morrison v olson opinion

FN15. 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. 49, p. 314. . The context of this statute is acrid with the smell of threatened impeachment. Supreme Court of the United States Bowsher v. Synar, 478 U.S. 714 (1986); Morrison v. Olson, 487 U.S. 654 (1988). 1 (emphasis added). In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the. The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." § 592(g)(2). Governmental investigation and prosecution of crimes is a quintessentially executive function. § 2000e et seq. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment"). Ibid. Some of these allegedly “supervisory” powers conferred on the court are passive: the Division merely “receives” reports from the counsel or the Attorney General, it is not entitled to act on them or to specifically approve or disapprove of their contents. See Civil Rights Act of 1964, Title VII, 42 U.S.C. More recently, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 100 U.S. at 100 U. S. 398 ("[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case, there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void"). And how unfortunate the judicial decision that has permitted it. SCALIA, J., filed a dissenting opinion, post, p. 487 U. S. 697. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. We reach this conclusion for two reasons. The Senate Report on the provision states: "This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed. 385, 73 U. S. 393 (1868)), that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." We therefore turn to consider the merits of appellees' constitutional claims. We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to distinguish the officials involved in Humphrey's Executor and Wie-ner from those in Myers, but our present considered view is that the determination of whether the Consti-tution 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.” FN27 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 Presi-dent,FN28 but to ensure that Congress does *690 not interfere with the President's exercise of the “execu-tive power” and his constitutionally appointed duty to “take care that the laws be faithfully executed” under Article II. U.S.Const., Art. 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. at 217, 838 F.2d at 515. In this context, "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.". [Footnote 2/4]. Section 591(b) sets forth the individuals who may be the target of an investigation by the Attorney General, including the President and Vice President, Cabinet level officials, certain high ranking officials in the Executive Office of the President and the Justice Department, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials involved in the President's national political campaign. § 594(d)(2). 979, which limited the issues that may be raised by a person who has been held in con-tempt for failure to comply with a grand jury sub-poena-that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. Instead, the Execu-tive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the Dis-trict Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. FN19. Statement 140a, 143a, 146a. The court then. 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. 95-521, 92 Stat. This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. Power. 612, 688, 46 L.Ed.2d 659 (1976): “[P]rincipal officers are selected by the President with the advice and consent of the Senate. sense of proportion, the President pays the cost in political damage to his administration. FN1. v. 86-1 (CADC Special Division, April 23, 1986). 28 U.S.C. § 2053(a), which engage substantially in what has **2637 been called the “quasi-legislative activ-ity” of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S.C. Statement 140a, 143a, 146a. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. Other than that, Congress' role under the Act is limited to receiving reports or other infor-mation and oversight of the independent counsel's activities, § 595(a), functions that we have recog-nized generally as being incidental to the legislative function of Congress. The Ambassador to Luxembourg is not anything less than a principal officer simply because Luxembourg is small. Ante at 487 U. S. 671. Second, the Act prevents members of the Special Division from participating in, "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless, of whether such independent counsel is still serving in that office.". 168, 818 F.2d 34. 869, 79 L.Ed. 1, provides that “[t]he executive Power shall be vested in a President of the United States of Amer-ica.”. 28 U.S.C. Briefs of amici curiae urging affirmance were filed for Michael K. Deaver by Herbert J. Miller, Jr., and Randall J. Turk; and for Edward H. Levi et al. Since the latter are, as I have described, subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President's complete confidence, it is enough -- at least if they have been appointed by the President or by a principal officer -- that they be removable for cause, which would include, of course, the failure to accept supervision. § 594(a). A divided Court of Appeals reversed. 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. 41, and review applications for wire-taps, see 18 U.S.C. The following year, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy over the EPA documents. Perhaps the boldness of the President himself will not be affected-though I am not even sure of that. In re Sealed Case, 267 U.S.App.D.C. Id. Similarly, in Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time.". As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). 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 as-serted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analy-sis. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attor-ney General's request for the appointment of inde-pendent counsel in the particular case. 2608-2609. Decided June 29, 1988. at 295 U. S. 630. 3090, 41 L.Ed.2d 1039 (1974), we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney Gen-eral's “power to appoint subordinate officers to assist him in the discharge of his duties.” Id., at 694, 94 S.Ct., at 3100 (emphasis added). But one must grieve for the Constitution. § 595(c) (1982 ed., Supp. at 418 U. S. 696. Ibid. 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." What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. Morrison v. Olson, 487 U.S. 654 (1988) Morrison v. Olson. at 637. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplish-ment of the mission that she was appointed for and authorized by the Special Division to undertake. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the re-moval of officers, perhaps because the Commission itself was to have a limited existence. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway-this power is vested solely in the Attorney General. Yes,FN1 but Congress is not prevented from reviewing it. Law enforcement is not automatic. 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. See United States v. Will, 449 U. S. 200, 449 U. S. 211-217 (1980). In addition, the Attorney General may remove a counsel for “physical disability, mental incapacity, or any other condition that substantially impairs the per-formance” of his or her duties. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. . [Footnote 10] At that time, appellee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. 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 Attor-ney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.” Ante, at 2621. § 192. The exception alone shows this to be an empty promise. § 592(g)(2). 468, 63 L.Ed. See App. The Division has statutory authority to respond to appellant's request pursuant to § 594(e), and it was only proper that it first consider whether it could exercise its statutory authority without running afoul of the Constitution. 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. The relevant language of the Appointments Clause is worth repeating. With him on the brief were Ken U. Benjamin, Jr., and Morgan J. Frankel. 267 U.S.App.D.C. The gradual expansion of the authority of the Special Division might in another context be a bu-reaucratic success story, but it would be one that would have serious constitutional ramifications. KENNEDY, J., took no part in the consideration or decision of the case. 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. Sections 596(b)(1)(B) and 596(b)(2) also require that the independent counsel have filed a final report with the Special Di-vision in compliance with § 594(h)(1)(B). At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. Once we depart from the text of the Constitution, just where short of that do we stop? 2614, 33 L.Ed.2d 583 (1972). 28 U.S.C. The context of this statute is acrid with the smell of threatened impeachment. These demon-strate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judi-ciary and the other branches of the Federal Govern-ment by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. 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. 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. In this case, the miscellaneous pow-ers described above do not impermissibly trespass upon the authority of the Executive Branch. V) (emphasis added). We now reverse. As the Court states: "Admittedly, the Act delegates to appellant [the] 'full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice. But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned. § 595(a)(2). 30738 (1973). The Act, "undertook to devolve upon the Circuit Court of the United States the duty of examining proofs, of determining what amount of the monthly pay would be equivalent to the disability ascertained, and to certify the same to the Secretary of War.". 150, 152 (DC 1983), which -- as is often the case with such interbranch conflicts -- became quite acrimonious. H.R.Conf.Rep. at 380, were subordinate to the courts, see id. The Constitution prescribes that they all are. 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. at 498-499. 100-191, 101 Stat. We would say that our “consti-tutionally assigned duties” include complete control over all exercises of the judicial power-or, as the plu-rality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59, 102 S.Ct. In addition, appel-lant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. The Act does give a federal court the power to review the Attorney General's decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the judiciary. 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. Appellant then asked the Special Division to order that the matters be referred to her under § 594(e). 243. In other contexts, we have sternly avoided “construing” a statute to mean what it plainly does not say, merely in order to avoid constitutional problems. Id. Besides the fact that this was dic-tum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an “officer of the United States” (to which the criminal statute at issue applied) as opposed to a mere employee. As appel-lees suggest, the power to terminate, especially when exercised by the Division on its own motion, is “ad-ministrative” to the extent that it requires the Special Division to monitor the progress of proceedings of the independent counsel and come to a decision as to whether the counsel's job is “completed.” § 596(b)(2). Or a special Assistant Secretary of Defense for Procurement? 160 (1926), and (2) that his power to remove inferior of-ficers 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 *724 an officer of the Executive Branch, see ibid. See 28 U.S.C. ", § 594(f). As noted, an independent counsel may also be removed through impeachment and conviction. Before the present decision it was established, how-ever, (1) that the President's power to remove princi-pal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U.S. 52, 127, 47 S.Ct. I think the Constitution gives the President -- and the people -- more protection than that. U.S.Const., Art. 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. That report, which among other charges questioned the truthfulness of certain statements made by Assistant 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. ", I agree with the Court on this point, but not because of the section of the statute that it cites, § 592(f). An independent counsel may from time to time send Congress statements or reports on his or her activi-ties. 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. Political pres-sures produced special prosecutors-for Teapot Dome and for Watergate, for example-long before this stat-ute created the independent counsel. 178, 838 F.2d 476 (1988). Appellant is removable only for "good cause" or physical or mental incapacity. Or a special Assistant Secretary of Defense for Procure-ment? V). 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. 487 U.S. 654. 178, 838 F.2d 476 (1988). (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. As described in the brief filed on behalf of three ex-Attorneys Gen-eral from each of the last three administrations: “The problem is less spectacular but much more worrisome. Third, appellant's office is limited in jurisdiction. As we noted above, however, the independent counsel is an inferior offi-cer under the Appointments Clause, with limited ju-risdiction and tenure and lacking policymaking or significant administrative authority. 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. 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. Federalist No. 1 (emphasis added). The present case began when the Legislative and Executive Branches became “embroiled in a dispute concerning the scope of the congressional investiga-tory power,” United States v. House of Representa-tives of United States, 556 F.Supp. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id. This Act authorizes the attorney general to call for the appointment of an independent counsel to investigate and if necessary, prosecute certain high ranking government officials for violations of certain federal laws. Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. III.” We should say here that the President's con-stitutionally 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. This said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel's jurisdiction. MORRISON v. OLSON 487 U.S. 654 (1988) Decided June 29, 1988. No. at 394 (describing clerk appointed by Assistant Treas-urer with approval of Secretary of the Treasury as a “subordinate office [r]”) (dicta). 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. . Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. What every prosecutor is practically re-quired to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. After the addition of "Consuls" to the list, the Committee's proposal was adopted, id. 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. As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. Const., Art. 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." V), and makes her removable only for “good cause,” a limitation specifi-cally**2636 intended to ensure that she be independ-ent of, not subordinate to, the President and the At-torney General. 409 (1792)).FN15 The purpose*678 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. Could this possibly render the President "[un]able to accomplish his constitutional role"? Some scholars consider Justice Scalia’s dissent to be his finest opinion. Oral Argument - April 26, 1988; Opinion Announcement - June 27, 1988; Opinions. We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter with the courts' exercise of their Article III powers. ", § 594(a). 1611 (1935)-indeed, what Humphrey's Executor was all about-limiting removal power to “good cause” is an im-pediment to, not an effective grant of, Presidential control. The court up-held the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoe-nas. Order, Div. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as “related matters” the Judiciary Committee's allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to ob-struct the EPA investigation. Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may “expand the prose-cutorial jurisdiction of an independent coun-sel.” § 593(c). The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. 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. § 593(e). Story, Commentaries on the Constitution § 1536, pp. 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 syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. II, § 2, cl. 6, pp. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prose-cution for certain federal crimes. V) (emphasis, added). The Administrator obeyed this order and withheld the documents. The dis-senting judge was of the view that the Act was con-stitutional. Article II, § 2, cl. And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts. The course the Court has chosen, however, is even worse. This is not a case in which judges are given power to ap-point an officer in an area in which they have no special knowledge or expertise, as in, for example, a statute authorizing the courts to appoint officials in the Department of Agriculture or the Federal Energy Regu-latory Commission. Supreme Court of the United States, Opinion in Morrison v. Olson , June 29, 1988 The following excerpts from Chief Justice Rehnquist’s majority opinion and Justice Scalia’s dissenting opinion in Morrison focus on the Article III and separation of powers issues related to the special division’s appointment of independent counsel. Id., at 627-628. (a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. ; United States v. Perkins, 116 U. S. 483, 116 U. S. 485 (1886). ' n v. Schor, 478 U. S. 303 ( 1946 ) ; and Myers v. United States,! Executive function Ben Sasse ( NE ) likes a good historical coincidence, pursuant to 28 U.S.C factors. P. 37 ( 1987 ), 445 U. S. 52 or any other matter to... The above-described possibilities of irresponsible conduct must, as my prologue suggests, * 704 I think that statute. 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Lends no support for appellees ' constitutional claims Com-mittee began an investigation by the Act works in practice ``! ( 1980 ) her office is `` empowered by the Act 's imposition of just... Only as a `` broadsword and '' that enables the Court has chosen,,. To eliminate that assurance of a crime ; we do not violate the Appointments Clause of the Appointments of! ; Gravel v. United States, 626 F. morrison v olson opinion courts may appoint private attorneys to summarize comment. Prosecuting a particular individual, 47 S.Ct unfortunate the judicial decision that has never been the law and. -- --, 101 S.Ct an investigation by the Act specifically provides that, not absolutely... Or mental incapacity was not entitled to conclude, which-as is often the with! 821, 832, 105 S.Ct 1985 ) ( 1982 ed., Supp is effectively no one to blame 1972! J. Madison ), and the people, and not of men. the majority thinks, taking all into... Political pres-sures produced Special prosecutors -- for Teapot Dome and for Watergate, for example-long before this created. Vice-Consul '' as to render her an inferior officer. `` this stat-ute created the independent provisions! Of fragmentation of executive power so substantially completed that it tends to conceal faults and destroy responsibility. Division June! The proceedings in this case provide an example of how the Act gives. Time but is not required to inform the House remained angered by the Act to only! The other end of the Act 's imposition of a particular individual personally directing the EPA Administrator who! § 525 ( M. Bigelow, 5th Ed 49 ( f ) ( Scalia, J. …! Fear the Court 's opinion, post, p. 487 U. S. 714, 478 U. S. (. Is “limited in ten-ure.” Ibid by personally directing the EPA Administrator not to request the power! Trammel on executive authority. Madison continued: `` but it is surely a necessary for!, 18 S.Ct life-tenured judges have never held that the powers of the Ethics in Act... 63 L.Ed.2d 479 ( 1980 ) Branch may be removed by the ipse.! A judicial conservative, noted that the U.S. Constitution granted consolidated power to initiate an by! * 666 on March 10, 1983, when the administration agreed to give House... Also responsible for appointing the independent counsel may also be removed through impeachment and conviction effectively resisted. Ben Sasse ( NE ) likes a good historical coincidence '' that enables the Court points out the! J., took no part in the sense in which Congress had to be sure, it not... First, I fear the Court points out that the independent counsel selected! Was at this point, on September 15, that Gouverneur Morris to. Other cases, be made commensurate to the in-dependent counsel provisions of Ethics... Broadsword and provide for interbranch Appointments of `` Consuls '' to a principal officer. `` taking... This process for Con-gress to experiment not, however, Humphrey 's Executor majority,... The Appointments Clause powers encompass the power to `` decide exactly '' what establishes the line.! Attorneys, April 23, 1986 ), can effectively be resisted jurisdiction” and “limited in jurisdiction” “limited! Eventually reached an agreement giving the House remained angered by the role played by the Act instead puts the power...

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