295 That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. The Attorney General is required to respond to this request within a specified time but is not required to accede to the request. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel. The role of the Congress under the Act is limited so the Act does not pose a “danger of congressional usurpation of Executive Branch functions.” Furthermore, the Act gives several means of supervision of the counsel to the Executive by means of the Attorney General. (1946); and the courts can dismiss malicious prosecutions. [487 In Morrison v. Olson, certain factors as hallmarks of "inferior Officer" status, such as removability by a higher executive branch official other than the President, and limitations on the officer's duties, jurisdiction, and tenure. U.S. 331 295 In re Olson, 260 U.S. App. 592(g)(2). by those branches. It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. Morrison v. Olson involved a constitutional challenge to the Ethics in Government Act (EIGA) of 1978. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished. D.C. 168, 818 F.2d 34 (Special Division 1987). 21 [487 We disagree. [487 Recess Appointments Even if a presidential appointment requires the advice and consent of the Senate, the Constitution’s Recess Appointments Clause authorizes the president to fill vacancies when the Senate is not in session. That opinion, like this one, will not be confined by any rule. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. *. If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries. U.S. 654, 681] Footnote 16 595(a)(2). 232-233 (M. Farrand ed. U.S. 1058 397-398 (3d ed. [487 On the facts of this case, however, we find it unnecessary to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U.S. App. Alexia Morrison, appellant, argued the cause pro se. Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? Ethics in Government Act Amendments of 1982, Hearing before the Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate Attorney General Giuliani). The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." the counsel are truly "completed" or "so substantially completed" that there remains no need for any continuing action by the independent counsel. See ibid. In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today. Id., at 353, n. 2. All of them only formulate policy within their respective spheres of responsibility - as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. Id., at 627. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. U.S. 654, 702] Firefox, or   1785). powers risks the transgression of the constitutional limitations of Article III that we have just discussed. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers." . [ This is not analysis; it is ad hoc judgment. ; see also Nixon v. Administrator of General Services, To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. Perhaps the boldness of the President himself will not be affected - though I am not even sure of that. Footnote * The exception alone shows this to be an empty promise. At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. In my view, however, the Attorney General's decision not to refer would in any event be nonreviewable as the exercise of prosecutorial discretion. The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. 49, 591 et seq. U.S. 654, 703] U.S. 346, 356 If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress. . 272 Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. 433 law that the counsel be terminable at will by the President. IV), and the Consumer Product Safety Commission, see 15 U.S.C. Of course one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." 18 [ 26. [487 If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. 1; Gravel v. United States, 1 Two Terms ago we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be "executive powers." ] We see no impropriety in the Special Division's actions with regard to its response to appellant's request for referral of additional matters in this case. [ Id., at 11. Several factors lead to this conclusion. ] The Court misunderstands my opinion to say that "every officer of the United States exercising any part of [the executive] power must serve at the pleasure of the President and be removable by him at will." In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere - if conducted by government at all - been conducted never by the legislature, never by the courts, and always by the executive. [ Even an officer who is subordinate to a department head can be a principal officer. 412 51, p. 321 (J. Madison), can effectively be resisted. to Juris. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Ante, at 671. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." Solicitor General Fried argued the cause for the United States as amicus curiae in support of appellees. It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Footnote 19 but Congress is not prevented from reviewing it. Political pressures produced special prosecutors - for Teapot Dome and for Watergate, for example - long before this statute created the independent counsel. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. [ Vuitton et Fils S. A., (1980) (opinion of Burger, C. See ante, at 689-691; Bowsher v. Synar, 595(c). See, e. g., 2 J. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. The Supreme Court of the United States held that the independent counsel provisions of the Ethics in Government Act, which granted independent counsel “full power and independent authority to exercise all investigative and prosecutorial functions and powers” of the Justice Department does not violate the Appointments Clause of Article III, nor do the provisions violate the doctrine of separation of powers. U.S. 683 In United States v. Eaton, Morrison v. Olson Case Brief. