MORRISON V OLSON: A FORMALISTIC
PERSPECTIVE ON WHY THE COURT
WAS WRONG
LEE S. LIBERMAN*
TABLE OF CONTENTS
Introduction ................................................
I. The "Vesting Clause" Dispute .........................
II. The Court's Resolution ................................
A. Is Investigation and Prosecution of Crime Executive
Power? ............................................
B. The Court's View of the Vesting Clause and the
Take Care Clause .................................
1. Morrison and Nixon .............................
a. Separation of powers, overlapping powers,
blended powers, and checks and balances ...
b. Does the Nixon test require a finding of
interference with the entire executive
branch's functioning? .......................
2. Morrison and Myers .............................
III. Can the Court's Approach Be Defended on Other
Grounds? ..............................................
A. Form Versus Function .............................
B. The Difficulties with Functionalism ................
C. Morrison and Functionalism ........................
IV. A Formalist Resolution of Morrison .....................
Conclusion .................................................
313
314
317
318
325
326
328
335
335
342
343
345
349
352
358
INTRODUCTION
When Morrison v. Olson came down on June 29 and the Court, by
* Associate Counsel to the President of the United States. I wrote this Article while I
was an Assistant Professor at George Mason School of Law. B.A., 1979, Yale; J.D., 1983,
University of Chicago.
1. 108 S. Ct. 2597 (1988).
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a vote of 7-1, upheld the constitutionality of the independent counsel statute, 2 the New York Times proclaimed that the rule of law had
just won a great victory. 3 The Times' editorial noted with particular
relish that the opinion, rejecting the argument that the statute unconstitutionally infringed on the Chief Executive's powers, had been
written by none other than Justice Rehnquist, President Reagan's
4
appointee to the Chief Justiceship.
The Times' reaction, I suspect, was widely shared in the legal academy. It was, therefore, with considerable trepidation that I
remembered that I had agreed to write a piece for this issue of the
American University Law Review defending the proposition that the
challengers to the statute were correct, and that the statute is, in
fact, unconstitutional. Nevertheless, after reading the opinion, I
found it entirely unpersuasive. Although Justice Rehnquist's stance
was, in a sense, a tribute to the independence of the judiciary, and to
that extent ground for rejoicing, it is almost the only feature of the
opinion that is reassuring in terms of the rule of law.
I.
THE "VESTING CLAUSE"
DISPUTE
Although there are other issues between the supporters and critics of the independent counsel statute,5 the dispute I focus on is the
application of three clauses of the Constitution to the independent
counsel statute. The Constitution states that "the executive Power
shall be vested in a President."' 6 It also requires that the President
"shall take Care that the Laws be faithfully executed." '7 Furthermore, the Constitution grants Congress the power "to make all
Laws which shall be necessary and proper for carrying into Execution [Congress' other powers enumerated in article I, section 8], and
all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof." 8
2. Ethics in Government Act of 1978, 28 U.S.C. §§ 591-598 (1982).
3. N.Y. Times, June 30, 1988, at Al, col. 6.
4. Id. at A22, col. 1.
5. One such issue is whether the statute violates the appointments clause in one of
three ways: (1) by providing for appointment of the independent counsel other than by the
President with the advice and consent of the Senate, because she is not an inferior officer, see
Morrison v. Olson, 108 S. Ct. 2597, 2601-11 (1988) (discussing requirement of Presidential
appointment of superior officers); (2) by providing for appointment by a court rather than by
the head of the department of which the counsel is a part, see id. at 2609-11 (considering court
appointment of counsel); or (3) by providing for the counsel's appointment by a body that is
called a court but does not decide cases, see id. at 2611-15 (analyzing court's appointment
authority). Another issue is whether the statute violates article III by conferring on a court
nonjudicial power. See id. (assessing nature of court's power to appoint counsel).
6. U.S. CONST. art. II, § 1, cl.1.
7. U.S. CONST. art. II, § 3.
8. U.S. CONsT. art. I, § 8, cl.18.
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The attack on the independent counsel statute under the vesting
clause, the take care clause, and the necessary and proper clause can
be set out fairly readily in syllogism form, complete with numbered
paragraphs. 9 The propositions are as follows:
(1) Under the Constitution, "[t]he executive Power shall be
vested in a President." 10 That deceptively simple clause does two
things: it grants the President the entire executive power of the
United States, and grants it to him alone. If there were any doubt
that that is what the clause means, it is confirmed by the legislative
history of the clause. This includes its evolution during the Constitutional Convention, the debates at the Convention, and the arguments that both proponents and opponents of the Constitution
made during ratification, both at the state conventions and in the
popular press. All of these sources show that the framers made a
deliberate decision to concentrate the entirety of the executive
power in one official, and that they repeatedly rejected proposals to
set up an Executive Council that would share the executive power
with the President.
(2) If a particular type of power is executive, article II, section 1
not only does not establish an Executive Council, but it also prevents Congress from creating such a body-by which I mean a body
that shares the executive power with the President, rather than leaving the entirety of it with him. I That is the most natural interpretation of the text of the clause. The three reasons given at the
Convention and during ratification for the unitary Executive also
confirm this interpretation: (a) to assure energy, secrecy and dispatch in the execution of the laws; (b) to promote the accountability
of the President to the nation; and (c) to guarantee that the executive branch, which in a democracy will naturally tend to be weaker
than the legislative, is strong enough to resist encroachment by the
first branch. None of these reasons argues any less against a congressionally-created Executive Council than against a constitution2
ally-mandated one.1
9. Throughout the first three sections of this Article, I assume that constitutional law
questions, like other legal questions, are decided by interpreting the constitutional text in
light of the meaning its words had at the time, its legislative history and prior interpretations.
I realize that this is a controversial assumption and in section IV I examine it more closely. In
a sense, however, an article that purports to use standard legal analysis to address the constitutionality of this statute is itself a good way of testing that assumption. To the extent this
Article persuades anybody initially inclined to disagree with my conclusion to think differently, it also tends to confirm the possibility of this kind of standard analysis working for
constitutional law questions.
10. U.S. CONsT. art. II, § 1.
11. See U.S. CONST. art. II, § 1 (vesting all executive power in President).
12. I have not seen in any of the opinions or briefs an explicit recognition that a congres-
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(3) The executive power includes not only the enumerated powers granted the President by the Constitution, such as the Commander-in-Chief power, 13 but also the general execution of the
laws.' 4 This seems clear enough from its name. If that is not sufficient to persuade, however, article II, section 3 imposes on the President the duty to "take Care that the Laws be faithfully executed,"' 5
which must mean that the power to do so is included in the vesting
clause. That inference, once again, is confirmed by the legislative
history of the clause. Any lingering doubts on this point are quelled
by the fact that it is clear that the power to execute the laws is governmental power. It is neither legislative power, which consists of
establishing general rules but not of giving effect to them,' 6 nor judicial power, which involves deciding cases or controversies brought
before the court. 17 Therefore, the power to execute the laws must
be executive. Additionally, the legislative history of article II confirms, although more tentatively, the inference that executive power
is the residual category.
(4) This does not mean, however, that the President has the
power or responsibility personally to execute all laws.' 8 That would
be impossible. His authority and responsibility are curtailed by the
grant of power to Congress to pass all laws necessary and proper for
carrying out the powers of the other branches. 19 Under that clause,
it is up to Congress to decide what kind of assistance the President
needs to execute the laws. No matter what structure Congress
selects, however, the President must retain the authority to give directives to the officers who assist him. Otherwise, the executive
power would be vested not in the President alone but in the President and his assistants-the arrangement that proposition number
sionally-mandated Executive Council, as opposed to a constitutionally- mandated one, was
not the precise issue to which the arguments at the Convention were addressed, and that it is
an inference that those arguments would apply to a congressionally-mandated one. Perhaps
that is because the inference seems so obvious, and because the text in any event seems
equally categorical against both. See U.S. CONST. art. II, § I (stating that "[t]he executive
Power shall be vested in a President of the United States of America").
13. See U.S. CONST. art. II, § 2, cl. 1 (vesting in President power as head of all branches of
military); see also U.S. CONsT. art. II, § 2, cl. 2 (granting President power to make treaties and
appoint ambassadors, public ministers, Supreme Court justices, and "all other Officers of the
United States, whose Appointments are not herein otherwise provided for. .
14. See U.S. CONST. art. II, § 1 (vesting executive power in President).
15. U.S. CONST. art. II, § 3.
16. See U.S. CONsT. art. I, § 8, cl. 18 (granting Congress power to make laws regarding
execution of all governmental powers); id. at art. II, § 1 (vesting executive power in
President).
17. See U.S. CONST. art. III, § 2, cl. 1 (extendingjudicial power to cases or controversies).
18. See Myers v. United States, 272 U.S. 52, 117 (1926) (concluding that President must
execute laws with assistance of subordinates).
19. U.S. CONsT. art. I, § 8, cl. 18.
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317
two precludes. 20
(5) The type of power granted to independent counsels under
the statute, the authority to investigate and prosecute others under
the criminal laws, is law execution authority.2 ' This authority,
22
therefore, is part of the executive power.
(6) The independent counsel statute grants the counsel independent authority to conduct these activities with respect to the
class of persons covered by the Act.2 3 This legally bars the President or any other executive official from directing the counsel's exercise of that authority.2 4 That provision of the statute standing
alone violates the vesting clause; if not, it certainly does so when
joined with the restrictions the statute places on the condition under
which the independent counsel may be removed. 25 Even if these
two provisions are not sufficient to make clear that the statute vests
executive power in the counsel rather than the President, when
joined with the clause providing for the counsel's appointment by a
court, 26 they place this portion of the executive power entirely be27
yond Presidential control.
II.
THE COURT'S RESOLUTION
There are a number of possible answers to this challenge. It
seems to me, however, that an intellectually satisfactory response
would have to refute one of the six propositions outlined above.
Remarkably, however, seven Justices joined an opinion that decides
the case without ever doing so. 28 The Court never addressed the
first four, more or less conceded the fifth, 29 and then upheld the
statute after concluding that it did not "'impermissibly undermine
20. See supra notes 11-12 and accompanying text (explaining that executive power must
be vested in President alone).
