Morrison v. Olson eText - Primary Source

Primary Source

Theodore Olson, U.S. assistant attorney general, was under investigation for obstructing justice in the investigation of the Environmental Protection Agency in the mid-1980s. AP/WORLD WIDE PHOTOS. REPRODUCED BY PERMISSION. Theodore Olson, U.S. assistant attorney general, was under investigation for obstructing justice in the investigation of the Environmental Protection Agency in the mid-1980s.. AP/WORLD WIDE PHOTOS. REPRODUCED BY PERMISSION Published by Gale Cengage AP/WORLD WIDE PHOTOS. REPRODUCED BY PERMISSION

Supreme Court decision

By: William H. Rehnquist and Antonin Scalia

Date: June 29, 1988

Source: Rehnquist, William H. and Antonin Scalia. Morrison v. Olson, 487 U.S. 654. Available online at; website home page: (accessed April 20, 2003).

About the Authors: William Rehnquist (1924–) received his law degree from Stanford University. In 1971, he was named to the Supreme Court, and in 1986, he was appointed chief justice.

Antonin Scalia (1936–) graduated from Harvard Law School in 1961. He taught at the University of Virginia and Georgetown University. In 1986, he was appointed to the Supreme Court.


The Articles of Confederation, written during the American Revolution, provided for no executive branch (and no judiciary). Early Americans resisted having a strong executive because of abuses they had suffered under the British monarchy as colonists. This system of government, however, was too weak and ineffective, so the Constitution, to strengthen it, erected three branches of the federal government: the legislative to make laws, the executive to enforce the laws, and the judiciary to interpret the laws.

For the first century and a half, the federal government was limited in size (the post office was its largest agency), and played a small role in people's lives, especially the executive branch. With President Franklin Roosevelt's (served 1933–1945) New Deal and and Lyndon Johnson's (served 1963–1969) Great Society, however, the executive branch ballooned in size and, through the FBI and the CIA, developed intelligence capabilities that were too frequently used against American citizens.

Fears of an unchecked executive branch reached their peak during the Watergate scandal of the early 1970s, when funds from Republican Richard Nixon's (served 1969–1974) campaign were used to pay for a break-in at the Democratic National Headquarters in Washington, D.C.'s Watergate building. Nixon then authorized a cover-up, stymied the Department of Justice inquiry into the affair, and even fired the special prosecutor looking into it.

Even though the scandal eventually led to Nixon's resignation from office, Congress wanted to ensure that future presidents could not thwart justice by their misuse of federal law enforcement. As a result, Congress passed the 1978 Ethics in Government Act, which set up a three-judge panel that could appoint an independent counsel if the U.S. attorney general requested one; the counsel could be fired only for "good cause." In 1985, following a dispute over the Environmental Protection Agency's (EPA) enforcement of the Superfund legislation, an independent counsel was appointed. This brought the constitutionality of the Ethics in Government Act before the Supreme Court in Morrison v. Olson.


At issue in this case was the traditional separation of powers among the three branches of government. In a 7 to 1 vote, the Supreme Court upheld the constitutionality of the Ethics in Government Act. The Court held that the act does not violate the constitutional separation of powers, because the attorney general still must request the appointment of an independent counsel. In his closely reasoned dissent, Justice Scalia argued that the Ethics in Government Act, with its provision of an independent counsel, was an unconstitutional encroachment by Congress on the power of the executive branch of government and an unwarranted intrusion into the privacy of those who hold public office.

The Court's ruling would have important consequences in the 1990s. Kenneth Starr was appointed independent counsel in 1994 to investigate President Bill Clinton's (served 1993–2001) land dealings in the Whitewater case. Five years later, Starr produced a report advocating impeachment of Clinton for lying under oath about his relationship with presidential intern Monica Lewinsky. Clinton was eventually impeached by the House of Representatives but was not removed by the Senate.

Primary Source: Morrison v. Olson [excerpt]

SYNOPSIS: Justice Rehnquist upholds the Ethics in Government Act, noting that the independent counsel is an inferior officer and so can be appointed outside the executive branch. He then notes that controls on when and how the president can remove the independent counsel do not unbearably limit the executive branch. Scalia dissents, arguing that the independent counsel encroaches on the power of the executive branch and so violates the separation of powers.

Chief Justice Rehnquist delivered the opinion of the Court.

This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, …We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, …or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers.

Briefly stated, Title VI of the Ethics in Government Act …allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws.…

With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice.". . .

Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities.…

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.… We need not attempt here to decide ex actly where the line falls between the two types of officers, because in our view appellant clearly falls on the "inferior officer" side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official.… Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes.…

Third, appellant's office is limited in jurisdiction.… Finally, appellant's office is limited in tenure.…

This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch.

…we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.

We also note that the history of the Clause provides no support for appellees' position.…

We do not mean to say that Congress' power to provide for interbranch appointments of "inferior officers" is unlimited.… we do not think that ap pointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments.…

We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, impermissibly interferes with the President's exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel.…

Considering for the moment the "good cause" removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a "good cause" standard for removal by itself unduly trammels on executive authority.… Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.

Nor do we think that the "good cause" removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. 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. Rather, because the independent counsel may be terminated for "good cause," the Executive, through

the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.…

The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch.…

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.…

Similarly, we do not think that the Act works any judicial usurpation of properly executive functions.…

Finally, we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch …or "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions," …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.… Notwithstanding the fact that the counsel is to some degree "independent" and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.

In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore

Reversed. . .

Justice Scalia, dissenting.

It is the proud boast of our democracy that we have "a government of laws and not of men." …Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, {section} 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article III, {section}1, provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And the provision at issue here, Art. II, {section}1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America.". . .

That is what this suit is about. Power. 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," …can effectively be resisted. Frequently an 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.…

To repeat, Article II, {section}1, cl. 1, of the Constitution provides:

The executive Power shall be vested in a President of the United States.

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the 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.…

As I have said, however, it 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." …It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.…

The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.…

It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide.… How admirable the con stitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.…

Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It 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 next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President.

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."

Further Resources


Brisbin, Richard A. Justice Antonin Scalia and the Conservative Revival. Baltimore, Md.: Johns Hopkins University Press, 1997.

Davis, Sue Justice. Rehnquist and the Constitution. Princeton, N.J.: Princeton University Press, 1989.

Dole, Robert J. Project on the Independent Counsel Statute: Report and Recommendations. Washington, D.C.: American Enterprise Institute, 1999.

Greenberg, Gerald S. Historical Encyclopedia of U.S. Independent Counsel Investigations. Westport, Conn.: Greenwood, 2000.

Johnson, Charles A., and Danette Brickman. Independent Counsel: The Law and the Investigations. Washington, D.C.: CQ Press, 2001.

Schmidt, Susan, and Michael Weisskopf. Truth at Any Cost: Ken Starr and the Unmaking of Bill Clinton. New York: HarperCollins, 2000.

Schultz, David A., and Christopher E. Smith. The Jurisprudential Vision of Justice Antonin Scalia. Lanham, Md.: Rowman and Littlefield, 1996.


Smaltz, Donald C., Peter J Boyer, and Michael Kirk. Secrets of an Independent Counsel. PBS Video. Videocassette.1998.