In his solo dissent, Justice Antonin Scalia warned that the majority’s decision had dangerous implications for the “equilibrium of power” established by the Constitution. He wrote that “[f]requently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing ... But this wolf comes as a wolf.” 

Scalia began by arguing the vesting of executive power “in a President of the United States” under Article II “does not mean some of the executive power, but all of the executive power.” Scalia explained that the independent counsel must be found unconstitutional if these two questions were answered affirmatively: “(1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?”  

On the first question, Scalia explained that the Court conceded that the functions performed by the independent counsel were executive, but qualified that concession by arguing that the functions are related to law enforcement and have typically been undertaken by officials within the Executive branch. In response, he wrote that “[t]he qualifier adds nothing but atmosphere. In what other sense can one identify ‘the executive Power’ that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere—if conducted by government at all—been conducted never by the legislature, never by the courts, and always by the executive.” Scalia ultimately found that “investigation and prosecution of crimes is a quintessentially executive function.”  

Regarding the second question, Scalia asserted that depriving the President of exclusive control over the executive activity “is indeed the whole object of the statute.” Scalia dismissed the Court’s argument that the President retains some control over the independent counsel through his Attorney General, writing that the “concession is alone enough to invalidate the statute.” He added that he “[could not] refrain from pointing out that the Court greatly exaggerates the extent of ... Presidential control.” The Court had reasoned that the Attorney General’s power to remove the counsel for “good cause” was significant, but Scalia responded that "[t]his is somewhat like referring to shackles as an effective means of locomotion.” 

Scalia concluded this analysis by noting that while the Court seemed to “concede an affirmative answer to both,” it “seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.” 

Scalia then illustrated the “utter incompatibility” of the Court’s approach by applying it to two examples involving the powers of the other branches. First, regarding the Legislative Branch, Scalia posited that “if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was ‘so central to the functioning of the Legislative Branch’ as really to require complete control, or whether the statute gives Congress ‘sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties’? Of course we would have none of that.”  

In a second example involving the Judicial Branch, Scalia wrote, “consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts ... Is there any doubt that we would not pause to inquire whether the matter was ‘so central to the functioning of the Judicial Branch’ as really to require complete control, or whether we retained ‘sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties’? We would say that our ‘constitutionally assigned duties’ include complete control over all exercises of the judicial power.” 

Scalia finished by asking, “[i]s it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue?” He responded to that proposition by pointing out that both the Legislative and Judicial branches have exclusive power over areas in which they have special interests (legislation and cases involving their power). However, he wrote, “[a] system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused ... While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” 

Scalia ultimately found that the Ethics Act deprived the President of substantial control over the independent counsel, which has a substantial affect on the balance of powers. He concluded by writing that the Court’s decision “demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today.”