Morrison v. Olson
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  Constitution and Law (Moderator: World politics is up Schmitt creek)
  Morrison v. Olson
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Author Topic: Morrison v. Olson  (Read 502 times)
politicallefty
Junior Chimp
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« on: January 24, 2021, 06:39:11 AM »

In 1978, in light of everything surrounding Watergate, Congress passed the Ethics in Government Act of 1978. It created the Office of Independent Counsel. According the wikipedia article:

Quote
The prosecutor, who was appointed by a special panel of the United States Court of Appeals for the District of Columbia Circuit, could investigate allegations of any misconduct, with an unlimited budget and no deadline, and could be dismissed only by the Attorney General for "good cause" or by the special panel of the court when the independent counsel's task was completed. As the president could not dismiss those investigating the executive branch it was felt that the independence of the office would ensure impartiality of any reports presented to Congress. However, there have been critics of this law including Supreme Court Justice Antonin Scalia. Many argued the new Independent Counsel's office was a sort of "fourth branch" of government that had virtually unlimited powers and was answerable to no one. However, the constitutionality of the new office was ultimately upheld in the 1988 Supreme Court case Morrison v. Olson.

In 1988, the Supreme Court voted 7-1 to uphold the law, with Justice Scalia dissenting and Justice Kennedy taking no part in the decision.

I bring this up because, while it was over 30 years ago and the law was allowed to expire, it was a resoundingly lopsided decision. A lot of other separation of powers decisions and decisions dealing with the Vesting Clauses are usually interpreted very strictly, usually ways in which I disagree. I look at that compared to the Seila Law decision, where the Court ruled against an individual having that much power. However, it does seem like the major difference is that Morrison had more to do with investigatory and prosecutorial powers whereas Seila Law has more to do with the administrative state. I'm actually more surprised the Court didn't find issue with the law when it came to the Appointments Clause. Five of the Justices in the majority were also in the majority in INS v. Chadha, which ruled a legislative veto to be unconstitutional. The specific case was the one-house legislative veto, which I would agree violates bicameralism. (Personally, I think a carefully crafted two-house legislative veto over certain areas of the administrative state should be constitutional.) However, it was also ruled to violate the Presentment Clause. Once again, I disagree, but I'm talking about the decisions handed down by the Court.
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brucejoel99
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« Reply #1 on: January 24, 2021, 02:34:23 PM »

I bring this up because, while it was over 30 years ago and the law was allowed to expire, it was a resoundingly lopsided decision. A lot of other separation of powers decisions and decisions dealing with the Vesting Clauses are usually interpreted very strictly, usually ways in which I disagree. I look at that compared to the Seila Law decision, where the Court ruled against an individual having that much power. However, it does seem like the major difference is that Morrison had more to do with investigatory and prosecutorial powers whereas Seila Law has more to do with the administrative state. I'm actually more surprised the Court didn't find issue with the law when it came to the Appointments Clause. Five of the Justices in the majority were also in the majority in INS v. Chadha, which ruled a legislative veto to be unconstitutional. The specific case was the one-house legislative veto, which I would agree violates bicameralism. (Personally, I think a carefully crafted two-house legislative veto over certain areas of the administrative state should be constitutional.) However, it was also ruled to violate the Presentment Clause. Once again, I disagree, but I'm talking about the decisions handed down by the Court.

Correct, on the basis of "the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers" justifying the independent counsel procedures established by the law. As for why the majority didn't take further issue with it, the opinion quoted the Constitutional Convention's serious consideration to give the Senate the power to appoint executive branch officials as a check on the president, which would obviously dispute the argument that the Framers' original intent was to create such a powerful unitary executive as Scalia's dissent envisioned.
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Vosem
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« Reply #2 on: February 06, 2021, 01:09:09 PM »

It was the correct decision based on Article II, Section 2, Clause 2, which allows Congress to vest the appointment of inferior officers (by implication those officers not covered earlier in the sentence: ambassadors, "public ministers" conventionally understood to mean formal representatives to international gatherings, consuls, judges of the Supreme Court, and heads of departments in the executive branch) in courts of law or in the heads of departments. Since the independent counsel was none of the above categories, Congress acted perfectly constitutionally by allowing a court to appoint him.

Scalia argued that the independent counsel was difficult to remove, but in fact the Attorney General had the right to remove him at any time. For cause, sure, but seems to include simple dissatisfaction with the job done. If removal is difficult for political reasons, well, them's the brakes.

There is room for quibbling on what is meant by "head of department", especially in the context of the modern administrative state, and I think the head of an independent agency, like the CFPB, probably is a head of department within the meaning of Article II. I think Seila Law was decided correctly. But it seems to ridiculous to suggest that the independent counsel -- basically a glorified prosecutor -- was a "head of department".
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