Morrison v. Olson

[Chief Justice Rehnquist delivered the opinion of the Court, joined by Brennan, White, Marshall, Blackmun, Stevens and O’Connor, JJ. Scalia, J., filed a dissenting opinion. Justice Kennedy took no part in the consideration or decision of the case — the reporter states this twice, in the syllabus at 658 and again at the foot of the Court’s opinion at 697. There is no numerical tally printed anywhere in the reporter; the line-up above is the line-up as printed at 658, and it is what makes this a seven-to-one decision. Omitted below: the jurisdictional discussion of Blair v. United States in Part II, the statutory recitation in Part I except as summarized here, most footnotes, and the bulk of the Article III analysis of the Special Division’s powers, which is condensed. The Appointments Clause holding, the removal holding, and Justice Scalia’s dissent are given at length.]

[The facts. Title VI of the Ethics in Government Act of 1978, 28 U. S. C. §§ 49, 591–599, allowed for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high-ranking Government officials for federal crimes. On information sufficient to constitute grounds to investigate, the Attorney General had to conduct a preliminary investigation; if he found “reasonable grounds to believe that further investigation or prosecution is warranted,” he had to apply to a “Special Division” — a special court created by the Act within the D. C. Circuit, three Article III judges designated by the Chief Justice — which appointed the counsel and defined her prosecutorial jurisdiction. Section 594(a) gave her “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.” Section 596(a)(1) provided that she could be removed “only by the personal action of the Attorney General and only for good cause.”]

[In 1982 two House Subcommittees subpoenaed EPA documents on Superfund enforcement. On Justice Department advice the President ordered the EPA Administrator to invoke executive privilege; the House held the Administrator in contempt; the United States sued the House; the dispute settled in March 1983. The House Judiciary Committee then investigated the Justice Department’s role. Appellee Olson, then head of the Office of Legal Counsel, testified on March 10, 1983. In 1985 the Committee’s majority reported that Olson had given false and misleading testimony and that appellees Schmults and Dinkins had wrongfully withheld documents, and asked the Attorney General under § 592(c) to seek an independent counsel as to all three. He applied as to Olson only. The Special Division appointed James C. McKay and, on his resignation, appellant Morrison, with jurisdiction over whether Olson’s testimony violated 18 U. S. C. § 1505 or § 1001 or any other federal criminal law. When the Attorney General refused to refer the Schmults and Dinkins allegations as “related matters,” the Division held its original grant broad enough to reach whether Olson had conspired with them to obstruct. Appellant caused a grand jury to serve subpoenas on all three, who moved to quash on the ground that the Act was unconstitutional. The District Court upheld the Act and held them in contempt under 28 U. S. C. § 1826(a). The case thus arrived on appeal from a civil contempt judgment. A divided Court of Appeals reversed, holding that an independent counsel is not an inferior officer. This Court noted probable jurisdiction.]

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, 28 U. S. C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, 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.

[Part I sets out the statute and the facts, summarized above. Part II holds that appellant waived her contention, based on Blair v. United States, 250 U. S. 273 (1919), that the constitutional issues could not be reached on an appeal from a contempt judgment; the Court notes that the contention “is not ‘jurisdictional’ in the sense that it cannot be waived by failure to raise it at the proper time and place,” and turns to the merits. Part III begins the Appointments Clause analysis at 670.]

The Appointments Clause of Article II reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: 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.” U. S. Const., Art. II, § 2, cl. 2.

The parties do not dispute that “[t]he Constitution for purposes of appointment … divides all its officers into two classes.” United States v. Germaine, 99 U. S. 508, 509 (1879). As we stated in Buckley v. Valeo, 424 U. S. 1, 132 (1976): “Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” The initial question is, accordingly, whether appellant is an “inferior” or a “principal” officer. If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

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. See, e. g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397–398 (3d ed. 1858) (“In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate”). 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. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority. 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. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,” § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. § 594(f).

Third, appellant’s office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant’s office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the “ideas of tenure, duration … and duties” of the independent counsel, Germaine, supra, at 511, are sufficient to establish that appellant is an “inferior” officer in the constitutional sense.

