Morrison v. Olson (1988)

Key Takeaway:

The Court analyzed the independent counsel statute, which allowed a special court to appoint an independent counsel, who could only be removed for good cause.  The Court held that under the Appointments Clause, Congress may appoint inferior officers to other branches of government; the creation of this special court did not violate Article III; and the independent counsel did not violate separation of powers because the counsel did not infringe or limit any executive powers, nor did the counsel increase another branch’s powers.

Key Quotes:

Principal vs. Inferior

“We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “inferior officer” side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official… Second, appellant is empowered by the Act to perform only certain, limited duties… Third, appellant’s office is limited in jurisdiction.”

Article III vs. Appointments Clause

“Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the ‘courts of Law,’ there can be no Article III objection to the Special Division’s exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III.”

Removal

“Considering for the moment the ‘good cause’ removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a ‘good cause’ standard for removal by itself unduly trammels on executive authority… Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.”

Separation of Powers

“We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a ‘dange[r] of congressional usurpation of Executive Branch functions.’ Indeed, with the exception of the power of impeachment—which applies to all officers of the United States—Congress retained for itself no powers of control or supervision over an independent counsel.” (citations omitted).

MORRISON v. OLSON

Supreme Court of the United States, 1988

487 U.S. 654

Chief Justice REHNQUIST delivered the opinion of the Court.

This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President’s authority under Article II in violation of the constitutional principle of separation of powers.

I

Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. §§ 591–599 (1982 ed., Supp. V),¹ allows for the appointment of an “independent counsel” to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws.² The Act requires the Attorney General, upon receipt of information that he determines is “sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law,” to conduct a preliminary investigation of the matter. When the Attorney General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) created by the Act “for the purpose of appointing independent counsels.” 28 U.S.C. § 49 (1982 ed., Supp. V).³ If the Attorney General determines that “there are no reasonable grounds to believe that further investigation is warranted,” then he must notify the Special Division of this result. In such a case, “the division of the court shall have no power to appoint an independent counsel.” § 592(b)(1). If, however, the Attorney General has determined that there are “reasonable grounds to believe that further investigation or prosecution is warranted,” then he “shall apply to the division of the court for the appointment of an independent counsel.”⁴ The Attorney General’s application to the court “shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel’s prosecutorial jurisdiction.” § 592(d). Upon receiving this application, the Special Division “shall appoint an appropriate independent counsel and shall define that independent counsel’s prosecutorial jurisdiction.” § 593(b).⁵

With respect to all matters within the independent counsel’s jurisdiction, the Act grants the counsel “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice.” § 594(a).⁶

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III

The Appointments Clause of Article II reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., Art. II, § 2, cl. 2.

The parties do not dispute that “[t]he Constitution for purposes of appointment ... divides all its officers into two classes.” United States v. Germaine, 99 U.S. (9 Otto) 508, 509, 25 L.Ed. 482 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 688, 46 L.Ed.2d 659 (1976): “[P]rincipal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” The initial question is, accordingly, whether appellant is an “inferior” or a “principal” officer.¹² If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

 The line between “inferior” and “principal” officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e.g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397–398 (3d ed. 1858) (“In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate”). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “inferior officer” side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel’s role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,” § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. § 594(f).

Third, appellant’s office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant’s office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the “ideas of tenure, duration ... and duties” of the independent counsel, Germaine, supra, 9 Otto, at 511, are sufficient to establish that appellant is an “inferior” officer in the constitutional sense.

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This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of “interbranch appointments,” in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: “... but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.” We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra, where we stated:

 “It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged....

“But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise.” Id., 100 U.S. (10 Otto), at 397–398.

Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as “not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed.” 100 U.S. (10 Otto), at 398. Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.

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We do not mean to say that Congress’ power to provide for interbranch appointments of “inferior officers” is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress’ decision to vest the appointment power in the courts would be improper if there was some “incongruity” between the functions normally performed by the courts and the performance of their duty to appoint. 100 U.S. (10 Otto), at 398 (“[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void”). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals’ conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers.¹³ We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In Go–Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id., at 353, n. 2, 51 S.Ct., at 156, n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are “executive officer[s],” would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, see United States v. Solomon, 216 F.Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28 U.S.C. § 546(d) (1982 ed., Supp. V).¹⁴ Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act’s provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U.S.C. § 49(f) (1982 ed., Supp. V) we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on “incongruous” interbranch appointments.

