1. Morrison v. Olson, (1988)
2. Facts: The Ethics in Government Act of 1978 provided that The Attorney General may ask for the appointment of a special counsel by a Special division of three Circuit Judges in order to investigate and prosecute high-ranking government officials for violations of federal crimes. Once appointed, the Special counsel can only be removed by the Attorney General personally (not the president) and only for “good cause” (not at will).
3. Procedural Posture: A group of persons moved to quash subpoenas issued by the Special counsel, claiming that the Act was unconsitutional as a violation of separation of powers.
4. Issue: Whether the Act is was unconsitutional as a violation of separation of powers because it limits the President’s authority to remove an executive officer.
5. Holding: No.
6. Majority Reasoning: The special counsel, due to the limited tenure, duration, and duties of her office, is an “inferior officer” for Appointment clause purposes. As such, her appointment may be vested by congress in the courts. The court has never held that the Constitution prevents Congress from imposing limitations on the President’s power to remove al executive officials simply because they wield “executive” power. The power to vest appointment in other departments implies the power to limit and regulate removal. The imposition of a “good cause” standard is not unduly limiting. The president’s need to control the Special Counsel is not so central to the functioning of the executive branch as to require as a matter of constitutional law that the special counsel be terminable at will by the President. This case does not involve a usurpation of executive power by Congress. The attorney general still has the power to refuse to ask for appointment of a special counsel.
7. Dissent Reasoning: [Scalia] The framers of the constitution intentionally vested all of the executive power in the president. As such, any person executing purely executive power must be under the exclusive control of the President, and thus terminable at will. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. The majority has replaced a constitutional requirement with an unprincipled “balancing test” having no guidance.