[The Court supports this with its few prior decisions — United States v. Eaton, 169 U. S. 331 (1898) (vice-consul a “subordinate officer”); Ex parte Siebold, 100 U. S. 371 (1880) (supervisors of elections); Go-Bart Importing Co. v. United States, 282 U. S. 344, 352–353 (1931) (“United States commissioners are inferior officers”); and United States v. Nixon, 418 U. S. 683, 694, 696 (1974) (Watergate Special Prosecutor a “subordinate officer”).]

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 — that it does not contemplate congressional authorization of “interbranch appointments.” The relevant language is worth repeating. It reads: ”… 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.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.” We recognized as much in Ex parte Siebold, supra:

“It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution … . But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress.” Id., at 397–398.

[The Court distinguishes Ex parte Hennen, 13 Pet. 230 (1839), as Siebold itself did, and declines to depart from Siebold’s holding that interbranch appointments are not proscribed by the excepting clause. It then reviews the drafting history at 674–675, where Gouverneur Morris’ motion to add the Excepting Clause and Madison’s one recorded comment on it occupy almost the whole of the debate.]

As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power.

We do not mean to say that Congress’ power to provide for interbranch appointments of “inferior officers” is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress’ decision to vest the appointment power in the courts would be improper if there was some “incongruity” between the functions normally performed by the courts and the performance of their duty to appoint. 100 U. S., at 398. In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals’ conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers. [The Court cites Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987) (court-appointed contempt prosecutors), Go-Bart (court-appointed commissioners), Siebold (judicial appointment of marshals), and the statutory power of district courts to make interim appointments of United States Attorneys, 28 U. S. C. § 546(d).]

Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act’s provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U. S. C. § 49(f), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on “incongruous” interbranch appointments.

IV

Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III. As a general rule, we have broadly stated that “executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.” Buckley, 424 U. S., at 123 (citing United States v. Ferreira, 13 How. 40 (1852); Hayburn’s Case, 2 Dall. 409 (1792)). The purpose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches.

[The Court holds first that the Division’s power to appoint derives from the Appointments Clause itself, “a source of authority for judicial action independent of Article III,” and that the incidental power to define the counsel’s jurisdiction — which must be “demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation” — raises no Article III problem. It then canvasses the Division’s remaining, largely passive powers at 680–681 (extensions, receipt of reports, referrals, attorney’s fees, receipt and release of the final report), analogizing them to familiar judicial housekeeping and cautioning that the report-release power must be exercised “with restraint.”]

[The Court is “more doubtful” about the Division’s power to terminate the office under § 596(b)(2), which is “administrative” and not typically “judicial,” but construes it narrowly and holds that it is not “a significant judicial encroachment upon executive power or upon the prosecutorial discretion of the independent counsel,” and does not approach a power to remove. On the risk of biased adjudication it relies on § 49(f), which bars a Special Division judge from participating in any judicial proceeding involving a counsel that judge appointed.]

We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties that are not specifically authorized by the Act.

V

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.

A

Two Terms ago we held in Bowsher v. Synar, 478 U. S. 714, 726 (1986), that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” A primary antecedent for that ruling was Myers v. United States, 272 U. S. 52 (1926), which considered a statute by which certain postmasters could be removed by the President only “by and with the advice and consent of the Senate”; there too Congress’ attempt to involve itself in the removal of an executive official rendered the statute invalid.

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” § 596(a)(1). There is no requirement of congressional approval of the Attorney General’s removal decision, though the decision is subject to judicial review. § 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey’s Executor v. United States, 295 U. S. 602 (1935), and Wiener v. United States, 357 U. S. 349 (1958), than to Myers or Bowsher.

In Humphrey’s Executor, the issue was whether a statute restricting the President’s power to remove the Commissioners of the Federal Trade Commission only for “inefficiency, neglect of duty, or malfeasance in office” was consistent with the Constitution. 295 U. S., at 619. 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 631. Contrary to the implication of some dicta in Myers, the President’s power to remove Government officials simply was not “all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution.” 295 U. S., at 629. At least in regard to “quasi-legislative” and “quasi-judicial” agencies such as the FTC, the authority of Congress to require them to act independently of executive control “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.” Ibid.