IV

Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to “Cases” and “Controversies.” See Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911). As a general rule, we have broadly stated that “executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.” Buckley, 424 U.S., at 123, 96 S.Ct., at 684 (citing United States v. Ferreira, 13 How. 40, 14 L.Ed. 40 (1852); Hayburn’s Case, 2 Dall. 409 (1792)).¹⁵ The purpose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches. See United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). With this in mind, we address in turn the various duties given to the Special Division by the Act.

 Most importantly, the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction. § 593(b). Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the “courts of Law,” there can be no Article III objection to the Special Division’s exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III.¹⁶ Appellees contend, however, that the Division’s Appointments Clause powers do not encompass the power to define the independent counsel’s jurisdiction. We disagree. In our view, Congress’ power under the Clause to vest the “Appointment” of inferior officers in the courts may, in certain circumstances, allow Congress to give the courts some discretion in defining the nature and scope of the appointed official’s authority. Particularly when, as here, Congress creates a temporary “office” the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. This said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel’s jurisdiction. In order for the Division’s definition of the counsel’s jurisdiction to be truly “incidental” to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General’s investigation and request for the appointment of the independent counsel in the particular case.¹⁷

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 We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications. The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not directly authorized by the Act. Two examples of this were cited by the Court of Appeals, which noted that the Special Division issued “orders” that ostensibly exempted the independent counsel from conflict-of-interest laws. See 267 U.S.App.D.C., at 216, and n. 60, 838 F.2d, at 514, and n. 60 (citing In re Deaver, No. 86–2 (CADC Special Division, July 2, 1986), and In re Olson, No. 86–1 (CADC Special Division, June 18, 1986)). In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. See H.R.Rep.Conf.Rep. No. 100–452, p. 26 (1987), U.S.Code Cong. & Admin.News 1987, pp. 2150, 2192. The propriety of the Special Division’s actions in these instances is not before us as such, but we nonetheless think it appropriate to point out not only that there is no authorization for such actions in the Act itself, but that the Division’s exercise of unauthorized powers risks the transgression of the constitutional limitations of Article III that we have just discussed.

V

We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General’s power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly interferes with the President’s exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President’s ability to control the prosecutorial powers wielded by the independent counsel.

A

Two Terms ago we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be “executive powers.” Bowsher v. Synar, 478 U.S. 714, 730, 106 S.Ct. 3181, 3190, 92 L.Ed.2d 583 (1986). We held in Bowsher that “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Id., at 726, 106 S.Ct., at 3188. A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).  Myers had considered the propriety of a federal statute by which certain postmasters of the United States could be removed by the President only “by and with the advice and consent of the Senate.” There too, Congress’ attempt to involve itself in the removal of an executive official was found to be sufficient grounds to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from “draw[ing] to itself ... the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers.” Myers, supra, at 161, 47 S.Ct., at 40.

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” § 596(a)(1).²³ There is no requirement of congressional approval of the Attorney General’s removal decision, though the decision is subject to judicial review. § 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), than to Myers or Bowsher.

In Humphrey’s Executor, the issue was whether a statute restricting the President’s power to remove the Commissioners of the Federal Trade Commission (FTC) only for “inefficiency, neglect of duty, or malfeasance in office” was consistent with the Constitution. 295 U.S., at 619, 55 S.Ct., at 870. We stated that whether Congress can “condition the [President’s power of removal] by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office.” Id., at 631, 55 S.Ct., at 875. Contrary to the implication of some dicta in Myers,²⁴ the President’s power to remove Government officials simply was not “all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution.” 295 U.S., at 629, 55 S.Ct., at 874. At least in regard to “quasi-legislative” and “quasi-judicial” agencies such as the FTC,²⁵ “[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control ... includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.” Ibid. In Humphrey’s Executor, we found it “plain” that the Constitution did not give the President “illimitable power of removal” over the officers of independent agencies. Ibid. Were the President to have the power to remove FTC Commissioners at will, the “coercive influence” of the removal power would “threate[n] the independence of [the] commission.” Id., at 630, 55 S.Ct., at 875.

