Separation of Powers, Morrison v. Olson

[A18]

Morrison v. Olson, 487 U.S. 654 (1988)

Horrible decision that gutted the separation of powers. Scalia's dissent here is some of his best work, and he accurately predicted the consequences of the holding.

[Emsworth]

The very first clause of Article II provides: "The executive Power shall be vested in a President of the United States." The entirety of the executive power is vested in the President, not just a part of it. This implies that the President must have complete control over the operations of the executive branch. He must be able to direct the operations and decisions of all executive officers whatsoever, and he must be able to remove them at will.

The Ethics in Government Act, however, violates this fundamental principle. It establishes the office of independent counsel, an office that carries out the "quintessentially executive function" of investigating and prosecuting crimes. However, the independent counsel is not subject to the full authority of the President. He is free to act as he pleases, and may be removed from office only if certain special conditions (mental incapacity, for example) are met. Thus, the law deprives the President of exclusive control over the clearly executive function of investigating and prosecuting crimes; therefore, it violates Article II, Section 1, Clause 1.