Morrison v. Olson

Morrison v. Olson, 487 U.S. 654 (1988), argued 26 Apr. 1988, decided 29 June 1988 by vote of 7 to 1; Rehnquist for the Court, Scalia in dissent, Kennedy not participating. In this decision, the Supreme Court upheld the statute providing for an independent counsel to investigate possible federal criminal violations by senior executive officials. The independent counsel statute resulted from the Watergate crisis, in which senior officials of the Nixon administration, including the attorney general, were implicated in covering up a politically motivated burglary at the Watergate office complex in Washington, D.C., before the 1972 presidential election.

Adopted in 1978, Title VI of the Ethics of Government Act provides for appointment of an independent counsel by a special court upon the attorney general's application. An independent counsel has more independence from the attorney general than a regular federal prosecutor, in particular because an independent counsel is removable by the attorney general only for good cause, not at will.

The Court held that an independent counsel is an “inferior officer” who can be appointed by a court of law under the Appointments Clause of the Constitution (Art. II, sec. 2). The Court also concluded that the removal limitation did not impermissibly limit executive authority. The decision signaled a renewed willingness by the Court to accept statutory limitations on removal of officers performing executive functions, as it had in Humphrey's Executor v. United States (1935).

The Court took account of the practical consequences of the statute's innovations without relying chiefly on abstract formulations of doctrine. In this regard, Morrison is widely seen as a less formalistic approach to separation of powers than either Immigration and Naturalization Service v. Chadha (1983) or Bowsher v. Synar (1986).

Despite this decisional authority for the independent counsel statute, Congress decided not to expand the statute when it expired at the end of William J. Clinton's presidency. Controversy about the extensive power of the independent counsel led many to have second thoughts about this Watergate‐era institution.

See also Appointment and Removal Power.

Thomas O. Sargentich