[Wiener is described at 688: the President had no unfettered discretion to remove a member of the War Claims Commission, whose Commissioners, like the FTC’s, “were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control.” “Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.” 357 U. S., at 356.]

Appellees contend that Humphrey’s Executor and Wiener are distinguishable from this case because they did not involve officials who performed a “core executive function.” They argue that our decision in Humphrey’s Executor rests on a distinction between “purely executive” officials and officials who exercise “quasi-legislative” and “quasi-judicial” powers. In their view, when a “purely executive” official is involved, the governing precedent is Myers, not Humphrey’s Executor. See Humphrey’s Executor, supra, at 628. And, under Myers, the President must have absolute discretion to discharge “purely” executive officials at will. See Myers, 272 U. S., at 132–134.

We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to distinguish the officials involved in Humphrey’s Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a “good cause”-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as “purely executive.” The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President’s exercise of the “executive power” and his constitutionally appointed duty to “take care that the laws be faithfully executed” under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some “purely executive” officials who must be removable by the President at will if he is to be able to accomplish his constitutional role. See 272 U. S., at 132–134. But as the Court noted in Wiener:

“The assumption was short-lived that the Myers case recognized the President’s inherent constitutional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure.” 357 U. S., at 352.

At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as “quasi-legislative” or “quasi-judicial” in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

[The Court’s footnote 29, at 690, answers the dissent directly: “The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will. Post, at 705. This rigid demarcation — a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers — depends upon an extrapolation from general constitutional language which we think is more than the text will bear. It is also contrary to our holding in United States v. Perkins, supra, decided more than a century ago.”]

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. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative 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. Here, as with the appointment provision, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.

B

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.

[At 693–694 the Court holds that the Act works no congressional aggrandizement: it lets certain Members request that the Attorney General apply for an appointment, but he has no duty to accede, and beyond that Congress’ role is limited to receiving reports and oversight.]

Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not in itself an “executive” function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the “courts of Law.” We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte, and that once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel.

Finally, we do not think that the Act “impermissibly undermine[s]” the powers of the Executive Branch, Schor, supra, at 856, or “disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions,” Nixon v. Administrator of General Services, supra, at 443. 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. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel’s jurisdiction; and his power to remove a counsel is limited. Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an independent counsel. [He also controls initiation, since no counsel may be appointed without his request and his refusal is unreviewable; the counsel’s jurisdiction is defined by reference to the facts he submits; and the counsel must abide by Justice Department policy unless it is not “possible” to do so.] 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.

VI

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 KENNEDY took no part in the consideration or decision of this case.

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[Justice Scalia, dissenting. He is alone. What follows is the dissent at 697–734, given at length; the editorial brackets mark only passages passed over, and every passage the course relies on is set out in Justice Scalia’s own words.]

JUSTICE SCALIA, dissenting.

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). 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, § 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, § 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, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.”

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. Federalist No. 73, p. 442 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321–322. Madison continued:

“But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit… . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id., at 322–323.

The major “fortification” provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive’s strength in the same way they had weakened the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. Thus, while “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” U. S. Const., Art. I, § 1 (emphasis added), “[t]he executive Power shall be vested in a President of the United States,” Art. II, § 1, cl. 1 (emphasis added).

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,” Federalist No. 51, p. 321 (J. Madison), 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.

I

The present case began when the Legislative and Executive Branches became “embroiled in a dispute concerning the scope of the congressional investigatory power,” which — as is often the case with such interbranch conflicts — became quite acrimonious.

[Justice Scalia retells the EPA dispute at 699–701 from the Executive’s side: the President personally directed the Administrator to withhold documents, counseled by appellee Olson at the Office of Legal Counsel; the House cited the Administrator for contempt — “Contempt of Congress is a criminal offense” — the United States Attorney did not prosecute, the Executive sued, the District Court urged “[c]ompromise and cooperation, rather than confrontation,” and the branches settled. “Congress did not, however, leave things there.” Judiciary Committee staff counsel investigated for two years and produced a 3,000-page report questioning Olson’s truthfulness and requesting an independent counsel.]

