Morrison v. Olson

Brief Fact Summary.

Title VI of the Ethics in Government Act of 1978 allowed for the creation of a Special division—a special court—to appoint independent counsel to investigate and prosecute certain high-ranking Government officials for violations of federal criminal laws.

Synopsis of Rule of Law.

• An “inferior officer” under the Appointments Clause is one who (1) is subject to removal by a higher executive branch official; (2) can only perform certain limited duties; (3)  is limited in jurisdiction, and (4) limited in tenure.
• Congress can place the power to appoint inferior officers outside the Executive Branch.
• Under certain circumstances, Congress may vest a special court with some jurisdiction over the removal of federal officers.a

Facts.

Title VI of the Ethics in Government Act of 1978 (“Act”) allowed for the appointment of an independent counsel to investigate and prosecute certain high-ranking Government officials for violations of federal criminal laws. Under the Act, the Attorney General must conduct a preliminary investigation into any matter he deems sufficient to constitute grounds for investigation. The Attorney General then must report to the Special Division—a special court—created by the Act to appoint indpeendent counsel. If the Attorney General determins that there were reasonable gorunds to believe a further investigation or prosecution was warrented, he must apply to the Special Division for the appointment of an independent counsel. The Special Division then appointed an independent counsel, and defined that counsel’s prosecutorial jurisdiction. The Act contained a provision governing the length of an independent counsel’s tenure, and defining the procedures for terminating the counsel’s office. Under one of these provisions, the Attorney General could remove the independent counsel only for good cause or any condition that impaired the performance of the counsel’s duties.

Issue.

Did Title VI of the Ethics in Government Act of 1978 violate the Appointments Clause, Article III, or the separation of powers?

Holding

Held.

No, Title VI of the Ethics in Government Act of 1978 did not violate the Appointments Clause, Article III, nor the separation of powers.

Dissent.

Justice Scalia

Justice Scalia argued that the Act was clearly unconstitutional because it vested “purely executive power in a person who is not the President . . . .” He also argued that the independent counsel was not an inferior officer for the purposes of the Appointments Clause, because she is not subordinate to any Executive Branch officer. Justice Scalia also argued that Myers v. United States established that the Presiden’t removal power over officers who exercise purely executive powers could not be restricted, and that United States v. Perkins established that the President’s power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted at least where the appointment had been made by an Executive Branch officer. He also argued that the Supreme Court acknowledged in Humphrey’s Executor v. United States that the President was the repository of all executive power, which meant he must be able to remove those who do not perform executive functions accordidng to his liking. According to Justice Scalia, the majority’s opinion conflicted with this principle.

Discussion.

The Supreme Court held that Title VI of the Act did not violate the Appointments Clause of Article II. The Appointments Clause provides that the President, with the advice and consent of the Senate, appoints Ambassadors, Supreme Court Justices, and other specific officers, but that Congress can vest the appointment of “inferior Officers” in the President alone, the courts, or the heads of departments. The Supreme Court declined to define the line between inferior and principal officers. Instead, the Supreme Court held that the appellant was an inferior officer because (1) she was subject to removal by a higher executive branch official; (2) she could only perform certain limited duties; (3) her office was limited in jurisdiction, and (4) her office wa limited in tenure. The Supreme Court also rejected the argument that the Appointments Clause did not empower Congress to place the power to appoint inferior officers outside the Executive Branch.

The Supreme Court next held that the Act did not conflict with Article III of the Consitution. According to the Supreme Court, Article III did not prevent Congress from vesting miscellaneous powers in the Special Division pursuant to the Act, and the powers granted to the courts were passive and ministerial and did not encroach on the authority of the Executive Branch. The Supreme Court also held that the Special Division’s power to terminate the office of independent counsel did not encroach upon executive power or the independent counsel’s prosecutorial discretion. The Supreme Court also held that the Special Division’s exercise of its powers under the Act did not threatenen the impartial and independent federal adjudication of claims within the judicary. The Supreme Court found that the Act sufficiently isolated the special court and its judges  from the review of the independent counsel’s activities because (1) the Act did not empower the Special Division to review the independent counsel’s actions or the Attorney General’s actions regarding the counsel, and (2) the Act prevented members of the Special Divsion from participating in judicial proceedings concerning matters  involving such independent counsel while such counsel is serving in that office, or which involves the exercise of such counsel’s official duties.

The Supreme Court also found that the Act did not violate the principle of separation of powers for two reasons. First, the Supreme Court held that the Act, in restricting the Attorney General’s power to remove the independent counsel to instances in which he can show good cause did not impermissibly interfere with the President’s exercise of his constitutional functions. The Supreme Court came to this holding in part by finding that the Act puts the removin the hands of the Executive Branch, and that the “good cause” removal provision did not impermissibly restrict the executive removal power.  Second, the Supreme Court held that the Act did not violate the spearation of powers by reducing the President’s ability to control the independent counsel’s prosecutorial powers.