Morrison v. Olson

487 U.S. 654 (1988)

Argued April 26, 1988; Decided June 29, 1988



487 U.S. 654, 659-697 (Parts I to VI), 697-699 (Scalia's dissent, Intro), 703-715 (Dissent, Part II),


REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 487 U. S. 697. KENNEDY, J., took no part in the consideration or decision of the case.

[487 U. S. 659]

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 [487 U. S. 660] 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.


Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V), [Footnote 1] allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high ranking Government officials for violations of federal criminal laws. [Footnote 2] The Act requires the Attorney General, upon receipt of information that he determines is "sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law," to conduct a preliminary investigation of the matter. When the Attorney [487 U. S. 661]General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) created by the Act "for the purpose of appointing independent counsels." 28 U.S.C. § 49 (1982 ed., Supp. V). [Footnote 3] If the Attorney General determines that "there are no reasonable grounds to believe that further investigation is warranted," then he must notify the Special Division of this result. In such a case, "the division of the court shall have no power to appoint an independent counsel." § 592(b)(1). If, however, the Attorney General has determined that there are "reasonable grounds to believe that further investigation or prosecution is warranted," then he "shall apply to the division of the court for the appointment of an independent counsel." [Footnote 4] The Attorney General's application to the court "shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction." § 592(d). Upon receiving this application, the Special Division "shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction." § 593(b). [Footnote 5]

[487 U. S. 662] With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." § 594(a). [Footnote 6] The functions of the independent counsel include conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. §§ 594(a)(1)-(3). Under § 594(a)(9), the counsel's powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States."

The counsel may appoint employees, § 594(c), may request and obtain assistance from the Department of Justice, § 594(d), and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division, § 594(e). The Act also states that an independent counsel "shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." § 594(f). In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General [487 U. S. 663] and the Justice Department are required to suspend all investigations and proceedings regarding the matter. § 597(a). An independent counsel has "full authority to dismiss matters within [his or her] prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent" with Department of Justice policy. § 594(g). [Footnote 7]

Two statutory provisions govern the length of an independent counsel's tenure in office. The first defines the procedure for removing an independent counsel. 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."

If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House "specifying the facts found and the ultimate grounds for such removal." § 596(a)(2). Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division "may not hear or determine any such civil action or any appeal of a decision [487 U. S. 664] in any such civil action." The reviewing court is authorized to grant reinstatement or "other appropriate relief." § 596(a)(3). [Footnote 8]

The other provision governing the tenure of the independent counsel defines the procedures for "terminating" the counsel's office. Under § 596(b)(1), the office of an independent counsel terminates when he or she notifies the Attorney General that he or she has completed or substantially completed any investigations or prosecutions undertaken pursuant to the Act. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that "the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . . . have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions." § 596(b)(2). [Footnote 9]

Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities. § 595(a)(2). The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. § 595(a)(1). The counsel is required to inform the House of Representatives of [487 U. S. 665] "substantial and credible information which [the counsel] receives . . . that may constitute grounds for an impeachment." § 595(c). In addition, the Act gives certain congressional committee members the power to "request in writing that the Attorney General apply for the appointment of an independent counsel." § 592(g)(1). The Attorney General is required to respond to this request within a specified time, but is not required to accede to the request. § 592(g)(2).

The proceedings in this case provide an example of how the Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the "Superfund Law." [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. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained "enforcement-sensitive information." The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March, 1983, when the administration agreed to give the House Committees limited access to the documents.

The following year, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy over the EPA documents. During this investigation, appellee Olson testified before a House Subcommittee [487 U. S. 666] on March 10, 1983. Both before and after that testimony, the Department complied with several Committee requests to produce certain documents. Other documents were at first withheld, although these documents were eventually disclosed by the Department after the Committee learned of their existence. In 1985, the majority members of the Judiciary Committee published a lengthy report on the Committee's investigation. Report on Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Documents from Congress in 1982-83, H.R.Rep. No. 99-435 (1985). The report not only criticized various officials in the Department of Justice for their role in the EPA executive privilege dispute, but it also suggested that appellee Olson had given false and misleading testimony to the Subcommittee on March 10, 1983, and that appellees Schmults and Dinkins had wrongfully withheld certain documents from the Committee, thus obstructing the Committee's investigation. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. § 592(c), that he seek the appointment of an independent counsel to investigate the allegations against Olson, Schmults, and Dinkins.

