Morrison v. Olson
487 U.S. 654 (1988)

  • The Ethics in Government Act of 1978 (aka the Independent Counsel Act) created a special court and empowered the Attorney General to recommend to that court the appointment of an independent counsel to investigate, and prosecute government officials for certain violations of Federal criminal laws.
    • An independent counsel could not be fired except for cause.
    • The appointment was not by the President, and was not subject to the approval of Congress.
  • And independent counsel was appointed to investigate Olson. Olson argued that the Ethics in Government Act was unconstitutional.
    • Olsen argued that that the independent counsel violated the Appointments Clause because it was an executive branch office that was not appointed by the President.
    • In addition, it was a violation of Article III and the separation of powers doctrine because it gave judicial powers to a court created by the executive branch.
      • It was sort of a hybrid "fourth branch" of government that was ultimately answerable to no one.
    • Olsen argued that the broad powers of the independent counsel could be easily abused, or corrupted by partisanship.
  • The US Supreme Court found the Ethics in Government Act to be constitutional.
    • The US Supreme Court found that the means of selecting the independent counsel did not violate the Appointments Clause, Article III, or the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch.
      • Since the independent counsel was an inferior officer, his appointment did not have to come from the President.
      • Since the independent counsel could only be fired for cause, subject to judicial review, it's a pretty secure position. The President can fire the Attorney General at will. So, it could be argued that the independent counsel was a principle officer, and should only be appointed by the President.
    • The Court felt that the Act did not violate the separation of powers doctrine by increasing the power of one branch at the expense of another. Instead, even though the President could not directly fire the independent counsel, the person holding that office was still an Executive Branch officer, not under the control of either Congress or the Courts.
      • If the special court was considered part of the Judicial Branch, how could they appoint an Executive Branch official? And how does this decision compare with Myers v. United States (272 U.S. 52 (1926))?
  • In a dissent, it was argued that the law had to be struck down because:
    • Criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution, and
    • The law deprived the president of exclusive control of that power. The dissent also predicted how the law might be abused in practice, writing, "I fear the Court has permanently encumbered the Republic with an institution that will do it great harm."
    • The independent counsel basically has no accountability to anybody, and therefore was subject to overzealousness.
  • The dissent may have been right. Since it's inception, the law has been used for many partisan purposes.
    • There is no remedy, even a political one, for dealing with a highly partisan independent counsel intent on bringing someone they don't agree with down (e.g. Ken Starr)
  • Compare this case to Bowsher v. Synar (478 U.S. 714 (1986)).
    • In that case, the Court concluded that Congress couldn't be involved in Executive Branch functions, although they could appoint Executive Branch officers. In this case, they concluded that the Judiciary could appoint Executive Branch officers, as long as they didn't meddle with their function.