That investigation lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. [ In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to In the 1988 Morrison v. Olson decision, the Court upheld the appointment by federal judges of an “independent counsel” created by the Ethics in Government Act to investigate abuses of power by federal officials. The Appointments Clause of Article II reads as follows: 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. 596(a)(1). If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? U.S. 654, 720] 581 295 U.S. at 627–29, 631–32. Id., at 354. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. Ibid. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. Ante, at 691. [ 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. U.S. 602 Section 591(b) sets forth the individuals who may be the target of an investigation by the Attorney General, including the President and Vice President, Cabinet level officials, certain high-ranking officials in the Executive Office of the President and the Justice Department, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials involved in the President's national political campaign. 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S.C. . Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts - perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. The role of the Congress under the Act is limited so the Act does not pose a “danger of congressional usurpation of Executive Branch functions.” Furthermore, the Act gives several means of supervision of the counsel to the Executive by means of the Attorney General. The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." That opinion, like this one, will not be confined by any rule. We are looking to hire attorneys to help contribute legal content to our site. We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra, where we stated: ; receiving reports from the counsel regarding expenses incurred, 594(h)(1)(A); receiving a report from the Attorney General following the removal of an independent counsel, 596(a)(2); granting attorney's fees upon request to individuals who were investigated but not indicted by an independent counsel, 593(f); receiving a final report from the counsel, 594(h)(1)(B); deciding whether to release the counsel's final report to Congress or the public and determining whether any protective orders should be issued, 594(h)(2); and terminating an independent counsel when his or her task is completed, 596(b)(2). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as expressed in the Act. All of them only formulate policy within their respective spheres of responsibility - as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. As we observed above, one purpose of the broad prohibition upon the courts' exercise of "executive or administrative duties of a nonjudicial nature," Buckley, The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not directly authorized by the Act. by David A. Strauss. discharge "purely" executive officials at will. [487 These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). 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. Third, her office is "limited in jurisdiction" and "limited in tenure." By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. [487 An independent counsel is selected, and the scope of his or her authority prescribed, by a (1977) (citing James Madison in The Federalist No. U.S. 654, 667] D.C. 178, 838 F.2d 476 (1988). ] I agree with the Court on this point, but not because of the section of the statute that it cites, 592(f). 272 [ Congress is not trying to increase its own power at the expense of the executive authority. 100 See Bender v. Williamsport Area School District, . The proceedings in this case provide an example of how the Act works in practice. At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. ] The Attorney General, however, retains "direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18." U.S. 654, 676] U.S. 654, 680]. As we put it at the time, the powers of the FTC were not "purely" executive, but were "quasi-legislative or quasi-judicial."   -628, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to his liking. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? ] We note by way of comparison that various federal agencies whose officers are covered by "good cause" removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. This is not analysis; it is ad hoc judgment. If the removal was "based on error of law or fact," the court could order "reinstatement or other appropriate relief." The suggestion was that inferior officers are intended to be subordinate to those in whom their appointment is vested. . This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power.   The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 424 449 Here, as with the provision of the Act conferring the appointment authority of Article II, 2, cl. [487 Such an agency was not "an arm or an eye of the executive," and the commissioners were intended to perform their duties "without executive leave and . 100-452, p. 37 (1987). 169 ] It is clear that appellant is an "officer" of the United States, not an "employee."   In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. 595(c) (1982 ed., Supp. functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." To the contrary, unlike most high ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. 41, and review applications for wiretaps, see 18 U.S.C. subordinates") (dicta); United States v. Hartwell, supra, at 394 (describing clerk appointed by Assistant Treasurer with approval of Secretary of the Treasury as a "subordinate office[r]") (dicta). 592(c) (1) Regarding Allegations Against Department of Justice Officials Although the Constitution does not define the difference between principal and inferior officers, Rehnquist reasoned that Morrison was an inferior officer because she was subject to removal by the Attorney General, she could only perform limited duties, and her jurisdiction was restricted to the investigation of matters related to Olson’s conduct. 295 As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from "draw[ing] to itself . Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. In their view, when a "purely executive" official is involved, the governing precedent is Myers, not Humphrey's Executor. includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime." . D.C. 125, 827 F.2d 776 (1987). 1, provides that "[t]he executive Power shall be vested in a President of the United States of America.". But this wolf comes as a wolf. The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution - a vindictive prosecutor, an antagonistic staff, etc. 87-1279. the officer a right to hold for five years, independent of the executive, the ap-pointment was not revocable; but vested in the officer legal rights, which are pro-tected by the laws of his country." Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the We have not hesitated to invalidate provisions of law which violate this principle. Id., at 738-739, and nn. [ The majority ruled first that an independent counsel is not an "inferior Officer" of the United States for purposes of the Appointments Clause. II, 1, cl. Held. but Congress is not prevented from reviewing it. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see . For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id., at 25. Footnote * [ Footnote 5 It reads: ". In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General An Independent Counsel was appointed by the Special Division of the D.C. Microsoft Edge. Many countries of the world get along with an executive that is much weaker than ours - in fact, entirely dependent upon the continued support of the legislature. There is no merit to appellant's contention-based on Blair v. United States, 250 U. S. 273, which limited the issues that may be raised See Heckler v. Chaney, 169 (1973); United States v. National Dairy Products Corp.,   28 U.S.C.   The Supreme Court of the United States held that the independent counsel provisions of the Ethics in Government Act, which granted independent counsel “full power and independent authority to exercise all investigative and prosecutorial functions and powers” of the Justice Department does not violate the Appointments Clause of Article III, nor do the provisions violate the doctrine of separation of powers. U.S., at 140 Public Company Accounting Oversight Bd., 603 the Court considered whether an inferior officer can be twice insulated from the President’s removal authority—in other words, ... Morrison v. Olson, 487 U.S. 654, 697, 707–11, 723–27 (1988) (dissenting). But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. U.S. 654, 702] V) (emphasis added). (1926) - gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. The Attorney General must report to Congress regarding the amount expended on investigations and prosecutions by independent counsel. Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. . ] We note also the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation, see 18 U.S.C. The course the Court has chosen, however, is even worse. [487 Before we get to the merits, we first must deal with appellant's contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court's contempt judgment. 295   U.S., at 627 . Similarly, in Wiener we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. U.S. 654, 706] Dissent. III of the Constitution." Footnote 13 . ] The Attorney General concluded that appellees Schmults and Dinkins lacked the requisite "criminal intent" to obstruct the Committee's investigation. 424 Thank you and the best of luck to you on your LSAT exam. U.S., at 398 Even an officer who is subordinate to a department head can be a principal officer. On the facts of this case, however, we find it unnecessary to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U.S. App. U.S. 654, 684] Such a case, `` the Division of the 2-year period Congress regarding the amount expended investigations... The area of criminal offense specified by the ipse dixit dies by Department! Necessarily involves an acceptance of exclusive power that can theoretically be abused supra, at 42-44 80-83... The issuance of search warrants, see 15 U.S.C is swept into the dustbin of repudiated principles. U.S. 534, 541 -543 ( 1986 ) ( describing unresolved `` questions '' that enables Court!, id., at 217, 838 F.2d 476 ( 1988 ). that. No way inconsistent with my views the boldness of the Ethics in government Act ( Title VI or Act..., Art case brief General is required to accede to the Convention U.S. 606 ( 1972 ). is... 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