As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that “there are no reasonable grounds to believe that further investigation or prosecution is warranted.” 28 U. S. C. § 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional request, Mr. Olson. [He adds that the Act establishes more than practical compulsion: the Attorney General had a duty to comply unless he could find “no reasonable grounds to believe” not that prosecution but merely that “further investigation” was warranted, after a 90-day inquiry in which grand juries, plea bargaining, immunity and subpoenas were unavailable; and that though the courts may not review a refusal, Congress may.] The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U. S. C. § 595(c) (independent counsel must report to the House of Representatives information “that may constitute grounds for an impeachment”).

Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, and not even because they necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.

II

If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers.

As my prologue suggests, I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department’s “defense must … be made commensurate to the danger of attack,” Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today’s holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers.

[At 704–705 Justice Scalia notes the absence from the Court’s opinion of “the usual, almost formulary caution that we owe great deference to Congress’ view that what it has done is constitutional,” and explains why: deference is owed when a private citizen challenges Government action on grounds unrelated to separation of powers, but] where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers … .” Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. 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.

To repeat, Article II, § 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.

The Court concedes that “[t]here is no real dispute that the functions performed by the independent counsel are ‘executive’,” though it qualifies that concession by adding “in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.” Ante, at 691. The qualifier adds nothing but atmosphere. In what other sense can one identify “the executive Power” that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere — if conducted by government at all — been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel’s functions fit this description. She is vested with the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General.” 28 U. S. C. § 594(a) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U. S. 821, 832 (1985); Buckley v. Valeo, 424 U. S. 1, 138 (1976); United States v. Nixon, 418 U. S. 683, 693 (1974).

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control. “Most importan[t]” among these controls, the Court asserts, is the Attorney General’s “power to remove the counsel for ‘good cause.’” Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey’s Executor v. United States, 295 U. S. 602 (1935) — indeed, what Humphrey’s Executor was all about — limiting removal power to “good cause” is an impediment to, not an effective grant of, Presidential control. What we in Humphrey’s Executor found to be a means of eliminating Presidential control, the Court today considers the “most importan[t]” means of assuring Presidential control. 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.” H. R. Conf. Rep. 100-452, p. 37 (1987).

[At 707–708 Justice Scalia disposes of the “less important” controls: the Attorney General’s referral discretion is “severely confined,” the Special Division sets the scope and duration, and the direction to follow Justice Department policy “except when not ‘possible’” is “an empty promise,” since almost all investigative and prosecutorial decisions involve balancing considerations none of which is absolute — including whether a conviction is worth the disclosure of national security information, a question the Act takes from the President and gives to the counsel, § 594(a)(6).] In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely “some” Presidential control.

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.” Ante, at 695. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether “the President’s need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch” as to require complete control, ante, at 691 (emphasis added), whether the conferral of his powers upon someone else “sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws,” ante, at 693 (emphasis added), and whether “the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties,” ante, at 696 (emphasis added). 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 utter incompatibility of the Court’s approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. [He asks whether, if Congress gave away less than full control over some insignificant area of legislation, we would inquire whether the matter was “so central to the functioning of the Legislative Branch” as really to require complete control — “Of course we would have none of that” — or whether, if a statute gave non-Article III judges “just a tiny bit of purely judicial power” subject to “clear error” review, “a fair judicial equivalent of the Attorney General’s ‘for cause’ removal power here,” we would pause to ask the same question.] We would say that our “constitutionally assigned duties” include complete control over all exercises of the judicial power — or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50, 58–59 (1982): “The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III.” We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, “[i]t is a truism that constitutional protections have costs.” Coy v. Iowa, post, at 1020. While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.

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; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches who are guilty of abuse. Political pressures produced special prosecutors — for Teapot Dome and for Watergate, for example — long before this statute created the independent counsel.

The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a “balancing test.” What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? 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. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court’s opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President’s closest advisers, and indeed the President himself, is not “so central to the functioning of the Executive Branch” as to be constitutionally required to be within the President’s control. Apparently that is so because we say it is so. Having abandoned as the basis for our decisionmaking the text of Article II that “the executive Power” must be vested in the President, the Court does not even attempt to craft a substitute criterion — a “justiciable standard,” see, e. g., Baker v. Carr, 369 U. S. 186, 210 (1962); Coleman v. Miller, 307 U. S. 433, 454–455 (1939), however remote from the Constitution — that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.