21. See 28 U.S.C. § 594(a) (1982) (stipulating authority and duties of independent
counsel).
22. See Morrison v. Olson, 108 S. Ct. 2597, 2618 (1988) (noting executive power of independent counsel).
23. 28 U.S.C. § 594 (1982).
24. See Morrison, 108 S. Ct. at 2608 (noting preeminence of independent counsel's authority within granted powers of statute).
25. 28 U.S.C. § 596(a)(1) (1982) (allowing removal of independent counsel only for
good cause, physical disability, mental incapacity, or other condition that substantially impairs
performance of counsel's duties).
26. 28 U.S.C. § 49 (1982) (assigningjudges to division of United States Court of Appeals
to appoint independent counsels); id. § 593 (defining special division's duties).
27. See Morrison, 108 S. Ct. at 2621 (noting that statute limits presidential control or
supervision over independent counsel).
28. See generally id. (failing to refute theory that President alone is vested with executive
power and must retain right to direct those authorized to assist him in execution of laws).
29. See id. at 2619 (recognizing lack of dispute of fact that independent counsel performs
executive functions).
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the powers of the Executive Branch ... or 'disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned
functions.' "30 The most significant problem with this conclusion is
that because the Court failed to address the first four propositions,
it found no undermining or disruption of the executive branch's
powers or functions without ever addressing what those powers
are. 3 ' The other major problem is that the Court gave no serious
explanation for why the "no impermissible undermining or undue
disruption" test was the appropriate one to use in evaluating the
constitutionality of legislation that impinged on the executive
32
branch's powers or functions.
I start my discussion of the Court's opinion with the question it
did address-whether investigation and prosecution of crimes is executive power. I then discuss how the Court failed to address one of
the two central questions in the case, namely whether the vesting
clause prescribes the nature of the relationship between the President and other officers engaged in law execution. I proceed to
sketch the answer to that question that I believe the Court should
have reached. Next, I address the implications of that answer for
the resolution of the other major question in the case, the extent to
which the necessary and proper clause allows Congress to legislate
in ways that purport to modify that relationship or are likely to have
the effect of modifying that relationship. Finally, I propose a theory
upon which the Court might have relied in reaching its decision in
Morrison and explain why an alternative theory would have produced
a more constitutionally sound result.
A.
Is Investigation and Prosecution of Crime Executive Power?
The Supreme Court's discussions of whether a particular type of
activity by a government official is an exercise of executive, judicial,
quasi-legislative, or quasi-judicial power have come up in the past in
several different contexts. 3 3 The most recent notable cases address30. Id. at 2621 (quoting Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443
(1977)).
31. See id. at 2620-21 (upholding independent counsel statute without defining executive
powers).
32. See id. at 2621 (reasoning that President's authority to remove independent counsel
for good cause is sufficient to allow him to faithfully execute laws).
33. See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 959 (1983) (holding
legislative veto unconstitutional); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587
(1952) (finding President's order to seize and operate steel mills under federal direction to be
unconstitutional exercise of legislative authority); cf. United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 315-16 (1936) (upholding delegation of legislative authority to President
regarding foreign affairs).
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ing this issue, however, involve congressional attempts to place limitations of different sorts on the President's ability to remove
particular officials. In Myers v. United States,3 4 the Court held that a
law requiring the advice and consent of the Senate before the President could remove a postmaster, first class who had been appointed
to that position by the President with the Senate's advice and consent violated the vesting clause and the take care clause.3 5 In
Humphrey's Executor v. United States,3 6 the Court held that Myers was
inapplicable to the Commissioners of the Federal Trade Commission (FTC) because the agency was not within the executive
branch.3 7 Instead, its responsibilities were quasi-legislative, in that
its task was to effect legislative policies embodied in a statute in accordance with the legislative standard prescribed therein. 38 In Bowsher v. Synar,39 however, the Court ruled, in a more sophisticated
analysis, that interpreting a congressionally-enacted law to imple40
ment the legislative mandate constitutes the "execution" of law.
Because the Court reached this conclusion without mentioning the
contrary holding in Humphrey's Executor, it was left to the Morrison
what type of power an official
Court to clear up the confusion over
41
exercises in carrying out a statute.
The Court cleared up the confusion, at least in some measure, by
abandoning Humphrey's Executor's notion that there are officials exercising quasi-legislative or quasi-judicial power. According to the
Morrison Court, "[t]here 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 under34. 272 U.S. 52 (1926).
35. Myers v. United States, 272 U.S. 52, 169-76 (1926). The Court's theory, which I
later discuss in depth, was that the limitation on the President's unilateral power to remove at
pleasure interfered with his authority to direct the postmaster's actions. Id.; see infra notes
150-54 (discussing Court's theory in Myers).
36. 295 U.S. 602 (1935).
37. Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935). The Court, therefore, concluded that Congress could limit to "good cause" the grounds upon which the President could remove commissioners. Id. Because the commissioners occupied no place in the
executive branch, the Court found that limitations on the President's authority to remove
them did not encroach upon his executive power. Id.
38. Id.
39. 478 U.S. 714 (1986).
40. Bowsher v. Synar, 478 U.S. 714, 733 (1986). In Synar, the Court struck down the
Gramm-Rudman deficit control statute. Id. at 732-74. The Court found the Comptroller
General to be an agent of Congress because the Comptroller was removable by Congress. Id.
at 726. Because the statute gave the Comptroller executive power to specify federal programs
for which spending must be cut, the Court held that the statute's vesting of executive power in
a legislative official was invalid. Id. at 734.
41. See generally id. (failing to discuss holding of Humphrey's Executor that Federal Trade
Commissioners were not executive officers).
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taken by officials in the Executive Branch." 4 2 Moreover, this is true
not only of law enforcement but also other activities involving the
implementation of statutes. The Court noted that it is hard to dispute that the powers of the FTC at the time of Humphrey's Executor
would at the present time be considered "executive," at least to
some degree." 43 The two passages in combination seem to concur
in Synar's characterization of this type of decision making authority
44
as executive power.
This clears up some fairly significant conceptual confusion that
has been around at least since the Decision of 1789. 45 Let us assume for the moment that the executive power includes the execution of the laws. If that were not clear enough merely from its name,
the fact that article II imposes on the President the duty "to take
Care that the Laws are faithfully executed" tends to confirm that
interpretation. In the course of executing the laws, however, executive officials exercise two kinds of power that have tended to be
characterized as something other than executive power: they interpret clear or ambiguous rules set out by statute in order to give effect to those rules in specific situations, and they make policy
judgments that the statute has left open but that must be made to
46
implement the law.
The first type of decision closely resembles the interpretative activity of a court in deciding a case, while the second resembles the
weighing of competing goals and interests performed by a legislature in enacting a law. Moreover, and further adding to the confusion, in performing these functions officers and agencies have made
use of procedures resembling those used by courts in the trial of
cases 4 7 or by legislatures in the enactment of statutes. 48 Also, they
42. Morrison v. Olson, 108 S. Ct. 2597, 2619 (1988).
43. Id. at 2618 n.28. The Court cited Justice White's dissent in Synar which states: "it is
clear that the FTC's power to enforce and give content to the Federal Trade Commission
Act's proscription of 'unfair' acts and practices and methods of competition is in fact 'executive' in the same sense as is the Comptroller's authority under Gramm-Rudman-that is, it
involves the implementation (or the interpretation and application) of an act of Congress."
Id. (quoting Bowsher v. Synar, 478 U.S. 714, 761 n.3 (1986) (White, J., dissenting)).
44. See id. at 2618 nn.27, 29 (discussing validity of restrictions on President's removal
authority).
45. 1 ANNALS OF CONG. 482 (J. Gales ed. 1789).
46. See, e.g., American Trucking Ass'ns v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397,
414 (1967) (upholding policymaking by Interstate Commerce Commission); Pacific States Box
& Basket Co. v. White, 296 U.S. 176, 186 (1935) (permitting agency discretion to develop
factual materials absent special statute); Brewster v. Gage, 280 U.S. 327, 336 (1930) (noting
that absent weighty reasons, court will not disturb practical interpretation of ambiguous statute by administrative officials).
47. See 5 U.S.C. § 554 (1982) (providing for government agencies' adjudication
procedures).
48. See id. § 553 (establishing agencies' authority to engage in rulemaking).
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FORMALISTIC PERSPECTIVE
321
have adopted names for these procedural devices, adjudication and
49
rulemaking, that call to mind the activities of these other branches.
As a result, many have suggested that when the Executive is engaging in the first type of function, the interpretation of a statute to
determine how to execute it, he is not acting in an executive capacity. 50 Instead, he is acting either in a quasi-judicial capacity because
he is trying to apply the law to a particular fact pattern, 5 ' or in a
quasi-legislative capacity, because he is seeking to apply as faithfully
as possible a rule devised by the legislature, and to that extent he
can be viewed as the agent of the legislature. 5 2 Similarly, when an
officer engages in the second type of function, the making of a policy choice to give effect to a statute, it has been suggested that he
acts in a quasi-legislative capacity. This follows either because policy choices are inherently legislative, or because the statute is in
some sense unfinished until the officer completes it by making the
49. I do not mean to suggest that all executive interpretive activity takes place in adjudications, that all executive policymaking takes place in rulemakings, or that the two always can
be sharply distinguished. To the contrary, many policy decisions are made in adjudications,
much "pure" interpretation results in rules, and the executive engages in both interpretation
and policymaking without conducting either rulemakings or adjudications. See 1 K. DAvis,
ADMINISTRAT VE LAW TREATISE § 200 (1978) (discussing overlapping and blurring of func-
tions of three branches of government).
50. See Buckley v. Valeo, 424 U.S. 1, 140-41 (1976) (noting that Federal Election Commission's rulemaking and advisory opinions are actually legislative and judicial in nature);
Humphrey's Executor v. United States, 295 U.S. 602, 628 (1935) (describing duties of Federal
Trade Commission as legislative or judicial).
51. See I ANNALS OF CONG. 611-14 (J. Gales ed. 1789) (Madison) (describing nature of
office of Comptroller of the Treasury as having judicial qualities since duties included deciding validity of individual claims against government).
