Appellant
Alexia Morrison
Appellee
Theodore B. Olson, et al.
Appellant's Claim
That Title VI the Ethics in Government Act of 1978, which established a special court and authorized the attorney general of the United States to recommend that the court appoint an independent counsel to investigate wrongdoing byfederal officials, was not in violation of the Appointments Clause, or the principle of separation of powers, in the Constitution.
Chief Lawyer for Appellant
Alexia Morrison (pro se)
Chief Lawyer for Appellee
Thomas S. Martin
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), John Paul Stevens, ByronR. White
Justices Dissenting
Antonin Scalia (Anthony M. Kennedy did not participate)
Place
Washington, D.C.
Date of Decision
27 June 1988
Decision
That the Ethics in Government Act did not violate the Appointments Clause inArticle II, the limitations on judicial duties in Article III, or the principle of separation of powers; accordingly, the judgment of the lower court wasreversed.
Significance
The independent counsel statute had been a volatile issue in government eversince its passage in the wake of the Watergate scandal. In that instance, prominent officials in the administration of President Richard M. Nixon were charged with wrongdoing connected with a break-in at Democratic party offices prior to the 1972 presidential election. Title VI of the Ethics in Government Act, providing for a special counsel to be appointed by the attorney general of the United States in order to investigate such matters that arose in the future, was adopted in 1978. In the eyes of many, its passage violated the principle of separation of powers embodied in the Constitution by creating a judicial office with wide authority in the sector of government normally reservedfor the executive branch. Morrison v. Olson tested this contention.
The Creation of the Independent Counsel
The Watergate scandal began with a break-in at offices belonging to the Democratic party in Washington's Watergate Hotel during the summer of 1972. By thetime it ended with the resignation of President Richard M. Nixon in August of 1974, the foundations of the federal government had been shaken by a seriesof cover-ups, investigations, and controversies that pitted the executive, legislative, and judicial branches against one another. One particularly thorny conflict had been the antagonistic relationship between the executive branch and the special counsel appointed to investigate the president and others.In 1978, Congress passed the Ethics in Government Act, Title VI of which provided for the appointment of an "independent counsel" whose job it would be toprosecute high-level officials for violation of federal criminal laws. Legislators hoped that the creation of the independent counsel would remedy the problems experienced by the special prosecutor, because the new office would have greater powers and independence.
Under Title VI, if the attorney general received information he considered "sufficient to constitute grounds to investigate whether any person [covered bythe Act] may have violated any Federal criminal law," he was authorized to conduct a preliminary investigation. Upon completion of this investigation, orat the end of 90 days, the attorney general would then report to a court called the Special Division, which had also been created by the act. If the attorney general had determined that there were "reasonable grounds to believe the further investigation or prosecution [was] warranted," he would ask the Special Division to appoint an independent counsel.
Under the act, the counsel had "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of theDepartment of Justice." The counsel's duties would include conducting investigations and grand jury proceedings, participating in the proceedings and litigation of civil and criminal courts, and appealing decisions by those courts.His or her powers would include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing information, and handling all aspects of any case, in the name of the United States." In addition, the counsel could appoint employees, request and receiveassistance from the Department of Justice, accept referrals from the attorney general, and dismiss matters if he or she deemed them unworthy of investigation.
These were broad powers, resulting in an office which combined functions of an investigator with that of a prosecutor, and the term "independent" in the title seemed to suggest an even wider range of authority. The counsel could only be removed under two situations: if the attorney general requested such removal, and then "only for good cause"; or if the office itself was terminated, either because the counsel said his or her work was finished, or because the Special Division deemed the investigation concluded. Congress provided additional oversight, since the act required the counsel to report to it from time to time. Congress could also ask the attorney general to appoint an independent counsel to investigate a situation it considered worthy of attention, and though the attorney general was not compelled to do so, he or she was required to at least respond to the request.
