Brief Fact Summary. At issue was Title IV of the Ethics in Government Act which allowed for the appointment of “independent counsel” to investigate and prosecute high-ranking government officials for violating federal criminal laws.
Synopsis of Rule of Law. The judicial branch can appoint independent counsel because Congress granted this authority under the statute. Congress could also place removal restrictions upon independent council, even though they are members of the executive branch.
Issue. Did Congress violate the Constitution by placing authority to appoint independent counsel in the judiciary and limits on how the executive officer could be removed?
Held. Chief Justice Rehnquist opinion. No. The Act does not violate the principle of the Appointments Clause, limitations of Article III, separation of powers, nor does it impermissibly interfere with the President’s authority under Article II.
The Judicial Branch has no conflict of interest issue nor does not infringe on the Executive Branch power by being able to appoint independent counsel. Congress was concerned with the conflicts of interest that would arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was the Judicial Branch. Article III limits the judicial power to cases and controversies to help ensure an independent Judicial Branch. However, the Appointments Clause does give Congress the power to vest appointments in the courts of laws. The check in this situation is that judges of the Special Division are ineligible to participate in any matters relating to an independent counsel, which they have appointed. The Judicial Branch has the power to appoint, but can only do so when the Executive Branch requests an appointment.
The provision of the Act restricting the Attorney General’s power to remove the independent counsel to only those instances in which he can show “good cause” does not interfere with the President’s exercise of his constitutionally appointed functions. The Court does not take the view it once did in Humphrey’s Executor and Myers that distinguish officials based on whether they are purely executive, or quasi-legislative or quasi-judicial. The question is really whether or not Congress is interfering with the President’s exercise of executive power and his duty to take care that laws are executed. If it is not essential for the President’s proper execution of his Article II powers that these agency officials be removed at will, then Congress can impose some limits.
The “good cause” removal provision in isolation does not interfere with executive authority. The independent counsel is an inferior officer under the Appointments Clause with limited jurisdiction and tenure, lacking policymaking or significant administrative authority. He has discretion and judgment in carrying out his duties under the Act but there is no need for the President to have the power to terminate the independent counsel at will in order to perform executive Branch duties. The executive retains authority to remove the counsel through the Attorney General for good cause.
The Act as a whole does not violate the separation of powers by reducing the President’s ability to control the prosecutorial powers wielded by the independent counsel. Congress is not attempting to increase its own powers at the expense of the Executive Branch. Congress’ role under the Act is limited to receiving reports or other information and oversight of the counsel’s activities, which are functions incidental to the legislative function of Congress. The Executive Branch powers are not undermined or disrupted. The Act does give the Attorney General several means of supervising or controlling the prosecutorial powers of the counsel enough to ensure that the President is able to perform his duties.
Dissent. Justice Scalia dissenting:
A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. Although there is room for fraud or abuse when the Executive has exclusive power to control the prosecutor that is investigating alleged crimes by him or his close associates, there are other checks on that exclusive power. One is that another Branch may retaliate and impeach the Executive who willfully fails to enforce the laws.
Discussion. Congress has attempted to gain power over the Executive Branch through controlling who can remove personnel. The Myers, Humphrey, and Morrison cases dealt with the degree to which Congress can restrain the executive power. At first, the Court analyzed what type of office the official held.
In Myers v. United States (1926), the Court considered whether the President removing certain postmasters only “by and with the advice and consent of the Senate” was valid. The Court held that the statute was invalid because Congress wanted the power to remove or right to participate in removing a purely executive officer.
In Humphrey’s Executor (1935), the Court held that the head of the Federal Trade Commission was not purely executive. The Court distinguished Humphrey’s Executor from Myers by the type of office that they held.
In Morrison, the Court held that the analysis concerning what functions the officials serve is irrelevant, and the real question is whether the removal restrictions are such a nature that they impede the President’s ability to perform his constitutional duty.