The Attorney General directed the Public Integrity Section of the Criminal Division to conduct a preliminary investigation. The Section's report concluded that the appointment of an independent counsel was warranted to investigate the Committee's allegations with respect to all three appellees. After consulting with other Department officials, however, the Attorney General chose to apply to the Special Division for the appointment of an independent counsel solely with respect to appellee Olson. [Footnote 11] The Attorney General accordingly [487 U. S. 667] requested appointment of an independent counsel to investigate whether Olson's March 10, 1983, testimony "regarding the completeness of [OLC's] response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. § 1505, § 1001, or any other provision of federal criminal law."

Attorney General Report, at 2-3. The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." Id. at 11.

On April 23, 1986, the Special Division appointed James C. McKay as independent counsel to investigate "whether the testimony of . . . Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. § 1505 or § 1001, or any other provision of federal law."

The court also ordered that the independent counsel "shall have jurisdiction to investigate any other allegation of evidence of violation of any Federal criminal law by Theodore Olson developed during investigations, by the Independent Counsel, referred to above, and connected with or arising out of that investigation, and Independent Counsel shall have jurisdiction to prosecute for any such violation."

Order, Div. No. 86-1 (CADC Special Division, April 23, 1986). McKay later resigned as independent counsel, and on May 29, 1986, the Division appointed appellant Morrison as his replacement, with the same jurisdiction.

In January, 1987, appellant asked the Attorney General pursuant to § 594(e) to refer to her as "related matters" the Committee's allegations against appellees Schmults and Dinkins. The Attorney General refused to refer the matters, concluding that his decision not to request the appointment of [487 U. S. 668] an independent counsel in regard to those matters was final under § 592(b)(1). Appellant then asked the Special Division to order that the matters be referred to her under § 594(e). On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under § 592(b)(1), and that therefore the court had no authority to make the requested referral. In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34. 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. Id. at 181-182, 818 F.2d at 47-48.

Following this ruling, in May and June, 1987, appellant caused a grand jury to issue and serve subpoenas ad testificandum and duces tecum on appellees. All three appellees moved to quash the subpoenas, claiming, among other things, that the independent counsel provisions of the Act were unconstitutional, and that appellant accordingly had no authority to proceed. On July 20, 1987, the District Court upheld the constitutionality of the Act and denied the motions to quash. In re Sealed Case, 665 F.Supp. 56 (DC). The court subsequently ordered that appellees be held in contempt pursuant to 28 U.S.C. § 1826(a) for continuing to refuse to comply with the subpoenas. See App. to Juris. Statement 140a, 143a, 146a. The court stayed the effect of its contempt orders pending expedited appeal.

A divided Court of Appeals reversed. In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled first that an independent counsel is not an "inferior Officer" of the United States for purposes of the Appointments Clause. Accordingly, the court found the Act invalid because it does not provide for the independent counsel to be nominated by the President and confirmed by the Senate, as the Clause requires for "principal" officers. The court then [487 U. S. 669] went on to consider several alternative grounds for its conclusion that the statute was unconstitutional. In the majority's view, the Act also violates the Appointments Clause insofar as it empowers a court of law to appoint an "inferior" officer who performs core executive functions; the Act's delegation of various powers to the Special Division violates the limitations of Article III; the Act's restrictions on the Attorney General's power to remove an independent counsel violate the separation of powers; and finally, the Act interferes with the Executive Branch's prerogative to "take care that the Laws be faithfully executed," Art. II, § 3. The dissenting judge was of the view that the Act was constitutional. 267 U.S.App.D.C. at 238, 838 F.2d at 536. Appellant then sought review by this Court, and we noted probable jurisdiction. 484 U.S. 1058 (1988). We now reverse.

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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. 50899 U. S. 509 (1879). As we stated in Buckley v. Valeo, 424 U. S. 1424 U. S. 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 [487 U. S. 671] question is, accordingly, whether appellant is an "inferior" or a "principal" officer. [Footnote 12] 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 [487 U. S. 672] 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 99 U. S. 511, are sufficient to establish that appellant is an "inferior" officer in the constitutional sense.

