Morrison v. Olson (p. 395)

 

In Morrison v. Olson, the law creating an independent counsel to investigate whether certain high-ranking government officials “may have violated any Federal criminal law,” provided that an independent counsel “may be removed from office…only by the personal action odf the Attorney General and only for good cause….” (casebook p. 396).

Does this “good cause” limitation on the removal of an executive officer (the special counsel) whose duties involve matters at the core of executive authority (prosecution of federal crimes) violate separation of powers and the President’s power to remove executive officials?

 

What are your thoughts? Is this case more like the postmaster in Myers? Or more like a commissioner of the Federal Trade Commission as in Humphrey’s Executor?

What does the Court hold?

Page 399:

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” . . . There is no requirement of congressional approval of the Attorney General’s removal decision, though the decision is subject to judicial review. . . . In our view, the removal provisions  of the Act make this case more analogous to Humphrey’s Executor v. United States….

 

But now consider Justice Scalia’s famous dissent that starts with typical Scalia vibe:

“Frequently [a separation of powers] issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Casebook p. 401

 

 

Here is how Justice Scalia analyzes the issue (p. 401):

 

 

 

. . . [T]he decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are  answered affirmatively:  (1)  Is  the  conduct  of  a  criminal  prosecution  (and  of  an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising  to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid  the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

. . .

. . . [I]t is ultimately irrelevant how much the statute reduces presidential control. The case is over when the Court acknowledges, as it must, that “[i]t 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.” . . .

 

And here is Scalia's criticism of the Court’s ad hoc, balancing approach to separation of powers (p. 403):

 

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration. . . .

. . .

. . . [The Court] extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. . . . ’

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”

In another case, Justice Scalia criticized the Court's use of ad hoc balancing tests by saying it is like trying to decide whether a particular rock is heavier than a particular string is long. This case demonstrates a perfect example of the difference between the "functionalist" and the textualist approaches to constitutional interpretation. According to Scalia, the issue before the Court was not what the Court wished the Constitution said, but rather what does the Constitution say.