Meanwhile, Myers suggests conservative justices would support Trump. The majority opinion in that case—authored by the chief justice and former president William Howard Taft—concluded that the president can fire executive-branch officials without congressional consent. Amar notes that Myers’s reasoning was recently cited in the majority opinion in a 2010 case, Free Enterprise Fund v. Public Company Accounting Oversight Board. “The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so,” Chief Justice John Roberts, who was joined by his fellow conservatives, wrote. “That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties.” Since 2010, the high court has retained its executive-power-friendly conservative majority, and its Democratic appointees may have lost a dissenting vote: John Paul Stevens, one of the dissenters in Free Enterprise Fund, was replaced by Kagan.
Not everyone agrees that those rulings are predictive of the justices’s take on the Mueller bill. “I think it is a mistake to assume that views Supreme Court justices express in the abstract necessarily predict what they will do when confronted with the facts of a particular case,” said Deborah Pearlstein, a constitutional-law scholar at Princeton University. “A great many lawyers in this country, on the right and the left, read the papers every day and are deeply concerned that the special-counsel process be allowed to continue, in order to uphold the principle that no one, not even the president, is above the law. The justices read the papers, too.”
Pearlstein also noted that Morrison hasn’t been overturned. “Whatever criticisms might have rightly been levied against the now-lapsed independent-counsel statute that the Morrison case upheld, the proposed bills currently under consideration are crafted carefully to avoid making the same mistakes,” she added.
The legislation still has a long way to go before hypothetically reaching the Supreme Court. First, it has to get out of the Senate: Majority Leader Mitch McConnell has vowed not to bring the bill to the floor, despite Grassley’s pledge to move it forward in committee. And Trump may yet decide that replaying the Saturday Night Massacre is too great a political risk. As Rosenzweig has written, given the layers of bureaucracy at the Justice Department, firing Mueller or the official overseeing him—Deputy Attorney General Rod Rosenstein—still might fail to end the Trump-related investigations. Mere discussion of the Mueller bill in Congress might also convince the president that the legislature could turn on him if he tries to fire the special counsel.
“Legally, it is not necessary,” Rosenzweig said, referring to the Mueller bill. “Its main value is political and demonstrative.”
Without the bill in place, however, the only hope for an immediate, robust response to Mueller’s dismissal would be Congress aggressively using its oversight power to investigate the White House. With Republicans in control of both chambers, that seems unlikely. The bipartisan appeal of the Mueller bill in the upper chamber may be precisely that it prevents Congress from having to do its job.