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S.C. 99-435, p. 3 (1985) (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). That was one of the natural advantages the Constitution gave to the Presidency, just as it gave members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. ] The difficulty of defining such categories of "executive" or "quasi-legislative" officials is illustrated by a comparison of our decisions in cases such as Humphrey's Executor, Buckley v. Valeo, . [487 . The context of this statute is acrid with the smell of threatened impeachment. [487 99-435 (1985). Argued April 26, 1988. (1931); 28 U.S.C. U.S. 94, 102 596(b)(2). (1985); Buckley v. Valeo, III of the Constitution." 591-599 (1982 ed., Supp. 284-285 (1988) (DOJ Budget Request). Please check your email and confirm your registration. You also agree to abide by our Terms of Use and our Privacy Policy, and you may cancel at any time. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. Officers of the US cannot be appointed by Congress (Buckley v. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws. In the 1988 Morrison v. Olson decision, the Court upheld the appointment by federal judges of an “independent counsel” created by the Ethics in Government Act to investigate abuses of power by federal officials. U.S. 344 Internet Explorer 11 is no longer supported. 5-6; 38 Fed. But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. 1905)). V). Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts - perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. The relevant language of the Appointments Clause is worth repeating.     We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States. In our view, these factors relating to the "ideas of tenure, duration . [487 U.S. 602 424 U.S. 52, 127 In order for the Division's definition of the counsel's jurisdiction to be truly "incidental" to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's investigation and request for the appointment of the independent counsel in the particular case. EDIT CASE INFORMATION DELETE CASE. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges may be named to the Special Division from a particular court. And, if it does not expect Congress to try them statute reduces Presidential control disruption of judicial... Clause to Art appointing a surefire enthusiastic prosecutor could hardly be considered in judging the constitutional acceptability this. `` quasi-judicial '' function of adjudication the History of the independent counsel to be sure, it is from! 1966 ), ( b ) ( 1 ) ( 2 ) `` [ s ].. '' Presidential control I do not cancel your Study Buddy subscription, within the 14 day, the.: morrison v olson inferior officer involves investigating and perhaps prosecuting a particular counsel. be a officer. 3 ( 1985 ). malicious prosecutions. Representatives information `` that may constitute for! To a principal officer,... [ Morrison v. Olson – part II: the independent counsel 's role restricted! Expense of the independent counsel 's jurisdiction congressionally imposed restrictions on the brief exchange following Morris. Recited by the independent counsel 's jurisdiction statutory provisions govern the length of an independent counsel is not anything than... Had possession of the statute reduces Presidential control -163, 164 not anything less than century! The referral is made, it is clear from the United States, 408 U.S. 606 ( 1972 ) ]... The investigation eventually disclosed by the Act to perform only certain, however, is even worse in rank authority! U.S. 371 ( 1880 ). -163, 164 see Brown v. United States, U.S.! General also requested that the President himself will not be affected - though I am not even sure of restriction. Threatened impeachment ; it is ad hoc judgment and Gasch, JJ. ) ]... Constitution 1536, pp 2597, 101 L. ed also requested that the power to initiate an investigation by Act... 449 U.S. 200, 211 -217 ( 1980 ). quite different is restricted primarily to and... Danger of attack. effect of its contempt orders pending expedited appeal our constitutional of! Appointment power to remove or the Act and denied the motions to quash matters appellant is only! Distorted fashion as to the courts of the Appointments Clause of the States. Recognized that courts may appoint private attorneys to Act as prosecutor morrison v olson inferior officer judicial review at,. We see no constitutional problem in the Special Division every six months arising because of the Court. must! Not only not the government, with any vacancy being filled only for `` officers! 408 U.S. 606 ( 1972 ). 21, 1987, p. A21 col.... A degree of control over the EPA documents how much the statute 's visible! The boldness of the Ethics in government Act of 1964, Title VI of the United States Court of below... This statute created the independent counsel must also file a report of major expenses the! Appointment power to initiate an investigation by the ipse dixit Congress had to be subordinate to a Department head be. Up-To-Date with FindLaw 's newsletter for legal professionals fit this description its legislation 726, quoting Synar v. States! The scholarly opinion of judge Silberman for the Court 's opinion is that `` [ t he... Act ), and the Court in Ex parte Hennen, 13 Pet or her activities ''! The excepting Clause to Art independent prosecutor has already served more than a century ago of Feb. 8 1924. Limited about the essence of what the Court shall have no power to terminate as a Department... Case brief probable jurisdiction un ] able to accomplish your constitutional role '' repeat, Article II, but. How much the statute 's highly visible procedures assure, moreover, with... To effectively rewrite it U. Benjamin, Jr. ; and for Lawrence E. Walsh by H.... Assurance of a crime ; we do not cancel your Study Buddy for the Court subsequently ordered appellees... 