INTRODUCTION
MORRISON V OLSON: A MODEST
ASSESSMENT
EARL
C. DUDLEY, JR.*
*..[G]reatcases are called great, not by reason of their real importance in
shaping the law of the future, but because of some accident of immediate
overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulicpressure which
makes what previously was clear seem doubtful, and before which even well
settled principles of law will bend.
Justice Holmes, dissenting in Northern Securities Co. v. United States.'
As a deputy to Independent Counsel Alexia Morrison in the investigation of former Assistant Attorney General Theodore Olson, I
had an opportunity this past year to play a significant role in a major
piece of constitutional litigation. Out of our investigation grew the
decision of the Supreme Court in Morrison v. Olson 2 upholding the
constitutionality of the independent counsel law, Tide VI of the Eth3
ics in Government Act.
It is heady stuff when both the New York Times and the Washington
Post describe your case as one of the most important decided by the
Court in years, 4 and Justice Scalia, in a forceful thirty-eight page
* Partner, Nussbaum, Owen & Webster, Washington, D.C.; Deputy Independent
Counsel, Investigation of Theodore B. Olson. The views expressed herein are mine alone
and do not necessarily represent the views of the Independent Counsel or any officer or entity
of the United States Government.
1. 193 U.S. 197, 400-01 (1904).
2. 108 S.Ct. 2597 (1988).
3. Ethics in Government Act, Pub. L. No. 95-521, 92 Stat. 1867 (1978), as amended by
Pub. L. No. 97-409, 96 Stat. 2039 (1983), Pub. L. No. 99-554, 100 Stat. 3097 (1986), Pub. L.
No. 100-191, 101 Stat. 1293 (1987), 28 U.S.C. §§ 49, 591 et seq. (1982 & Supp. IV 1986)
[hereinafter Ethics Act]. Except where otherwise indicated, all citations are to the codification
of the Act as amended in 1983, because with limited exceptions, those provisions were the
ones at issue in Morrison v. Olson, 108 S.Ct. 2597 (1988).
4. See Greenhouse, Supreme Court Vote Upholds Law on Special Prosecutors;7-1 Ruling is Re-
buff to Reagan, N.Y. Times, June 30, 1988, at Al, col. 6 (observing that ruling is one of most
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dissent, calls the decision "a revolution in our constitutional jurisprudence." 5 My own assessment, at least of the decision's longrange constitutional significance, is considerably more modest. I
will offer that assessment briefly, along with some observations concerning the litigation out of which the Supreme Court decision
grew.
The decision unquestionably had substantial short-range political
significance. 6 We were playing very high stakes Washington poker.
For Mr. Olson and for us, the importance of the Court's decision
was obvious. The stakes were also high for other sitting independent counsel and their investigative targets, even where the investigators had accepted the limited protection afforded by Attorney
General Meese's offers of "parallel appointments. ' '7 Perhaps more
importantly, both the Congress and the executive branch had enormous political capital riding on the outcome of our case. Congress
claimed to have created a device to avoid in the future the investigative paralysis that had plagued the executive branch in prior scandals ranging from the Teapot Dome, T. Lamar Caudle and Sherman
Adams, to Watergate, Billygate, and beyond. 8 The Justice Departsignificant in years because it draws new line in limiting powers of executive branch);Johnson,
BalancingPowers, Wash. Post, July 1, 1988, at A2, col. 5.
5.
Morrison v. Olson, 108 S. Ct. 2597, 2628 (1988) (Scalia, J., dissenting).
6. See Greenhouse, supra note 4 (stating that this case "remov[ed] the constitutional
shadow from the office of special prosecutorjust as one special prosecutor was about to file a
potentially damaging report on the activities of Attorney General Edwin Meese III and as
another was preparing for the trial of leading figures in the Iran-Contra affair").
7. See General Powers of the Independent Counsel, 28 C.F.R. § 600 (1987) (establishing office of Independent Counsel with identical powers to those under Ethics in Government
Act).
8. See In re Olson, 818 F.2d 34, 39-41 (D.C. Cir. Indep. Couns. Div. 1987) (discussing
history of executive branch scandals). The Teapot Dome scandal occurred during the Harding administration. Id. at 39. Secretary of the Interior Albert B. Fall was convicted of receiv-
ing a bribe in connection with government oil leases. Id. at 40. Congress passed a joint
resolution providing for the appointment of a special prosecutor to prosecute the suits for
cancellation of oil leases. See United States v. Fall, 10 F.2d 648 (D.C. Cir. 1925). See generally
B. NOGGLE, TEAPOT DOME: OIL AND PoLrrics IN THE 1920s (1962).
T. Lamar Caudle was the Assistant Attorney General for the Tax Division of the Department ofJustice during the Truman administration. He was forced to resign because of widespread corruption in the handling of tax evasion cases. See In re Olson, 818 F.2d at 40.
Attorney GeneralJ. Howard McGrath then appointed Newbold Morris as Special Assistant to
the Attorney General to investigate the alleged corruption in the federal government. Id.
McGrath later fired Morris when Morris began to investigate him. President Truman then
fired McGrath. Id. Although no special prosecutor was appointed to succeed Morris, Caudle
was later prosecuted by the Criminal Division of the Department ofJustice. Id. at 41.
During the Eisenhower administration, White House Chief of Staff Sherman Adams was
forced to resign. Blair, Goldfine Case Toppled Adams, N.Y. Times, Sept. 23, 1958, at A19, col. 1.
The Select Committee on Legislative Oversight of the House of Representatives established
that Adams had accepted lavish gifts and favors from his friend Bernard Goldfine, a New
England industrialist. The Committee charged that Adams used his position to influence certain regulatory agencies with which Goldfine was in trouble. Id.
President Nixon initially approved the appointment of Watergate Special Prosecutor Archibald Cox. After the President ordered Cox's firing, Attorney General Saxbe appointed Leon
1989]
A
MODEST ASSESSMENT
ment, on the other hand, had taken the extraordinary step of opposing the constitutionality of an Act of Congress, claiming that it was
defending an aspect of presidential prerogative without which Chief
Executives from Washington to Reagan would have been crippled in
the performance of their constitutional duties. And of course, the
entire dispute had major partisan overtones. The Democrats sought
to exploit the high-visibility investigations of alleged wrongdoing in
the executive branch to the embarrassment of the Reagan administration, while conservative legal thinkers viewed the statute as an allout assault on the prerogatives of the only elective branch they had
been able to capture with any regularity in more than half a century.