This conclusion is consistent with our few previous decisions that considered the question of whether a particular Government official is a "principal" or an "inferior" officer. In United States v. Eaton, 169 U. S. 331 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a "vice-consul" during the temporary absence of the consul, terming the "vice-consul" a "subordinate officer" notwithstanding the Appointment Clause's specific reference to "Consuls" as principal officers. As we stated: "Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. " [487 U. S. 673] Id. at 169 U. S. 343. In Ex parte Siebold, 100 U. S. 371 (1880), the Court found that federal "supervisor[s] of elections," who were charged with various duties involving oversight of local congressional elections, see id. at 100 U. S. 379-380, were inferior officers for purposes of the Clause. In Go-Bart Importing Co. v. United States, 282 U. S. 344282 U. S. 352-353 (1931), we held that "United States commissioners are inferior officers." Id. at 282 U. S. 352. These commissioners had various judicial and prosecutorial powers, including the power to arrest and imprison for trial, to issue warrants, and to institute prosecutions under "laws relating to the elective franchise and civil rights." Id. at 282 U. S. 353, n. 2. All of this is consistent with our reference in United States v. Nixon, 418 U. S. 683418 U. S. 694418 U. S. 696 (1974), to the office of Watergate Special Prosecutor -- whose authority was similar to that of appellant, see id. at 418 U. S. 694, n. 8 -- as 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. They contend that the Clause does not contemplate congressional authorization of "interbranch appointments," in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause 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 one of our few decisions in this area, Ex parte Siebold, supra, where we stated: [487 U. S. 674] "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; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. . . ."

"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. And, looking at the subject in a practical light, it is perhaps better that it should rest there than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise." Id. at 100 U. S. 397-398. Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as "not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." 100 U.S. at 100 U. S. 398. Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.

We also note that the history of the Clause provides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. 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. 232-233 (M. Farrand ed.1966), and several attempts to transfer the appointment power to the President were rejected. [487 U. S. 675] See 2 id. at 42-44, 80-83. The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to "appoint officers in all cases not otherwise provided for by this Constitution." Id. at 183, 185. This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President "shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the [United States], whose appointments are not otherwise herein provided for." Id. at 498-499.

After the addition of "Consuls" to the list, the Committee's proposal was adopted, id. at 539, and was subsequently reported to the Convention by the Committee of Style. See id. at 599. It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, § 2. Id. at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough, in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was] too necessary to be omitted." This time the proposal was adopted. Id. at 627-628. 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 [487 U. S. 676] 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 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"). 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. [Footnote 13] We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U. S. 787 (1987). In Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id. at 282 U. S. 353, n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are "executive officer[s]," would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, see United States v. Solomon, 216 F.Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28 [487 U. S. 677] U.S.C. § 546(d) (1982 ed., Supp. V). [Footnote 14] Congress of course was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. 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) (1982 ed., Supp. V), we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments.

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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.


Two Terms ago, we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be "executive powers." Bowsher v. Synar, 478 U. S. 714478 U. S. 730 (1986). We held in Bowsher that "Congress cannot reserve [487 U. S. 686] for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Id. at 478 U. S. 726. A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U. S. 52Myers had considered the propriety of a federal statute by which certain postmasters of the United States 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 was found to be sufficient grounds to render the statute invalid. As we observed inBowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from "draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers." Myers, supra, at 272 U. S. 161.

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). [Footnote 23] 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. [487 U. S. 687] 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 295 U. S. 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 295 U. S. 631. Contrary to the implication of some dicta in Myers, [Footnote 24] 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 295 U. S. 629. At least in regard to "quasi-legislative" and "quasi-judicial" agencies such as the FTC, [Footnote 25] "[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties 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. In Humphrey's Executor, we found it "plain" that the Constitution did not give the President "illimitable power of removal" over the officers of independent agencies. Ibid. Were the President to have [487 U. S. 688] the power to remove FTC commissioners at will, the "coercive influence" of the removal power would "threate[n] the independence of [the] commission." Id. at 295 U. S. 630.

Similarly, in Wiener, we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission's function was to receive and adjudicate certain claims for compensation from those who had suffered personal injury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the removal of officers, perhaps because the Commission itself was to have a limited existence. As in Humphrey's Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. 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." 357 U.S. at 357 U. S. 356. Accordingly, we rejected the President's attempt to remove a Commissioner "merely because he wanted his own appointees on [the] Commission," stating that "no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute." Ibid.

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 295 U. S. 628. And, under Myers, the President must have absolute discretion to [487 U. S. 689] discharge "purely" executive officials at will. See Myers, 272 U.S. at 272 U. S. 132-134. [Footnote 26]

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." [Footnote 27] 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, [Footnote 28] but to ensure that Congress does [487 U. S. 690] 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. [Footnote 29See 272 U.S. at 272 U. S. 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 357 U. S. 352.

At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wiener [487 U. S. 691] 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. [Footnote 30] 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.