In my view, moreover, even as an ad hoc, standardless judgment the Court’s conclusion must be wrong. Before this statute was passed, the President, or an executive officer giving advice to the President or testifying before Congress on one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged — insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned — in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave Members of Congress the advantage of not being prosecutable for anything said or done in their legislative capacities. It is the very object of this legislation to eliminate that assurance of a sympathetic forum. The prospect is frightening even outside the context of a bitter, interbranch political dispute.

[He doubts that even the President’s own boldness escapes the effect — it is far easier for a political foe “simply to trigger a debilitating criminal investigation of the Chief Executive under this law” than to bring impeachment proceedings — and says that the President’s high-level assistants, who “typically have no political base of support,” will inevitably be intimidated, just as Members of Congress and their staffs would be if the Speech or Debate Clause were replaced with a similar provision.] It deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed.

Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, “crooks.” And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it cannot be said that there are “no reasonable grounds to believe” they are called for. 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.

[At 714 Justice Scalia sets the Criminal Division’s roughly $50 million annual appropriation against the almost $5 million spent by four independent counsel between May 1986 and August 1987 — one-tenth of the amount annually appropriated to the entire Criminal Division, and almost $1 million in the month of August 1987 alone.]

In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today.

III

As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President’s power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas.

[Justice Scalia quotes Art. II, § 2, cl. 2 in full at 715, and frames the two questions: whether appellant is an “inferior” officer, and whether Congress may vest her appointment in a court of law. He then answers the Court’s considerations one by one.]

As to the first of these inquiries, the Court does not attempt to “decide exactly” what establishes the line between principal and “inferior” officers, but is confident that, whatever the line may be, appellant “clearly falls on the ‘inferior officer’ side” of it. Ante, at 671. The Court gives three reasons: First, she “is subject to removal by a higher Executive Branch official,” namely, the Attorney General. Ibid. Second, she is “empowered by the Act to perform only certain, limited duties.” Ibid. Third, her office is “limited in jurisdiction” and “limited in tenure.” Ante, at 672.

The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for “good cause” or physical or mental incapacity. By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. If it were common usage to refer to someone as “inferior” who is subject to removal for cause by another, then one would say that the President is “inferior” to Congress.

The second reason offered by the Court — that appellant performs only certain, limited duties — may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. It seems to me impossible to maintain that appellant’s authority is so “limited” as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel’s power does not include any authority to “formulate policy for the Government or the Executive Branch.” Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. 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. § 594(f).

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 jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel’s tenure. 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. This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason “inferior in rank and authority.” If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General’s responsibilities among a number of “lesser” functionaries.

[At 719–722 Justice Scalia argues from Johnson’s Dictionary and from Federalist No. 81 that “inferiour” meant subordinate; reviews Eaton, Germaine, Hartwell, Nixon, Siebold and Go-Bart, contending that in each the officer was subordinate to a superior; and concedes that subordination is not a sufficient condition of inferior status — Madison’s remark on Morris’ motion shows that “Superior Officers below Heads of Departments” may still be principal — but insists it is a necessary one.]

But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer.

The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that “appellant may not be ‘subordinate’ to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act.” Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the “full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice,” 28 U. S. C. § 594(a) (1982 ed., Supp. V), and makes her removable only for “good cause,” a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H. R. Conf. Rep. No. 100-452, p. 37 (1987).

Because appellant is not subordinate to another officer, she is not an “inferior” officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional.

IV

I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject; for most of it I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. In re Sealed Case, 267 U. S. App. D. C. 178, 838 F. 2d 476 (1988). I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today.

There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President’s power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U. S. 52, 127 (1926), and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by an officer of the Executive Branch, see United States v. Perkins, 116 U. S. 483, 485 (1886).

[At 724–725 Justice Scalia observes that the Court could have decided the removal question on the narrow ground that inferior officers appointed by courts may be given removal protection, and that before today the President’s removal power had been restricted only for the “independent agencies,” such as the FTC, the ICC and the Consumer Product Safety Commission, which engage substantially in rulemaking, and for members of Article I courts. He concedes that the line between “purely executive” and “quasi-legislative” or “quasi-judicial” functions “is not a clear one or even a rational one.”]

