court cases, I believe that Professor Calabresi’s analysis is grossly wrong. I am not so much concerned about the political ramifications of his argument, but I am very bothered by his poor legal analysis. Constitutional analysis should be based on legal principles, not how one wants an issue to turn out politically.