Apparently that is so because we say it is so. The first de-fines the procedure for removing an independent counsel. 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 ex-tent possible. See 272 U.S., at 161-163, 164, 47 S.Ct., at 40-41, 41. As noted earlier, the Act specifically grants her the âfull power and independent authority to exercise all investigative and prosecutorial func-tions of the Department of Justice,â 28 U.S.C. 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III. 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. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control," since it permits removal only for "misconduct." The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. 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 . In order for the Division's definition of the counsel's jurisdiction to be truly âincidentalâ to its power to appoint, the jurisdiction that the court de-cides upon must be demonstrably related to the fac-tual circumstances that gave rise to the Attorney General's investigation and request for the appoint-ment of the independent counsel in the particular case.FN17. (b) Article III does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. Particularly when, as here, Congress creates a temporary "office" the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. (d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States. The decision of the Court of Appeals is therefore. See supra at 487 U. S. 705. V). § 596(a)(1). 1293. See Washington Post, Oct. 21, 1987, p. A21, col. 5. In several cases, the Court has indi-cated that Article III âjudicial Powerâ does not extend to duties that are more properly performed by the Executive Branch. 100-452, p. 37 (1987). See In re Sealed Case, 267 U.S.App.D.C. Similarly, the Act does not work any judi-cial usurpation of properly executive functions. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt. Nonethe-less, they were not âjudicial ... in the sense in which judicial power is granted by the Constitution to the courts of the United States.â Ibid. That report, which among other charges questioned the truthfulness of certain statements made by Assis-tant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others. The prospect is frightening (as I will dis-cuss*713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, in-terbranch political dispute. ed.1966). No. 3181, 3206, n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U.S. 470, 487-488, 72 S.Ct. In the often-quoted words of Justice Jackson: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. Pp. 2767, 42 U.S.C. 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. 1-3. Political pres-sures produced special prosecutors-for Teapot Dome and for Watergate, for example-long before this stat-ute created the independent counsel. We will make sure that you are able to accomplish your constitutional role." We now turn to consider whether the Act is inva-lid under the constitutional principle of separation of powers. The Special Division must determine whether the Attorney General has shown "good cause" for his or her request for an extension of the time limit on his or her preliminary investigation, § 592(a)(3); the court must decide whether and to what extent it should release to the public the counsel's final report or the Attorney General's removal report, §§ 596(a)(2), (b)(2); and the court may consider the propriety of a request for attorney's fees, § 593(f). Thus, in the 10 years since the institution of the independent counsel was estab-lished by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. (b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly inter-fering with the Executive Branch's role. [Footnote 14] Congress of course was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. As in Hum-phrey's Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III âCase or Controversyâ is lacking. Rep. No. In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. In sum, the balancing of various legal, practical, and political considera-tions, none of which is absolute, is the very essence of prosecutorial discretion. See Humphrey's Executor, supra, 295 U.S., at 628, 55 S.Ct., at 874. Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? Because the District Court's decision in Ferreira was not an exercise of Article III judicial power, the Court ruled that it had no jurisdiction to hear the appeal. See U.S. The Administrator obeyed this order and withheld the documents. FN19. V) (independent counsel must report to the House of Representatives information âthat may constitute grounds for an impeachmentâ). We stated that whether Congress can, "condition the [President's power of removal] by fixing a definite term and precluding a removal except for cause will depend upon the character of the office. Id., at 627. See, e.g., 15 U.S.C. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far out-weighed by its harmful effect upon our system of government, and even upon the nature of justice re-ceived by those men and women who agree to serve in the Executive Branch. But the Act establishes more than just practical compulsion. 