But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey’s Executor is swept into the dustbin of repudiated constitutional principles. “[O]ur present considered view,” the Court says, “is that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’” Ante, at 689.

One can hardly grieve for the shoddy treatment given today to Humphrey’s Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice Taft’s opinion 10 years earlier in Myers — 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. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. 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, 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. 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.” Ante, at 690. There are now no lines. 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? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who could be removed only pursuant to certain carefully designed restrictions? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what “[a]mbition … counteract[ing] ambition,” Federalist No. 51, p. 322 (Madison), is all about, if it does not expect Congress to try them.

As far as I can discern from the Court’s opinion, it is now open season upon the President’s removal power for all executive officers, with not even the superficially principled restriction of Humphrey’s Executor as cover. The Court essentially says to the President: “Trust us. We will make sure that you are able to accomplish your constitutional role.” I think the Constitution gives the President — and the people — more protection than that.

V

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.

Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows:

“There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints… .

“If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.” R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration — the unfairness will come home to roost in the Oval Office. That result was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, “[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility.” Federalist No. 70, p. 424. Since there is only one President, he is responsible. The people know whom to blame.

That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? [If, after a 90-day investigation without normal investigatory tools, the Attorney General cannot say there are “no reasonable grounds to believe” further investigation is warranted, a process begins that is not in the full control of persons “dependent on the people,” and whose flaws cannot be blamed on the President. He asks what happens if the panel of judges is partisan and selects a prosecutor antagonistic to the administration.] There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff — lawyers willing to lay aside their current careers for an indeterminate amount of time, for a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him”?

[At 730–731 Justice Scalia adds that the counsel’s jurisdiction, though bounded by the Special Division’s grant, has often been broad, and that anything beyond it can be referred back and in all likelihood reassigned to the same counsel. He then says what he is not saying.]

I do not mean to suggest that anything of this sort occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. 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. It is true that a similar list of horribles could be attributed to an ordinary Justice Department prosecution. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.

The above described possibilities of irresponsible conduct will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations:

“The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel — specifically, her isolation from the Executive Branch and the internal checks and balances it supplies — is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests.” Brief for Edward H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11.

It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. 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. What would normally be regarded as a technical violation may in his or her small world assume the proportions of an indictable offense. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile — with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.

The notion that every violation of law should be prosecuted, including — indeed, especially — every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.

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.”

Notes & Questions

1. Big picture — a 7–1 majority that lost, and a lone dissent that won. Morrison upholds the independent counsel provisions of the Ethics in Government Act against Appointments Clause, Article III and removal challenges. Rehnquist writes for seven; Kennedy took no part; Scalia dissents alone. It is the high-water mark of functionalism in the separation-of-powers cases: the Court asks not whether an officer is quasi-this or purely that, but whether the arrangement, taken as a whole, impermissibly undermines the President’s ability to perform his constitutional function. And then history happened. The independent counsel statute was allowed to lapse in 1999 with support from across the political spectrum, including from people who had defended it; Scalia’s dissent became one of the most cited dissents in the United States Reports; Seila Law in 2020 treated Morrison not as a governing principle but as one of two narrow exceptions to unrestricted removal; and Trump v. Slaughter in June 2026 — the current case for this module — overruled Humphrey’s Executor outright while confining what remains of this line still further. Read the majority as the best statement of the functionalist position and the dissent as the argument that eventually prevailed, and be able to say why each is more persuasive than its fate suggests.

2. Raw specific knowledge — three holdings, and the four considerations. (a) Appointments Clause. The independent counsel is an inferior officer, so Congress could vest her appointment outside the President. The Court relies on four considerations, and you should be able to give them in its order: she is subject to removal by a higher Executive Branch official; she performs only limited duties; her jurisdiction is limited; and her tenure is limited. Note what the Court does not do — it declines to draw a definitive line between principal and inferior officers, which is why Edmond, a note in this module, later reframes the question around whether the officer’s work is directed and supervised by a presidentially-appointed, Senate-confirmed superior. If you are asked the modern test, it is Edmond’s, not this one’s. (b) Interbranch appointment. The Excepting Clause does not bar Congress from vesting the appointment in a court, and the Court finds no incongruity in a court appointing a prosecutor. (c) Removal — the holding that matters for this module. The Court expressly moves away from the quasi-legislative / quasi-judicial line of Humphrey’s Executor and asks instead whether the removal restriction impedes the President’s ability to perform his constitutional duty. Learn the reformulation. It is the second of the two exceptions Seila Law later recognizes, and it is the reason a for-cause-protected prosecutor was constitutional in 1988.

