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In re Sealed Case

    Brief Fact Summary.

    Government officials being investigated by an independent counsel under the Ethics in Government Act of 1978 challenged the Act as unconstitutional.

    Synopsis of Rule of Law.

    The Ethics in Government Act violates the Appointments Clause, rendering it unconstitutional.

    Facts.

    A dispute between the executive and legislative branches over document production resulted in a criminal investigation. Under the Ethics in Government Act of 1978, 28 U.S.C.S. §§ 591-598, at the request of the Attorney General, the Special Court appointed an independent counsel to investigate whether the actions of three former government officials, including a federal Assistant Attorney General, violated federal criminal law. The officials being investigated argued that the Act was unconstitutional and challenged the independent counsel’s ability to issue subpoenas compelling the officials to testify before a grand jury concerning their actions taken in their government capacities. The court of appeals granted review.

    Issue.

    Does the Ethics in Government Act violate the Appointments Clause?

    Held.

    (Silberman, J.) Yes. The Ethics in Government Act violates the Appointments Clause, rendering it unconstitutional. The first issue is whether the independent counsel would be considered an inferior officer. Under the Appointments Clause, inferior officers do not need to be appointed by the President and consented to by the Senate. An inferior officer is one who is subordinate to a principal officer. The independent counsel has the power to decide whether an investigation should continue, decides whether a prosecution should be brought, and has authority over the investigation for as long as the investigation lasts. Because the authority of the independent officer is so broad, she should be considered a principal officer and not an aide or subordinate of the head of a department. Therefore, her appointment by the Special Court is unconstitutional. Even if she was an inferior officer, the appellants argue that the Act is still unconstitutional because it interferes with the President’s executory duties. We agree. The Act gives a court the authority to appoint the independent counsel. This appointment is inconsistent with the constitutional grant of executive power to the President. A law that places the power to appoint an officer to prosecute criminal law in a branch other than the executive obstructs the President’s ability to execute the law. In Buckley v. Valeo, 424 U.S. 1 (1976), a statute allowing Congress to appoint members of the Federal Election Commission was declared unconstitutional because it gave the legislative branch the authority to appoint executive officers. The Commissioners exercised executive power because they could bring civil actions against violators of the election laws. Here, the independent counsel argues that the Appointments Clause allows for Congress to grant courts the power to appoint inferior officers. We do not believe that the clause intended to allow an officer of one branch of the government to appoint an officer of another who is assigned a central duty to the constitutional role of that other branch. Further, the Act violates the separation of powers doctrine by limiting the President’s ability to remove or supervise the independent counsel. Additionally, the Act gives an Article III court non-Article III powers. Close association between an Article III court and a prosecutorial office undermines the status of the judiciary as a neutral arbiter of disputes between the government and its citizens.

    Discussion.

    The Supreme Court addressed this case in Morrison v. Olson, 487 U.S. 654 (1988), revisiting the issue of whether an independent counsel is an inferior officer. In Edmond v. United States, 520 U.S. 651 (1997), the Court took up the issue of whether Congress was authorized to allow the Secretary of Transportation to appoint civilian members to the Coast Guard Court of Criminal Appeals under the Appointments Clause.


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