Summary of Morrison v. Olson (1988)
Relevant Facts: The Ethics in Gov’t Act of 1978 in part created the office of “Independent Counsel,” which would be implemented to investigate and if appropriate prosecute certain high-ranking gov’t officials for violations of federal criminal laws. After being notified of a possible offense, AG has 90 days to decide whether to apply to the Circuit Court of D.C. for the appointment, which then appoints the prosecutor and defines their jurisdiction. Indep. Counsel proceeds until she reports it is “completed” or when the Circuit Court deems it as such.
DF Olson, then head of Department’s Office of Legal Counsel, was accused of providing misleading testimony to a congressional subcommittee. Indep. Counsel Alexia Morrison appointed to investigate. Olson moved to quash her subpoenas on the ground the above graph was unconstitutional. Court of Appeals agreed, this Court reverses.
Issue: Under constitutional law, is the Ethics in Government Act of 1978 invalidated by the Attorney General’s ability to apply to the Circuit Court of D.C. for appointment of “Independent Counsel” after AG’s investigation into the possibility of prosecuting certain high-ranking gov’t officials is warranted?
Holding: Yes. The Independent Counsel, is , in fact, an inferior officer of the executive department, and the judicial branch has not stepped on the executive toes in the implementation of this law.
Court’s Rationale/Reasoning: First off, there was no Appointments Clause violation. So is Morrison an inferior or principal officer, the latter of which makes the Act violative of the Appointments Clause. Morrison is was determined was inferior, as being subject to removal by Atty General for good cause, is empowered to perform only certain duties, and is otherwise to comply with policies of Justice Dep’t, and has limited tenure.
Congress can create some interbranch appointments of inferior officers, such as court-appointed commissioners, which had limited prosecutorial powers. It is understandable there might be some concern over the judiciary exerting too much power over the independent counsel, but since the Court of Appeals had no further say than appointing Counsel, there was no incongruity interbranch appointments.
The Court does not see the Special Division’s supervising of the Indep. counsel as a significant encroachment upon executive power or upon the prosecutorial discretion of the Indep. counsel, despite the fact that its supervision alone is not typical of traditional judicial powers. The duty of this Court is to construe the Statute narrowly, thus, their supervision over Indep. counsel is not to the extent that past legislation has undertaken, whereby powers from another branch are usurped; here the discretion to remove the appointee lies solely in the hands of the Atty General.
Neither does the “good cause” removal provision in the statute. The functions by the appointee are executive as those under a law enforcement provision. Even though Indep. counsel exercises a great deal of discretion and judgment, this Court does not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will be the President.
There is no judicial usurpation of properly executive functions either. There are no Federal hearings to remove officers, and the appointment of the Indep. counsel themselves is not an executive function, since Congress has vested that authority in the judicial. But the court cannot appoint special counsel themselves; the appointment must come from the Atty General, of the executive.
Last, there is no impeding on the powers of the executive branch in any way that is impermissible. It can be argued that the Atty General and the rest of the executive has no power over the nominee: they cannot appoint them, the President’s supervisory position in somewhat diminished, and does not determine counsel’s jurisdiction. However, Atty General may remove for good cause and the term specified is small.
Rule: Appointments clause portion at work here: “…but the Congress may by Law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Head of Departments.”
Important Dicta: The language of the “excepting clause” admits no limitation on interbranch appointments, but “congress has what the Court calls “as they think proper” gives it significant discretion to determine whether it is proper to vest the appointment of executive officials in the “courts of Law.”
Dissenting: (Justice Scalia): By application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President and the Legislative branch. If the following 2 questions are answered in the affirmative, then the present statute must be upheld on separation of powers doctrine:
(1) is the conduct of a criminal prosecution (and the preceding investigation whether or not to do so) the exercise of a purely executive power?
(2) does the statute deprive the President of the US of exclusive control over the exercise of that power?
The majority says “yes” to both, but it fails to understand that the statute itself vests some purely executive power in a person who is not the President of the US, which makes the statute void.
Scalia argues how much power taken away from the executive branch by the legislative and the judicial is enough, and contends there is a slippery slope which is being created. Also says special prosecutors are not inferior officers as they are not subordinate to the President.