52. Id. See also Kendall v. United States, 37 U.S. (12 Pet.) 524, 610 (1838); Marbury v.
Madison, 5 U.S. (1 Cranch) 60, 65 (1803). The relevant passages in these cases explain that
mandamus can issue to executive officers because Congress has the power to impose legal
obligations on them. Kendall contains some particularly strong statements to this effect, which
have been somewhat overread. Although the opinion states that "it would be an alarming
doctrine that Congress cannot impose upon any executive officer any duty they may think
proper, which is not repugnant to any rights secured and protected by the Constitution; and
in such cases, the duty and responsibility grow out of and are subject to the control of the law,
and not to the direction of the President," Kendall, 37 U.S. (12 Pet.) at 610, that language
should be interpreted in light of the issue in the case. The issue was whether the take care
clause meant that the President had exclusive responsibility for assuring fidelity to the law on
the part of his officers, and whether an officer could claim immunity from suit on the ground
that the wrong he had committed was at Presidential direction. Id. Thus, the Court in Kendall
decided only that a Presidential order not to do X did not shield an officer from liability if the
law imposed on him a duty to do X. And all that means is that the President's power to
execute the laws does not extend to commanding their disregard. Id. at 613; see Miller, Independent Agencies, 1986 S. CT. REv. 41, 62-63 (discussing supervisory role of President over
heads of independent agencies under take care clause). This holding does not actually require that the officers be agents of Congress as opposed to the President, as Kendall could be
read to suggest. Rather, it requires only that an officer's power be understood as not exceeding that of his principal's, and that he cannot claim as a defense for the bounds of that power
that he did so because his principal ordered him to. This view is also reasonably consistent
with the quoted passage above.
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last of the policy choices. 53 Finally, courts and others have at various times viewed one of these functions as being quintessentially
executive and the other as more suspect, with no consistency as to
54
which was which.
The Court clearly articulated the way out of this difficulty well
before Morrison or any of the other twentieth-century cases, in Murray's Lessee v. Hoboken Land and Improvement Co. 55 There it was argued
that the authority to issue a distress warrant could not be constitutionally granted to the solicitor of the Treasury, because such issuance was a judicial act. 5 6 Justice Curtis responded that the question
was not whether issuance was a judicial act, but whether it was an
exercise ofjudicial power. 57 The Court reasoned that such issuance
plainly would be categorized as the former, if a judicial act was defined broadly as the exercise of judgment regarding the application
of law to fact. But then, in that sense the President's decision to call
out the militia under statutory authority would also constitute ajudicial act. 58 Nevertheless, the Court found that it was not an exercise
ofjudicial power, because the decision to issue the warrant was not
made in the course of deciding a case or controversy but in the
53. See Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 487-89 (1952) (Jackson,
J., dissenting) (terming FTC's power to complete policy "perfecting legislative process"); see
also Humphrey's Executor v. United States, 295 U.S. 602, 608 (1935) (stating that execution
of statutory provisions is partly legislative and partly judicial).
54. Compare Ruberoid Co., 343 U.S. at 489 (finding application of law to fact in course of
enforcement purely executive) with Kendall, 37 U.S. (12 Pet.) at 610 (holding that performance
of non-discretionary duty imposed by statute does not partake in any respect of executive
character, while political duties, i.e., policymaking responsibility, are quintessentially executive). See also 1 ANNALS OF CONG. 614 (J. Gales ed. 1789) (Madison) (noting that application of
law to facts partakes ofjudicial power).
I should note that Madison expressed this view as an argument in favor of an amendment to
the bill creating the Treasury Department that he subsequently withdrew. Id. at 615. In particular, he was seeking to defend the proposition that legislative influence over the Comptroller, who was being given the power to settle accounts between citizens and the United States,
was a desirable thing, whereas legislative influence over the Secretary of Foreign Affairs was
not. Id. at 577-80. I wonder whether one of the reasons he withdrew the amendment was that
upon reflection, he came to the conclusion that the distinction did not work. I should quickly
add that there is absolutely no record of why he withdrew the amendment, so this suggestion
is pure speculation. What is not speculation is that both his actions and his words make clear
that he was not firmly committed to the position he expressed on the subject. See id. at 61115. He also was using the distinction to argue for fairly minimal legislative influence over the
Comptroller, in the form of a requirement that the Comptroller only serve for a fixed term of
years, unless removed earlier by the President. Id. at 612. This would mean that in order to
serve for more than that term he would have to be reconfirmed, thus forcing the Comptroller
during his time in office to keep one eye on avoiding the Senate's displeasure. Id. Even this
proposal for a rather mild form of senatorial interest was denounced by Congressman Bentsen on the ground that by employing such devices Congress might usurp executive power. Id.
at 614.
55. 59 U.S. (18 How.) 372 (1856).
56. Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 372,
373 (1856).
57. Id. at 374.
58. Id. at 376.
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323
course of executing a statute. Therefore, the authority to issue a
distress warrant constituted the exercise of executive power.5 9
Under this analysis, the key to whether a particular decision is an
exercise of legislative, executive, or judicial power is not whether
the decision requires policy determination, pure interpretation, or
the carrying into effect of some existing rule. The legislative 60 and
executive branches 6' make all three kinds of decisions. 62 Instead,
the type of power being exercised depends on whether the decision
is made in the course of writing a law, executing a law, or deciding a
case.6 3 One corollary of this analysis is that a blended powers or
fourth branch6 4 doctrine is not necessary to explain the activities of
most administrative agencies; they execute the laws and hence exercise executive power, although the laws being executed leave many
65
policy decisions to the discretion of agency officials.
This view is also consistent with the rest of the structural provi59. Id. The Court also noted that disputes between a citizen and the sovereign regarding
balances due by a customs collector to the sovereign did not have to be resolved by a court at
common law. Id.
60. The Decision of 1789, 1 ANNALS OF CONG. 482 (J. Gales ed. 1789), is an example of a
legislative interpretation of a law, in that case articles I and II of the Constitution. Congress'
publication of the Congressional Record is the execution of the command of article I, section
5 of the Constitution. See U.S. CONsT. art. I, § 5, cl. 3 (requiring each House of Congress to
publish journal of its proceedings).
61. In addition to the authorities previously cited, see supra note 50 (citing cases where
executive officers exercise more legislative or judicial functions) and Marbury v. Madison, 5
U.S. (1 Cranch) 60, 65 (1803) (proposing that executive can be given both non-discretionary
duties and political, i.e., policymaking, authority).
62. Thejudiciary's authority to make policy decisions is more controversial. See Marbury,
5 U.S. (1 Cranch) at 71 (stating that Court cannot review policy determinations of executive
branch). This formulation is also subject to at least the exception that the Executive would
not be executing a law if the law makes no policy choices at all and simply vests the executive
official with unfettered discretion. At that point, he would be both making the entirety of the
rule and enforcing it, which would violate the separation of powers. It may also be subject to
the converse exception, that an excessively specific law that applies only to one fact pattern or
set of circumstances and requires enforcement might shade into an exercise of executive
power by the legislature. Cf. United States v. Klein, 80 U.S. (13 Wall.) 128, 144, 147 (1871)
(holding unconstitutional congressional appropriation act nullifying Presidential pardons as
interfering with separation of powers).
63. See Federal Trade Comm'n v. Ruberoid Co., 343 U.S. 470, 488 (1951) (Jackson, J.,
dissenting) (arguing that FTC performs quasi-legislative and quasi-judicial functions in role of
completing policy and administering details).
64. See id. at 487 (calling administrative bodies with power to formulate and implement
policy fourth branch of government). See also Buckley v. Valeo, 424 U.S. 1, 140-41 (1975)
(holding that blending of powers occurs when government agency is given enforcement as
well as legislative power); Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d
875 (3d Cir. 1986), cert. dismissed, 109 S. Ct. 297 (1988).
65. See supra note 62. For example, the Federal Trade Commission's mission of preventing unfair trade strikingly resembles the standard found to be an excessive delegation in
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). Although this may have been
a problem when the statutes were originally enacted, by now they have acquired enough of a
gloss that they place real limits on the agencies' policymaking discretion.
It is not at all clear that the average administrative agency makes more policy decisions than
the average U.S. Attorney deciding whom to prosecute.
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sions in the Constitution regarding the executive branch. The proposition that the execution of the laws requires the making of some
policy decisions is consistent with the vesting of that power in an
elected officer, the President. 6 6 If that power entailed only adherence to policy decisions already made, it might have made sense to
67
vest it in a politically-insulated officer, such as an Article IIIjudge.
On the other hand, if it never required adherence to policy decisions previously made, the President's obligation to take care that
the laws are faithfully executed would be meaningless. 68 The Constitution suggests that sufficient fidelity can be achieved by imposing
that obligation on the President and requiring him to take a special
oath to support and defend the Constitution, 69 as well as through a
combination of the quadrennial election process 70 and the threat of
71
impeachment.
The Court's endorsement in Morrison of this approach to defining
the executive power is, as noted above, somewhat tempered. To the
extent that it does take the view I am suggesting, however, this portion of Morrison concurs with the Court's recent separation of powers cases. It aligns itself with the strongest statements the Court has
made in favor of strict tripartite federal governmental power in recent years. Unlike the relevant sections of Buckley v. Valeo 72 and
Bowsher v. Synar,7 3 which did not adequately address the issue, these
parts of Morrison can coexist comfortably with the Court's claims in
Immigration and NaturalizationService v. Chadha74 that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and
66. See U.S. CONST. art. II, § 1 (vesting executive power solely in President); cf.Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 865 (1984) (approving stat-
utes leaving room for agency policy choices and judicial recognition of those choices on
ground that "[w]hile agencies are not directly accountable to the people, the Chief Executive
is, and it is entirely appropriate for this political branch of the Government to make... policy
choices").
67. Although even then, the special risks to individual rights presented by the executive
power-the only kind of power that results in the actual exertion of state power against the
individual-might counsel in favor of some type of accountability. After all, insulation from
the political process does not assure that the judge will be a faithful agent of the law; it only
makes it easier for him not to be a faithful agent of the present majority or a dominant interest
group.
68. See U.S. CONST. art. II, § 3 (requiring President to see that laws are faithfully
executed).
69. See id. at art. II, § 1, cl.
8 (requiring President to take oath before entering office).