The intensity of both the inter-branch and inter-party crossfire
was exacerbated in our case by several factors. The Olson investigation grew out of an acrimonious dispute between Congress and the
Executive over access to documents of the Environmental Protection Agency (EPA), in which executive privilege was invoked to
shield the documents from congressional subpoenas. 9 It later
turned out that the documents contained evidence of political manipulation of "Superfund" enforcement,' 0 and the dispute resulted
in the resignation of the Administrator of the EPA. Moreover, our
investigation was focused on allegations that an earlier investigation
of the EPA documents affair by the House Judiciary Committee-an
investigation called for by the Speaker of the House and several
House committee chairmen-had been obstructed by officials at the
highest levels of the Reagan Justice Department. Particularly under
Attorney General Meese, the Justice Department was the bete noir of
Democrats in general and congressional Democrats in particular,
and the Department had deeply offended House Members on both
sides of the aisle by suing the House of Representatives in the name
of "the United States" in an effort to forestall a contempt prosecution of the Administrator of the EPA for withholding the disputed
documents.II To make things even warmer, Congress was occupied
Jaworski to succeed Cox, with full assurance of immunity from presidential interference, embodied in a formal regulation. See United States v. Nixon, 418 U.S. 683, 694-95 & n.8 (1974).
The "Billygate affair" concerned allegations that President Carter's brother Billy was involved in an improper relationship with the Libyan Government. See S. REP. No. 496, 97th
Cong., 2d Sess. 8 (1982) (stating that Billygate "illustrates the problems which may arise when
the Department of Justice handles investigations of the President's family"). Attorney General Bell appointed an official outside the Department to investigate the allegations. Id. at 5.
9. See Morrison v. Olson, 108 S. Ct. 2597, 2605 (1988).
10. See Jurisdictional Statement of Appellant at 6, Morrison v. Olson, 108 S. Ct. 2597
(1988) (No. 87-1279). Superfund is the popular name for the Comprehensive Enviromental
Response, Compensation, and Liability Act. Pub. L. No. 96-510, 94 Stat. 2767 (codified at 42
U.S.C. §§ 9601-9615, 9631-9632, 9641, 9651-9657 (1982 & Supp. IV 1986)).
11. See United States v. House of Representatives, 556 F. Supp. 150, 153 (D.D.C. 1983).
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throughout 1987 amending and reenacting the independent counsel law. 12 At the same time the Justice Department was telling both
Congress and the courts that the law was unconstitutional, the conduct of Attorney General Meese was for a second time under in13
dependent counsel scrutiny.
It is worth pausing to explain how a relatively little known investigation became the vehicle for the Supreme Court's consideration of
the constitutional issues. When Colonel Oliver North first challenged the constitutionality of the statute, 14 the sheer political magnitude of the Iran/Contra affair effectively forced the administration
to keep Judge Walsh's investigation alive. 15 Hence came the offer of
a "parallel appointment" by the Attorney General under regulations
granting the independent counsel powers identical to those delineated by the statute. 16 The same forces which impelled the offer
compelled its acceptance. Judge Walsh hardly could afford to jeopardize the very existence of his investigation for the sake of litigating
a rather fine constitutional point. Thus, the thrust of Colonel
North's challenge was completely blunted. The Court .of Appeals
for the District of Columbia Circuit upheld the validity of the regulation under which Judge Walsh received his appointment from the
Attorney General and determined that the investigative activities
which Colonel North could at that point challenge fell within the
ambit of that appointment. 1 7 The Justice Department, which was
genuinely eager to avoid a definitive resolution of the constitutional
issues by the Supreme Court, offered identical "parallel appointments" to all sitting independent counsels.
The forces operating upon Independent Counsel Morrison with
respect to the "parallel appointment" issue, however, were very different. No one would be heard to say that the continued existence
of the Republic-or even the result of a single election-was likely
to turn upon the outcome of the Olson investigation. On the other
hand, there were very real disincentives to Ms. Morrison's acceptance of an appointment from the Attorney General. As the District
12. The Act contained a sunset provision that the law would expire five years after its
1982 reenactment. See 28 U.S.C. § 598 (1982).
13. See May, Meese Did Not Follow Ethics Law In Blind Investment, Official Says, N.Y. Times,
July 1, 1987, at Al, col. 1.
14. North v. Walsh, 656 F. Supp. 414 (D.D.C.), aft'd, No. 87-5058, D.C. Cir., cert. denied,
108 S. Ct. 1028 (1988).
15. Lawrence E. Walsh was appointed independent counsel to investigate possible violations of federal criminal law in the transfer of arms to Iran, and in the disposition of the
profeeds of the transfer of these funds. Id. at 417.
16. General Powers of Independent Counsel, 28 C.F.R. § 600 (1987).
17. In re Sealed Case, 829 F.2d 50, 55-59 (D.C. Cir. 1987), cert. denied sub nom. North v.
Walsh, 108 S. Ct. 753 (1988).
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259
of Columbia Circuit forcefully pointed out in upholding the Walsh
regulation, appointments under such regulations differed from statutory appointments in two significant ways. First, they were made
by an executive branch officer, instead of a court.18 Second,
whatever limits the regulations purported to place upon the power
of the Executive to remove an independent counsel, there was nothing to prevent the Executive from repealing the regulations at any
time. 19 Thus, there was a high risk that the appearance of "independence" under a "parallel appointment" Was illusory, at least in an
investigation where the force of public opinion was unlikely to operate to preserve the reality of that independence. Moreover, we had
already found ourselves in combat with the Justice Department
before the Special Division for the Purpose of Appointing Independent Counsel over the scope of Ms. Morrison's prosecutorial
jurisdiction and the statutory power of the Division to expand it.20
In light of this experience and the fact that we were investigating
allegations of criminal wrongdoing at the top levels of the Justice
Department-an exercise perhaps understandably viewed with little
enthusiasm in those same quarters-Ms. Morrison declined the
proffered "parallel appointment" and chose to rest her powers of
investigation and prosecution solely upon the statutory scheme.