"How the Act Works in Practice"
The situation which occasioned Morrison v. Olson, Chief Justice Rehnquist would later write in his majority opinion for the Supreme Court, "provide[s] an example of how the Act works in practice." In 1982, two House subcommittees issued subpoenas requiring the Environmental Protection Agency (EPA) tohand over documents relating to the enforcement of the so-called "SuperfundLaw," the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. President Ronald Reagan, acting on the advice of U.S. Attorney General William French Smith, directed the EPA Administrator to invoke executive privilege--that is, to inform Congress that the EPA would not surrender thedocuments because to do so would impair its functioning as an office of theexecutive branch charged to deal with specific and sensitive matters. The administrator did so, and the House voted to hold him in contempt. The administrator then filed a lawsuit against the House; but when the Reagan administration agreed to give the House subcommittees limited access to the documents inMarch of 1983, the matter seemed to be concluded.
In 1984, however, the House Judiciary Committee began an investigation into the Justice Department's handling of the situation. Among those called to testify was Theodore Olson, who had been assistant attorney general for the Office of Legal Counsel (OLC) at the time of the executive privilege order. Duringthe Judiciary Committee investigation, the Justice Department withheld certain documents from Congress. When the committee published its report in 1985,it suggested that Olson had given false testimony on 10 March 1983, and further charged that Deputy Attorney General Edward Schmults and Carol E. Dinkins,assistant attorney general for the Land and Natural Resources Division, hadobstructed the committee's investigation by withholding documents. At that time, the Judiciary Committee chairman requested that the attorney general appoint an independent counsel to investigate Olson, Schmults, and Dinkins.
After going through the procedure outlined in the act, the Special Division appointed James McKay as independent counsel to investigate Olson only, but McKay later resigned, and in his place the Special Division appointed Alexia Morrison on 29 May 1986. The following January, Morrison asked the attorney general (Edwin Meese III had been appointed in 1985) for authority to investigate Schmults and Dinkins as well, and was denied. She then asked the Special Division for such permission, but after consideration of the matter, the Special Division ruled that the attorney general's refusal was final. Nonetheless,Morrison was given authority to investigate whether Olson had conspired withothers--including Schmults and Dinkins--to obstruct the investigation.
When, under Morrison's direction, a grand jury in May and June of 1987 issuedsubpoenas to Olson, Schmults, and Dinkins, the three moved to have the subpoenas quashed on the grounds that the act's creation of the independent counsel office was unconstitutional. A district court denied the motion on 20 July1987, and upheld the constitutionality of the act. It also ordered that the appellees be held in contempt for refusing to comply with the subpoenas, but stayed the contempt orders pending expedited appeal.
On appeal, the lower court's ruling was reversed, as the court of appeals' majority held that the independent counsel was not an "inferior officer." The latter was a reference to the Appointments Clause in Article I, Section 2, Clause 2 of the Constitution, which states that "the Congress may by law vest the appointments of such inferior Officers, as they think proper . . . in the Heads of Departments." In this case, of course, the department head would be the attorney general; but the court held that the independent counsel was a "principal officer," who under the Appointments Clause must be appointed by thepresident and confirmed by the Senate--as is the case, for instance, with aCabinet official. Also, the court found in the act violations of a number ofother constitutional principles, including limitations placed on the judiciary in Article III, and the principle of separation of powers.
When the case came before the U.S. Supreme Court, Morrison argued it herself,with Michael Davidson for the Senate arguing as amicus curiae. Otherentities filed briefs of amici curiae urging reversal, including the American Bar Association, Common Cause (represented by Archibald Cox, specialprosecutor in Watergate), the Center for Constitutional Rights, Public Citizen, and Burton D. Linne et al. Noted attorney Laurence H. Tribe also filed a brief on behalf of Lawrence E. Walsh, independent counsel in the investigationof the Iran-Contra scandal involving illegal arms sales by the Reagan administration. Briefs, presumably urging reversal, were also filed by the Speakerand Leadership Group of the House of Representatives and the American Federation of Labor and Congress of Industrial Organizations (AFL/CIO). For WhitneyNorth Seymour, Jr., U.S. Solicitor General Fried argued the case as amicuscuriae in support of the appellees, and briefs of amici curiae urging affirmance were filed by Michael Deaver of the Reagan administration andEdward H. Levi, attorney general under the Ford administration.