70. See id. at art. II, § 1, cl.1 (stating that President shall be elected for 4-year term).
71. See id. at art. II, § 4 (allowing for removal of President by impeachment).
72. Buckley v. Valeo, 424 U.S. 1, 120-22 (1975) (asserting that total separation of three
branches of government was not aim of framers).
73. Bowsher v. Synar, 478 U.S. 714, 722 (1986) (stating that Constitution inherently
mandates confusion and discordance in system of separation of powers).
74. 462 U.S. 919 (1983).
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FORMALISTIC PERSPECTIVE
Judicial, to assure, as nearly as possible, that each branch ...would
confine itself to its assigned responsibility; ' 7 5 that "[a]lthough not
'hermetically' sealed from one another .... the powers delegated to
the three Branches are functionally identifiable;" 76 and that "[w]hen
any Branch acts, it is presumptively exercising the power the Consti'77
tution has delegated to it."
B.
The Court's View of the Vesting Clause and the Take Care Clause
Unfortunately, after concluding that the independent counsel
probably exercises executive power, the Court in Morrison went on
to find that conclusion irrelevant to the question of whether the statute was constitutional. 78 Instead, its constitutionality turned on
whether it "interfere[d] with the President's exercise of the 'executive power' and his constitutionally appointed duty to 'take Care
that the Laws be faithfully executed.' "79 That, in turn, depended
on how central the President's need to control the independent
counsel's discretion really was to the functioning of the executive
branch, and how much the statute interfered with that control.8 0
The Court gave no explanation and little authority for why that was
the right question to ask.
That is not to say that the mode of analysis came from absolutely
nowhere. Instead, I think it resulted from the combination of two
problems, which I summarize here but will discuss in detail below.
First, the Court relied on an earlier separation of powers case, Nixon
v. Administratorof General Services,8 1 in formulating its approach to the
question of whether the independent counsel statute violated the
vesting clause. 8 2 That case, however, involved a very different kind
of claim from the one at issue here.8 3 Had the Court reflected more
seriously on the case before it, the Court would not have borrowed
the Nixon formulation.
Second, the Court considered the question of whether the re75. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983).
76. Id.
77. Id.
78. See Morrison v. Olson, 108 S. Ct. 2597, 2618 (1988) (stating Court's lack of concern
with defining rigid categories of officials falling within presidential removal power).
79. Id.
80. See id. at 2621-22 (finding that although statute reduces control of executive branch,
power of Executive to remove for good cause and necessity of specific request by Executive
for appointment gives "degree of control").
81. 433 U.S. 425 (1977).
82. See Morrison, 108 S.Ct. at 2620 (noting that Court in Nixon never proposed absolute
independence of three branches of government).
83. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 429 (1977) (stating issue
was whether General Services Administrator's seizure of Nixon's presidential materials under
the Presidential Recordings and Materials Preservation Act violated separation of powers).
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moval provisions ran afoul of the vesting clause before considering
whether the independent grant of authority to the counsel ran afoul
of the vesting clause.8 4 This was unfortunate, because an analysis of
the removal restrictions requires two steps: (1) whether the vesting
clause or the take care clause requires the President to be able to
direct all officers exercising any portion of the executive power; and
(2) whether that requires the President to be able to remove officers
at his pleasure.85 In reviewing Myers v. United States,8 6 the leading
removal case, the Court spotted two genuine difficulties with the
case: a questionable reading of the take care clause and the problematic nature of the link between the need for Presidential control
and the bar on removal restrictions.8 7 Having spotted these
problems, the Court apparently concluded that the case was not
helpful and did not address the link drawn in Myers between the
vesting clause and the President's authority to supervise officials exercising executive power.8 8 This conclusion in turn not only completely confused the Court's analysis of the removal issue, but also
its analysis of the constitutionality of the independent grant of authority and of the statute as a whole.
1.
Morrison and Nixon
The Court began its analysis of whether the statute as a whole
violated the vesting clause by stating that the question was whether
it "unduly interfere[d] with the role of the Executive Branch." 89
Although the Court did not cite Nixon v. Administratorof General Services at that particular point, it did cite the case one page later, as the
Court embarked on its detailed analysis of the independent counsel
law.9 0 This time, the Court quoted the portion of the opinion that
states that whenever it is alleged that a statute violates the vesting
clause the statute should be analyzed in terms of whether it "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its
84. See Morrison, 108 S. Ct. at 2616 (considering first whether Attorney General's power
to remove counsel violated Constitution).
85. See Myers v. United States, 272 U.S. 52, 119 (1926) (linking power of removal to
vesting clause); id. at 163-64 (finding support for purely executive power of removal in take
care clause).
86. 272 U.S. 52 (1926).
87. Morrison, 108 S. Ct. at 2616-19.
88. See Myers, 272 U.S. at 132-34 (suggesting that purely executive officials are removable
by President in fulfilling his constitutional role under vesting clause).
89. Morrison, 108 S. Ct. at 2621.
90. See id. at 2620 (quoting Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 433
(1977) (noting that Constitution does not require complete and rigid separation of three
branches of government)).
1989]
FORMALISTIC PERSPECTIVE
327
constitutionally assigned functions." 91 Thus, to the extent the
Court was relying on anything other than ipse dixit for its view that
disruption of the role of the executive branch is the appropriate
question, it was relying on Nixon. 92 But the significance of the
quoted passage in the context of Nixon is altogether different from
the significance the Court gave the quote in Morrison.
The relevant question before the Court in Nixon was whether the
Presidential Recordings and Materials Preservation Act 93 violated
the separation of powers. 94 That statute directed the Administrator
of the General Services Administration to take custody of President
Nixon's papers and tape recordings. 95 It also put the Administrator
in charge of promulgating regulations to provide for processing and
screening of these materials in order to determine which were private and to determine the terms and conditions by which the public
might gain access to those items deemed non-personal. 96 The Act
also directed the Administrator to consider the need to protect any
constitutional rights that might be jeopardized by the processing or
97
accessing of the Presidential papers and recordings.
President Nixon claimed that the statute interfered with the presidential prerogative to control internal operations of the Executive
Office and, therefore, offended the autonomy of the executive
branch on two grounds. First, he contended that Congress was
without power to give formal decisional authority over the determination to disclose presidential materials and to prescribe the terms
that governed disclosure to a subordinate executive officer, because
this ipso facto constituted interference into matters solely the province of the executive branch. 98 Second, he argued that by giving the
Administrator custody of these materials and authorizing publication except where a "privilege was affirmatively established," the
91. Id. at 2621 (quoting Nixon, 433 U.S. at 433).
92. See id. at 2621 (quoting Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833,
856 (1986) (questioning whether Congress impermissibly undermined power of judiciary)).
However, Schor suffers from ipse dixit problems on the point for which Morrison cited it even
more than Morrison itself. See Schor, 478 U.S. at 860 (Brennan, J., dissenting) (arguing that
separation of powers was intended to prevent usurpation of power of one branch by another).
Schor certainly did not require the approach the Court used here, because it very plausibly
could have been limited to situations where the person challenging a vesting clause violation
(in that case, the clause vesting the judicial power of the United States in article III courts) had
previously waived his objection, See id. at 850-57 (discussing extent to which statute authorizing article III-type adjudications in non-article III tribunals violates Constitution).
93. Pub. L. 93-526, tit. I, §§ 101-106, 88 Stat. 1695 (1974).
94. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 429 (1977).
95. Presidential Recordings and Materials Preservation Act, Pub. L. 93-526, tit. I,
§ 101(b)(1), 88 Stat. 1695 (1974).
96. Id. § 104(a)(6), (7).
97. Id. §§ 103-104.
98. Nixon, 433 U.S. at 439-40.
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Act violated
the "presumptive
communications.'
99
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confidentiality of Presidential
The language quoted by the Court in Morrison was written in response to President Nixon's first contention. 10 0 In order to understand that language, it is important to appreciate how sweeping that
contention is. It amounts to a claim that Congress has no power to
pass any laws that have the effect of regulating in any way the internal operations of the executive branch. President Nixon's argument, however, cannot plausibly be maintained, for the reasons I
shall now discuss.
a.
Separation of powers, overlappingpowers, blended powers, and
checks and balances
In the most famous passage of its opinion, the Nixon Court rejected President Nixon's argument on the ground that the Constitution did not create "three airtight departments of government"'' 1
.. "intended to operate with absolute independence."'' 0 2 The precise scope of this response, however, deserves more careful consideration than it has frequently received.
The Nixon majority based this response in large part on the much
quoted passage of Federalist 47,103 in which James Madison stated
that the separation of powers
did not mean that these departments ought to have no partial
agency in, or no controul over the acts of each other. His meaning,
as his own words import... can amount to no more than this, that
where the whole power of one department is exercised by the same
hands which possess the whole power of another department, the
04
fundamental principles of a free constitution are subverted.1
To understand what this means, however, it is important to remember that Madison was responding to critics of the Constitution who
objected to specific provisions of the document on the ground that they
disregarded Montesquieu's warnings that "there can be no liberty
where the legislative and executive powers are united in the same
99. Id. at 440-41.
100. See id. at 443 (terming Nixon's argument "archaic").
101. Id. (quoting Nixon v. Administrator of Gen. Servs., 408 F. Supp. 321, 342 (D.D.C.
1976)).
102. Id. (quoting United States v. Nixon, 418 U.S. 683, 707 (1974)). The Nixon Court also
cited an earlier concurring opinion by Justice Jackson. See id. at 425 (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring)). This passage was also relied on heavily by the Morrison majority. See Morrison v. Olson, 108 S. Ct.
2597, 2620 (1988).
103. THE FEDERALIST No. 47 (J. Madison) (B. Wright ed. 1961).
104. Id. at 338 (emphasis in original) (quoted in Nixon v. Administrator of Gen. Servs., 433
U.S. 425, 442 n.5 (1977)).
