Morrison v. Olson – Special prosecutorlaws

t Rehnquist1988. Until 1988, the rule seemed to be that if a purely executive officer had been appointed by the president, Congress may not limit the President’s right to remove that officer.

t But in a case upholding the Ethics in Government Act, a post-Watergatestatute setting up a system of special prosecutors to investigate alleged wrongdoing by executive officials, SCt seems to have changed this rule. Rule now seems to be that Congress may limit the President’s right to remove even a purely executive officer, so long as the removal restrictions are not “of such a nature that they impede the President’s ability to perform his constitutional duty.”

t Facts. The statute in Morrison required the Attorney General to investigate any allegations of wrongdoing against certain high level members of the Executive Branch (including members of the Cabinet), and to apply to a special federal court (the “Special Division”) for the appointment of a special prosecutorif he found “reasonable grounds to believe that further investigation or prosecution is warranted.” Once the special prosecutorwas appointed, she could only be removed by the Attorney General, and only “for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of [her] duties.”

t Holding. By a 7-1 vote,

n SCt rejected claim that the Act violated Article II, §2’s appointments clause. The independent counselis an “inferior officer,” not a principal officer who must be appointed by the president. This is because: (1) the independent counsel can be fired by the attorney general (although only if certain conditions are met), (2) the independent counsel performs very limited duties; (3) the independent counselhas only limited jurisdiction; and (4) the independent counsel has a limited tenure.

n Appointment by the judiciary is permissible: Congress can determine appointment of inferior officers “as they think proper,” and nothing in Article III prohibits the judiciary from receiving this power. The independent counseldoes not interfere with the president’s executive authority, so the law does not violate separation of powers.

n the SCt also held that neither the removal provisions nor the act taken as a whole so restricted the President’s powers as to violate the separation of powersprinciple.

i. Removal Provision. Because the Attorney General could terminate the special prosecutorfor “good cause,” the Executive Branch “retains ample authority to assure that the counsel is competently performing her statutory responsibilities.”

ii. Law taken as a whole. Similarly, the Act taken as a whole did not unconstitutionally take away the President’s executive powers, even though his freedom to control the special prosecutorwas somewhat limited. True, the President could not select the prosecutor, determine her jurisdiction or remove her except for cause. But the Act reserved to the President the right to decide whether to apply for appointment of a prosecutor, imposed on the prosecutor the obligation to abide by Justice Department policy “except where not possible,” and as noted, allowed the Attorney General to remove her for cause. These powers gave the Executive Branch “sufficient control over the [special prosecutor] to ensure that he President is able to perform his constitutionally assigned duties.”

t Koppelmancritique. Majority’s interpretation of the inferior-officers clause is puzzling. To whom, precisely, is the independent counselinferior? He usually stays in office longer than most cabinet secretaries, and he gets to investigate the president. Does investigating the president not interfere with his authority?

t Dissent. Scaliacontended that the separation of powersprinciple required that the President maintain complete control over the investigation and prosecution of violations of law. Since even by the majority’s reasoning the President’s control over the special prosecutorwas curtailed, in Scalia’s view the Act was clearly a violation of the constitutionally-required separation of powers.

n Separation of powersis intended to prevent precisely the sort of unaccountable coercive governmental power that is created by this statute.

n The unitary executive is important, in Scalia’s view, not only because it coordinates governmental action, but also because its accountability protects individual liberty by preventing an unreasonable – and judgments of reasonableness are not applications of any fixed standard – investment of legal resources in the prosecution of a single person.

n When investigative resources are mechanically concentrated on a single person, that person is immediately in deep trouble. If that person is a government official, the trouble is likely to interfere with her performance of her duties. The statute here thus appears to Scaliato be a mechanical device that randomly attacks innocent people and deranges the operation of the executive branch. Scalia concedes that his answer does not solve the conflict-of-interest problem, but argues that the answer to that problem must be political, not legal.

n Possible C/A to Scalia: In a certain sense, the independent counselreally isn’t immune to presidential control (as Scalia claims). After all, president has pardon power (e.g. could pardon Lewinski and thus deprive Starr of any leverage with which to compel her testimony). The limitations on the use of this power are purely political (exactly the sort of limitations that prevented Nixon from firing Jaworski).

t Significance. Morrison seems to have major significance for the separation of powersdoctrine. It is hard to imagine a more purely executive function than the right to investigate and prosecute violations of the law. The case thus seems to stand for the proposition that the Executive Branch may be deprived of the power to appoint, and the untrammeled power to remove, an “inferior officer,” even where the appointment relates to purely executive powers. Apart from the issue of restricting the President’s right of removal, the case seems to herald a Court that will view even fairly substantial interference with the President’s ability to exercise unfettered control over executive functions as violating the separation of powers.

t Top Level Officers. It is not clear whether the rationale for Morrison would even allow Congress to limit the President’s right to appoint or remove “principal officers” of the U.S. such as cabinet officers. Recall that the Morrison court determined that the special prosecutorwas an “inferior” officer rather than a “principal” officer. It probably continues to be the case after Morrison that Congress may not take away the President’s right to appoint such principal officers – the President’s right to make such appointments seems directly/unequivocally guaranteed by the Appointments Clause of Article II. Also, even post-Morrison, the Court would probably be much less willing to allow Congress to limit the President’s right to define the duties of such principal officers, or to allow Congress to limit the President’s right to discharge such an officer.

Date: 2015-01-02; view: 772