Similarly, in Wiener we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission’s function was to receive and adjudicate certain claims for compensation from those who had suffered personal injury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the removal of officers, perhaps because the Commission itself was to have a limited existence. As in Humphrey’s Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. In this context, “Congress did not wish to have hang over the Commission the Damocles’ sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing.” 357 U.S., at 356, 78 S.Ct., at 1279. Accordingly, we rejected the President’s attempt to remove a Commissioner “merely because he wanted his own appointees on [the] Commission,” stating that “no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute.” Ibid.

Appellees contend that Humphrey’s Executor and Wiener are distinguishable from this case because they did not involve officials who performed a “core executive function.” They argue that our decision in Humphrey’s Executor rests on a distinction between “purely executive” officials and officials who exercise “quasi-legislative” and “quasi-judicial” powers. In their view, when a “purely executive” official is involved, the governing precedent is Myers, not Humphrey’s Executor. See Humphrey’s Executor, supra, 295 U.S., at 628, 55 S.Ct., at 874. And, under Myers, the President must have absolute discretion to discharge “purely” executive officials at will. See Myers, 272 U.S., at 132–134, 47 S.Ct., at 30–31.²⁶

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.”²⁷ The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President,²⁸ but to ensure that Congress does not interfere with the President’s exercise of the “executive power” and his constitutionally appointed duty to “take care that the laws be faithfully executed” under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some “purely executive” officials who must be removable by the President at will if he is to be able to accomplish his constitutional role.²⁹ See 272 U.S., at 132–134, 47 S.Ct., at 30–31. But as the Court noted in Wiener:

“The assumption was short-lived that the Myers case recognized the President’s inherent constitutional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure.” 357 U.S., at 352, 78 S.Ct., at 1277.

At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey’s Executor and Wiener as “quasi-legislative” or “quasi-judicial” in large part reflected our judgment that it was not essential to the President’s proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will.³⁰ We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

 Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.³¹

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President’s power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.³² Although we need not decide in this case exactly what is encompassed within the term “good cause” under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for “misconduct.” See H.R.Conf.Rep. No. 100–452, p. 37 (1987). Here, as with the provision of the Act conferring the appointment authority of the independent counsel on the special court, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.

B

 The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S., at 725, 106 S.Ct., at 3187 (citing Humphrey’s Executor, 295 U.S., at 629–630, 55 S.Ct., at 874–875). As we stated in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Id., at 122, 96 S.Ct., at 684. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123, 96 S.Ct., at 684. On the other hand, we have never held that the Constitution requires that the three branches of Government “operate with absolute independence.” United States v. Nixon, 418 U.S., at 707, 94 S.Ct., at 3107; see also Nixon v. Administrator of General Services, 433 U.S. 425, 442, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th ed. 1905)). In the often-quoted words of Justice Jackson:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurring opinion).

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm’n v. Schor, 478 U.S., at 856, 106 S.Ct., at 3259–3260. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a “dange[r] of congressional usurpation of Executive Branch functions.” 478 U.S., at 727, 106 S.Ct., at 3188; see also INS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983). Indeed, with the exception of the power of impeachment—which applies to all officers of the United States—Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. § 529(g). Other than that, Congress’ role under the Act is limited to receiving reports or other information and oversight of the independent counsel’s activities, § 595(a), functions that we have recognized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927).

Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not in itself an “executive” function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the “courts of Law.” We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General’s decision not to seek appointment, § 592(f). In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court the power to review the Attorney General’s decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the Judiciary.

Finally, we do not think that the Act “impermissibly undermine[s]” the powers of the Executive Branch, Schor, supra, 478 U.S., at 856, 106 S.Ct., at 3260, or “disrupts the proper balance between the coordinate branches [by] prevent [ing] the Executive Branch from accomplishing its constitutionally assigned functions,” Nixon v. Administrator of General Services, supra, 433 U.S., at 443, 97 S.Ct., at 2790. It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel’s jurisdiction; and his power to remove a counsel is limited.³⁴ Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an independent counsel. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General’s decision not to request appointment if he finds “no reasonable grounds to believe that further investigation is warranted” is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not “possible” to do so. Notwithstanding the fact that the counsel is to some degree “independent” and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.

VI

In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore

Reversed.

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Justice SCALIA, dissenting.

It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article III, § 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And the provision at issue here, Art. II, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.”

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That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

I

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Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.

II

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As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

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The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”