This is almost too much to bear, because what happened in Morrison was that Congress passed a statute that took prosecutorial power—purely executive power—away from, and out of, the executive branch. Cue Justice Scalia’s dissent: “the statute before us deprives the President of exclusive control over that quintessentially executive activity” and “[t]he Court does not, and could not possibly, assert that it does not.” “[T]he independent counsel exercises executive power free from the President’s control.” “[T]he independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President).” Despite all that, the majority in Morrison did not think the old independent counsel law stripped “too much” executive power away from the executive.

Contrast that with the situation here—where not even Justice Scalia would think any power has been removed from the executive. Here there was no statute imposed by Congress, just a regulation—a regulation promulgated by and within the executive branch. Specifically, a Justice Department regulation promulgated by the attorney general, an officer fireable at will by the president. And what does this regulation do? It simply divides work among lawyers within the Department of Justice—within the executive branch. It surely doesn’t remove any executive power from the executive branch.

And not only that, the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them.