Morrison v. Olson

The Court voted 7-1 (newly appointed Justice Anthony M. Kennedy took no part in the decision) to reverse the ruling of the court of appeals. Chief Justice Rehnquist, 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 appeals relating to the Appointments Clause, the limitations of powers under Article III, 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 from office. 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 to do 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 the Court held that the clause gave Congress "significant discretion" to make the appointment within the judicial branch. This was particularly so, the Chief Justice added, because an investigation of the executive branch by a member of that branch might create a conflict of interest--i.e., an appointee of the president might feel certain loyalties to him, and might thus be hindered in prosecuting 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 judicial action that is independent of Article III.

Congress had created the 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--as long as those were "demonstrably related to the factual circumstances" that caused the investigation in the first place. The Special Division's "miscellaneous" powers, such as its authorization to "`receive' (but not to act on or specifically approve)" reports from the counsel or the attorney general, did not 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 principle whereby 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 the case "involve an attempt by Congress to increase its powers at the expense of the Executive Branch." Though the attorney general was required to respond to 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 or other information and to oversight of the independent counsel's activities . . . " In conclusion, the Court held that the act gave the executive branch a sufficient degree of authority over the independent counsel "to ensure that the President is able to perform his constitutionally assigned duties."