Separation of Powers Under Morrison v. Olson

In Morrison v. Olson, 487 U.S. 654 (1988), the U.S. Supreme Court upheld the independent counsel provisions of the Ethics in Government Act of 1978. According to the Court, the provisions did notimpermissibly interfere with the President’s authority under Article II in violation of the constitutional principle of separation of powers.

Facts of the Case

The case arose from a dispute between the House of Representatives and the Environmental Protection Agency (EPA) with regard to the Agency’s limited production of certain documents that had been subpoenaed during an earlier House Investigation. The Judiciary Committee’s Report suggested that an official of the Attorney General’s Office, Theodore Olson, had given false testimony during the earlier EPA investigation, and that two other officials of that Office had obstructed the EPA investigation by wrongfully withholding certain documents. The Chairman of the Judiciary Committee forwarded the Report to the Attorney General with a request that he seek appointment of an independent counsel to investigate the allegations against appellees.

Pursuant to the provisions of the Ethics in Government Act of 1978 (Act), which allows for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high ranking Government officials for violations of federal criminal laws, the Special Division (a special court created by the Act) appointed Alexia Morrison as independent counsel to investigate whether Olson’s testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a resulting grand jury sought to issue subpoenas, Olson moved to quash them, claiming that the Act’s independent counsel provisions were unconstitutional and that Morrison accordingly had no authority to proceed.

The District Court upheld the Act’s constitutionality, and later ordered that Olson be held in contempt for continuing to refuse to comply with the subpoenas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution; the limitationsof Article III; and the principle of separation of powers by interfering with the President’s authority under Article II.

Supreme Court’s Decision

In a nearly unanimous decision, the Supreme Court reversed. “We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, §2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President’s authority under Article II in violation of the constitutional principle of separation of powers,” Chief Justice William Rehnquist wrote on behalf of the Court.

With regard to the separation of powers, the Court concluded that the Act was constitutional because it did not increase the power of one branch at the expense of another. “We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch…,” the Chief Justice wrote. “Indeed, with the exception of the power of impeachment — which applies to all officers of the United States — Congress retained for itself no powers of control or supervision over an independent counsel.”

The Court also found that there was no “judicial usurpation of properly executive functions.” In support, it noted that once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. While it recognized that The Act does give a federal court the power to review the Attorney General’s decision to remove an independent counsel, it found that “this is a function that is well within the traditional power of the judiciary.”

The Court also noted that although the President could not directly fire an Independent Counsel, he or she was still an officer of the Executive branch and, thus, not subject to the control of Congressor the courts. As the Chief Justice explained:

This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

Dissent

Justice Antonin Scalia dissented. He argued that the Act was unconstitutional because criminal prosecution is an exercise of “purely executive power.” He further argued that it deprived the President of “exclusive control” of that power. Justice Scalia also raised concern about potential abuse, writing, “I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.”

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