In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme Court used to hold the statute constitutional.
One key feature involved the appointment of the Independent Counsel. The statute provided that the IC would be appointed by a court. This appointment method would be constitutional only if the IC were an inferior officer, since the Constitution requires that superior (or non-inferior) officers must be appointed by the President with the advice and consent of the Senate.
Thus, the Supreme Court argued that the IC was an inferior officer, claiming that four factors suggested the result. The argument here really was quite laughable. The IC is an extremely important position and the IC is not subject to the supervision of anyone in the government. The idea that the IC was an inferior officer, who was not important enough to require senatorial consent, was absurd. When Ken Starr was investigating Bill Clinton, he was arguably the second most important officer in the entire government (after the President). Yet, the Court treated his position as that of an inferior officer. If that is not bad enough, the Court actually argued that the conclusion that the IC was an inferior officer was clearly true and therefore it was unnecessary for the court to draw a more precise line.
Some years later, the Court largely reversed its analysis in Edmond v. United States. Justice Scalia wrote the decision, largely dismissing the Court’s analysis in Morrison. Instead, Justice Scalia emphasized his position in his Morrison dissent, that an inferior officer must be subordinate to some other official (under which approach the IC would, of course, have been a superior officer). All of the members of the Court joined his opinion. One very reasonable interpretation of the Edmond is that the Supreme Court essentially overruled Morrison’s Appointment Clause analysis by narrowing Morrison’s analysis to the facts of that case.
Another key feature of the case involved the fact that the President was deprived of the authority to remove the IC. Under prior law, the Court had made clear that agencies that engaged in quasi legislative and quasi judicial power could be made independent of the President under Humphrey’s Executor v. United States, but that officers that engaged in pure executive power had to be removable at the pleasure of the President under Myers. Thus, the IC, which engaged in the pure executive power of criminal prosecution, had to be subject to removal at the pleasure of the President. And since the IC was not removable in that way, the statute was unconstitutional. But the Supreme Court ignored its precedents and simply announced a new standard. Anything to approve the wonderful Independent Counsel statute.
What was even worse was the Court’s inadequate justification for overturning these precedents. A couple of years later, Justice O’Connor would write an opinion in Casey that emphasized the importance of sticking to precedent. But Justice O’Connor joined the majority opinion in Morrison, which justified its failure to follow the precedent simply on the ground that the Court had changed its mind. As the Court wrote: “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.’”