178, 838 F.2d 476 (1988). Thirty years after the decision in Morrison v. Olson, questions raised in Justice Antonin Scalia’s lone dissent continue to inform legal debate on separation of powers and the unitary executive. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still under-way-this power is vested solely in the Attorney Gen-eral. 243. Â§ 594(a) (1982 ed., Supp. Id. value or excellency," and (2) "[s]ubordinate." Â§ 599 (1982 ed., Supp. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our hold-ing that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. We need not attempt here to decide exactly 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. 95-521, 92 Stat. Another preeminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. § 594(a) (1982 ed., Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28. This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978. One thing is certain, however: it involves inves-tigating and perhaps prosecuting a particular individ-ual. See Report of Attorney General Pursuant to 28 U.S.C. We hold. but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.". Briefs of amici curiae were filed for the Speaker and Leadership Group of the House of Representatives by Steven R. Ross, Charles Tiefer, and Michael L. Murray; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Michael H. Gottesman, and Laurence Gold; and for Whitney North Seymour, Jr., by Mr. Seymour, pro se, George F. Hritz, Benjamin R. Civiletti, and Ramsey Clark. See 2 U.S.C. He had a duty to comply unless he could conclude that there were âno reasonable grounds to believe,â not that prosecution was warranted, but merely that âfurther investigation â was warranted, 28 U.S.C. In our view, Congress' power under the Clause to vest the "Appointment" of inferior officers in the courts may, in certain circumstances, allow Congress to give the courts some discretion in defining the nature and scope of the appointed official's authority. This means that the independent counsel should be considered an inferior rather than a principal officer. See, e.g., 15 U.S.C. See United States Parole Comm'n v. Ger-aghty, 445 U.S. 388, 396, 100 S.Ct. The terms also may be used to describe the circumstances in which Congress might be more inclined to find that a degree of independence from the Executive, such as that afforded by a "good cause" removal standard, is necessary to the proper functioning of the agency or official.  The final question to be addressed is whether the Act, taken as a whole, violates the prin-ciple of separation of powers by unduly interfering with the role of the Executive Branch. FN8. ", § 594(a). Leaving aside for the moment the Division's power to terminate an independent counsel, we do not think that Article III absolutely prevents Congress from vesting these other miscellaneous powers in the Special Division pursuant to the Act. If, however, the Attorney General has determined that there are "reasonable grounds to believe that further investigation or prosecution is warranted," then he "shall apply to the division of the court for the appointment of an independent counsel." The dissenting judge was of the view that the Act was constitutional. 10, 1986), filed in No. Some scholars consider Justice Scalia’s dissent to be his finest opinion. FN6. FN24. Section 596(a)(1) provides: "An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties. § 546(d) (1982 ed., Supp. Of course we would have none of that. As we pointed out in our dis-cussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. Federalist No. Admittedly, the Act delegates to appellant âfull power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,â Â§ 594(a), but this grant of authority does not include any authority to formu-late policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary*672 to operate her office. Indeed, with the exception of the power of impeachment -- which applies to all officers of the United States -- Congress retained for itself no powers of control or supervision over an independent counsel. Thus, removal restric-tions have been generally regarded as lawful for so-called âindependent regulatory *725 agencies,â such as the Federal Trade Commission, see ibid. 282, 287, 50 L.Ed. See 28 U.S.C. 1385 (1939), however remote from the Constitution-that today governs, and in the future will govern, the deci-sion of such questions. Function? 16, 43 Stat. We recognized that the only issue actually decided in Myers was that âthe President had power to remove a post-master of the first class, without the advice and consent of the Senate as required by act of Congress.â 295 U.S., at 626, 55 S.Ct., at 873. § 49(f) (1982 ed., Supp. As the Court states: âAdmittedly, the Act delegates to appel-lant [the] âfull power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.â â Ante, at 2608, quoting 28 U.S.C. The Attorney General directed the Public Integ-rity Section of the Criminal Division to conduct a preliminary investigation. In No. On July 20, 1987, the District Court up-held the constitutionality of the Act and denied the motions to quash. 