An "Inferior" Officer
The Court voted 7-1 (newly appointed Justice Anthony M. Kennedy took no partin the decision) to reverse the ruling of the court of appeals. Chief JusticeRehnquist, writing for the Court, first dismissed a question concerning whether the constitutional issues could be addressed under the specific circumstances of the case, then turned to the heart of the matter. He addressed in turn the three principal constitutional concerns raised by the court of appealsrelating to the Appointments Clause, the limitations of powers under ArticleIII, and the separation of powers principle.
The power of the Special Division to appoint the independent counsel, the Court held, did not violate the Appointments Clause. The Court judged the counsel an "inferior" officer (which, in accordance with the clause, may be appointed by Congress) because even though her role made her by definition "independent" from the attorney general, the latter still had power to remove her fromoffice. This, the Chief Justice wrote, "indicates that she is to some degree`inferior' in rank and authority." The act only empowered her to perform specific duties, and then only when the Special Division had commissioned her todo so at the request of the attorney general. Furthermore, her office was temporary in its functioning, another sign of its apparently "inferior" power.
The appellees had argued, however, that even if she was an "inferior" officer, the clause did not give Congress the power to make "interbranch" appointments--that is, to appoint such an officer outside the executive branch. But theCourt held that the clause gave Congress "significant discretion" to make the appointment within the judicial branch. This was particularly so, the ChiefJustice added, because an investigation of the executive branch by a memberof that branch might create a conflict of interest--i.e., an appointee of thepresident might feel certain loyalties to him, and might thus be hindered inprosecuting him effectively.
As for Article III, which prevents the judiciary branch from undertaking executive or administrative duties of a non-judicial nature, Rehnquist held that
Lastly, the Court addressed the issue of separation of powers, the principlewhereby none of the three branches of government may encroach on the authority vested in another branch. Rather than permitting Congress to remove officials from the executive branch outside of "its established powers of impeachment and conviction," the act "puts the removal power squarely in the hands of the Executive Branch" by giving the attorney general full oversight of the counsel. Simply because the removal could only be for a "good cause" did not mean that Congress intended to use that language to exercise undue authority over the attorney general; rather, that phrase helped to ensure that the independent counsel could and would remain independent. Nor, the Court held, did thecase "involve an attempt by Congress to increase its powers at the expense of the Executive Branch." Though the attorney general was required to respondto a request by Congress for the appointment of an independent counsel, he was not required to then make that appointment. "Other than that," the Chief Justice wrote, "Congress' role under the Act is limited to receiving reports orother information and to oversight of the independent counsel's activities .. . " In conclusion, the Court held that the act gave the executive branch asufficient degree of authority over the independent counsel "to ensure thatthe President is able to perform his constitutionally assigned duties."
Dissent: A Suit About Power
Justice Scalia, the Court's lone dissenter, began his dissenting opinion by referring to the oft-quoted phrase "a government of laws and not of men," which originated from the Massachusetts Constitution of 1780--in a clause delineating the separation of powers doctrine. The framers of the Constitution knewwhat they were doing, Scalia indicated, when they incorporated the separationprinciple into their own document, and it was designed to address situationssuch as the one presently before the Court. "This is what this suit is about," Scalia wrote. "Power." Sometimes attempts to circumvent the separation ofpowers came to the Court "clad, so to speak, in sheep's clothing," with theirintent hidden; "[b]ut this wolf comes as a wolf."
Scalia then proceeded to trace the history of the case, portraying it as a battle of wills principally between the president and Congress--a situation, that is, of men and not of laws. The present case addressed two questions: "Isthe conduct of a criminal prosecution . . . the exercise of purely executivepower?" and "Does the statute deprive the President of the United States of exclusive control over the exercise of that power?" The Court had "[s]urprisingly" answered in the affirmative to both questions, but had skirted what Scalia held was "the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United Statesit is void." It did not matter whether the statute in question reduced the president's power only slightly; that it did so at all meant that it violated the separations doctrine. As for the Court's claim that a member of the executive branch could not investigate that branch, Scalia asked,
Scalia addressed the Court's holding that the independent counsel was an "inferior officer," and observed, "The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small." In other words, an ambassador is an ambassador, whether he is appointed to the embassyof a superpower or a tiny nation such as Luxembourg; similarly, an independent counsel is not necessarily an "inferior officer" simply because the scope of her oversight is "small (though far from unimportant)."