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 [487 U. S. 692] law that the counsel be terminable at will by the President. [Footnote 31]

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. [Footnote 32] Although we need not decide in this case exactly what is encompassed within the term "good cause" under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for "misconduct." See H.R.Conf.Rep. No. 100-452, p. 37 (1987). Here, as with the provision of the Act conferring the appointment authority of [487 U. S. 693] the independent counsel on the special court, 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. [Footnote 33]


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. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S. at 478 U. S. 725 (citing Humphrey's Executor, 295 U.S. at 295 U. S. 629-630). As we stated in Buckley v. Valeo,424 U. S. 1 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other."

Id. at 424 U. S. 122. We have not hesitated to invalidate provisions of law which violate this principle. See id. at 424 U. S. 123. On the other hand, we have never held that the Constitution requires that the three [487 U. S. 694] Branches of Government "operate with absolute independence." United States v. Nixon, 418 U.S. at 418 U. S. 707see also Nixon v. Administrator of General Services, 433 U. S. 425433 U. S. 442 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th ed.1905)). 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. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579343 U. S. 635 (1952) (concurring opinion).

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S. at 478 U. S. 856. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a "dange[r] of congressional usurpation of Executive Branch functions." 478 U.S. at 478 U. S. 727see also INS v. Chadha, 462 U. S. 919462 U. S. 958 (1983). Indeed, with the exception of the power of impeachment -- which applies to all officers of the United States -- Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. § 592(g). Other than that, Congress' role under the Act is limited to receiving reports or other information and oversight of the independent counsel's activities, § 595(a), functions that we have recognized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 U. S. 135273 U. S. 174 (1927).

[487 U. S. 695] 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; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f). In addition, 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. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. 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.

Finally, we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch, Schor supra, at 478 U. S. 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 433 U. S. 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 [487 U. S. 696] power to remove a counsel is limited. [Footnote 34] 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. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds "no reasonable grounds to believe that further investigation is warranted" is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel 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.


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 [487 U. S. 697] 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


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 "[n]o 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 [487 U. S. 698] 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 [487 U. S. 699] the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority, were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed.1966); 2 id. at 335-337, 533, 537, 542. Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senateand House of Representatives," 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.

*                                                                      *                                                                      *


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, [487 U. S. 704] 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.

First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e.g., Rostker v. Goldberg, 453 U. S. 57, 453 U.S. 64 (1981); Fullilove v. Klutznick, 448 U. S. 448, 448 U. S. 472 (1980) (opinion of Burger, C.J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94412 U. S. 102 (1973); United States v. National Dairy Products Corp., 372 U. S. 29372 U. S. 32 (1963), and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see Fullilove, supra, at 448 U. S. 473;Columbia Broadcasting, supra, at 412 U. S. 103. That caution is not recited by the Court in the present case, because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, [487 U. S. 705] 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 playingfield 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 487 U. S. 691. The qualifier adds nothing but atmosphere.

[487 U. S. 706] 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) (1982 ed., Supp. V) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U. S. 821470 U. S. 832 (1985); Buckley v. Valeo, 424 U. S. 1,424 U. S. 138 (1976); United States v. Nixon, 418 U. S. 683418 U. S. 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 487 U. S. 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. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial [487 U. S. 707] departments," and "wholly disconnected from the executive department," id. at 295 U. S. 630, because "it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will." Id. at 295 U. S. 629.

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).

Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S.C. § 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S.C. § 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions [487 U. S. 708] -- including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted -- involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N.Y. Times, May 29, 1987, p. A12, col. 1. Another preeminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S.C. § 594(a)(6) (1982 ed., Supp. V). 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 487 U. S. 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] [487 U. S. 709] discretion is so central to the functioning of the Executive Branch" as to require complete control, ante at 487 U. S. 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 487 U. S. 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 487 U. S. 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. Is it conceivable that, if Congress passed a statute depriving itself of less than full and entire 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, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue, we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts -- perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the [487 U. S. 710] functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? 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. 50458 U. S. 58-59 (1982), that "[t]he 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. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U. S. 200449 U. S. 211-217 (1980). 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 487 U. S. 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.

[487 U. S. 711] 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, cf. United States v. Lovett, 328 U. S. 303 (1946); 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 (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) 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. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed.Reg. 30738 (1973).