1989]
FORMALISTIC PERSPECTIVE
329
person or body of magistrates" or "if the power ofjudging be not
separated from the legislative and executive powers." 10 5 Although
Madison does not list the provisions objected to in that particular
essay, an examination of other portions of The Federalistwhich refer
back to the essay and of other writings surrounding the ratification
debate makes it relatively easy to identify them. They include the
Senate's power to try impeachments, which Alexander Hamilton
claimed partook of the executive and judiciary powers;10 6 the veto,
which gave the President a portion of the legislative power;10 7 the
President's authority to make treaties that would have the force of
law with the advice and consent of the Senate, which some felt gave
legislative power to the President while others believed it gave executive power to the Senate;108 and the Senate's participation in the
appointment process for both executive and judicial officers.' 0 9
Madison responded to these arguments with two powerful counterarguments: first, that'no real-world government had ever been
structured so as to preserve complete separation;" I0 and second,
that separation of powers would be strengthened if, instead of relying exclusively on parchment barriers, the Constitution gave each
branch the powers necessary to defend itself, even though that involved some departure from the vesting of the entirety of each type
of power in a single branch."' The passage quoted in Nixon was
intended to suggest an interpretation of Montesquieu that was 12compatible with this highly desirable feature of the Constitution."
Thus the usual summary of Madison's position, that he endorsed
checks and balances rather than separation of powers, is somewhat
inexact. 13 It would be more accurate to say that he endorsed specific departures from the absolute separation of powers in order to
105. Id. at 337-38 (quoting C. MONTESQUIEU, THE SPIRIT OF LAWS (1748)).
106. See THE FEDERALIST No. 66, at 432-34 (A. Hamilton) (B. Wright ed. 1961) (addressing objection that impeachment authority violates separation of powers).
107. See THE FEDERALIST No. 69, at 192-93 (A. Hamilton) (R. Fairfield ed. 1981) (discussing President's power to return bill passed by both Houses of Congress); THE FEDERALIST No.
73, at 216 (A. Hamilton &J. Jay) (R. Fairfield ed. 1981) (establishing check upon legislative
body through President's use of veto power).
108. See THE FEDERALIST No. 64, at 469 (J.Jay) (B. Wright ed. 1961); THE FEDERALIST No.
75, at 503-04 (A. Hamilton) (B. Wright ed. 1961).
109. See THE FEDERALIST No. 77, at 484-86 (A. Hamilton) (B. Wright ed. 1961). As
Madison implies, it would also be logical to object to the presidential appointment ofjudges
on this ground. See THE FEDERALIST No. 51, at 355-56 (J. Madison) (B. Wright ed. 1961).
110. THE FEDERALIST No. 47, at 339-42 (1.Madison) (B. Wright ed. 1961) (noting that
state constitutions did not maintain separate and district governmental departments).
111. THE FEDERALIST No. 48, at 343 (J. Madison) (B. Wright ed. 1961); THE FEDERALIST
No. 51, at 355 (1. Madison) (B. Wright ed. 1961).
112. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425,442 n.5 (1977) (referring to
Madison's recognition of Montesquieu as preeminent authority on separation of powers).
113. See id. at 442 (asserting that Madison advocated intermingling of three branches in
order to achieve common goal).
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[Vol. 38:313
create checks and balances, because he thought such a system would
better protect the separation of powers overall.1 1 4 That does not
mean, however, that he believed that the Constitution did not require the separation of powers in all instances not within the scope
of one of these departures. In fact, there is no reason to think that
he believed anything of the sort.11 5The significance of this context is as follows. The Court's rejection of Nixon's argument that the Constitution requires the hermetic sealing off of each branch of government is perfectly correct
to the extent that that argument was being invoked to override a
specific constitutional clause providing for blending.116 Thus, for
example, one cannot claim that the President's exercise of his veto
power violates the separation of powers because it allows him to
intervene in the legislative process. The Constitution deliberately
decided in favor of that violation of the principle of separation." t 7
Similarly, the President cannot object that the Senate's rejection of
his selection of executive officers is an unconstitutional usurpation
of executive power, because the requirement of senatorial advice
and consent is an explicit textual exception to the separation theory.1 18 In short, where one branch is exercising an expressly
granted constitutional power, the argument that it, nevertheless,
may not do so because that would allow it to exert some influence
over another branch cannot withstand scrutiny." 19 In the words of
Professor Van Alstyne, "the separation of powers to be respected is
that which the Constitution itself establishes,"' 2 0 including the ex114. That is also a more accurate summary of Justice Story's position, which the Nixon
majority also cited. See generally 1J. STORY, COMMENTARIES ON THE CONSTITUTION § 525 (M.
Bigelow, 5th ed. 1905), cited in Nixon, 433 U.S. at 442 n.5 (arguing that Madison supported
flexible, pragmatic approach to separation of powers interpretation). The Nixon Court rather
unaccountably cited the 1905 edition of the Commentaries as a reliable statement of Story's
views, even though the book was treated as a treatise and updated by other editors. In this
instance, however, no changes from Story's own views were made.
115. See THE FEDERALIST No. 48, at 343 (J. Madison) (B. Wright ed. 1961) (reasoning that
power of three branches of government is encroaching by nature and should be kept within
assigned limits).
116. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977) (affirming lower
court's ruling that maintaining airtight departments of government is archaic principle).
117. See U.S. CONST. art. I, § 7 (providing for presentation of all legislation to President
for his approval before it becomes law).
118. See id. at art. II, § 2, cl. 2 (requiring Senate to approve President's nominees for
executive office positions).
119. See Bowsher v. Synar, 478 U.S. 714, 727 (1986) (noting that system of separation of
powers was deliberately structured to assure checks on exercise of governmental power
among branches); Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 946 (1983)
(asserting that interpretation of text of Constitution guides resolution of separation of powers
disputes).
120. Van Alstyne, The Role of Congress in DeterminingIncidental Powers ofthe Presidentand of the
Federal Courts: A Comment on the HorizontalEffect of the Sweeping Clause, 40 LAW & CONTEMP. PROB.
102, 119 (1976).
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FORMALISTIC PERSPECTIVE
ceptions to the Montesquieuvian theory of separation written into
the Constitution.
For this reason, the Court rightfully dismissed President Nixon's
objection to the Presidential Records and Materials Preservation
Act.12 1 There is an explicit textual basis in the Constitution for
doubting that the President's executive power extends to determining all aspects of how the executive branch conducts its business.
Under article I, Congress has the power "[t]o make all Laws which
shall be necessary and proper for carrying into Execution [its enumerated] Powers, and all other Powers vested by this Constitution in
the Government of the United States, or in any Department or Officer thereof."' 12 2 A law setting up procedures for preserving governmental records for historical purposes, including Presidential
papers, is "necessary and proper for carrying into Execution . . .
powers vested by this Constitution in the Government." 1 23 Therefore, even if the disposition of a President's papers falls within the
executive power, that is not a sufficient basis for challenging Congress' power to pass a law that has some influence over that
12 4
disposition.
Contrary to the way many have understood this portion of Nixon,
however, that does not mean that any kind of blending of powers is
authorized under the Constitution, so long as it does not destroy the
central function of any of the branches and promotes checks and
balances. 12 5 For example, imagine a law that says that to bring
about more confidence in the success of a war and hence more enlistments, the Chairman of the Joint Chiefs of Staff will have authority to make military decisions regarding the use of tanks that are
121. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 483-84 (1977).
122. U.S. CONST. art. I, § 8, cl. 18. See id. at art. II, § 2, cl. 2 (providing that 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 [S]upreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law") (emphasis added).
123. See generally Van Alstyne, supra note 120 (stating Congress has explicit power under
Constitution to make law to ensure presidential integrity).
124. The necessary and proper clause is also the basis for Congress' power to assign the
custody of the records to a particular official. The structuring of the government into departments and the establishment of offices with particular responsibilities are also "necessary and
proper ... for carrying into execution" both Congress' and the President's powers. That
interpretation of the clause is confirmed by the reference, in article II, section 2 of the Constitution, to the President's power to appoint, with the advice and consent of the Senate "all
other Officers of the United States ... which shall be established by Law." That clause could
be read as an independent grant of power to establish offices, but it is not phrased that way
and seems clearer to refer to a particular exercise of the power granted to Congress in the
necessary and proper clause. Accord Corwin, Tenure of Office and the Removal Power Under the
Constitution, 27 COLUM. L. REv. 353, 384-85 (1927).
125. See Morrison v. Olson, 108 S. Ct. 2597, 2621 (1988) (stating that independent counsel statute did not "impermissibly undermine" power of executive branch).
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unreviewed by anyone, even the President of the United States. No
analysis of the impact of this law on the functioning of the executive
branch would be required to show that this law is invalid, because it
is plainly intended to and has the effect of depriving the President of
part of his constitutional power to give orders to the Armed
Forces.' 26 Similarly, suppose that Congress, irritated by a presidential threat to veto any postal bill that did not cut back on Congress'
use of the franking privilege, passed a law forbidding the President
from vetoing any laws dealing with postal appropriations. Postal appropriations are a very small part of the Congress' or the President's
business, so that it cannot be said that such a law either impairs a
vital executive branch function or fundamentally alters the balance
of power among the branches. Nevertheless, there is little doubt
that this law is unconstitutional, because the Constitution states that
"[e]very Bill ...shall, before it become a Law, be presented to the
President" and that "[e]very Order, Resolution, or Vote to which
the Concurrence of the Senate and House... may be necessary...
shall be presented to the President ... and before the Same shall
take Effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House."' 12 7
The point is that President Nixon was wrong in arguing that Congress could not pass any law that influenced the decisions of the
executive branch, because such an argument would make meaningless the explicit cross-branch component of the necessary and
proper clause. Therefore, it would be a precisely symmetrical error
to argue that Congress could exercise its power under the necessary
and proper clause in either of these fashions, because that would
make meaningless the explicit grant to the President of the Commander-in-Chief power or the power to veto all bills.1 28 Moreover,
it would be no answer to this line of attack on the hypothetical tank
or postal appropriations statutes to say that it would be consistent
with or even enhance checks and balances. To borrow Professor
Van Alstyne's phrase, the checks and balances to be respected are
likewise those that the Constitution establishes.' 2 9
126. U.S. CONST. art. II, § 2, cl.1 (stating that President is Commander-in-Chief of Army
and Navy).
127. Id. at art. I, § 7.
128. By contrast, laws presenting the same kind of problem as the one at issue in Nixon
might be (I) a statute that required that the President communicate all orders regarding tanks
in writing and that he make those orders available to the press, or (2) one that required all
vetoes of postal appropriations to be countersigned by the General Services' Administrator.