Thus, when Mr. Olson and two other former high-ranking Justice
Department officials challenged our grand jury subpoenas and
chose to stand in contempt of the orders enforcing those subpoewith no way to avoid a connas, we were off to the appellate courts
2'
statute.
the
on
decision
stitutional
Constitutional critics of the independent counsel law argued that
there were essentially three principal defects: (1) the power to appoint an officer exercising "purely executive powers" was taken
from the President or the Attorney General and lodged in a judicial
body; 2 2 (2) that officer was given the full panoply of the Attorney
General's investigatory and prosecutorial powers within the jurisdictional sphere established by the appointing order, 23 while the Justice Department was directed to provide any requested assistance
18. Id. at 52.
19. Id. at 56.
20. See In re Olson, 818 F.2d 34,47 (D.C. Cir. Indep. Couns. Div. 1987) (Special Division
could not grant authority to independent counsel to investigate matters that Attorney General
specifically determined not to pursue).
21. The district court upheld the constitutionality of the statute and ordered compliance
with the subpoenas. In re Sealed Case, 665 F. Supp. 56, 61 (D.D.C.), rev'd, 838 F.2d 476 (D.C.
Cir. 1987), rev'd sub nom. Morrison v. Olson, 108 S. Ct. 2597 (1988).
22. 28 U.S.C. § 593(b) (1982).
23. See id. § 594(a).
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but to refrain from interfering in any way; 24 and (3) the Attorney
General could remove an independent counsel only for "good
cause" or disability, and his removal actions were subject to judicial
25
review.
In the right hands, as Justice Scalia's dissent made powerfully
clear, these points were troubling enough. Our litigating opponents
and the majority of the court of appeals panel, however, insisted
upon pressing with equal fervor what I saw, at least, as certain makeweight arguments. For example, they asserted that the appointing
function undermined the independence of the judiciary. 26 In addition, they claimed that the statute discriminated against investigative
targets because the independent counsel could make prosecutorial
decisions untroubled by the need to allocate law enforcement resources between his or her own cases and other cases. 27 They also
questioned the need for the legislation, in light of the impeachment
power and its invocation during Watergate 2 8-a wholly unnecessary
and unprofitable intrusion into the realm of unquestioned legislative judgment. 2 9 More importantly, they stretched the statute at
every conceivable point, not only beyond the bounds of any existing
working interpretation, but in my view, often beyond any reasonable
reading, in order to magnify both the role of the appointing court
and the perceived intrusion upon executive branch powers. The
court of appeals majority argued, for example, that the powers of
the Special Division to appoint the independent counsel, define her
jurisdiction, and review a removal decision by the Attorney General
gave the court virtual day-to-day supervisory power over the con30
duct of the investigation and prosecution.
24. See id. §§ 594(d), 597(a).
25. Id. § 596(a). The 1987 amendments transferred jurisdiction to hear actions by removed independent counsels seeking review of their dismissals from the Special Division to
the United States District Court for the District of Columbia. This amendment had immediate
effect and thus governed review of any potential removal of Ms. Morrison, at least at the time
of the court of appeals and Supreme Court decisions. See Pub. L. No. 100-191, § 6, 101 Stat.
1307-08 (1987).
26. In re Sealed Case, 838 F.2d 476, 513-17 (D.C. Cir. 1987), rev'd sub nom. Morrison v.
Olson, 108 S. Ct. 2597 (1988).
27. Id. at 509-11.
28. Id. at 506.
29. See Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 330-31 n.12
(1985).
30. See In re Sealed Case, 838 F.2d at 513-15. As the court of appeals majority put it,
"[t]his Special Court ... holds over the head of the independent counsel both the broadsword
and the rapier to control the pace and depth of the independent counsel's activities." Id. at
515. In making this argument, the court of appeals majority ignored, inter alia, the 1987
amendment to the statute, which transferred judicial review of removal decisions to the district court with immediate effect-a prime example of distortion of the operation of the
statute.
1989]
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MODEST ASSESSMENT
261
In one sense, our task in the Supreme Court was to resurrect the
statute itself, to persuade the Court that it was in fact a narrow provision, carefully crafted to meet a real and recurrent need with the
least possible displacement of presidential authority. We devoted a
considerable amount of time and effort in our briefs and at oral argument to a detailed explanation of the statute and its actual operation. We noted that no independent counsel could be appointed
without the concurrence of the Attorney General after a preliminary
investigation, and that his discretion to refuse to apply for such an
appointment was insulated from judicial review.3 1 Moreover, the
language of the statute, as interpreted in our own case by the Special Division, granted the Attorney General virtually complete control over the scope of the independent counsel's jurisdiction.3 2 The
statute gave no supervisory power to the appointing court and in no
respect undermined the independence of the judiciary. And while
the Attorney General's power of removal was indeed limited, that
power remained exclusively in the executive branch, and the limitaofficials,
tions were typical of those enjoyed by numerous federal
33
including the members of most administrative agencies.
At this level of argument, we were in effect merely setting the record straight and exploiting the unforced tactical errors of the statute's critics. But this was, despite its great prominence in the
litigation process, merely the intellectual underbrush.
The constitutional issues themselves posed a serious tactical dilemma for the opponents of the statute. They were faced with a
choice between a direct, frontal assault on the entire concept of statutorily created independent counsel as a clear derogation of article
II's unqualified grant of "the executive Power" of the United States
to the President,3 4 and a more limited, more complicated, but perhaps more palatable, attack on the mechanisms of the statute as violative of (1) the Appointments Clause,3 5 (2) the injunction in article
31. See 28 U.S.C. § 592(b)(1) (1982); Dellums v. Smith, 797 F.2d 817, 823 (9th Cir.
1986) (private parties lack standing to challenge Attorney General's decision not to conduct
preliminary investigation); Banzhafv. Smith, 737 F.2d 1167, 1170 (D.C. Cir. 1984) (Act precludes judicial review); Nathan v. Smith, 737 F.2d 1069, 1077-82 (D.C. Cir. 1984) (Bork, J.,
concurring) (stating Act creates no private right of action to compel Attorney General to conduct preliminary investigation).