Scalia then discussed the limitations of Article III, and noted that the Court's decision in the present case invalidated Humphrey's Executor v. UnitedStates (1935). The latter ruling, Scalia observed, had been made by a Court "bent on reducing the power of President Franklin Roosevelt." Given its overtly political purpose, "One can hardly grieve the shoddy treatment given today to Humphrey's Executor . . . But one must grieve for the Constitution." The present ruling would allow too much leeway to an independent counsel, Scalia held, and while he pointed out that he cast no aspersions on the character of Morrison or the other individuals involved, he was concerned about the broad powers accorded to them by the act. Most of all, however, he wasconcerned that the act- -and the Court's ruling--removed executive power fromthe place where such power belonged: in the executive branch.
Impact
Morrison v. Olson was seen as a victory for Congress. One of the immediate effects of the decision was that it upheld the conviction by independentcounsel of two of President Reagan's former White House aides. It gave strength to the investigation then being conducted by independent counsel Walsh regarding the Iran-Contra scandal, which extended past Reagan's term and throughout that of his successor, George Bush. Though the Court approached its ruling from the viewpoint of law and not politics--indeed, the man appointed by Reagan to sit in the Chief Justice's seat delivered the opinion--the politicalimplications of the case could not be ignored. In Watergate and Iran-Contra,the special counsel, and later the independent counsel provisions, had beenused by a Democratic Congress against a Republican president. Later, with theappointment of independent counsel Kenneth Starr to investigate alleged wrongdoing by President Bill Clinton in the Whitewater land deal and the Lewinskysex scandal, it would be seen as a tool wielded by a Republican Congress against a Democratic president. To some, the independent counsel provision seemed a necessary if unpleasant provision to maintain the balance of power in thefederal government; to others it appeared that, like Dr. Frankenstein in Mary Shelley's famous horror story, Congress had created a monster.
Related Cases
The Ethics in Government Act
In the wake of Watergate and other scandals that plagued the legislative andexecutive branches of government in the 1970s, Congress passed the Ethics inGovernment Act in October of 1978. Among the act's many provisions was a requirement that federal officials provide detailed disclosure regarding their financial dealings. The act further circumscribed the activities of former federal officials lobbying with agencies for whom they had worked. In addition, that act established an Office of Government Ethics to implement provisions regarding financial disclosure and potential conflicts of interest on the partof the executive branch. The most notable of the act's provisions was its establishment of a special prosecutor, renamed an independent counsel in 1983, to investigate the activities of high officials within the executive branch. It was this force that was brought to bear against the Reagan and Bush administrations in the person of Lawrence Walsh, Iran-Contra independent counsel, and later against the Clinton administration with Whitewater independent counsel Kenneth Starr. Detractors of the independent counsel provision have arguedthat it is being used as a political weapon.
Sources
Bacon, Donald C., et al., eds. The Encyclopedia of the United States Congress New York: Simon & Schuster, 1995.
Alexia Morrison
Appellee
Theodore B. Olson, et al.
Appellant's Claim
That Title VI the Ethics in Government Act of 1978, which established a special court and authorized the attorney general of the United States to recommend that the court appoint an independent counsel to investigate wrongdoing byfederal officials, was not in violation of the Appointments Clause, or the principle of separation of powers, in the Constitution.
Chief Lawyer for Appellant
Alexia Morrison (pro se)
Chief Lawyer for Appellee
Thomas S. Martin
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), John Paul Stevens, ByronR. White
Justices Dissenting
Antonin Scalia (Anthony M. Kennedy did not participate)
Place
Washington, D.C.
