Morrison v. Olson
487 U.S. 654 (1988)
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Rule of Law:
The Ethics in Government Act of 1978's independent counsel provisions, which vest the appointment of an executive officer in the judiciary and provide 'for cause' removal protection, do not violate the Appointments Clause or the separation of powers doctrine because they do not impermissibly interfere with the President’s constitutional functions.
Facts:
- Two House of Representatives Subcommittees investigating the Environmental Protection Agency (EPA) subpoenaed documents related to the enforcement of the 'Superfund Law.'
- Acting on the advice of Theodore Olson, then Assistant Attorney General, the President invoked executive privilege to withhold certain documents.
- In response, the House voted to hold the EPA Administrator in contempt, leading to a legal and political conflict that was resolved when the administration agreed to grant limited access to the documents.
- A year later, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy.
- During this investigation, Olson testified before a House Subcommittee on March 10, 1983.
- In 1985, the Judiciary Committee published a report suggesting Olson had given false and misleading testimony and that two other Justice Department officials, Schmults and Dinkins, had obstructed the investigation by withholding documents.
- The Chairman of the Judiciary Committee formally requested that the Attorney General seek the appointment of an independent counsel to investigate the allegations against Olson, Schmults, and Dinkins.
Procedural Posture:
- The Attorney General applied to the Special Division of the U.S. Court of Appeals for the D.C. Circuit for the appointment of an independent counsel to investigate Theodore Olson.
- The Special Division appointed Alexia Morrison as independent counsel.
- Morrison caused a grand jury to issue subpoenas to Olson, Schmults, and Dinkins.
- The officials (appellees) filed a motion to quash the subpoenas in the U.S. District Court for the District of Columbia (a federal trial court), arguing the independent counsel provisions of the Act were unconstitutional.
- The District Court denied the motion, upholding the Act's constitutionality.
- When the officials refused to comply, the District Court held them in contempt but stayed its order pending appeal.
- A divided panel of the U.S. Court of Appeals for the D.C. Circuit (an intermediate appellate court) reversed the District Court, finding the Act unconstitutional.
- Morrison (appellant) petitioned the U.S. Supreme Court for review.
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Issue:
Does the independent counsel provision of the Ethics in Government Act of 1978 violate the Appointments Clause, Article III, or the separation of powers doctrine by vesting appointment authority in a special court and providing the officer with 'for cause' removal protection?
Opinions:
Majority - Chief Justice Rehnquist
No, the Ethics in Government Act of 1978 is constitutional. The statute does not violate the Appointments Clause, Article III, or the separation of powers doctrine. First, under the Appointments Clause, the independent counsel is an 'inferior Officer,' not a 'principal' one, because her office is subject to removal by a higher executive official (the Attorney General), empowered to perform only limited duties, and is restricted in jurisdiction and tenure. The Constitution permits Congress to vest the appointment of inferior officers in the 'Courts of Law,' and there is no 'incongruity' in a court having the power to appoint a prosecutor, a role with which courts are familiar. Second, the powers vested in the Special Division do not violate Article III. The power to appoint is an enumerated power under the Appointments Clause, separate from Article III. The Division’s other powers—such as defining the counsel's jurisdiction and receiving reports—are incidental to the appointment power or are ministerial and do not constitute an unconstitutional encroachment on the Executive Branch. The power to terminate is narrowly construed as a housekeeping measure for when the counsel's work is complete, not a tool for supervision. Third, the 'good cause' restriction on the Attorney General's removal power does not violate separation of powers. The correct analysis is not a rigid classification of an officer's functions as 'purely executive,' but a functional test of whether the removal restriction impedes the President's ability to perform his constitutional duties. This Act retains sufficient Executive control through the Attorney General—who must request the appointment and can remove for misconduct—to ensure the President can 'take Care that the Laws be faithfully executed.' The Act as a whole does not represent a congressional or judicial usurpation of executive power but is a permissible scheme for ensuring impartiality in investigations of high-ranking officials.
Dissenting - Justice Scalia
Yes, the Act is unconstitutional. It violates the fundamental principle of separation of powers by divesting the President of exclusive control over a core executive function. The Constitution vests 'The executive Power'—all of it—in the President. Criminal prosecution is a quintessential executive function. This Act intentionally strips the President of control over the investigation and prosecution of high-level officials, giving that power to an unaccountable 'independent' counsel. The 'good cause' removal provision is a severe restriction, not a meaningful form of control; its very purpose is to make the counsel independent of the President. Furthermore, the independent counsel is a 'principal' officer, not an 'inferior' one, because she is not subordinate to any official within the Executive Branch. Her appointment by a court is therefore a violation of the Appointments Clause. The Court's ad hoc balancing test, which asks whether the President is left with 'sufficient' control, abandons the Constitution’s clear textual command and replaces it with a standardless judicial judgment. This statute creates a powerful, unaccountable mini-executive that threatens the constitutional balance of power and the fairness of the justice system for those it targets.
Analysis:
This decision established a flexible, functionalist approach to separation of powers, significantly departing from the rigid, formalist categories of executive power articulated in cases like Myers v. United States. By upholding the 'good cause' removal restriction for an officer performing a core executive function like prosecution, the Court validated the concept of independent agencies insulated from complete presidential control. This ruling legitimized the independent counsel statute for several decades and has had a lasting impact on administrative law and the ongoing debate over the 'unitary executive' theory, which posits that the President must have absolute control over the Executive Branch.
