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Understanding Morrison v. Olsen: The Constitutional Framework for Independent Counsel Appointments

The 1978 Ethics in Government Act established a framework for appointing independent counsel (IC) to investigate federal law violations by high-ranking officials. The Attorney General (AG) could initiate an investigation and request the appointment of an IC if reasonable grounds were found. This case has raised critical questions surrounding the classification of IC as "inferior officers," inter-branch appointments, and the limits of presidential removal authority. This analysis also explores key distinctions between officers and employees, impacting governance and accountability.

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Understanding Morrison v. Olsen: The Constitutional Framework for Independent Counsel Appointments

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  1. Morrison v. Olsen – the Scheme • EGA of 1978 allowed appointment of an independent counsel (I.C.) when high executive officials were suspected of violating certain federal laws. • AG charged with investigating information suggesting a law violation. • After concluding investigation, AG filed a report with special division of circuit court of appeals for the D.C. circuit. • Court couldn’t initiate appointment of I.C. BUT if AG found “reasonable grounds to believe further investigation/ prosecution” was warranted, AG could ask court to appoint I.C. • Upon AG’s request, court was required to appoint an independent counsel and to define his/her jurisdiction. • Removal of I.C. effected in 3 ways: • Impeachment & conviction via Constitution • Completion of project (termination by Court or voluntarily) (fed. statute) • AG could remove I.C. for good cause, physical disability, mental incapacity or other condition that interferes with job (fed. statute)

  2. Morrison & Appointments • Majority finds that I.C. is an “inferior officer” • Why? Does it define what an “inferior officer” is? • What factors affect majority’s determination that I.C. is an inferior officer? • How does Justice Scalia respond?

  3. Morrison & Inter-branch Appointments • I.C. (executive official) was appointed by a special division of federal court (judicial branch). • Does the appointments clause prohibit inter-branch appointments? • What standard would the Morrison majority use to determine whether inter-branch appointments were unconstitutional? Why didn’t this scheme violate that standard? • Could Congress vest appointment of an Assistant Secretary of Defense in a Court of Law?

  4. More on Determining When someone is An “Inferior” vs. “Principal” Officer • SCT hasn’t given us much more than the Morrison factors to use to make the distinction so courts often look to those • Subsequent Cases – add another layer of inquiry • Edmond v. U.S. (1997) – SCT (Scalia) intimated that “inferior” officers generally have a superior who supervises their work and was appointed by President w/ A&C of Senate • Free Enterprise Fund v. PCAOB (2010) – SCT held that officials who are removable at will by independent agency commr’s would be “inferior” and could be appointed by SEC as Heads of Dept • Who is a “Head of “Dep’t”? • Typically think of as “Secretary” or Head of major executive agencies – BUT SCT held that independent agencies could qualify as “Departments” because they were a “freestanding component of the Executive Branch, not subordinate to or contained within any other such component”

  5. Inferior Officer v. Employee • Officers – Any appointee exercising significant authority pursuant to the laws of the U.S. (Buckley) • Employees • Buckley n. 162 – Employees are “lesser functionaries subordinate to officers of the US” • Freytag– Officers “perform more than ministerial tasks” • Sometimes it’s relatively easy to tell when a person is an “employee” • Administrative assistant, scientist, accountant • Attorneys (even supervising attorneys) • Compare supervising attorney of EPA’s KC branch w/ Director of Legal Issues of KC EPA branch • Even the latter attorney hasn’t the discretionary authority of EPA’s Chief Legal Advisor or the Attorney General of the US

  6. Employees v. Officers – Landry v. FDIC & FreyTag v. Comm’r of IRS • Freytag • Law authorized CJ of US Tax Court (Art. I court) to appoint STJs to preside at hearings and prepare proposed findings/opinions • SCT ruled STJs were “Inferior Officers” and not employees because • Office of STJ established by law w/ fixed term, salary, etc., STJ has great discretion to find facts, etc., STJ can issue final decisions in many cases. • Appointment could be vested in CJ of Tax Court • Landry • Involved whether an ALJ w/in the FDIC (appointed by agency officials but not Head of FDIC) was an Inferior Officer or Employee. • SCT ruled that these ALJs were “employees” • Although they had similar positions established by law and a lot of discretion, they could NOT issue binding final decisions. Rather their decisions were recommendatory only. • Line between Officer and Employee can be very hard to draw.

  7. Morrison v. Olsen – Presidential Removal Authority • What is Olsen’s claim as to why the limitation on the President’s removal authority of the I.C. violates the Constitution? • Is he right about his description of the I.C.’s duties? • How does the majority respond? • What standard does the majority announce?

  8. Morrison & Removal – Scalia Dissent • What is Scalia’s response to the majority’s new test? What is he concerned about? • How does Scalia view separation of powers? • Does he view the branches as a blended sharing of powers or as three tightly sealed entities, each separately exercising its own power?

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