Morrison v. Olson
The Supreme Court upheld the independent counsel law at the heart of the Ethics in Government Act, ruling that having a special court appoint prosecutors to investigate top executive officials, removable only for cause, does not violate the Constitution.
The decision cleared the way for continued use of independent counsel to investigate high-ranking officials, including the President's own advisers, and rejected the argument that the President must have total, at-will control over every law-enforcement function.
How it got here: A federal district court upheld the independent counsel law and held Olson's associates in contempt for resisting subpoenas; a divided D.C. Circuit reversed, finding the law unconstitutional, and the independent counsel appealed to the Supreme Court.
The Case in Depth
What happened
The case grew out of a fight between Congress and the Reagan Administration over EPA documents related to Superfund enforcement. After the administration invoked executive privilege to withhold records from a House subcommittee, a House Judiciary Committee investigation concluded a Justice Department official, Theodore Olson, may have given misleading testimony, leading Congress to seek an independent counsel to investigate him.
The question before the Court
Could Congress let judges appoint an independent counsel to investigate top executive officials, and let that counsel be fired only for cause rather than at the president's will?
Why it matters
The ruling let Congress keep a tool for investigating the President and his top aides free of his direct control, shaping decades of ethics-in-government enforcement. It also set the framework courts would use to judge when Congress can limit a president's power to fire executive officials, affecting independent agencies and future accountability disputes.
What changes now
The ruling is a final decision on the merits, resolving the constitutional challenge and allowing the independent counsel's investigation and related grand jury subpoenas to proceed against Olson and his former colleagues. The independent counsel law itself remained in effect until Congress later let it expire in the 1990s, but at the time of this decision the Court's holding meant the statutory framework could continue to operate as written.
What this does not decide
The Court did not hold that Congress can strip the President of all control over any executive official; it stressed that its analysis depended on the independent counsel's narrow, temporary duties and the Attorney General's retained removal and referral powers, not on a blanket rule about removability.
Concurrences and dissents
Dissent — Justice Scalia
“But this wolf comes as a wolf.”Scalia's warning that the case's stakes for separation of powers were obvious, not hidden.
Justice Scalia argued the Constitution vests all purely executive power, including criminal investigation and prosecution, exclusively in the President, so any statute placing such power in someone outside presidential control is void regardless of how much control remains. He contended the independent counsel was not a true 'inferior officer' because she was not subordinate to any Executive Branch official, and warned the decision replaced clear constitutional text with an unpredictable, ad hoc balancing test that would erode presidential accountability and fairness to those investigated.
How the Court got there
The legal reasoning, step by step
- The Court first applied the Appointments Clause, which lets Congress decide whether certain government officials are appointed by the President with Senate approval (as 'principal officers') or by lesser means (as 'inferior officers'). It looked at whether the independent counsel could be removed by a higher executive official, had only limited duties, and had jurisdiction and tenure that were narrow and temporary.
- Finding the independent counsel subject to removal by the Attorney General and limited in scope and duration, the Court concluded she was an inferior officer, meaning Congress could constitutionally let a specially created court, rather than the President, appoint her.
- The Court then asked whether letting judges appoint a prosecutor and define her jurisdiction was an inappropriate 'incongruous' function for the judiciary under Article III, the provision that limits federal courts to deciding real disputes. It found no such incongruity, since courts have long appointed officials like special prosecutors in narrow circumstances.
- Turning to separation of powers, the Court rejected the idea that any official who exercises law-enforcement power must always be removable by the President at will. Instead, it adopted a functional test asking whether a removal restriction — here, that the counsel could be fired only for 'good cause' — prevents the President from performing his constitutional duty to see that the laws are faithfully executed.
- Applying that test, the Court found the 'good cause' standard did not strip the President of meaningful control, because the Attorney General retained removal power for misconduct, controlled whether to request an appointment in the first place, and could require the counsel to follow Justice Department policy where possible.
- The Court concluded that, taken as a whole, the law did not so reduce presidential authority as to prevent the Executive Branch from carrying out its constitutionally assigned functions, even though it acknowledged the law reduced the President's control over this class of investigations.
Doctrinal impact
Cases affected by this decision
Reaffirms Humphrey's Executor v. United States (295 U. S. 602)
The Court relied on this 1935 case as still-good law supporting limits on removal power for officials with independence-related duties.
Limits Myers v. United States (272 U. S. 52)
The Court narrowed Myers's broader suggestion that every executive officer must be removable by the President at will.
Distinguishes Bowsher v. Synar (478 U. S. 714)
The Court said this case differs from Bowsher because Congress did not try to keep removal power for itself here.