One or both of these laws might also be invalid because it interfered with the President's
Commander-in-Chief or veto powers, but these issues would present much harder cases.
129. Van Alstyne, supra note 120, at 125. Madison expressed a similar view in the course
of the "Decision of 1789," the famous congressional debate on whether the Constitution re-
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333
FORMALISTIC PERSPECTIVE
Nothing in the Nixon opinion is inconsistent with either this conclusion or this approach. Indeed, the Court's rejection in Nixon of
the former President's claim is best understood as requiring, in an
area of seemingly overlapping powers, that an interpretation of the
Constitution be found that gives each branch its due. That means
that far from providing a warrant for upholding laws, like the hypothetical tank or postal appropriations laws, the logic of the portion
of Nixon rejecting the former President's sweeping claim would re30
quire invalidating them.
That certainly was the position taken by the author of the Nixon
opinion a few years later in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,' 3 ' when confronted with the similar claim that
Congress could exercise any of its article I powers to grant even a
small portion of the judicial power to entities not having life tenure
and protected salaries.' 3 2 Without so much as citing Nixon's balancing test, Justice Brennan found that claim inconsistent with article
III's requirements 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 that
"[t]he Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, and shall .
.
. receive .
.
. a
Compensation, which shall not be diminished during their Continuance in Office."' 133 Justice Brennan also firmly rejected the suggestion made by Justice White in dissent that there would be no
violation of the Constitution so long as the core of article III was
preserved through appellate review and the balance between the
branches was not affected, noting that this solution "satisf[ied]
134
[n]either the command [n]or the purpose of Art. III.1'
For the reasons suggested above, I do not believe that the Court's
failure to cite Nixon in reaching this conclusion was the product of
either dishonesty or confusion. Rather, Justice Brennan probably
thought that the issue in Northern Pipeline, whether Congress could
quired that the President have the power to remove the Secretary of Foreign Affairs. 1 ANNALS OF CONG. 482 (J. Gales ed. 1789).
130. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443-44 (1977) (explaining
that violation of separation of powers requires analysis as to whether executive branch has
been prevented from accomplishing its constitutionally-assigned functions).
131. 458 U.S. 50 (1982) (plurality opinion).
132. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57 (1982)
(plurality opinion).
133. See id. at 58-59 (citing U.S. CONST. art. III, § 1 which states that federal judicial power
must be exercised by article III courts). The Morison dissent also took note of this passage in
Northern Pipeline. See Morrison v. Olson, 108 S. Ct. 2597, 2629 (1988) (Scalia, J., dissenting)
(applying Northern Pipeline in emphasizing that federal executive power is vested in President).
134. Northern Pipeline, 458 U.S. at 75-76 n.27.
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[Vol. 38:313
take the entirety of a small piece of the power of one branch and
place it somewhere else, was quite different from the issue in Nixon,
which was how far Congress could go in regulating the exercise of
power by another branch before encroaching upon that other
13 5
branch's power.
Read in this context, the Court's statement in Nixon relied on by
the Court in Morrison, that "in determining whether the [Presidential Recordings and Materials] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the
extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions"' 36 was hardly intended
to provide the answer to all possible questions that might ever arise
regarding the Congress' versus the President's powers. To the extent it does state a general test, it is a test designed to be applied to
a particular type of separation of powers challenge to a particular
kind of statute. The kind of statute in question is one that by its
terms does not take away or seek to take away any portion of a coordinate branch of government's powers but that nevertheless is
135. See supra notes 93-99 and accompanying text (discussing issue in Nixon). The Court
took a similar view in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), when it rejected out of
hand the argument that the necessary and proper clause allowed Congress to pass a law providing for the congressional appointment of Federal Election Commissioners. Id. at 141. The
Court did not go to the trouble of conducting any kind of elaborate analysis on whether the
law could be upheld on the ground that it only involved a few officers, would advance checks
and balances, or would not impair the functioning of the executive branch. Instead, the Court
rejected the defendants' argument because the Constitution provides that the power to appoint officers of the United States is vested in the President with the advice and consent of the
Senate unless, with respect to inferior officers, Congress vests the power in the President
alone, the heads of departments, or the courts of law. Id. at 134-35. The Court's analysis is
not as clear about the reasons for this as the plurality opinion in Northern Pipeline. Its explanation in Buckley is as follows:
Congress could not, merely because it concluded that such a measure was "necessary
and proper" to the discharge of its substantive legislative authority, pass a bill of
attainder or expostfacto law contrary to the prohibitions contained in § 9 ofArt. I. No
more may it vest in itself, or in its officers, the authority to appoint officers of the
United States when the Appointments Clause by clear implication prohibits it from
doing so.
Id. at 135. That is not exactly right, because the ex post facto and bill of attainder clauses are
limitations that withdraw from Congress what article I might otherwise be understood to
grant, whereas the appointments clause of article II is not an independent limitation on congressional power, but a grant of power to the President and the other participants in the
appointment process. Compare U.S. CONsT. art. I, § 9, cl.3 (prohibiting Congress from passing bills of attainder and expostfacto laws) with id. at art. II, § 2, cl.
2 (giving President authority
to appoint officers of United States). The presence of the appointments clause helps to resolve an ambiguity about the scope of Congress' article I powers, by making clear that
whatever else these powers encompass, they do not include the power to appoint officers,
because that power belongs to somebody else.
136. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977), cited with approvalin
Morrison v. Olson, 108 S. Ct. 2597, 2621 (1988).
1989]
FORMALISTIC PERSPECTIVE
claimed to have an excessive impact on that branch's powers.' 3 7 As
I will discuss later in this Article, the provision of the independent
counsel statute vesting independent authority to investigate and
prosecute in the counsel is not of this type.' 38 Rather, the independent counsel statute is similar to the statute at issue in Northern Pipeline and, therefore, should have been struck down without
39
any kind of balancing at all.'
b.
Does the Nixon test require a finding of interference with the entire
executive branch'sfunctioning?
The Court in Morrison treated as significant the fact that Nixon focused on the impact of the Presidential Recordings and Materials
Preservation Act on the executive branch's ability to accomplish all
of its constitutionally assigned powers and responsibilities, rather
than only a portion of them. 140 Yet, that is also a function of the
context in which the separation of powers question was presented to
the Court. The statute at issue in Nixon applied to all recordings and
other materials retained by a former President, who communicated
with innumerable executive officials, so that whatever disruptive effect the statute might have it would effect the entire executive
branch. "1 Had it only established procedures for dealing with, for
example, communications with the Department of Defense or the
Department of Agriculture, the "test" almost certainly would have
been framed in terms of the extent to which it prevented the executive branch from accomplishing its constitutionally assigned responsibilities in either of these areas. Thus, the Morrison majority's
reliance on Nixon for the proposition that interference with the entirety of the executive branch's powers is necessary to prove a violation of article II, section 1 is quite unjustified.
2.
Morrison and Myers
Along with its misreading of Nixon, another factor contributed to
the Court's failure in Morrison to address the question of whether
137. See Morrison, 108 S. Ct. at 2621 (focusing on effect of statute on executive branch
powers).
138. See infra notes 217-30 and accompanying text (discussing issue of whether independent counsel statute impairs President's ability to perform core functions). This may also be
true of the removal provisions. See infra notes 244-45 and accompanying text (addressing
purpose and effect of removal restrictions).
139. See Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57-60
(1980) (plurality opinion) (striking down Bankruptcy Act of 1978 for failure to comply with
article III mandates).
140. See Morrison v. Olson, 108 S. Ct. 2597, 2621-22 (1988) (finding independent counsel
statute meets Nixon test because executive retains some control over independent counsel).
141. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443-45 (1977).
336
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:313
the independent counsel statute's interference with the President's
authority to direct the counsel's conduct of prosecutions violated
the vesting clause. This factor was the order in which the Court
decided the appellees' challenges. The Court's decision to start
with the challenge to the removal limitations, rather than with the
grant to the independent counsel of independent authority to investigate and prosecute, enormously increased the chances that the
42
Court would get confused.
For one thing, this choice of order requires starting with removal
cases, which are rather confusing.' 4 3 How is one to reconcile Myers,
Humphrey's Executor, and Synar in a manner that is intellectually coherent? The Chief Justice proposed that the real distinction between Myers and Humphrey's Executor was not whether the officers
with respect to whose removal the limitations were imposed performed purely executive functions, 14 4 but rather whether the limitations interfered with the President's ability to accomplish his
14 5
constitutional duty.
I have already suggested why this formulation leads the Court
astray. 146 The point I would like to make here, however, is that unlike some of the Chief Justice's descriptions of cases in this opin148
ion, 14 7 this is not a complete mischaracterization of Myers.
Instead, the ChiefJustice's characterization of Myers is based at least
in part on some ambiguous language and some internal inconsistencies in the opinion. 14 9 In order to understand this claim, it is necessary to review the Myers decision.
As noted above, the issue in that case was whether Congress
could constitutionally require the advice and consent of the Senate
142. See Morrison, 108 S. Ct. at 2616 (stating that removal limitations must be addressed
before issue of whether Act as whole isolated separation of powers).
143. See supra notes 34-41 (discussing confusion created by removal cases regarding
power of official carrying out statutory mandates).
144. Morrison, 108 S. Ct. at 2617-19.
145. Id. at 2619.
146. See supranotes 136-39 and accompanying text (discussing Court's mistake in applying
test regarding impairment of executive branch functions to independent counsel statute).
147. See Morrison, 108 S. Ct. at 2609. Here, the Chief Justice claims that "[i]n Ex parte
Siebold, 100 U.S. (10 Otto) 371 . . . (1880), the Court found that federal 'supervisor[s] of
elections'... were inferior officers for purposes of the [Appointments] Clause." The Court,
however, found nothing of the sort (as the tell-tale missingjumpcite suggests to the suspicious-minded), because the issue was not litigated. See id. at 2635 (Scalia, J., dissenting) (asserting that majority's reading of Ex parte Siebold was wrong because no one in that case
contended that supervisors were principal officers).
148. See infra note 165 and accompanying text (discussing Myers' theory that vesting clause
requires that President be able to remove executive officers). It would be a mischaracterization of Humphrey's Executor, but the opinion concedes that it is recasting the holding of that
case. See Morrison, 108 S. Ct. at 2618.