3. Practical application — the statute is gone; the problem is not. (a) The Ethics in Government Act lapsed in 1999 and was replaced by Department of Justice regulations providing for a Special Counsel appointed by the Attorney General, removable by the Attorney General for cause, and operating under DOJ supervision. Compare that arrangement to the statute upheld here, feature by feature, and say which of the four Morrison considerations each satisfies. Then ask the harder question: is the regulatory scheme constitutional because it is weaker, and if so, has anything been gained? (b) Apply the Edmond supervision test to the same regulatory Special Counsel and see whether you get the same answer. (c) Now the design problem the case is really about. Somebody has to be able to investigate the President and the President’s closest associates. Under this decision, Congress could insulate that person. Under Slaughter’s logic, it is far from clear that it can. Design the most independent federal prosecutor you believe is constitutional as of today, and then say plainly whether that person could credibly investigate the administration that can fire her. If the honest answer is no, say what follows — impeachment, state prosecution, elections, or nothing.

4. Attack the reasoning — Scalia’s dissent, which you should be able to reconstruct without the text. It has four moves and they build. (a) Structure is not decoration. The separation of powers is the mechanism by which the Constitution protects liberty, not a set of formalities to be balanced away when the arrangement seems reasonable; and the fact that this particular statute is attractive is exactly why it is dangerous. Hence the line about the wolf that comes as a wolf — the point being that the threats we recognize are not the ones that succeed. (b) Prosecution is executive. Criminal prosecution is a quintessentially executive function; if it is executive, then Article I’s vesting of the executive power in a President means this power is his. (c) “Some” is not “all.” The majority reasons that the statute leaves the President some control, and Scalia’s answer is that the Constitution does not vest some of the executive power in the President. This is the cleanest logical objection in the dissent and the hardest for the majority to answer — try to answer it. (d) The test is standardless. Asking whether a restriction unduly impedes the President’s ability to perform his functions gives no guidance to the next court, and the balance will be struck by whoever holds the pen. So: is Scalia right that a functional test is no test? Note that the identical objection was made to Youngstown’s three categories, and those have proved durable. What is the difference — if there is one? (e) Finally, the fairness argument, which is the part of the dissent that aged best and is least discussed in class: an independent counsel with unlimited time, a single target and no competing priorities is structurally likely to prosecute where an ordinary prosecutor would not. Is that a constitutional argument at all? If not, why does it appear in a constitutional opinion, and does its presence tell you something about what the dissent is actually doing?

5. Creative thinking — build the test that survives both critiques. (a) The majority’s test is criticized as standardless; the formalist alternative is criticized as producing an executive nobody can check. Draft a removal test in two sentences that a district judge could apply, that would uphold protection for an adjudicator deciding an individual case, and that would deny it to an officer setting national enforcement policy. Then apply it to five officers: an administrative law judge; a member of the Federal Trade Commission; a Special Counsel investigating the President; the Comptroller of the Currency; and a Governor of the Federal Reserve. If your test cannot separate the ALJ from the FTC Commissioner, ask whether function is the right variable at all — perhaps the relevant variable is whether the officer decides individual cases or makes general policy, which is a distinction Humphrey’s Executor gestured at with the wrong vocabulary. (b) Then argue the other side of Scalia. His premise is that the executive power is indivisible: whatever is executive belongs entirely to the President. But the Constitution itself divides executive power in places — the Senate’s role in appointments, the Senate’s role in treaties, the requirement of appropriations. Build the argument that the vesting of “the executive Power” was never understood as a grant of unified control over every officer, and then say what limits your argument would still recognize. If it recognizes none, you have proved too much in the other direction, and you will have learned the actual difficulty of this area: both of the clean positions are unliveable, which is why the doctrine has oscillated for a century and did so again this June.