32. In re Olson, 818 F.2d 34, 47 (D.C. Cir. Indep. Couns. Div. 1987); see 28 U.S.C.
§ 592(c)(1) (1982).
33. See, e.g., 15 U.S.C. § 41 (FTC Commissioner removable only for "inefficiency, neglect
of duty, or malfeasance in office").
34. U.S. CONST. art. II, § 1, cl. 1.
35. U.S. CONsT. art. II, § 2, cl. 2 provides:
[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
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[Vol. 38:255
II, section 3 that the President "take Care that the Laws be faithfully
executed,"3 6 and (3) the "case or controversy" limitation of article
III, 3 7 coupled with a so-called "functional" analysis of the separa-
tion of powers.38 While never entirely abandoning the first argument, the litigants and the majority on the court of appeals placed
much greater emphasis on the second. Interestingly-and
powerfully-Justice Scalia in his dissent completely reversed this
emphasis.3 9 In my view the key to the decision's constitutional significance-or relative lack of significance-lies in this tension between Justice Scalia's approach and that of the majority below.
Justice Scalia's line of attack was, in my judgment, the more powerful, but from several viewpoints the more dangerous of the two.
His approach was powerful because it was simple and, within the
confines of its own logic, at least, unanswerable. The first sentence
of article II of the Constitution states that "[t]he executive Power
shall be vested in a President of the United States of America." 40° As
Justice Scalia argued, "this does not mean some of the executive
power, but all of the executive power. ' '4 1 While neither the Constitution nor any of the contemporaneous materials contains a satisfactory definition of "executive power," there can be no question-as
we had to concede throughout-that criminal law enforcement is a
"purely executive" function. 42 There was for us no way to diffuse,
even descriptively, the executive character of the office, as the
43
Supreme Court had done in Humphrey's Executor v. United States,
where it saved the Federal Trade Commission by calling its law enforcement powers "quasi-legislative and quasi-judicial." 44 Once the
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.
36. U.S. CONST. art. II,§ 3.
37. U.S. CONST. art. III, § 2.
38. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977).
39. Morrison v. Olson, 108 S. Ct. 2597, 2625 (1988) (Scalia, J., dissenting). Justice
Scalia argued:
The Court devotes most of its attention to such relatively technical details as the
Appointments Clause and the removal power, addressing briefly and only at the end
of its opinion the separation of powers.... I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the
inseparable corollary that eath department's "defense must... be made commensurate to the danger of attack," . . . which gives comprehensible content to the appointments clause, and determines the appropriate scope of the removal power.
40. U.S. CoNsT. art. II, § 1.
41. Morrison, 108 S. Ct. at 2626 (ScaliaJ., dissenting).
42. Id.
43. 295 U.S. 602 (1935).
44. Humphrey's Executor v. United States, 295 U.S. 602, 628-29 (1935). In Humphrey's
Executor, the President claimed untrammeled power to remove Federal Trade Commissioners
on the ground that they exercised executive power. Characterizing their functions as "quasi-
1989]
A MODEST ASSESSMENT
263
two foregoing premises are granted, the conclusion that the statute
is unconstitutional would seem to follow ineluctably. 45
This rather formalistic-or, as its proponents would call it, structural-approach to separation of powers analysis drew sustenance
from two of the Court's most recent decisions in the area. Immigration & Naturalization Service v. Chadha4 6 struck down the so-called
"one-House veto" on the ground that it amounted to legislative activity without the constitutionally prescribed bicameral approval and
presentation to the President. 4 7 In Bowsher v. Synar,48 the Court invalidated portions of the Gramm-Rudman-Hollings Deficit Reduction Act 4 9 because they delegated the "executive power" to
designate specific line-item budget reductions to an officer located
in the legislative branch and removable by Congress. In both instances, the Court adopted a strict, literal reading of the constitutional text to put a halt to perceived legislative incursions into the
domain of the executive.
Justice Scalia's argument is not without its difficulties, however, at
least as a reading of history. First, the most prominent theoretical
statements of separation of powers doctrine made at the time of the
legislative" and "quasi-judicial," the Court upheld the statutory restrictions on the President's
removal power. The decision is the principal authority for the constitutionality of "independent" agencies.
While the holding of Humphrey's Executor has been reaffirmed by the Court in a number of
opinions, including Morrison, there has been widespread discomfort with its rationale. Justice
Jackson put it pithily:
Administrative agencies have been called quasi-legislative, quasi-executive or quasijudicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution. The mere retreat to the qualifying
"quasi" is implicit with confession that all recognized classifications have broken
down, and "quasi" is a smooth cover which we draw over our confusion as we might
use a counterpane to conceal a disordered bed.
FTC v. Ruberoid Co., 343 U.S. 470, 487-88 (1952) (Jackson, J., dissenting).
45. As Justice Scalia reasoned:
It seems to me... 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?
Morrison, 108 S.Ct. at 2626.
46. 462 U.S. 919 (1983).
47. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 944-59 (1983).
Chadha, a resident alien, argued-and the Court agreed-that section 244(c)(2) of the Immigration and Nationality Act was unconstitutional because it allowed one House of Congress,
by a simple resolution, to invalidate the decision of the executive branch permitting a deportable alien to remain in the United States. Id. at 952.
48. 478 U.S. 714 (1986).
49. The Balanced Budget and Emergency Deficit Control Act of 1985, 28 U.S.C. §§ 901907, 921-922 (Supp. IV 1986), popularly known as the Gramm-Rudman Hollings Act, was
passed in an effort to reduce the federal budget deficit.
THE AMERICAN UNIVERSITY LAW REVIEW
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adoption of the Constitution do not lend support to so sweeping a
syllogism as that proffered by Justice Scalia. Madison, in The Federalist, No. 47, observed that under the British Constitution the three
branches "are by no means totally separate and distinct from each
other." 50 Interpreting the oracle Montesquieu, Madison declared
that "he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other."5' He stated
the principle of separation to be "that where the whole power of one
department is exercised by the same hands which possess the whole
power of another department, the fundamental principles of a free
constitution are subverted." 52 On a more practical level, Madison
implicitly rejected the notion that the President must be able to control all purely executive functions when he argued in the First Congress that the President had no right to interfere in the decisions of
53
the Comptroller of the Treasury.