149. See infra notes 165-70 and accompanying text (discussing ambiguity and inconsistency in Myers).
1989]
FORMALISTIC PERSPECTIVE
337
as a pre-condition for presidential removal of a postmaster, first
class, who had been appointed to that position by the President with
the Senate's advice and consent.1 50 The Court held that it could
not.1 5 ' Like the proponents of presidential removal debating the
Decision of 1789, on which the Court relied heavily, the Court
based its conclusion on three provisions of the Constitution.' 5 2 For
our present purposes, however, two of these are particularly relevant: the vesting clause and the-take care clause.
According to Myers, the take care clause implicitly required that
the President have unlimited authority to remove officers of the
United States entrusted with law-executing authority, because the
clause made the President responsible for effective law enforcement.'15 Accordingly, he had to have power commensurate with his
responsibility.'
54
The weak point in this argument is that it equates the duty to take
care that the laws are faithfully executed with a responsibility to enforce them effectively. 1 55 But that assumption may well be reading
too much into the take care clause. The clause plausibly could be
understood to require only that the President ensure that the laws
are executed according to their terms. 15 6 All the dissenting Justices
in Myers objected to the majority opinion's interpretation on these
grounds, 15 7 and the Court in Morrison seems to agree with them.' 58
Rather than arguing the issue, however, the Morrison majority simply
150. See supra note 35 and accompanying text (outlining issue in Myers).
151. Myers v. United States, 272 U.S. 52, 174-76 (1926).
152. See id. at 108-09 (citing vesting clause, appointments clause, and take care clause).
153. Id. at 132.
154. Id. at 132-33.
155. The take care clause has traditionally been invoked to justify such executive action as
ensuring that treaty provisions are adhered to, and also to legitimize the foreign affairs power.
J. NOWAK, R. ROTUNDA &J. YOUNG, CONSTITUTIONAL LAW § 6.2 (3d ed. 1986).
156. There is some historical support for this view. William Wirt, the second Attorney
General, made remarks to this effect in concluding that the President could not settle the
claims of one Joseph Wheaton, because Congress had given that authority to the Comptroller.
See I Op. Arr'v GEN. 624 (1823). It should be noted, however, that the opinion blends together two different arguments, only one of which supports the Morison majority: (1) that the
take care clause does not permit the President to execute the laws personally, but only to
supervise their execution; and (2) that such supervision is limited to seeing that the laws are
honestly executed. Id. I believe the first argument is correct; that is, that it is a permissible
use of the necessary and proper clause to require that the President act, if at all, through a
particular officer. See infra note 238 and accompanying text (noting that Congress may select
instrument to execute its powers). Even the second argument may be a correct interpretation
of the take care clause, but not of the vesting clause. See id. (stating that President must direct
use of executive power).
157. See Myers v. United States, 272 U.S. 52, 177 (1926) (Holmes,J., dissenting) (stating
that President's duty to see that laws are executed does not go beyond authority granted by
Congress); id. at 187 (McReynolds, J., dissenting) (reasoning that President's law execution
duty involves utilizing authority given by Congress); id. at 247 (Brandeis, J., dissenting) (noting that faithful execution of laws does not mean providing "most efficient civil service conceivable" but means executing laws within provisions made by Congress).
338
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[Vol. 38:313
assumed that the latter reading is correct. 59 If that is so, it is possible
that, as the Morrison opinion argues, the President's retained power
to remove the independent counsel for misconduct is sufficient to
permit him to fulfill that obligation.' 60 On the other hand, given
that the Court in Morrison overruled an interpretation of the take
care clause adopted by the M'yers majority after fairly careful consideration,1 6 1 it might have been nice if the Court had explicitly stated
what its view was and then made some argument as to why this view
was better than the old one, let alone so much better that the old
one should now be abandoned.
It also might have been helpful if the Court had elaborated on the
application of its approach to this case. It is not especially clear why
the "good cause" removal authority sufficiently guarantees that the
President will be able to fulfill even the limited responsibility the
Court assigns to him of making sure that the independent counsel is
adhering to her legal obligations. 162 The grant of independent authority to the counsel deprives the President of one vital tool for
doing so, namely the legal right to direct an independent counsel to
comply with the law before a violation occurs. 16 3 It also frequently
prevents him from knowing enough about how the independent authority is being used to be able to exercise the removal power effectively to ensure that the law will be complied with in the future.1 6 4
Myers' vesting clause argument is not free from problems, either.
It runs as follows. Under the vesting clause, the President has the
entirety of the executive power and, therefore, must have the means
to supervise all officers entrusted with any law-executing responsibility. This might not require him to be able to override theirjudg158. See Morrison v. Olson, 108 S. Ct. 2597, 2619 (1988) (commenting that Executive can
perform his duty faithfully only if his burden is not impermissible).
159. See id. at 2619 (reasoning that President's ability to terminate independent counsel
for good cause provided ample means for President to ensure faithful execution of laws).
160. Id.
161. See Myers, 272 U.S. at 132-34 (holding that take care clause requires President to have
unlimited removal power over purely executive officers). Myers overstates the extent to which
its view had been universally accepted, and since Myers, a number of assumptions about Congress' power to create independent agencies with law-executing responsibilities have certainly
become part of our legal culture, although until Morrison the Court had not passed on the
question. Nevertheless, the Myers interpretation of the take care clause is close enough to
being, if not the leading, at least a leading and longstanding one, so that its rejection deserves
some kind of explanation.
162. See Morrison, 108 S. Ct. at 2620 (noting that President's authority is to assure that
independent counsel performs statutory responsibilities competently and in accordance with
Act).
163. See 28 U.S.C. § 594(a) (1982) (discussing independent authority of independent
counsel).
164. See id. (outlining counsel's independent authority); see also Morrison, 108 S. Ct. at 2633
(Scalia, J., dissenting) (asserting that "independent authority" language of statute transcends
boundaries that inferior officer should possess).
1989]
FORMALISTIC PERSPECTIVE
ments about how to enforce the laws, where these are specifically
committed by statute to the personal discretion of the officers. It
does require, however, that the President be able to remove them
on the ground that their discretion has not been intelligently or
165
wisely exercised.
There are two problems with this analysis. First, as Professor Van
Alstyne has noted, it is internally inconsistent to'assert, as the Court
did in Myers, that the President must have removal authority over all
of his subordinates in order to control them in the exercise of their
discretion, while at the same time asserting that Congress can vest
that discretion in a particular subordinate officer rather than the
President. Second, it compounds the inconsistency to state, as the
Court also did in Myers, that restrictions on removal authority as to
inferior officers are permissible without regard to their intrusion on
the President's ability to direct these officers, so long as they accompany a congressional law vesting the appointment of the officers in
66
somebody other than the President.'
Additionally, Myers' vesting clause argument is ambiguous on an
important point. It could mean that the executive power vested in
the President, which includes the power to control officers, should
also be interpreted to include the power to remove them, because
the authority to remove somebody who disobeys a legitimate directive ordinarily would be understood to be included in the authority
to give the directive.' 67 If that interpretation is right, Myers is a case
like Northern Pipeline or the hypothetical statute barring the President
from vetoing certain laws.' 6 8 Alternatively, Myers could be interpreted to mean that congressional regulation of the conditions
under which executive officers may be removed is improper, because it inevitably has the effect of interfering excessively with the
President's power to supervise their execution of the laws, which is
part and parcel of his executive power.' 69 If that interpretation is
165. Myers v. United States, 272 U.S. 52, 135 (1926).
166. Id. at 160-61. This curious theory was based on the proposition that Congress'
power under the appointments clause to withdraw the appointment authority from the President and place it elsewhere somehow also allowed it not only to do the same with the removal
power, but also to regulate the exercise of that power. Id. at 161. See Morrison v. Olson, 108
S. Ct. 2597, 2618 n.27 (1988) (noting that Court had always upheld authority of Congress to
restrict President's removal authority); United States v. Perkins, 116 U.S. 483, 485 (1886)
(stating Congress has constitutional authority to limit removal of inferior officers).
167. See Myers, 272 U.S. at 135 (stating that vesting of executive power should grant President removal power over inefficient officers).
168. See supra notes 131-34 and accompanying text (discussing issue and holding of Northern Pipeline); notes 126-27 and accompanying text (outlining hypothetical statute).
169. See Bowsher v. Synar, 478 U.S. 714, 730 (1986) (asserting that Congress' authority to
remove Comptroller General transformed him into agent of Congress, therefore usurping
presidential executive function).
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:313
right, Myers is a case like Nixon, where the problem is not that Congress is taking away a chunk of the President's power, but rather that
0
it is interfering with his ability to exercise a portion of that power.17
Either view has its problems. The first interpretation is open to
the objection that its claim simply is not true: the right to direct
somebody does not so inevitably carry with it the right to fire that
person for failure to comply with the directive that it should be read
into the grant of executive power, as opposed to being within Congress' authority to grant or withhold under the necessary and
proper clause.' 7 1 Under the second interpretation, however, Myers
rests on an effects test that, notwithstanding the opinion's categorical statements, might not always be met by any restriction on the
President's removal authority. For example, in some circumstances
the authority to fire an officer for non-compliance with a directive
might not be necessary to ensure compliance-the threat to cut his
salary or suspend him might be quite adequate.
Two passages in Morrison .refer to this ambiguity and to the
problems each interpretation poses. In footnote 29, the Court
noted its skepticism about the proposition that the vesting clause
requires every officer of the United States exercising any part of the
executive power to serve at the pleasure of the President. The
Court stated that in its view this "depend[ed] upon an extrapolation
from general constitutional language which ... was more than the
text will bear."' 17 2 This objects either to the first interpretation or to
the derivation of a blanket bar on removal restrictions from the second interpretation.
In the second passage, the Court stated that "the real question is
whether the removal restrictions are of such a nature that they im73
pede the President's ability to perform his constitutional duty."'
In light of the choice of objections raised by footnote 29, this statement can be understood as resolving the ambiguity in Myers in favor
of the second (effects test) interpretation. However, the statement
then concludes that position, coupled with the Myers Court's acceptance of Perkins and the later result in Humphrey's Executor, calls for a
case-by-case evaluation of removal restrictions rather than Myers'
174
blanket rule against them.
