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Morrison v. Olson

Citation. 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).
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Citation. 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).

Brief Fact Summary.

Olson, the Assistant Attorney General for the Office of Legal Counsel, had given false and misleading testimony before Congress.  Pursuant to the Ethics in Government Act, the Attorney General initiated an investigation which led to the Special Division’s appointment of Morrison as independent counsel.  Olson alleged that the appointment of independent counsel violated the Constitution.

Synopsis of Rule of Law.

Congress may enact provisions with for-cause removal restrictions on inferior officers so long as the restrictions do not impede the President to perform his constitutional duties.


In response to Watergate, Congress enacted the Ethics in Government Act.  The Act allowed for the appointment of an independent counsel to investigate high ranking government officials.  If the Attorney General suspected a high ranking government official of violating a federal criminal law, the Act required him to investigate.  If he determined that further investigation or a potential prosecution was warranted, he would report to the court created by the Act (the Special Division) for the court to appoint independent counsel.  The Act authorized the independent counsel to “exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General. . . .”  The Act provided for congressional oversight, requiring the independent counsel to intermittently report his activities to Congress.  The independent counsel was to be removed only by the Attorney General and “only for good cause.”  Otherwise, the independent counsel’s tenure was to last until his investigation was complete.  If the Special Division concluded that the investigation was complete, they too could terminate the office.

Olson, the Assistant Attorney General for the Office of Legal Counsel, had given false and misleading testimony before Congress.  Pursuant to the Act, the Attorney General initiated an investigation which led to the Special Division’s appointment of Morrison as independent counsel.  Olson alleged that the appointment of independent counsel violated the Constitution.


(1) Whether the independent counsel provisions of the Act violated the Appointments Clause.

(2) Whether the powers vested in the Special Division by the Act violated Article III of the Constitution.

(3)  Whether the Act violated principles of separation of powers.  More specifically, whether the Attorney General’s power to remove the independent counsel only for good cause interfered with the President’s power, and whether the Act impermissibly reduced the President’s ability to control the independent counsel’s prosecutorial powers.


CHIEF JUSTICE REHNQUIST holding: (1) No, the Act did not violate the Appointments Clause.

(2) No, because Congress, under the Appointments Clause, vested the Special Division with the power to appoint the independent counsel, the Special Division could also define the independent counsel’s jurisdiction.

(3) No, the Act did not interfere with the duties assigned to the Executive Branch.


Justice Scalia

Scalia took a more originalist approach to the separation of powers issues and would have struck down the Act.  He reasoned that the Act must be invalidated if the Court answered affirmatively to two questions:  “(1) Is the conduct of a criminal prosecution the exercise of a purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?”  The Court answered yes to both, but nonetheless upheld the Act.  In his view, the Court should not examine “how much the statute reduces presidential control.”  If the statute reduces the power at all, the statute is unconstitutional.  Moreover, Morrison was not an inferior officer because she was not subordinate to any member of the Executive Branch.  Therefore, only the President could have appointed her..


In addressing whether the Act violated the Appointments Clause, the Court first addressed whether the independent counsel was an “inferior” or a “principal” officer.  “Principal officers are selected by the President with the advice and consent of the Senate.  Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the judiciary.”  Buckley v. Valeo, 424 U.S. 1, 132 (1976).  The Court found that the independent counsel was an inferior officer for several reasons.  First, the independent counsel could be removed by the Attorney General, which suggests that she was in some way “inferior” to the Attorney General.  Second, her duties were limited to investigating and potentially prosecuting for certain federal crimes, and she was not authorized to formulate policy for the Executive Branch.  Third, the office was limited in jurisdiction.  The Act itself applied only to certain federal officials suspected of federal crimes, and the jurisdiction was further limited by the Special Division because the independent counsel could act only within the scope that the Special Division granted.  Finally, her office was merely temporary.  After her investigation, the office ends.  Therefore, because Morrison was an inferior officer, she did not need to be appointed by the President.  Olson argued that even if Morrison was an inferior officer, Congress was still not empowered to appoint an officer outside of the Executive Branch.  The Court rejected this, reasoning that the Appointments Clause itself says, “Congress may by Law vest Appointments of such inferior officers, as they think proper, in the President alone, the courts of Law, or in the Heads of Departments.”  The “as they think proper” language grants Congress broad discretion and enables it to make interbranch appointments.

In addressing whether the Special Division’s powers violated Article III of the Constitution, the Court rejected Olson’s argument that the Special Division was not authorized to define the independent counsel’s jurisdiction.  The Court reasoned that Congress could, in some circumstances, give courts discretion to define the nature and scope of an inferior officer’s jurisdiction.  While the power to monitor the independent counsel to decide if the office should be terminated was not “typically judicial,” allowing it here was not a significant encroachment upon the executive power.  The Special Division could not terminate the office whenever they saw fit.  It was limited to terminating the office when its duties were completed.

The Court further held a “good cause” standard for removal did not interfere with executive authority.  The Court distinguished the removal process here with its prior decisions addressing the removal power.  In Bowsher v. Synar and Myers v. United States, the Court invalidated laws which reserved to Congress the power to remove officers.  The Court argued that the Ethics in Government Act “puts the removal power squarely in the hands of the Executive branch.”  Unlike Bowsher and Myers, only the Attorney General (a member of the executive branch), could remove the independent counsel.  In Humphrey’s Executor and Wiener v. United States, the Court recognized that the Constitution does not grant the President “illimitable power of removal.”  If this were the case, the President would have too much influence over agencies that were supposed to be independent.  Olson argued that Humphrey’s Executor was distinct from this case because Humphrey’s Executor rested on a distinction between “purely executive” and “quasi-judicial” officials.  The Court acknowledged that they had made this distinction, but rejected that they meant to create rigid categories.  Instead, “the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty.”

Finally, the Court held that the Act did not violate more general separation of powers principles.  The Court reasoned that there was no attempt by Congress to increase its own powers at the expense of another branch, there was no judicial usurpation of executive functions, and the Act granted the Attorney General means of controlling the independent counsel.  Therefore, the Act was constitutional.

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