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 decision-making 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., 369 U. S. Carr, [487 U. S. 712] 369 U. S. 186369 U. S. 210 (1962); Coleman v. Miller, 307 U. S. 433307 U. S. 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, standard-less judgment, the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning 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 (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U.S.Const., Art. I, § 6, cl. 1; Gravel v. United States, 408 U. S. 606 (1972). It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President -- who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will discuss [487 U. S. 713] at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected -- though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds -- or, for that matter, how easy it is for one of the President's political foes outside of Congress -- simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause 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 [487 U. S. 714] cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that, unlike most investigations, these will be widely known and prominently displayed. 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. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." 284. By comparison, between May, 1986, and August, 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (one-tenth of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August, 1987, alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. 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. at 25.

In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the [487 U. S. 715] 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 standard-less judicial allocation of powers we adopt today.

*                                                                      *                                                                      *


Footnotes to Court Opinion

[Footnote 1] The Act was first enacted by Congress in 1978, Pub.L. 95-521, 92 Stat. 1867, and has been twice reenacted, with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191, 101 Stat. 1293. The current version of the statute states that, with certain exceptions, it shall "cease to be effective five years after the date of the enactment of the Independent Counsel Reauthorization Act of 1987." 28 U.S.C. § 599 (1982 ed., Supp. V).

[Footnote 2] Under 28 U.S.C. § 591(a) (1982 ed., Supp. V), the statute applies to violations of "any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction." See also § 591(c) ("any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction"). 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. Pursuant to § 591(c), the Attorney General may also conduct a preliminary investigation of persons not named in § 591(b) if an investigation by the Attorney General or other Department of Justice official "may result in a personal, financial, or political conflict of interest."

[Footnote 3] The Special Division is a division of the United States Court of Appeals for the District of Columbia Circuit. 28 U.S.C. § 49 (1982 ed., Supp. V). The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges may be named to the Special Division from a particular court. The judges are appointed for 2-year terms, with any vacancy being filled only for the remainder of the 2-year period. Ibid.

[Footnote 4] The Act also requires the Attorney General to apply for the appointment of an independent counsel if 90 days elapse from the receipt of the information triggering the preliminary investigation without a determination by the Attorney General that there are no reasonable grounds to believe that further investigation or prosecution is warranted. § 592(c)(1). Pursuant to § 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an independent counsel is not reviewable "in any court."

[Footnote 5] Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may "expand the prosecutorial jurisdiction of an independent counsel." § 593(c). Section 593 also authorizes the Special Division to fill vacancies arising because of the death, resignation, or removal of an independent counsel. § 593(e). The court, in addition, is empowered to grant limited extensions of time for the Attorney General's preliminary investigation, § 592(a)(3), and to award attorney's fees to unindicted individuals who were the subject of an investigation by an independent counsel, § 593(f) (as amended by Pub.L. 101-191, 101 Stat. 1293).

[Footnote 6] The Attorney General, however, retains "direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18." § 594(a).

[Footnote 7] The 1987 amendments to the Act specify that the Department of Justice "shall pay all costs relating to the establishment and operation of any office of independent counsel." The Attorney General must report to Congress regarding the amount expended on investigations and prosecutions by independent counsels. § 594(d)(2). In addition, the independent counsel must also file a report of major expenses with the Special Division every six months. § 594(h)(1)(A).

[Footnote 8] Under the Act as originally enacted, an independent counsel who was removed could obtain judicial review of the Attorney General's decision in a civil action commenced before the Special Division. If the removal was "based on error of law or fact," the court could order "reinstatement or other appropriate relief." 28 U.S.C. § 596(a)(3).

[Footnote 9] Sections 596(b)(1)(B) and 596(b)(2) also require that the independent counsel have filed a final report with the Special Division in compliance with § 594(h)(1)(B).

[Footnote 10] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. 96-510, 94 Stat. 2767, 42 U.S.C. § 9601 et seq.

[Footnote 11] The Attorney General concluded that appellees Schmults and Dinkins lacked the requisite "criminal intent" to obstruct the Committee's investigation. See Report of Attorney General Pursuant to 28 U.S.C. § 592(c)(1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC) (Attorney General Report).

[Footnote 12] It is clear that appellant is an "officer" of the United States, not an "employee." See Buckley, 424 U.S. at 424 U. S. 126, and n. 162.

[Footnote 13] Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors. This is not a case in which judges are given power to appoint 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 Regulatory Commission.

[Footnote 14] We note also the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation, see 18 U.S.C. § 3006A(b) (1982 ed., Supp. V), notwithstanding the possibility that the appointed attorney may appear in court before the judge who appointed him.