Date of Decision
27 June 1988
Decision
That the Ethics in Government Act did not violate the Appointments Clause inArticle II, the limitations on judicial duties in Article III, or the principle of separation of powers; accordingly, the judgment of the lower court wasreversed.
Significance
The independent counsel statute had been a volatile issue in government eversince its passage in the wake of the Watergate scandal. In that instance, prominent officials in the administration of President Richard M. Nixon were charged with wrongdoing connected with a break-in at Democratic party offices prior to the 1972 presidential election. Title VI of the Ethics in Government Act, providing for a special counsel to be appointed by the attorney general of the United States in order to investigate such matters that arose in the future, was adopted in 1978. In the eyes of many, its passage violated the principle of separation of powers embodied in the Constitution by creating a judicial office with wide authority in the sector of government normally reservedfor the executive branch. Morrison v. Olson tested this contention.
The Creation of the Independent Counsel
The Watergate scandal began with a break-in at offices belonging to the Democratic party in Washington's Watergate Hotel during the summer of 1972. By thetime it ended with the resignation of President Richard M. Nixon in August of 1974, the foundations of the federal government had been shaken by a seriesof cover-ups, investigations, and controversies that pitted the executive, legislative, and judicial branches against one another. One particularly thorny conflict had been the antagonistic relationship between the executive branch and the special counsel appointed to investigate the president and others.In 1978, Congress passed the Ethics in Government Act, Title VI of which provided for the appointment of an "independent counsel" whose job it would be toprosecute high-level officials for violation of federal criminal laws. Legislators hoped that the creation of the independent counsel would remedy the problems experienced by the special prosecutor, because the new office would have greater powers and independence.
Under Title VI, if the attorney general received information he considered "sufficient to constitute grounds to investigate whether any person [covered bythe Act] may have violated any Federal criminal law," he was authorized to conduct a preliminary investigation. Upon completion of this investigation, orat the end of 90 days, the attorney general would then report to a court called the Special Division, which had also been created by the act. If the attorney general had determined that there were "reasonable grounds to believe the further investigation or prosecution [was] warranted," he would ask the Special Division to appoint an independent counsel.
Under the act, the counsel had "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of theDepartment of Justice." The counsel's duties would include conducting investigations and grand jury proceedings, participating in the proceedings and litigation of civil and criminal courts, and appealing decisions by those courts.His or her powers would include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing information, and handling all aspects of any case, in the name of the United States." In addition, the counsel could appoint employees, request and receiveassistance from the Department of Justice, accept referrals from the attorney general, and dismiss matters if he or she deemed them unworthy of investigation.
These were broad powers, resulting in an office which combined functions of an investigator with that of a prosecutor, and the term "independent" in the title seemed to suggest an even wider range of authority. The counsel could only be removed under two situations: if the attorney general requested such removal, and then "only for good cause"; or if the office itself was terminated, either because the counsel said his or her work was finished, or because the Special Division deemed the investigation concluded. Congress provided additional oversight, since the act required the counsel to report to it from time to time. Congress could also ask the attorney general to appoint an independent counsel to investigate a situation it considered worthy of attention, and though the attorney general was not compelled to do so, he or she was required to at least respond to the request.
"How the Act Works in Practice"
The situation which occasioned Morrison v. Olson, Chief Justice Rehnquist would later write in his majority opinion for the Supreme Court, "provide[s] an example of how the Act works in practice." In 1982, two House subcommittees issued subpoenas requiring the Environmental Protection Agency (EPA) tohand over documents relating to the enforcement of the so-called "SuperfundLaw," the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. President Ronald Reagan, acting on the advice of U.S. Attorney General William French Smith, directed the EPA Administrator to invoke executive privilege--that is, to inform Congress that the EPA would not surrender thedocuments because to do so would impair its functioning as an office of theexecutive branch charged to deal with specific and sensitive matters. The administrator did so, and the House voted to hold him in contempt. The administrator then filed a lawsuit against the House; but when the Reagan administration agreed to give the House subcommittees limited access to the documents inMarch of 1983, the matter seemed to be concluded.