54
As early as 1838, the Supreme Court in Kendall v. United States
held that Congress could impose purely executive duties upon officers with whose actions the President and his appointees could not
interfere. 55 Further, Justice Jackson in his oft-quoted effort to define the limits of executive power in the admittedly distinct context
of the Steel Seizure case,5 6 articulated a vision of interlaced, cooperative powers wholly inconsistent with the "executive in character,
ergo exclusively presidential" model. 5 7 More recently, the Court had
rejected the cognate argument that article III's vesting of "the judicial Power of the United States" 5 8 in the Supreme Court and the
lower federal courts forbade the grant of authority to the Commodity Futures Trading Commission to decide common-law counterclaims in reparations proceedings.5 9
The principal dangers of invoking Justice Scalia's line of reasoning in the context of the independent counsel statute, however,
were not historical, but very contemporary. His argument encoun50.
51.
52.
53.
54.
55.
THE FEDERALIST No. 47 302 (J. Madison) (Mentor ed. 1961).
Id. (emphasis in original).
Id. at 302-03 (emphasis in original).
1 ANNALS OF CONG. 611-12, 614 (J. Gales ed. 1789).
37 U.S. (12 Pet.) 524 (1838).
Kendall v. United States, 37 U.S. (12 Pet.) 524, 610-13 (1838).
56. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
57. Concurring in the Court's rejection of President Truman's unilateral seizure of the
nation's steel mills to prevent a potentially crippling strike during the Korean conflictJustice
Jackson wrote: "[w]hile 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." Id.
at 582.
58. U.S. CONsT. art. III, § 1.
59. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986).
1989]
A MODEST ASSESSMENT
265
tered at least two practical and political problems of possibly insurmountable dimensions.
First, acceptance of the argument in this context would prove too
much; it would arguably, at least, place in jeopardy the myriad arrangements of the administrative state. Indeed, an assault upon the
constitutional foundations of the independent administrative agencies has been widely perceived as high on the agenda of conservative
supporters of the resurgence of separation of powers theory in recent years. 60 Ted Olson, having returned to private practice, was
during our investigation of him engaged in pressing, unsuccessfully,
just such an argument against the Federal Trade Commission. 6 1
Even ChiefJustice Burger, the principal modern judicial proponent
of a formalistic approach to separation of powers issues, felt compelled in Bowsher to offer a forceful disclaimer that the decision had
any application to administrative agencies. 62 Indeed, one commentator, bemoaning the Court's failure in Morrison to strike down independent agencies exercising executive power, noted that "Justice
Scalia, in his heated dissent.., dances close to the argument but in
the end seems understandably reluctant to commit himself to it."63
One need not embrace all the warts on Humphrey's Executor to believe
that a decision declaring administrative agencies unconstitutional
ought to come in a case involving an administrative agency, and not
in one focused on a very narrow and precise slice of criminal
prosecutorial discretion.
Second, it is difficult to envision a more unappetizing political setting in which to invite the Court to adopt the broadest view of untrammeled executive power in its history. If the Reagan
administration had come before the Court with an unblemished reputation for public probity and if the Justice Department had opposed the legislation from the start on principled separation of
powers grounds, their opposition at least would have had the credibility of their ideology behind it. In fact, however, the legislation
was supported by the Justice Department in 1977,64 and it was
60. See Carter, The Independent Counsel Mess, 102 HARV. L. REv. 105, 128-35 (1988) (criticizing Morrison for failure to declare independent administrative agencies unconstitutional).
61. See Ticor Title Ins. Co. v. FTC, 814 F.2d 731 (D.C. Cir. 1987) (dismissing challenge
as unripe).
62. Bowsher v. Synar, 478 U.S. 714, 725 n.4 (1986).
63. Carter, supra note 60, at 132.
64. See Public Officials Integrity Act of 1977: Hearings on S. 555 Before the Senate Comm. on
Governmental Affairs, 95th Cong., 1st Sess. 8, 15-17 (1977) (testimony of Acting Ass't Atty. Gen.
John M. Harmon):
[T]he Department of Justice endorses the concept of resort to a temporary special
prosecutor in extraordinary circumstances. We also support the general approach
adopted in this bill. The Department has no objections to the manner in which the
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signed into law by two Presidents, Carter and Reagan-the latter
twice. 6 5 Granted, occupants of the presidential office will differ
among themselves over matters of policy. But Presidents are even
better situated than courts to determine whether legislative enactments encroach on their constitutional prerogatives. One is led to
wonder why, if the independent counsel statute tore such a gaping
hole in the constitutional fabric of the office, two Presidents of different political parties and widely different ideologies signed it into
law without a murmur of protest, let alone an exercise of the veto
power. Moreover, the Reagan administration expressed the view
that the statute was unconstitutional only after several of its most
prominent members, including Attorney General Meese on two occasions, had come under scrutiny by independent counsel. Under
the circumstances, it is difficult to see the Justice Department's support as anything but an albatross around the necks of the individual
appellees. And it is impossible to fault the Supreme Court for declining to rescue this particular Executive from a dilemma at least in
part of its own making by adopting a breathtaking view of executive
prerogative for which even the administration had been unwilling to
contend in the legislative process.
Faced with these problems, the court of appeals majority resorted
to an attack upon the statutory mechanisms, focused largely upon
the Appointments Clause and the "case or controversy" limitation
of article III, and a "functional" separation of powers argument
based upon the Nixon papers case 66 and the Court's recent decision
in the Schor case upholding the power of the Commodity Futures
Trading Commission to decide common-law counterclaims.6 7 This
approach, however, made the court of appeals' task even harder.
I shall pass over the issues under the Appointments'Clause, the
"take Care" clause and article III, despite their prominence in the
opinions at all levels, for my theme is the place of Morrison v. Olson in
appointment process is initiated, the method ofjudicial appointment, or the restrictions placed on the Executive's power of removal over the special prosecutor.
65. President Carter called the legislation "necessary in response to the lessons that we
have learned to the embarrassment of our country in the past." 14 WEEKLY COMP. PRES. Doc.
