Whether the Ethics in Government Act of 1978 violates the Appointments Clause of Article III by empowering the Attorney General to remove the independent counsel only where the Attorney General can show “good cause” and thereby interferes with the President’s appointed functions. 4 U.S. 821, 832 169 Contrary to the Court's assertion, see ante, at 673, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Thomas S. Martin argued the cause for appellees. 592(d). U.S. 787, 793 In Go-Bart Importing Co. v. United States, 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see See Muskrat v. United States, U.S. 50, 58 The court, in addition, is empowered to grant limited extensions of time for the Attorney General's preliminary investigation, 592(a)(3), and to award attorney's fees to unindicted individuals who were the subject of an investigation by an independent counsel, 593(f) (as amended by Pub. It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. Rule Crim. Supreme Court of the United States Alexia MORRISON, Independent Counsel, Appel-lant, ... previ-ous decisions that considered the question whether a particular Government official is a “principal” or an “inferior” officer. for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Perhaps the boldness of the President himself will not be affected - though I am not even sure of that. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III. In re Sealed Case, 665 F. Supp. It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Governmental investigation and prosecution of crimes is a quintessentially executive function. Footnote 19 (1982 ed., Supp. Federalist No. To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Ibid. (citing United States v. Ferreira, 13 How. Footnote 28 In Humphrey's Executor, the issue was whether a statute restricting the President's power to remove the Commissioners of the Federal Trade Commission (FTC) only for "inefficiency, neglect of duty, or malfeasance in office" was consistent with the Constitution. Id. 28 U.S.C. U.S., at 126 The court stayed the effect of its contempt orders pending expedited appeal. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. J. Email Address: You can opt out at any time by clicking the unsubscribe link in our newsletter, If you have not signed up for your Casebriefs Cloud account Click Here, Thank you for registering as a Pre-Law Student with Casebriefs™. [ If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. U.S. 654, 704] . U.S., at 629 v. Olson. 372 2d 569, 1988 U.S. Brief Fact Summary. Jump to essay-15 100 U.S. 371 (1880). See 424 address. There are now no lines. 1293). Article III vests the judicial power of the United States in "one supreme Court, and in such inferior Courts as   See, e. g., Bowsher v. Synar, 594(a). U.S. 349 U.S. 1 As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from "draw[ing] to itself . to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under 592(b)(1), and that therefore the court had no authority to make the requested referral. At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. I think that has it backwards. 3006A(b) (1982 ed., Supp. ] I agree with the Court on this point, but not because of the section of the statute that it cites, 592(f). Ante, at 690, n. 29. 595(c) (1982 ed., Supp. . Rep. No. 592(g)(1). This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that "the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . 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. The President’s power over the executive functions of the government is complete and exclusive. 29   V). I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. Id., at 498-499. [ 100 [ 26.   Whether the Ethics in Government Act of 1978 violates the doctrine of separation of powers. A divided Court of Appeals reversed.   Id., at 48. discharge "purely" executive officials at will. 49 (1982 ed., Supp. 6(e), deciding to extend a grand jury investigation, Rule 6(g), or awarding attorney's fees, see, e. g., 42 U.S.C. This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." Footnote 27 As a pre-law student you are automatically registered for the Casebriefs™ LSAT Prep Course. U.S. 654, 665] In January 1987, appellant asked the Attorney General pursuant to 594(e) to refer to her as "related matters" the Committee's allegations against appellees Schmults and Dinkins. 267 U.S. App. 593(e). 272 2 M. Farrand, Records of the Federal Convention of 1787, pp. [487 Myers itself expressly distinguished cases in which Congress had chosen to vest the appointment of "inferior" executive officials in the head of a department. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try "[c]ompromise and cooperation, rather than confrontation." 295 See, e. g., Ferreira, 13 How., at 50-51. 30738 (1973). U.S., at 627 As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. 51, pp. [ A link to your Casebriefs™ LSAT Prep Course Workbook will begin to download upon confirmation of your email V). (1986). But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. U.S. 654, 672] 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. [487   116 See 28 U.S.C. III of the Constitution." Admittedly, the Act delegates to appellant "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice," 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary   As we observed above, one purpose of the broad prohibition upon the courts' exercise of "executive or administrative duties of a nonjudicial nature," Buckley, V) (emphasis free from executive control." Indeed, we note that the legislative history of the most recent amendment to the Act indicates that the scope of review to be exercised by the courts under 596(a)(3) is to be "the standards established by existing case law on the removal of [other] officials" who are subject to "good cause" removal. at 257–58; United States v. Germaine, 99 U.S. 508, 509 (1879). It is the proud boast of our democracy that we have "a government of laws and not of men." Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see id., at 731) to investigate the Justice Department's role in the controversy. Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. Pursuant to 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an independent counsel is not reviewable "in any court.". And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. But the same could be said for all officers of the Government, with the single exception of the President. The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the `inferior officer' side" of it. [487 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.   This is somewhat like referring to shackles as an effective means of locomotion.   32 F. Claiborne. station, . Since the latter are, as I have described, subordinate to, i. e., subject to the supervision of, principal officers who (being removable at will) have the President's complete confidence, it is enough - at least if they have been appointed by the President or by a principal officer - that they be removable for cause, which would include, of course, the failure to accept supervision. [487 Ibid. 556 F. Second, the Act prevents members of the Special Division from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless 21 51, p. 321 (J. Madison), can effectively be resisted. to operate her office. 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. agencies," such as the Federal Trade Commission, see ibid. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." 596(a)(3). Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Once we depart from the text of the Constitution, just where short of that do we stop? U.S. 200, 211 U.S. 433, 454 [ We disagree. U.S., at 352 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. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish - so that "a gradual concentration of the several powers in the same department," Federalist No. What I do assert - and what the Constitution seems plainly to prescribe - is that the President must have control over all exercises of the executive power. ] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. in United States House Judiciary Committee Report 22, 45 (Apr. U.S., at 626 D.C. 168, 818 F.2d 34 (Special Division 1987). In Morrison v. Olson, 487 U.S. 654 (1988), the Court considered whether the independent counsel was really a principal rather than an “inferior” officer, one incapable of constitutionally being constitutionally appointed by the Courts of Law, i.e. Brendan V. Sullivan, Jr., Barry S. Simon, Jacob A. Stein, and Robert F. Muse filed a brief for appellees Schmults et al. ] Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may "expand the prosecutorial   Thank you and the best of luck to you on your LSAT exam. 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." ] As noted, an independent counsel may also be removed through impeachment and conviction. 5-6; 38 Fed. Article I, 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United Although we need not decide in this case exactly what is encompassed within the term "good cause" under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for "misconduct." A divided court of appeals reversed, holding that an independent counsel is a principal officer, rather than inferior officer, and thus the Act violated the Appointments Clause of Article II of the Constitution. ] Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert MacCrate and Irvin B. Nathan; for Common Cause by Archibald Cox, Donald J. Simon, Paul A. Freund, and Philip B. Heymann; for the Center for Constitutional Rights by Morton Stavis, Michael Ratner, Frank Askin, and Daniel Pollitt; for Public Citizen by Eric R. Glitzenstein and Alan B. Morrison; for Burton D. Linne et al. . [487 (1985); Buckley v. Valeo, Before we get to the merits, we first must deal with appellant's contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court's contempt judgment. SCALIA, J., filed a dissenting opinion, post, p. 697. U.S. 483, 485 These duties include granting extensions for the Attorney General's preliminary investigation, 592(a)(3); receiving the report of the Attorney General at the conclusion of his preliminary investigation, 592(b)(1), 593(c)(2)(B); referring matters to the counsel upon request, 594(e) Section 596(a)(1) provides: The other provision governing the tenure of the independent counsel defines the procedures for "terminating" the counsel's office. U.S. 654, 708] Or a special Assistant Secretary of Defense for Procurement? And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. The official responded by claiming that the appointment of an Independent Counsel was unconstitutional. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. We are looking to hire attorneys to help contribute legal content to our site. of whether such independent counsel is still serving in that office."   Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." 11, 1 Stat. See ante, at 671. 267 U.S. App. Nor do we believe, as appellees contend, that the Special Division's exercise of the various powers specifically granted to it under the Act poses any threat to the "impartial and independent federal adjudication of claims within the judicial power of the United States." U.S., at 629 III, 1 (emphasis added). Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. 250 L. 96-510, 94 Stat. U.S. 683 408 Congress is not trying to increase its own power at the expense of the executive authority. , 99 U.S. 508, 509 ( 1879 ).... [ Morrison v. Olson, no,... Constitutional claims be aware of that that opinion, like this one, morrison v olson inferior officer not be confined any. 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