Category Archives: separation of powers

Morrison v. Olson

487 U. S. 654

June 29, 1988

When Ted Olson of the Justice Department was investigated by Independent Counsel Alexia Morrison, Olson challenged, on separation of powers grounds, the law that created the Independent Counsel. Under the law, the Attorney General was required to request a special court to appoint an Independent Counsel if there were reasonable grounds to believe that investigation of a government official could be warranted. The Independent Counsel could be removed by the Attorney General for cause, but would have virtually complete power as a federal prosecutor. The special court had some extra supervisory powers as well.

The Court ruled 7-1 that the law was not in any way unconstitutional (Kennedy did not participate). As is usually the case, Rehnquist first had to brush aside an excrementally stupid justiciability challenge. On the merits, Rehnquist said that the Independent Counsel was an inferior office (i.e. one that could be appointed by someone other than the president) because the Attorney General could dismiss the Counsel, and because the office’s scope and tenure were limited. He also said that appointment by a court rather than an executive official was perfectly consistent with the literal text of the Constitution’s appointments clause. Next, he found that the special court had not been given powers that exceeded the bounds of Article III. Its appointment and supervisory powers were in line with those of other courts. While conceding that some of the special court’s actions might have been ultra vires, Rehnquist said they could be addressed in separate lawsuits.

Rehnquist then addressed the argument that restricting the Attorney General to removing the Counsel for cause interfered with the President’s control of the executive branch, as defined in Myers and Humphrey’s Executor. While the Counsel did perform executive functions, Rehnquist contended that a for cause removal policy did not unduly trammel the Presidential authority, and was a reasonable limitation. The law did not contradict broad principles regarding separation of powers because it was the Attorney General’s decision to request appointment of Counsel in the first place, and because power to dismiss the Counsel still resided with the Attorney General.

Scalia dissented. In hisĀ tour de forceĀ of an opinion, he showed that the law was a naked encroachment on the President’s authority, and a horrendous distortion of the separation of powers. He noted that, realistically, the Attorney General would have no choice but to request appointment of Independent Counsel if asked to by Congress, because he could only refuse if there were absolutely no reasonable grounds for further investigation. Going on, he contended that any removal of prosecutorial power from the president’s control was far from a trivial encroachment. Prosecution was a core executive duty that no other branch had the slightest right to intrude on. And the president’s right to oversee his branch’s efficient functioning meant that the mere right to dismiss for cause was not enough

Scalia went further, and argued that the Counsel was not an inferior office. It had nearly all the powers of the Attorney General, and had no superior officer in any real sense. Worse yet, the majority relied on no real precedent to conclude that it was an inferior officer. Scalia said the majority also treated Myers and Humphrey’s Executor shabbily, as neither ever suggested that an officer with pure executive functions should be insulated from removal. He contended that the majority’s test for whether good cause restrictions could be implemented was hopelessly arbitrary. Not content to rest there, Scalia showed how the Independent Counsel was terrible public policy. While most prosecutors are forced to use discretion because of the infinite amount of potential cases, special prosecutors have every incentive to keep digging until they find something. Also, by taking away ultimate responsibility from the President, the law ensures that no one can really be held accountable for an out-of-control Independent Counsel.

Conventional wisdom has it that this was Scalia’s greatest dissent ever, and it’s easy to see why. It’s a masterpiece of legal argumentation, and it’s almost unbelievable that no other Justice joined it. Although best remembered for the quote “this wolf comes as a wolf,” I think that barely even makes the top five quotes in the opinion. Even better are:

  • This is somewhat like referring to shackles as an effective means of locomotion.
  • 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.
  • It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.

Scalia’s dissent is more timely than ever in light of the ongoing attempts by the deep state, assisted by an evil media and a pliable Congress, to stage a coup against President Donald Trump. The malicious bureaucratic cabal that’s out to get Trump needs to be annihilated, once and for all. Trump needs to have ultimate authority and control, or presidential elections will become meaningless, and Americans will be ruled forever by an unelected deep state hellbent on destroying anyone who tries to restore power to the people.

This is a fight nearly as important as the fight against the destruction of the family through abortion, divorce, and premarital sex. The darkest day of the 1970s was January 22, 1973, when the Roe v. Wade decision was announced. But the second darkest day was August 9, 1974, when President Richard Nixon resigned in the face of vicious, abusive, and amoral ruling class clique. He should have fought to the bitter end, because the nation was crippled forever when he let the bad guys win. In the 43 years since, the godless deep state cabal has only grown more emboldened, more powerful, and more eager to force another resignation on the basis of some BS makeweight ‘scandal.’

All prayers to Trump and Pence in the years to come, for their battles are not merely “against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places” – Ephesians 6:12.

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