1854, 1855 (Oct. 26, 1978). President Reagan issued no statement when he signed the 1983
extension and amendments. In late 1987 the President expressed serious doubts about its
constitutionality, but signed the new extension and amendments into law despite those reservations. See 23 WEEKLY COMP. PRES. Doc. 1526 (Dec. 15, 1987). "In order to ensure that
public confidence in government not be eroded while the courts are in the process of deciding
these [constitutional] questions, I am taking the extraordinary step of signing this bill despite
my very strong doubts about its constitutionality." Id. at 1527.
66. Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977) (upholding against separation of powers challenge statute directing disposition of presidential papers and tape
recordings).
67. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986).
1989]
A
MODEST ASSESSMENT
267
the Supreme Court's separation of powers jurisprudence. Not that
these issues do not themselves implicate the concept of separation
of powers; indeed, the constitutional provisions at issue are specific
means of implementing that concept. Only where, however, there is
no "textually demonstrable constitutional commitment" 68 of the
power of decision or action to one branch does a theoretical view of
the separation of powers become critical. 69 Suffice it to say that
Chief Justice Rehnquist in his opinion for the Court found nothing
in these relatively specific provisions of the Constitution that was
violated by the statutory scheme, at least given the more modest
reading of the statute we offered, and that if the decision has major
long-range constitutional significance, it is probably not as a reading
of the Appointments Clause, which Justice Scalia characterized as a
"relatively technical detail."' 70
While there are relatively few clearly marked milestones in the jurisprudence of separation of powers, the "functional" approach, as
articulated by Justice O'Connor in her Schor opinion, appears to focus on whether one branch has sought to aggrandize its own powers
at the expense of another, by exercising or controlling the exercise
of powers normally allotted to that other branch. 71 Indeed, arguably every case in which the Supreme Court has invalidated congressional or presidential action under the separation of powers
doctrine has involved such an element of aggrandizement or encroachment. 72 In the absence of overt aggrandizement, the Nixon
papers case stated a two-part test for "determining whether [an Act
of Congress] disrupts the proper balance between the coordinate
branches": (1) whether the statute "prevents the Executive Branch
68. Baker v. Car-, 369 U.S. 186, 217 (1962).
69. For an analysis of the Supreme Court's separation of powers cases on the basis of the
specificity with which a particular constitutional provision, usually a procedural restraint,
speaks to the conduct of one of the three branches see Krent, Separatingthe Strands in Separation
of Powers Controversies, 74 VA. L. REv. 1253 (1988).
70. Morrison v. Olson, 108 S.Ct. 2597, 2625 (Scalia, J., dissenting).
71. Schor, 478 U.S. at 850-57.
72. See, e.g., Bowsherv. Synar, 478 U.S. 714, 727-32 (1986) (Congress vested final executive powers in Comptroller General, its own agent, whom it could remove); Immigration &
Naturalization Serv. v. Chadha, 462 U.S. 919, 954-55 (1983) (one-House veto of executive
action constituted legislative activity without bicameral approval and presentation to President); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 83-84 (1982)
(Bankruptcy Act's grant of power to article I courts to decide traditional common-law actions
usurped power ofjudiciary); Buckley v. Valeo, 424 U.S. 1, 126-32, 138 (1976) (Congress improperly reserved to itself power to appoint officers performing law enforcement functions);
Wiener v. United States, 357 U.S. 349, 354-55 (1958) (President's removal of Commissioner
diminished congressionally mandated independence of War Claims Commission); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-89 (1952) (President's seizure of steel
mills to avert strike during Korean conflict usurped Congress' legislative power); Myers v.
United States, 272 U.S. 52, 164 (1926) (Senate veto of removals of postmasters interfered
with President's power to control performance of executive officers).
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from accomplishing its constitutionally assigned functions," and if
so, (2) "whether that impact is justified by an overriding need to
promote objectives, within the constitutional authority of
73
Congress."
Accepting for present purposes this somewhat simplified statement of the "functional" approach to separation of powers questions, it hardly offered a sure and safe harbor to the opponents of
the independent counsel law. It was difficult, if not downright impossible, to find any respect in which the statute aggrandized the
powers of Congress itself or indeed of the judiciary-with the exception of the appointing power, which was found to comport with
the Appointments Clause. 74 Indeed, Judge Silberman, writing for
the majority below, was reduced to arguing that any diminution of
the power of the presidency must be deemed ipsofacto an aggrandizement of the power of "its primary competitor," the Congress. 75
Of little use here to the statute's critics was the series of cases, from
Myers v. United States 76 to Bowsher v. Synar,7 7 dealing with limitations
on presidential power to remove government officials. For the
Court had struck down only those arrangements in which Congress
reserved to itself an affirmative role in the removal of an officer performing executive functions 7 8-an element entirely missing in the
independent counsel statute. And it had approved substantive limitations on the President's removal power in Humphrey's Executor 79
and Wiener v. United States,8 0 where the character of the office demanded a degree of independence from presidential control. It is
difficult to conjure up an office where such independence from presidential control is more vital than that of investigating and prosecuting the President's closest political associates-a point neatly
underscored by the very genesis of the statute in President Nixon's
famous "Saturday Night Massacre."
73. Nixon v. Administrator of Gen. Servs., 433 U.S. 415, 443 (1977).
74. As ChiefJustice Rehnquist reasoned for the Court:
we do not think that the Act works anyjudicialusurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause ....
the power to appoint inferior officers such as independent counsels 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 officer in the "courts of Law."
Morrison v. Olson, 108 S. Ct. 2597, 2621 (1988) (emphasis in original).
75. In re Sealed Case, 838 F.2d 476, 509 (D.C. Cir. 1987), rev'd sub nom. Morrison v.
Olson, 108 S. Ct. 2597 (1988).
76. 272 U.S. 52 (1926).
77. 478 U.S. 714 (1986).
78. See Bowsher v. Synar, 478 U.S. 714 (1986); Myers v. United States, 272 U.S. 52
(1926).
79. 295 U.S. 602 (1935).
80. 357 U.S. 349 (1958). See supra note 72.
