Civics: notes on governance, Lawfare and constitutional powers
Judge Cannon’s opinion shows that each Section of the U.S. Code, which Smith relied on, neither delegates to the Attorney General the power two create inferior offices, nor does it create the office of the Special Counsel. Her argument is irrefutable. I have yet to read a response to her opinion that is remotely as persuasive as the opinion itself.
Judge Cannon also discusses, but does not decide whether an office like the office of Special Counsel, if it existed, would be a Principle or Inferior Office for Appointments Clause purposes. Her discussion of that issue is good as any judicial opinion since one written by Justice David Souter concurring in Edmond v. United States, 520 U.S. 651 (1997).
In addition, Judge Cannon discusses what I think is a very serious Appropriations Power issue in the case. She quite rightly concludes that the Justice Department should lose on both grounds, but she correctly relies only on the Inferior Office Appointments Clause and the statutory arguments before her as deciding the case.