I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally. As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal. But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally. This is…
The Horror of Morrison v. Olson — Part I: The Supreme Court’s Felt Necessities
Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.
Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.