1989]
A
MODEST ASSESSMENT
269
Thrown back upon the two-part test of the Nixon papers case,8 1
the statute's opponents faced a considerably more difficult showing
than that demanded by Justice Scalia's simpler, more formalistic approach. Under the latter, if a function could be identified as purely
executive in character, then it belonged to the President or those
directly under his control, period. Under the former, however,
those attacking the statute had to demonstrate that it "prevent[ed]
the Executive Branch from accomplishing its constitutionally assigned functions."'8 2 In essence, the opponents took on the burden
of showing that criminal prosecution was a "core" executive function whose direction and control were essential attributes of the
presidential office in our constitutional scheme. The plethora of
accepted deviations from presidential control of civil law enforcement-from administrative agencies to "private attorneys general" 8 3 to qui tam plaintiffs,8 4 effectively dictated this narrow focus
on criminal prosecution. But despite the fact that criminal law enforcement is "purely" executive in character, direct and intimate
control over it has never been an indispensable attribute of the
presidency.
There is no question that the presidential office would be diminished unacceptably by legislation encroaching on the President's
constitutionally assigned foreign policy prerogatives or his powers
as Commander-in-Chief of the armed forces or his right to participate, through the veto power, in the enactment of laws. But as a
matter of history, in Britain, in the Colonies, and under our Constitution, there was not only no invariable practice of control of prosecutions by the Chief Executive but, to the contrary, there has been a
long and honored tradition of independence of criminal prosecution from the partisan political process.8 5 Indeed, as Harold Krent
81. Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977). See supra notes 66, 73
and accompanying text.
82. Id. at 443.
83. See 15 U.S.C. § 15(a) (1982) (authorizing private treble damage actions for violations
of antitrust laws); 18 U.S.C. § 1964(c) (1982) (providing for private treble damage actions for
RICO violations).
84. See 31 U.S.C. § 3730(b)(1) (1982); 18 U.S.C. § 287 (1982) (allowing private parties to
bring suit, in name of government, against individuals for submitting false payment claims to
government personnel in violation of False Claims Act); United States ex rel. Marcus v. Hess,
317 U.S. 537 (1943).
85. See Berger v. United States, 295 U.S. 78, 88 (1935); see also United States v. Nixon,
418 U.S. 683, 694 n.8 (1974). One traditional means of furthering the prosecutor's desired
independence from the political process, common in eighteenth-century America and still in
vogue in some states today, is to lodge the appointment of the prosecutor in a court of law.
See, e.g., 2 Z. SWIFT, DIGEST OF THE LAWS OF THE STATE OF CONNECTICUT 369 (1823 ed.); NATIONAL ASSOCIATION OF ATrORNEYS GENERAL, POWERS, DUTIES AND OPERATIONS OF THE STATE
ATTORNEYS GENERAL 77-79 (1977); TENN. CODE ANN. § 8-6-101 (1988); CONN. GEN. STAT.
§§ 51-275 et. seq. (1979). For an account of the historical practice in England, the Colonies
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has demonstrated in his contribution to this Symposium, it is not at
all clear that the Framers contemplated that there would be any such
thing as federal criminal law enforcement.8 6 And while the federal
law enforcement establishment has today reached enormous proportions and our presidential candidates often sound as if they are
running for local prosecutor, for almost the first century of the Republic's existence what little federal criminal law enforcement there
was, was dispersed, decentralized, and entirely remote from presidential control.8 7 Not until the creation of the Department of Justice in 1875 were the President and the Attorney General afforded
any real measure of control over the process.8 8 In the face of this
history, it was difficult for the statute's opponents to maintain that
its narrowly tailored provisions did any violence to the basic constitutional scheme.
My point is not that Morrison v. Olson was correctly decided,
though I plainly think it was. Nor am I trying to rationalize the case
with the Court's separation of powers jurisprudence, though I think
that can be done easily enough. Instead, my endeavor is to explain,
from the perspective of a lawyer-participant, how I think the
Supreme Court came to decide such a hotly contested issue with
such apparently great short-term consequences in an unexceptionable, thoroughly workman-like opinion, satisfactory sans concurrence
to every Justice but one, without erecting, altering, or rejecting any
significant principle of constitutional law. To understand how this
happened, it is necessary to see the Court's opinion in Morrison, in
part at least, as the product of a series of tactical choices by the litigants and the lower courts, which shaped the precise issues addressed by the Supreme Court.
Had the majority below embraced the simpler, more potent argument put forth so fiercely by Justice Scalia in dissent, the Supreme
Court would probably have had to confront more directly the meaning and consequences of a ruling that excluded at least certain aspects of "executive power" from the constitutional ambit of
exclusive presidential power. To have taken this road, however,
would have been both a tremendous and very risky gamble. I susand the states of substantial involvement in and control of criminal prosecutions by private
individuals, see Krent, Executive Control Over CriminalLaw Enforcement: Some Lessons From History,
38 AM. U.L. REv. 275 (1989).
86. Krent, supra note 85.
87. See L. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY 406-08
(1948); Krent, supra note 85.
88.
See 3 ENCYCLOPEDIA OF CRIME &JUSTICE 1291 (Kadish ed. 1983); H. CUMMINGS & C.
MCFARLAND, FEDERALJUSTICE: CHAPTERS IN THE HISTORY OFJUSTICE AND THE FEDERAL EXEC-
UrIVE 143-46, 225-26 (1937).
1989]
A
MODEST ASSESSMENT
pect that Judge Silberman, who is an enormously intelligent jurist
with long experience in both the executive and judicial branches,
realized that the purist view of the scope of executive power stood
little chance of acceptance by a majority of the Justices in an ordinary case (if any such there are) and none whatever in a case fraught
with the ethical and political overtones of this one. A court of appeals opinion resting an invalidation of the independent counsel
statute on this purist view would have invited a clear rejection of
that view by the Supreme Court, something which I further suspect
Judge Silberman wished to avoid if at all possible.8 9 An opinion
finding a variety of more specific and less cosmic flaws in the statute,
on the other hand, offered a number of attractive possibilities. First,
if the Supreme Court was of a mind to strike down the Act, it could
affirm the court of appeals on some relatively technical reading of
the Appointments Clause without appearing to be handing the fox
the keys to the henhouse. Second, the "scattershot" approach
might lend itself to coalition-building if the Supreme Court found
itself fragmented. 90 And perhaps most important, Judge Silberman's opinion exposed very little in the way of cherished conservative principles in the event of a reversal. It lent itself to precisely the
sort of plodding, thorough, unexciting opinion behind which Chief
Justice Rehnquist marshalled a remarkably diverse group of his
colleagues.