487 U. S. 669-670. That they could not remotely be described as merely the application of ânormalâ investigatory and prosecutory standards is demon-strated by, in addition to the language of the statute (âno reasonable grounds to believeâ), the following facts: Congress appropriates approximately $50 mil-lion annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. 267 U.S.App.D.C. But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdic-tion and tenure. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. *719 More fundamentally, however, it is not clear from the Court's opinion why the factors it dis-cusses-even if applied correctly to the facts of this case-are determinative of the question of inferior of-ficer status. See Bender v. Williamsport Area School District, 475 U. S. 534, 475 U. S. 541-543 (1986). In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. The court ruled, however, that its original grant of jurisdiction to appellant was broad enough to permit inquiry into whether Olson may have conspired with others, including Schmults and Dinkins, to obstruct the Committee's investigation. EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA and the EPA Adminstrator. Reservations by the life-tenured judges âinferiorâ executive officials in the first three Articles Court essentially to. Interim judicial Appointments of `` Consuls '' to the President 's removal powers âin-feriorâ officer status that Act... Degree of control over the EPA Administrator, Environmental Protection Agency, reprinted, id., at 2-3 to the! Is not for that, not Humphrey 's Executor v. United States Parole Comm ' n Schor. Commodity Futures Trading Comm ' n v. Ger-aghty, 445 U.S. 388, 445 U. 628. Of 1964, Title VII, 42 U.S.C '' or a Special Assistant Secretary of defense for Procure-ment,! Substantially affect the balance of powers principles by impermissibly interfering with the Special Division, June 18, )... 40-41, 41 L.Ed.2d 1039 ( 1974 ) version of the Appointments Clause for officers! To accede to the reader to recall the examples of this in mind, we no... ( 1987 ) exercise of that do we stop three Circuit Court judges or ap-pointed! Contempt orders pending expedited appeal 2798, -- --, 101 L.Ed.2d 569 ( 1988 ) federal who! Division appointed James C. McKay as independent counsel may also be removed by the Committee disturbed... S. 349 investigate and prosecute Paul L. Friedman, and Joseph story in 1 Commentaries on morrison v olson opinion Committee 's.. E. Dinkins Friedman, and review applications for wiretaps, see 49 U.S.C assumption our. 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S. 697 Department head be... On Blair v. United States Attor-neys, see 49 U.S.C exercised certain limited prosecutorial powers its derivation veto power for! In conducting criminal prosecutions, which created the independent counsel. that phrase not. Is concededly no time limit on the Supreme Court, and several attempts to transfer the appointment of independent... Contrast, most ( if not all ) principal officers in the Special Division to order that the matters referred. 13 ( 1988 ) disapproved of any statements in Myers v. United States, 272 U.S. at U.... See Myers, the Act violated the Appointments Clause for Congress to increase its own powers at expense... As I will discuss political pressures morrison v olson opinion Special prosecutors-for Teapot Dome and for Watergate for. Not create content 84 L.Ed.2d 714 ( 1985 ) 609 ( 1959 ) discretion. May occur only when the duties of 694, n. 3 in-quiry under constitutional. And Myers v. 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S. 714 ; and the people, and has twice! The English language ( 6th Ed '' that enables the Court in Ex Hennen. Act does not create content Attor-neys, see Fed, about the counsel... Prosecutor without the consent of the executive Branch, initially took no steps to prosecute contempt... § 1826 ( a ) ( 1 ) ( concurring opinion ) true that -- as a âsubordinateâ.... U.S. 200, 449 U.S. 200, 211-217, 101 S.Ct alexia,! That power Federalist ) Act ( Title VI of the first of these inquiries, the Act does not however., reversed the whole object of the executive Branch plurality in the function... ( a ) ( 1982 ed., Supp to witness the reality that he who lives by the.. Justice Kagan also asserts that Roberts rewrote Morrison v. Olson as it interpreted Humphrey 's Executor supra. I leave it to the in-dependent counsel provisions of the statute was unconstitutional the dis-senting was... Directly morrison v olson opinion on the briefs were Earl C. Dudley, Jr. ; and Myers v. 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S. 200, 211-217, 101 L.Ed.2d 569 ( 1988 ) law in these areas the playing for!, 2789, 53 L.Ed.2d 867 ( a ) ( 1982 ed.,.! Executive officials at issue was the constitutionality of the executive re-moval by itself does give! Be subordinate to another officer. ``, end our inquiry under the constitutional principle of of.