In 1984, however, the House Judiciary Committee began an investigation into the Justice Department's handling of the situation. Among those called to testify was Theodore Olson, who had been assistant attorney general for the Office of Legal Counsel (OLC) at the time of the executive privilege order. Duringthe Judiciary Committee investigation, the Justice Department withheld certain documents from Congress. When the committee published its report in 1985,it suggested that Olson had given false testimony on 10 March 1983, and further charged that Deputy Attorney General Edward Schmults and Carol E. Dinkins,assistant attorney general for the Land and Natural Resources Division, hadobstructed the committee's investigation by withholding documents. At that time, the Judiciary Committee chairman requested that the attorney general appoint an independent counsel to investigate Olson, Schmults, and Dinkins.
After going through the procedure outlined in the act, the Special Division appointed James McKay as independent counsel to investigate Olson only, but McKay later resigned, and in his place the Special Division appointed Alexia Morrison on 29 May 1986. The following January, Morrison asked the attorney general (Edwin Meese III had been appointed in 1985) for authority to investigate Schmults and Dinkins as well, and was denied. She then asked the Special Division for such permission, but after consideration of the matter, the Special Division ruled that the attorney general's refusal was final. Nonetheless,Morrison was given authority to investigate whether Olson had conspired withothers--including Schmults and Dinkins--to obstruct the investigation.
When, under Morrison's direction, a grand jury in May and June of 1987 issuedsubpoenas to Olson, Schmults, and Dinkins, the three moved to have the subpoenas quashed on the grounds that the act's creation of the independent counsel office was unconstitutional. A district court denied the motion on 20 July1987, and upheld the constitutionality of the act. It also ordered that the appellees be held in contempt for refusing to comply with the subpoenas, but stayed the contempt orders pending expedited appeal.
On appeal, the lower court's ruling was reversed, as the court of appeals' majority held that the independent counsel was not an "inferior officer." The latter was a reference to the Appointments Clause in Article I, Section 2, Clause 2 of the Constitution, which states that "the Congress may by law vest the appointments of such inferior Officers, as they think proper . . . in the Heads of Departments." In this case, of course, the department head would be the attorney general; but the court held that the independent counsel was a "principal officer," who under the Appointments Clause must be appointed by thepresident and confirmed by the Senate--as is the case, for instance, with aCabinet official. Also, the court found in the act violations of a number ofother constitutional principles, including limitations placed on the judiciary in Article III, and the principle of separation of powers.
When the case came before the U.S. Supreme Court, Morrison argued it herself,with Michael Davidson for the Senate arguing as amicus curiae. Otherentities filed briefs of amici curiae urging reversal, including the American Bar Association, Common Cause (represented by Archibald Cox, specialprosecutor in Watergate), the Center for Constitutional Rights, Public Citizen, and Burton D. Linne et al. Noted attorney Laurence H. Tribe also filed a brief on behalf of Lawrence E. Walsh, independent counsel in the investigationof the Iran-Contra scandal involving illegal arms sales by the Reagan administration. Briefs, presumably urging reversal, were also filed by the Speakerand Leadership Group of the House of Representatives and the American Federation of Labor and Congress of Industrial Organizations (AFL/CIO). For WhitneyNorth Seymour, Jr., U.S. Solicitor General Fried argued the case as amicuscuriae in support of the appellees, and briefs of amici curiae urging affirmance were filed by Michael Deaver of the Reagan administration andEdward H. Levi, attorney general under the Ford administration.
An "Inferior" Officer
The Court voted 7-1 (newly appointed Justice Anthony M. Kennedy took no partin the decision) to reverse the ruling of the court of appeals. Chief JusticeRehnquist, writing for the Court, first dismissed a question concerning whether the constitutional issues could be addressed under the specific circumstances of the case, then turned to the heart of the matter. He addressed in turn the three principal constitutional concerns raised by the court of appealsrelating to the Appointments Clause, the limitations of powers under ArticleIII, and the separation of powers principle.
