So Justice Scalia thinks now. But Stanford Law prof. Pam Karlan, working on her greatly anticipated forward to the Harvard Law Review?s Supreme Court Term issue, noted to me that Justice Scalia took a different approach in his truly classic 1998 dissent in Morrison v. Olson. Back then, he argued that ?law enforcement functions? have ?always and everywhere? been an exercise of executive power; that ?the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted? involves ?the balancing of various legal, practical, and political considerations, none of which is absolute?; and that ?[t]o take this away is to remove the core of the prosecutorial function, and not merely ?some? Presidential control.?
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