Morrison v. Olson

LOCATION: Congress

DOCKET NO.: 87-1279
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 487 US 654 (1988)
ARGUED: Apr 26, 1988
DECIDED: Jun 27, 1988

Alexia Morrison - on behalf of the Appellant
Charles Fried - as amicus curiae, supporting Appellees
Michael Davidson - as amicus curiae, supporting Appellant
Thomas S. Martin - on behalf of Appellees

Facts of the case

The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to recommend to that court the appointment of an "independent counsel" to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws.


Did the Act violate the constitutional principal of separation of powers?

Media for Morrison v. Olson

Audio Transcription for Oral Argument - April 26, 1988 in Morrison v. Olson

Audio Transcription for Opinion Announcement - June 27, 1988 in Morrison v. Olson

William H. Rehnquist:

The second of the two cases is No. 87-1279, Morrison against Olson.

This case involves a challenge to the constitutionality of the independent counsel provisions of the Ethics in Government Act.

This Act authorizes the attorney general to call for the appointment of an independent counsel to investigate and if necessary, prosecute certain high ranking government officials for violations of certain federal laws.

The independent counsel has significant prosecutorial powers.

It is appointed, not by the attorney general, but by a special court created for that purpose.

This case grew out of a dispute between Congress and the administration over whether the Environmental Protection Agency should have to produce certain documents that have been subpoenaed by a House Committee during an investigation into the administration of the Superfund Law.

After this dispute was resolved, the House Judiciary Committee undertook its own investigation into the Justice Department's role and the Superfund dispute.

The Judiciary Committee's report suggested that appellee Olson, who was then Assistant Attorney General, had testified falsely before the Committee, and that appellees, Schmults and Dinkins, were also officials of the Justice Department have obstructed the House's investigation by refusing to turnover certain documents.

The chairman of the Judiciary Committee then requested the Attorney General to begin an investigation and to whether an independent counsel should be appointed pursuant to the Act.

After a preliminary investigation, the Attorney General recommended that an independent counseil be appointed to investigate the allegations against appellee Olson.

The special division of the U.S. Court of Appeals for the District of Columbia subsequently appointment appellant Morrison as the independent counsel in this case.

In the course of her investigation, she caused the grand jury to issue subpoenas to all three appellees.

And they moved in the District Court to quash the subpoenas claiming that the independent counsel provision of the Ethics in Government Act was unconstitutional.

The District Court upheld the Act's constitutionality and later ordered that appellees beheld in contempt for continuing to refuse to comply with the subpoenas.

Appellees appealed to the Court of Appeals which reversed the contempt order and ruled by a divided vote that the independent counsel provisions of the Act were unconstitutional. Appellant Morrison then brought this appeal to us.

We now reverse the Court of Appeals in an opinion joined by seven members of the Court and uphold the validity of the independent counsel provision of the Ethics in Government Act.

We uphold first that it does not violate the Appointment Clause of Article II for Congress to have revest the appointment of independent counsels and the Special Division.

The Appointment Clause states that Congress made by law vest the appointment such inferior officers as they think proper in the President alone, in the courts of law or in the heads of departments.

In our view, appellant is an inferior officer for purposes of this clause because she is inferior in rank to the Attorney General who has the power to remove her for good cause because she has limited jurisdiction and carefully proscribe -- prescribe the duties and because the office of independent counsel is of limited duration in tenure.

We also find that the Appointment Clause does not expressly prohibit inter branch appointments of the type created by this Act.

We hold that the powers vested in the Special Division by the Act did not run a foul of Article III's limitation on the performance of non-judicial functions by federal judges.

Finally, we conclude that the Act does not violate the separation of powers, principles embedded in the constitution by impermissibly interfering with the executive's discharge of his function as the allocated by the Constitution.

The Constitution we hold does not prevent Congress from restricting the Attorney General's power to fire an independent counsel to those situations in which good cause is shown.

Here, Congress is not attempted to insert itself in the removal of executive officials as was the case in the earlier decisions of this Court such as Bowsher against Synar and Myers against the United States.

We reaffirm the holding of the Myers case that Congress may not have grandiose its own powers by becoming involved in the decision to remove an executive official.

But we do not think that in this case the good cause removal restriction contained in the Act unduly interferes with the presence exercise of executive power and its constitutional duty to ensure that the laws are faithfully executed.

Antonin Scalia:

I am one of the eight who filed the dissent in this case and I suppose when one dissents from as many of the Court's decision in one day as I have today, you get to discuss it.

I discuss it because I think it's one of the most important opinions the Court has issued in many years.

To many people, it may seem that this case is of some political interest but it's not likely now or in the future to have any proximate effect upon their lives or the lives of their children.

It does not, after all, involve freedom of speech, freedom of the press, freedom of religion, or any of the wonderful guarantees of our Bill of Rights.