Thus I think Justice Scalia was wrong when he called the Morrison
v. Olson majority opinion "revolutionary." 9 1 To the contrary, adoption of his position at this point in our history was much more likely
to revolutionize the conduct of government. I also submit that his
Cassandra-like lamentations for the vision of the Framers wholly
missed the mark. I find nothing in the Court's opinion which is
likely to operate as a serious constraint upon its freedom of action in
future separation of powers disputes, save perhaps a general reaffirmation of the pragmatism which has marked virtually all of its twentieth-century jurisprudence in this field. It may be true that in
upholding the independent counsel law, and in submerging pet the89. In contrast, the Supreme Court majority felt no need to engage Justice Scalia's dissenting views directly at all, and it seems unlikely that a future Court will feel constrained one
way or the other by what Justice Scalia argued in his opinion.
90. Judge Silberman's opinion contains a number of tantalizing hints that he was engaged in precisely such an effort at coalition-building. See In re Sealed Case, 838 F.2d 476,
509-11, 518 (D.C. Cir. 1987), rev'd sub non. Morrison v. Olson, 108 S. Ct. 2597 (1988). His
emphasis on a perceived unfairness to the targets of independent counsel investigations, for
example, seems designed to catch the attention of the Court's liberal wing. Id. Further,Judge
Silberman went out of his way to cite and rely on the views ofJustice White, the Court's most
doggedly pragmatic member in separation of powers disputes. Id. at 499-500.
91. Morrison v. Olson, 108 S.Ct. 2597, 2628 (1988) (Scalia, J., dissenting).
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ories in an obvious effort to achieve as close to unanimity as possible, the Justices engaged in an exercise in realpolitik. It is true that
the proponents of greater rigidity in separation of powers analysis
lost a case after a couple of at least apparent victories. But separation of powers is very much alive as a doctrine, and it has not lost its
cachet as a mode of attack upon governmental action.
Most important, when the dust storm of the case has settled, I
submit the Justices correctly perceived that the constitutional issue
was of less significance than the immediate political symbolism of
the result. The statute represents an effort at least to deal concretely with a continuing crisis of confidence in the ethical standards
of high government officials which dates back at least fifteen years to
Watergate. And despite the rhetoric of the purists, Presidents have
almost never involved themselves in particular prosecutorial decisions-and on the rare occasions when they have, one suspects it
has been to their great regret. The presidency will hardly be crippled, indeed, in my view it may well be strengthened, by the removal
of the burden of these politically disastrous cases. 92 Chief Justice
Rehnquist's opinion hardly opens the floodgates to further incursions on executive prerogative.
I predict with some confidence that when and if the tension between formalism and functionalism in separation of powers analysis
is more clearly resolved by the Supreme Court, it will neither be
because of, nor in spite of, the decision in the Morrison case.
Since this Article was prepared, the Supreme Court returned to
the subject of separation of powers in Mistretta v. United States,93
where it upheld the constitutionality of the new Sentencing Guidelines promulgated by the United States Sentencing Commission.
While Mistrettawill undoubtedly give rise to even greater concern on
the part of separation of powers enthusiasts, it does not change my
assessment of Morrison. If anything, it confirms that assessment.
The Court in Mistretta reaffirmed its commitment to
the central judgment of the Framers of the Constitution that,
92. Several modem Presidents have taken extraordinary measures, sometimes with the
concurrence of Congress, to divest themselves of real or apparent control of criminal investigations touching high-ranking members of their administrations. See supra note 8. Even the
Reagan administration, before joining the constitutional attack on the statute, invoked it on at
least seven known occasions and acknowledged the importance of the independent counsel
device to public confidence in law enforcement by offering parallel appointments to sitting
independent counsels in the wake of the constitutional litigation and by signing rather than
vetoing the 1987 renewal of the legislation, despite the President's expressed constitutional
doubts.
93. 109 S. Ct. 647 (1989).
1989]
A MODEST ASSESSMENT
within our political scheme, the separation of governmental powcoordinate Branches is essential to the preservation
ers into three
94
of liberty.
It sustained the Guidelines against challenges based on theories of
improper delegation of legislative powers, 95 and violation of the
96
separation of powers doctrine.
Mistretta, like Morrison, was unquestionably a defeat for the proponents of greater rigidity in separation of powers theory. Justice
Scalia again found himself in lone dissent,9 7 and the Court went
much further than it had in Morrison to emphasize its generally pragmatic approach to separation of powers questions. 98 It described
Justice Jackson's concurrence in the Steel Seizure case,9 9 as "summariz[ing] the pragmatic, flexible view of differentiated governmental power to which we are heir," adding:
In adopting this flexible understanding of separation of powers,
we simply*have recognized Madison's teaching that the greatest
security against tyranny-the accumulation of excessive authority
in a single branch-lies not in a hermetic division between the
Branches, but in a carefully crafted system of checked and balanced power within each Branch. 10 0
Given the distinct factual and analytical context, Morrison was
hardly central to the Court's reasoning in Mistretta. It was cited only
a handful of times during the Court's extended discussion of separation of powers issues, generally for uncontroverted or tangential
propositions.
It seems dear on first reading, at least, that Mistretta is a much
more important constitutional statement than Morrison, despite the
greater political interest in and hence public focus on the latter. For
example, Mistretta's expansion of the permissible role of the judiciary to encompass participation in the development, articulation, and
codification of substantive sentencing policy was not based on any
specific grant of constitutional authority such as that contained in
the Appointments Clause. Moreover, Mistretta quite clearly put an
end to any hopes conservative thinkers might have harbored that
the Justices could be persuaded to abandon their adherence to the
result in Humphrey's Executor. After Mistretta one feels more strongly
than after Morrison that future separation of powers challenges to
94.
95.
96.
Id. at 658, citing Morrison.
See id. at 654-58.
See id. at 659-75.
97. See id. at 675-83.
98.
See id at 658-60.
99. See supra notes 56-57 and accompanying text.
100.
Mistretta v. United States, 109 S. Ct. 647, 659 (1989).
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[Vol. 38:255
legislative enactments will need to be grounded fairly solidly in
some specifically stated constitutional restraint.