[Footnote 23] As noted, an independent counsel may also be removed through impeachment and conviction. In addition, the Attorney General may remove a counsel for "physical disability, mental incapacity, or any other condition that substantially impairs the performance" of his duties. § 596(a)(1).

[Footnote 24] The Court expressly disapproved of any statements in Myers that "are out of harmony" with the views expressed inHumphrey's Executor. 295 U.S. at 295 U. S. 626. We recognized that the only issue actually decided in Myers was that "the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress." 295 U.S. at 295 U. S. 626.

[Footnote 25] See id. at 295 U. S. 627-628. We described the FTC as

"an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." Such an agency was not "an arm or an eye of the executive," and the commissioners were intended to perform their duties "without executive leave and . . . free from executive control." Id. at 295 U. S. 628. As we put it at the time, the powers of the FTC were not "purely" executive, but were "quasi-legislative or quasi-judicial." Ibid.

[Footnote 26] This same argument was raised by the Solicitor General in Bowsher v. Synar, 478 U. S. 714 (1986), although, as JUSTICE WHITE noted in dissent in that case, the argument was clearly not accepted by the Court at that time. Id. at 478 U. S. 738-739, and nn. 1-3.

[Footnote 27] Indeed, this Court has never held that the Constitution prevents Congress from imposing limitations on the President's power to remove all executive officials simply because they wield "executive" power. Myers itself expressly distinguished cases in which Congress had chosen to vest the appointment of "inferior" executive officials in the head of a department.See 272 U.S. at 272 U. S. 161-163, 272 U. S. 164. In such a situation, we saw no specific constitutional impediment to congressionally imposed restrictions on the President's removal powers. See also United States v. Perkins, 116 U. S. 483,116 U. S. 485 (1886) ("The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed'") (quoting the Court of Claims' decision in the case).

[Footnote 28] The difficulty of defining such categories of "executive" or "quasi-legislative" officials is illustrated by a comparison of our decisions in cases such as Humphrey's Executor, Buckley v. Valeo, 424 U. S. 1424 U. S. 140-141 (1976), and Bowsher, supra,at 478 U. S. 732-734. In Buckley, we indicated that the functions of the Federal Election Commission are "administrative," and "more legislative and judicial in nature," and are

"of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress."

424 U.S. at 424 U. S. 140-141. In Bowsher, we found that the functions of the Comptroller General were "executive" in nature, in that he was required to "exercise judgment concerning facts that affect the application of the Act," and he must "interpret the provisions of the Act to determine precisely what budgetary calculations are required." 478 U.S. at 478 U. S. 733. Compare this with the description of the FTC's powers in Humphrey's Executor, which we stated "occupie[d] no place in the executive department:"

"The [FTC] is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid."

295 U.S. at 295 U. S. 628. As JUSTICE WHITE noted in his dissent in Bowsher, it is hard to dispute that the powers of the FTC at the time of Humphrey's Executor would at the present time be considered "executive," at least to some degree. See 478 U.S. at 478 U. S. 761, n. 3.

[Footnote 29] 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 487 U. S. 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.

[Footnote 30] 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. It is not difficult to imagine situations in which Congress might desire that an official performing "quasi-judicial" functions, for example, would be free of executive or political control.

[Footnote 31] We note by way of comparison that various federal agencies whose officers are covered by "good cause" removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).

[Footnote 32] Indeed, during the hearings on the 1982 amendments to the Act, a Justice Department official testified that the "good cause" standard contained in the amendments "would make the special prosecutor no more independent than officers of the many so-called independent agencies in the executive branch." Ethics in Government Act Amendments of 1982, Hearing before the Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate Attorney General Giuliani).

[Footnote 33] We see no constitutional problem in the fact that the Act provides for judicial review of the removal decision. § 596(a)(3). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as expressed in the Act. The possibility of judicial review does not inject the Judicial Branch into the removal decision, nor does it, by itself, put any additional burden on the President's exercise of executive authority. Indeed, we note that the legislative history of the most recent amendment to the Act indicates that the scope of review to be exercised by the courts under § 596(a)(3) is to be "the standards established by existing case law on the removal of [other] officials" who are subject to "good cause" removal. H.R.Conf.Rep. No. 100-452, p. 37 (1987).

[Footnote 34] With these provisions, the degree of control exercised by the Executive Branch over an independent counsel is clearly diminished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the President and subject to termination at will.


Footnotes to Scalia’s Dissent