Morrison v. Olson

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Title IV of the Ethics in Government Act allows fort the appointment of an independent counsel to investigate high rankings officials. The Act asks for the the Attorney General to conduct a preliminary investigation when he receives information about a federal crime. He then has to send a report to a special court "for the purpose of appointing independent councils." If the report warrants the special court appoints independent council. At this point the Attorney General and the Justice Department are to suspend all investigations regarding the matter.

An independent council can only be removed for cause. The Attorney General has to submit a report to two house committees and to the special court explaining the reasons for dismissal. The dismissal can also be reviewed by a court. Further, the Congress can ask for information from the counsel, and can request the Attorney General to appoint independent council.


  • Appointment Clause. The court concludes that the appellant is an inferior officer because:
  1. he is subject to removal by a higher Executive Branch Official
  2. he is empowered by the act to only perform limited duties
  3. office is limited in jurisdiction
  4. he is limited in tenure.

However, the "as they think proper" cause might give Congress the power to vest appointment of executive officials in the court of Law as there are no inter-branch limitations in the appointments clause. There still is an "incongruity" requirement.??

  • Article III Violation. "Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of power, as the power itself derives from the appointments clause." Further, the court rejects the argument that the Appointments Clause does not allow the power to define the independent counsel's jurisdiction. The court also rejects that the powers given to the special court interfere with the executive branch because they are ministerial and do not require the court to exercise judgement and discretion. Finally, the court says that the special division's power to terminate the independent council might be considered administrative. However, in practice this power might not be very strong, and the statute should be interpreted to avoid any constitutional problems.
  • Separation of Powers. The court rejects Humphrey's because it does not believe that the correct question is the distinction between purely executive officials and officials who exercise "quasi-legislative" and "quasi-judicial" powers. It thinks the real question should be if the "removal restrictions are such a nature that they impede the President's ability to perform his constitutional duty." The court says that even though the independent council isn an executive function, wanting to fire him or her at will, is not "so central to the functioning of the Executive Branch." Only being able to fire for cause does not limit the president. The court also takes a survey of the entire statute as a whole and concludes that "the Executive Branch [retains] sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties."