Morrison v. Olson, 487 U.S. 654; 108 S. Ct. 2597; 101 L. Ed. 2d 569 (1988)

Facts—The issue here is the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978. It began as a controversy between the House Judiciary Committee and the Environmental Protection Agency (EPA) with regard to producing certain documents. It was alleged that, along with two other officials, Edward Schmultz and Carol E. Dinkins, who withheld documents from the committee, Theodore B. Olson had given the judiciary committee false testimony. The special division (a special court created by the act) appointed Alexia Morrison as independent counsel with respect to Olson and gave her jurisdiction to investigate Olson’s testimony or any other matter involving a violation of federal law. The Federal District Court upheld the act’s constitutionality and ordered the executive officials in contempt for ignoring the subpoenas. The Court of Appeals reversed the ruling, holding that the act violated the appointments clause of the Constitution, the limitations of Article III, and the principle of separation of powers.

Question—Does the independent counsel provision of the Ethics in Government Act violate the Constitution’s appointments clause, Article III, or the doctrine of separation of powers?

Decision—No.

Reasons—C.J. Rehnquist (7–1). As to the tenure of the independent counsel she may be removed (other than by impeachment and conviction) only by the attorney general and only for good cause; and by the special division “acting either on its own or on the suggestion of the attorney general.” Moreover, the act provides for congressional oversight of the activities of independent counsels. The distinction between “inferior” and “principal” is not easy to determine but in our view the independent counsel “falls on the ‘inferior officer’ side of that line.” She can be removed by the attorney general, has limited duties, can only operate within the scope of her jurisdiction, is a temporary appointment. The Court is aware that its judicial power is limited to “cases” or “controversies” and that, broadly stated, it will not assume nonjudicial du- ties and is sufficiently isolated to resist any kind of encroachment. We do not think the act deprives the president of control of the independent counsel or truncates his power to faithfully execute the law. “Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches.” Nor do we believe this case involves an attempt by Congress “to increase its own powers at the expense of the executive branch . . . nor think that the act works in any judi- cial usurpation of properly executive functions.” The decision of the Court of Appeals invalidating the Ethics in Government Act of 1974 is reversed.

J. Scalia authored a classic dissent arguing that this law violated separation of powers by effectively forcing a president to launch an investigation that he did not think was warranted by individuals that Scalia did not think were properly accountable to the executive branch.

Note—The special prosecutor law has been allowed to expire in the aftermath of what many observers thought were problems with the investigation of the Iran-Contra affair during the Reagan administration and Kenneth Starr’s investigation of President Clinton that led to his impeachment.