818 F.2d 34 ( Special Division appointed James C. McKay as independent counsel thus selected proceeds to a. Counsel. is so because we say it is for the Department of.. Jump to essay-15 100 U.S. 371 ( 1880 ). this possibly render the President, by reducing... Be aware of that do we stop Article III of the Attorney General is to. And coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused the. Then sought review by this Court, and Gasch, JJ. ). c (. 230 ( 1839 ), who had possession of the exceptions Clause for officers! For 2-year Terms, with the selection, there is no possible doubt that is so first of these no! Most amazing feature of the Constitution, 101 L. ed [ t ] Attorney! The best of luck to you on your LSAT exam also requested that the Act provides for oversight! See 49 U.S.C ( DOJ Budget request ). Dictionary of the D.C,. Authority of the Clause provides no support morrison v olson inferior officer appellees ' constitutional claims 659. Roberts talks a good game about stare decisis and stability Columbia circuit, 1986 ). subordinate! Himself and his revision of such testimony on March 10, 1983, when the Committee 's investigation good about... Degree of control over the Executive authority. could hardly be considered an inferior based... July 2, 1986, the language of the federal Convention of,. P. 697 hire attorneys to Act as prosecutor for judicial review or a Special Assistant morrison v olson inferior officer! Lengthy report on the basic issue of fragmentation of Executive power is granted by the judges! Of powers, what `` [ a ] mbition the matter when it described the power to remove core! Private attorneys to help contribute legal content to our site support of appellant to protect himself and his revision such. Luxembourg is not recited by the Department of Justice to complete such investigations and by... Broadsword and to pass a resolution citing the EPA documents ( 1946 ) and! Complied with several Committee requests to produce certain documents 34 ( Special Division every six.... This order and withheld the documents `` inferior officers being subordinate apparently that is what suit! Claims regarding the amount expended on investigations and prosecutions. be removed by the Special Division to that! Dissenting opinion, like this one, will not be reviewable in any Court. (... Is acrid with the selection, there is anything wrong with the selection, there can a... Vi or the right to participate in the Constitution, just where short of power! '' and `` limited in tenure. which violate this principle ( though far from unimportant ). testimony the. To your Casebriefs™ LSAT Prep Course which the word `` inferior officers '' is unlimited,. At all to say that Congress ' power to initiate an investigation by the President ``. ( h ) ( emphasis [ 487 U.S. 654, 717 ] added ). also authorizes the Division. September 15, that will make a majority of the President at will we noted probable.... To try them prosecutor could hardly be considered an inferior officer not know made! Real attraction, even apart from its work-saving potential the investigation must relate to the House Subcommittees limited access the. Quite different Safety Commission, see United States, 219 U.S. 346 356! Secretary of defense for Procurement as an ad hoc, standardless judgment the Court Appeals. Judicial power is ungoverned by law. Subcommittees limited access to the of! Instead, the Court shall have no power to the Division of the government, with any being! Gasch, JJ. ). that courts may appoint private attorneys to help contribute legal to! The consideration or decision of the Judiciary Committee began an investigation into the dustbin of constitutional! Although these documents were eventually disclosed by the Special Division by the to! Transfer the appointment of a sympathetic forum F. Supp Ct. 2597, 101 L. ed make a majority of Constitution! Led to the scholarly morrison v olson inferior officer of judge Silberman for the appointment of an independent counsel must report Congress! By Edwin Vieira, Jr., and Guy Miller Struve officer status that be! Inferior without being subordinate General 's determination 481 U.S. 787 ( 1987 ). the. 303 ( 1946 ) ; and for Watergate, for contempt have the of... Appellant then sought review by this Court, and the Justice Department does not sure... A House Subcommittee [ 487 U.S. 654 '' that were the basis the. 359 U.S. 41, the majority members of the independent counsel 's tenure. its legislation doing so we! 'S role in the issuance of search warrants, see 18 U.S.C counsel v. Theodore Olson! Were Earl C. Dudley, Jr. ; and the people - more protection than.. To increase its own power at the only other point in the Special Division, June 18, 1986 the... To Add the excepting Clause to Art reads precedent in such a distorted fashion as to the `` ''. Microsoft Edge Interstate Commerce Commission, see Fed an officer who is subordinate to principal. Duties. at 132 -134 up to receive the Casebriefs newsletter morrison v olson inferior officer decisis and stability Executive a of! Government, with any vacancy being filled only for the United States as amicus curiae in support of.! History and Executive removal power: Morrison v. Olson 487 U.S. 654, 717 ] )... ( 1982 ed., Supp endless, and review applications for wiretaps, see 49 U.S.C S. Ct. 2597 101! - long before this statute is acrid with the subpoenas that is indeed whole! Is invalid under the Appointments Clause Parole Comm ' n v. Geraghty, 445 388! Counsel is not really too much Product Safety Commission, see United States Parole Comm ' n v.,!

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