The power of the Special Division to appoint the independent counsel, the Court held, did not violate the Appointments Clause. The Court judged the counsel an "inferior" officer (which, in accordance with the clause, may be appointed by Congress) because even though her role made her by definition "independent" from the attorney general, the latter still had power to remove her fromoffice. This, the Chief Justice wrote, "indicates that she is to some degree`inferior' in rank and authority." The act only empowered her to perform specific duties, and then only when the Special Division had commissioned her todo so at the request of the attorney general. Furthermore, her office was temporary in its functioning, another sign of its apparently "inferior" power.
The appellees had argued, however, that even if she was an "inferior" officer, the clause did not give Congress the power to make "interbranch" appointments--that is, to appoint such an officer outside the executive branch. But theCourt held that the clause gave Congress "significant discretion" to make the appointment within the judicial branch. This was particularly so, the ChiefJustice added, because an investigation of the executive branch by a memberof that branch might create a conflict of interest--i.e., an appointee of thepresident might feel certain loyalties to him, and might thus be hindered inprosecuting him effectively.
As for Article III, which prevents the judiciary branch from undertaking executive or administrative duties of a non-judicial nature, Rehnquist held that
There can be no Article III objection to the Special Division's exercise of the power . . . to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicialaction that is independent of Article III.Congress had createdthe temporary office of the counsel, and it was constitutional for it to allow the Special Division power to define the scope of the counsel's duties--aslong as those were "demonstrably related to the factual circumstances" thatcaused the investigation in the first place. The Special Division's "miscellaneous" powers, such as its authorization to "`receive' (but not to act on orspecifically approve)" reports from the counsel or the attorney general, didnot constitute an invasion of the executive branch's authority. The Special Division's power to terminate the independent counsel's office was not "administrative" to the extent that it would constitute an Article III violation because the act did not give the Special Division "anything approaching" the termination power vested in the attorney general. Nor was the Special Division authorized to approve or disapprove actions either by the counsel or the attorney general.
Lastly, the Court addressed the issue of separation of powers, the principlewhereby none of the three branches of government may encroach on the authority vested in another branch. Rather than permitting Congress to remove officials from the executive branch outside of "its established powers of impeachment and conviction," the act "puts the removal power squarely in the hands of the Executive Branch" by giving the attorney general full oversight of the counsel. Simply because the removal could only be for a "good cause" did not mean that Congress intended to use that language to exercise undue authority over the attorney general; rather, that phrase helped to ensure that the independent counsel could and would remain independent. Nor, the Court held, did thecase "involve an attempt by Congress to increase its powers at the expense of the Executive Branch." Though the attorney general was required to respondto a request by Congress for the appointment of an independent counsel, he was not required to then make that appointment. "Other than that," the Chief Justice wrote, "Congress' role under the Act is limited to receiving reports orother information and to oversight of the independent counsel's activities .. . " In conclusion, the Court held that the act gave the executive branch asufficient degree of authority over the independent counsel "to ensure thatthe President is able to perform his constitutionally assigned duties."
Dissent: A Suit About Power
Justice Scalia, the Court's lone dissenter, began his dissenting opinion by referring to the oft-quoted phrase "a government of laws and not of men," which originated from the Massachusetts Constitution of 1780--in a clause delineating the separation of powers doctrine. The framers of the Constitution knewwhat they were doing, Scalia indicated, when they incorporated the separationprinciple into their own document, and it was designed to address situationssuch as the one presently before the Court. "This is what this suit is about," Scalia wrote. "Power." Sometimes attempts to circumvent the separation ofpowers came to the Court "clad, so to speak, in sheep's clothing," with theirintent hidden; "[b]ut this wolf comes as a wolf."
Scalia then proceeded to trace the history of the case, portraying it as a battle of wills principally between the president and Congress--a situation, that is, of men and not of laws. The present case addressed two questions: "Isthe conduct of a criminal prosecution . . . the exercise of purely executivepower?" and "Does the statute deprive the President of the United States of exclusive control over the exercise of that power?" The Court had "[s]urprisingly" answered in the affirmative to both questions, but had skirted what Scalia held was "the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United Statesit is void." It did not matter whether the statute in question reduced the president's power only slightly; that it did so at all meant that it violated the separations doctrine. As for the Court's claim that a member of the executive branch could not investigate that branch, Scalia asked,
Is itunthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what isat issue is its own exemption from the burdens of certain laws.He referred to the Civil Rights Act of 1964, which forbids discrimination inemployment-- but exempts Congress, which passed the act, from its provisions.
