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Morrison v. Olsen – the Scheme

Morrison v. Olsen – the Scheme. EGA of 1978 allowed appointment of an independent counsel (I.C.) when high executive officials were suspected of violating certain federal laws. AG charged with investigating information suggesting a law violation.

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Morrison v. Olsen – the Scheme

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  1. Morrison v. Olsen – the Scheme • EGA of 1978 allowed appointment of an independent counsel (I.C.) when high executive officials were suspected of violating certain federal laws. • AG charged with investigating information suggesting a law violation. • After concluding investigation, AG filed a report with special division of circuit court of appeals for the D.C. circuit. • Court couldn’t initiate appointment of I.C. BUT if AG found “reasonable grounds to believe further investigation/ prosecution” was warranted, AG could ask court to appoint I.C. • Upon AG’s request, court was required to appoint an independent counsel and to define his/her jurisdiction. • Removal of I.C. effected in 3 ways: • Impeachment & conviction via Constitution • Completion of project (termination by Court or voluntarily) (fed. statute) • AG could remove I.C. for good cause, physical disability, mental incapacity or other condition that interferes with job (fed. statute)

  2. Morrison & Appointments • Majority finds that I.C. is an “inferior officer” • Why? Does it define what an “inferior officer” is? • What factors affect majority’s determination that I.C. is an inferior officer? • How does Justice Scalia respond?

  3. Morrison & Inter-branch Appointments • I.C. (executive official) was appointed by a special division of federal court (judicial branch). • Does the appointments clause prohibit inter-branch appointments? • What standard would the Morrison majority use to determine whether inter-branch appointments were unconstitutional? Why didn’t this scheme violate that standard? • Could Congress vest appointment of an Assistant Secretary of Defense in a Court of Law?

  4. More on Determining When someone is An “Inferior” vs. “Principal” Officer • SCT hasn’t given us much more than the Morrison factors to use to make the distinction so courts often look to those • Subsequent Cases – add another layer of inquiry • Edmond v. U.S. (1997) – SCT (Scalia) intimated that “inferior” officers generally have a superior who supervises their work and was appointed by President w/ A&C of Senate • Free Enterprise Fund v. PCAOB (2010) – SCT held that officials who are removable at will by independent agency commr’s would be “inferior” and could be appointed by SEC as Heads of Dept • Who is a “Head of “Dep’t”? • Typically think of as “Secretary” or Head of major executive agencies – BUT SCT held that independent agencies could qualify as “Departments” because they were a “freestanding component of the Executive Branch, not subordinate to or contained within any other such component”

  5. Inferior Officer v. Employee • Officers – Any appointee exercising significant authority pursuant to the laws of the U.S. (Buckley) • Employees • Buckley n. 162 – Employees are “lesser functionaries subordinate to officers of the US” • Freytag– Officers “perform more than ministerial tasks” • Sometimes it’s relatively easy to tell when a person is an “employee” • Administrative assistant, scientist, accountant • Attorneys (even supervising attorneys) • Compare supervising attorney of EPA’s KC branch w/ Director of Legal Issues of KC EPA branch • Even the latter attorney hasn’t the discretionary authority of EPA’s Chief Legal Advisor or the Attorney General of the US

  6. Employees v. Officers – Landry v. FDIC & FreyTag v. Comm’r of IRS • Freytag • Law authorized CJ of US Tax Court (Art. I court) to appoint STJs to preside at hearings and prepare proposed findings/opinions • SCT ruled STJs were “Inferior Officers” and not employees because • Office of STJ established by law w/ fixed term, salary, etc., STJ has great discretion to find facts, etc., STJ can issue final decisions in many cases. • Appointment could be vested in CJ of Tax Court • Landry • Involved whether an ALJ w/in the FDIC (appointed by agency officials but not Head of FDIC) was an Inferior Officer or Employee. • SCT ruled that these ALJs were “employees” • Although they had similar positions established by law and a lot of discretion, they could NOT issue binding final decisions. Rather their decisions were recommendatory only. • Line between Officer and Employee can be very hard to draw.

  7. Morrison v. Olsen – Presidential Removal Authority • What is Olsen’s claim as to why the limitation on the President’s removal authority of the I.C. violates the Constitution? • Is he right about his description of the I.C.’s duties? • How does the majority respond? • What standard does the majority announce?

  8. Morrison & Removal – Scalia Dissent • What is Scalia’s response to the majority’s new test? What is he concerned about? • How does Scalia view separation of powers? • Does he view the branches as a blended sharing of powers or as three tightly sealed entities, each separately exercising its own power?

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