Morrison v. Olson

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1988 United States Supreme Court case

Morrison v. Olson, 487 U.S. 654 (1988), was a Supreme Court of the United States decision that determined the Independent Counsel Act was constitutional. Morrison also set important precedent determining the scope of Congress's ability to encumber the president's authority to remove officers of the United States from office. In _Seila Law LLC v. Consumer Financial Protection Bureau _ (2020), the Supreme Court distinguished Morrison as a narrow exception applying only to inferior officers.

Background

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The Ethics in Government Act of 1978

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The Office of Independent Counsel was established by Congress after the Watergate scandal . When needed, the statute allowed for an independent counsel to be appointed by a special judicial panel.

Reagan administration

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The case involved subpoenas from two subcommittees of the United States House of Representatives that directed the Environmental Protection Agency (EPA) to produce documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the Superfund law. President Ronald Reagan ordered the Administrator of the EPA to withhold the documents on the grounds that they contained "enforcement sensitive information." This led to an investigation by the House Judiciary Committee that later produced a report suggesting that Theodore Olson , the Assistant Attorney General for the Office of Legal Counsel , had given false and misleading testimony before a House subcommittee during the early parts of the investigation.

The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request that he seek the appointment of an independent counsel to investigate the allegations against Olson and two others. Alexia Morrison was named independent counsel and given jurisdiction to investigate whether Olson had violated federal law. Olson moved to quash the subpoenas and sued Morrison in her official capacity.

Olson argued that the Office of the Independent Counsel took executive powers away from the office of the president of the United States and created a hybrid "fourth branch " of government that was ultimately answerable to no one. He argued that the broad powers of an independent counsel could be easily abused or corrupted by partisanship. Morrison in turn argued that her position was necessary in order to prevent abuses by the executive branch, which historically operated in a closed environment.

Supreme Court

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The government's unitary executive theory argument mirrored Assistant Attorney General John R. Bolton 's earlier congressional testimony that the Ethics in Government Act 's independent counsel provisions were unconstitutional. Chief Justice William Rehnquist said the argument was "more than the text will bear". : 630–632 

Majority

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The Court held that the independent counsel provision of the Ethics in Government Act did not violate the principle of separation of powers because it did not increase the power of one branch at the expense of another. Chief Justice Rehnquist chided the dissent's rigid application of the separation of powers:

[This] rigid demarcation—a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the framers—depends upon an extrapolation from general constitutional language which we think is more than the text will bear.

While applying the structural principles of _Humphrey's Executor v. United States _ the Supreme Court did not rely on that decision's reasoning. Chief Justice Rehnquist's opinion has been labelled "functionalist" by supporters of the so-called unitary executive theory .

The Court had decided only two years earlier in _Bowsher v. Synar _ that interpreting statutes to implement their requirements is "the very essence of 'execution' of the law". Reaffirming Bowsher's interpretation of _Myers v. United States _, Chief Justice Rehnquist allowed an exception for inferior officers, finding that an independent counsel appointed by the Special Division to investigate high-level misconduct would not "impermissibly burden" the president's responsibility under Article II to "take care that the laws be faithfully executed".

Justice Scalia's dissent

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Justice Scalia , the lone dissenter, said that the law should be struck down because (1) criminal prosecution is an exercise of "purely executive power" and (2) the law deprived the president of "exclusive control" of that power.

In his opinion, Scalia 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."

Reactions

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Conservatives like Senator Bob Dole shared similar concerns when Lawrence Walsh announced the re-indictment of former defense secretary Caspar Weinberger on charges related to the Iran–Contra affair four days before the 1992 U.S. presidential election . Critics[_who?
_] also sensed partisan politics when Walsh's office leaked a note suggesting President George H. W. Bush had lied about his connections to the affair.

Concerns were also raised, in line with Scalia's dissent, when independent counsel Kenneth Starr spent $40 million and more than four years investigating President Clinton 's land deals and extramarital affairs. Writing in _The New York Times _ while Starr's work was ongoing, legal journalist Linda Greenhouse reported that Scalia's dissent, formerly disregarded by liberals, was instead being "cited and passed around in liberal circles like samizdat."

Subsequent developments

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Reagan's Solicitor General Charles Fried later reflected that the administration's decisive defeat

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