Scalia addressed the Court's holding that the independent counsel was an "inferior officer," and observed, "The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small." In other words, an ambassador is an ambassador, whether he is appointed to the embassyof a superpower or a tiny nation such as Luxembourg; similarly, an independent counsel is not necessarily an "inferior officer" simply because the scope of her oversight is "small (though far from unimportant)."
Scalia then discussed the limitations of Article III, and noted that the Court's decision in the present case invalidated Humphrey's Executor v. UnitedStates (1935). The latter ruling, Scalia observed, had been made by a Court "bent on reducing the power of President Franklin Roosevelt." Given its overtly political purpose, "One can hardly grieve the shoddy treatment given today to Humphrey's Executor . . . But one must grieve for the Constitution." The present ruling would allow too much leeway to an independent counsel, Scalia held, and while he pointed out that he cast no aspersions on the character of Morrison or the other individuals involved, he was concerned about the broad powers accorded to them by the act. Most of all, however, he wasconcerned that the act- -and the Court's ruling--removed executive power fromthe place where such power belonged: in the executive branch.
Impact
Morrison v. Olson was seen as a victory for Congress. One of the immediate effects of the decision was that it upheld the conviction by independentcounsel of two of President Reagan's former White House aides. It gave strength to the investigation then being conducted by independent counsel Walsh regarding the Iran-Contra scandal, which extended past Reagan's term and throughout that of his successor, George Bush. Though the Court approached its ruling from the viewpoint of law and not politics--indeed, the man appointed by Reagan to sit in the Chief Justice's seat delivered the opinion--the politicalimplications of the case could not be ignored. In Watergate and Iran-Contra,the special counsel, and later the independent counsel provisions, had beenused by a Democratic Congress against a Republican president. Later, with theappointment of independent counsel Kenneth Starr to investigate alleged wrongdoing by President Bill Clinton in the Whitewater land deal and the Lewinskysex scandal, it would be seen as a tool wielded by a Republican Congress against a Democratic president. To some, the independent counsel provision seemed a necessary if unpleasant provision to maintain the balance of power in thefederal government; to others it appeared that, like Dr. Frankenstein in Mary Shelley's famous horror story, Congress had created a monster.
Related Cases
- Myers v. United States, 272 U.S. 52 (1926).
- Wiener v. United States, 357 U.S. 349 (1958).
- United States v. Nixon, 418 U.S. 683 (1974).
- Buckley v. Valeo, 424 U.S. 1 (1976).
- Mistretta v. United States, 488 U.S. 361 (1989).
- Clinton v. Jones, 520 U.S. 681 (1997).
The Ethics in Government Act
In the wake of Watergate and other scandals that plagued the legislative andexecutive branches of government in the 1970s, Congress passed the Ethics inGovernment Act in October of 1978. Among the act's many provisions was a requirement that federal officials provide detailed disclosure regarding their financial dealings. The act further circumscribed the activities of former federal officials lobbying with agencies for whom they had worked. In addition, that act established an Office of Government Ethics to implement provisions regarding financial disclosure and potential conflicts of interest on the partof the executive branch. The most notable of the act's provisions was its establishment of a special prosecutor, renamed an independent counsel in 1983, to investigate the activities of high officials within the executive branch. It was this force that was brought to bear against the Reagan and Bush administrations in the person of Lawrence Walsh, Iran-Contra independent counsel, and later against the Clinton administration with Whitewater independent counsel Kenneth Starr. Detractors of the independent counsel provision have arguedthat it is being used as a political weapon.
Sources
Bacon, Donald C., et al., eds. The Encyclopedia of the United States Congress New York: Simon & Schuster, 1995.
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