170. See Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443 (1977) (holding that test
for whether statute violates separation of powers is whether it impermissibly disrupts executive branch from accomplishing its constitutional duties).
171. See generally McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (delineating wide
range of congressional authority under necessary and proper clause).
172. Morrison v. Olson, 108 S. Ct. 2597, 2618 n.29 (1988).
173. Id. at 2619.
174. Compare Myers v. United States, 272 U.S. 52, 132-34 (1926) (holding that Constitu-
1989]
FORMALISTIC PERSPECTIVE
As noted above, however, there is one glaring problem with the
Court's analysis in Morrison. Even if the Court was right to depart
from Myers' broad prohibition on removal restrictions in favor of a
case-by-case assessment, the majority gave no explanation for abandoning one of the premises underlying that prohibition: that as part
of his executive power, the President has the authority to direct his
subordinates regarding any discretionary decisions about how to execute the laws. 1 7 5 Yet, that is what the Court silently did. Otherwise, "the real question[s]" would be more than "whether the
removal restrictions . . . impede the President's ability to perform
his constitutional duty [to take care that the laws are faithfully executed]," 17 6 or "whether [his] need to control [the counsel's] exercise of discretion is so central to the functioning of the Executive
Branch"' 17 7 as to require removal at will. The Court also would have
to evaluate whether the restrictions impermissibly impeded the
President's ability to exercise his power to control the counsel's exercise of discretion without regard to how central his exercise of that
authority was to some other power he might have under the Constitution, such as that of assuring the functioning of the executive
branch. Under the Constitution, the President is entitled to exercise
178
all of his powers.
The Court's disregard of this issue means that in deciding this
case, the majority must have sub silentio rejected the proposition that
article II, section 1 requires that the President have the authority
(either legal or actual) to control the discretionary decisions of all
officials engaged in law execution. Instead, it must have adopted
the view that the vesting clause only requires the President to be
able to ensure the functioning of the executive branch.1 7 9 Again,
the Court offered no explanation for why that interpretation was
correct. The Court then carried over this unexplained interpretation of the vesting clause, arrived at in the removal context, to its
analysis of the appellees' other vesting clause claims.' 8 0
tion requires that President have unlimited removal power over executive officers) with Morrison, 108 S. Ct. at 2621 (calling for balancing test to see if removal restrictions impermissibly
undermine executive function).
175. See Myers, 272 U.S. at 117 (noting that Presidential removal authority is essential to
President's ability to execute laws).
176. Morrison, 108 S. Ct. at 2619.
177. Id.
178. See U.S. CONsT. art. II, § I (vesting executive power in President).
179. See Morrison, 108 S. Ct. at 2620 (rejecting notion that removal restrictions in independent counsel statute sufficiently deprive President of control over counsel to interfere
with President's constitutional obligation).
180. See id. at 2620-22 (addressing issue of whether Act as whole violates separation of
powers).
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[Vol. 38:313
A somewhat less important but still significant problem is that the
Court in Morrison gave almost no reasoned justification for its adoption of an effects test to evaluate removal restrictions. The Court
noted that Perkins and Myers are inconsistent with each other, that
Myers is in some places inconsistent with itself, and that using an
effects test would reconcile the results in both cases as well as that
reached in Humphrey's Executor (all of which hardly means that the
solution the Court selected is the right one). 8 1 Beyond that, the
Court's argument in favor of this test was limited to one affirmative
contention mentioned only in a footnote: that it was more plausible
than another possible view.' 8 2 The other view in question was that
the executive power necessarily includes the power to remove all
executive officers at will.' 8 3 The Court rejected that theory on the
ground that it was too much of an extrapolation from general constitutional language and contrary to the holding in Perkins.'8 4 As the
dissent noted, however, that approach is neither the only possible
alternative to the one adopted by the Court, nor the one that the
85
dissent was urging.'
III.
CAN THE COURT'S APPROACH BE DEFENDED
ON OTHER GROUNDS?
Although the Court did not expressly rely on it, there is a theory
that arguably provides the explanation for the Court's decision but
which does not appear in the opinion. It could be argued, as has
been advanced in the academic literature on separation of powers,
that the Court should take a functional rather than a formal approach to the vesting clauses and invalidate legislative rearrangements only when they interfere with the function of the separation
of powers, which is to ensure that each branch has enough power to
18 6
check the others.
181. Id. at 2616.
182. See id. at 2618 n.29 (noting that making every executive officer removable by President requires excessive extrapolation of text of Constitution).
183. Id.
184. Id.
185. Id. at 2636 n.4 (ScaliaJ., dissenting).
186. The leading proponent of this approach is Peter Strauss. See generally Strauss, Formal
and FunctionalApproaches to Separation-of-PowersQuestions-A Foolish Inconsistency?, 72 CORNELL L.
REv. 488 (1987) [hereinafter FunctionalApproaches] (arguing that formal view of separation of
powers is unrealistic considering congressional delegation of functions to agencies and that
rigid three branch theory of government is not mandated by Constitution); Strauss, The Place
of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REv. 573
(1984) [hereinafter The Place ofAgencies] (reasoning Congress should be permitted to structure
lawmaking functions as it deems best by delegating power to agencies in order for government to function ideally). See also Bruff, PresidentialPower and Administrative Rulemaking, 88 YALE
LJ. 451 (1979).
19891
FORMALISTIC PERSPECTIVE
A.
Form versus Function
Drawing a distinction that is used in separation of powers literature, Peter Strauss has suggested that the Court's opinions in this
area can be divided into formalist and functionalist decisions. 18 7 A
formalist decision uses a syllogistic, definitional approach to determining whether a particular exercise of power is legislative, executive, orjudicial. It assumes that all exercises of power must fall into
one of these categories and takes no ostensible account of the prac18 8
Myticalities of administration in arriving at this determination.
ers, Buckley, Northern Pipeline, Chadha, and Synar are examples of this
approach to separation of powers issues. 18 9
A functionalist approach, by contrast, starts with the assumption
that all exercises of power cannot be characterized as falling under
one of the three headings and that the Constitution does not require
them to do so.' 9 0 Rather, the vesting clauses allocate power only
among the three principal actors-Congress, the President, and the
Supreme Court-but permit all other governmental actors to exercise combined powers in whatever mixture Congress may prescribe
under the necessary and proper clause, so long as Congress' choice
does not interfere with the performance of its "core functions" by
one of the named actors.19 ' Nixon, Schor, Justice White's dissents in
Chadha and Synar, and portions of Justice Stevens' concurrence in
92
Synar are functionalist decisions.'
Strauss makes several different arguments of varying persuasiveness for the advantages of functionalism over formalism. First, he
claims that it is inconsistent with the way our government has
evolved to classify powers exercised by actors below the three principals as legislative, executive, or judicial. Frequently, these actors
exercise all three kinds of powers, and all have relationships with
each of the three principals. 's The functionalist checks and balances approach can accommodate these realities, because there is
nothing in that model to prevent such entities from existing and
having such relationships so long as the balance of powers among
187. Strauss, Functional Approaches, supra note 186, at 490.
188. Id. at 492.
189. Id.
190. Id. at 496-500.
191. Id. at 510-14.
192. See Bowsher v. Synar, 478 U.S. 714, 761-62 (1986) (WhiteJ, dissenting) (criticizing
majority's formalistic approach in calling Comptroller General legislative officer); Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 999-1001 (1983) (White, J., dissenting)
(noting that history of separation of powers doctrine is one of accommodation and
practicality).
193.
Strauss, FunctionalApproaches, supra note 186, at 493-96.
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the three principals is preserved. The formalist separation of powers model cannot accommodate these realities because it requires an
94
actor to be in only one branch.'
Second, the formalist model hides its policy judgments under
sterile labels, which ultimately has deleterious effects on the actual
balance of powers.' 9 5 For example, the Court in Chadha distinguished a permissible executive decision to suspend Chadha's deportation from an impermissible legislative veto of that decision on
the ground that the former was executive, whereas the latter was an
attempt to legislate without the formalities of bicameralism.19 6 The
functionalist approach instead would have noted that the suspension was made by an officer insulated from presidential control by a
statute protecting him from removal and who was required to make
his decision on the record.' 9 7 The legislative veto has the effect of
permitting Congress to intervene after disabling the President from
doing so, calling into question its bona fides in preventing presidential intervention. Viewed in another light, it excludes the President
from legislative action through his own veto.' 9 8 These functional
flaws would not be present if the action to which the legislative veto
was applied had been instead a presidential initiative from which the
legislature had been excluded, for example, a departmental reorganization. The functionalist approach would uphold the veto in
these circumstances, whereas the formalist would treat this case as
identical to Chadha.
The Court's approach in Morrison in some ways strikingly resembles the one urged by Strauss. The Court's labeling of the independent counsel's functions as in some sense executive, coupled
with its refusal to attach any significance to the label, could be explained by Strauss' view that the vesting clauses impose no requirement that the government be organized into branches. I9 9
Additionally, the Court's claim that the critical question in the case
is whether the independent counsel statute impairs the President's
functions is strongly reminiscent of Strauss' argument that the key
issue regarding any arrangement for administering the laws selected
194. Id. at 495.
195. Id. at 492.
196. Chadha, 462 U.S. at 951-59.
197. See id. at 924-25 (describing requirement of Immigration and Nationality Act that
Attorney General provide report to Congress with reasons for suspension of alien's deportation under Act).
198. See id. at 923 (outlining legislative veto provision of Immigration and Nationality Act
and stating that it allows one House of Congress to invalidate executive branch decisions).
199. See Strauss, FunctionalApproaches, supra note 186, at 492-93 (reasoning that Constitution does not require division of government into branches).
1989]
FORMALISTIC PERSPECTIVE
345
by Congress is the arrangement's impact on the core and relative
authorities of the named actors vested with the legislative, execu20 0
tive, and judicial powers, and hence on checks and balances.
This theory of Morrison, however, is open to two objections. First,
there are serious questions about the legitimacy of a purely functionalist approach to separation of powers questions. Second, even
if one accepts the method, it does not produce the outcome the
Court reached in Morrison.
B.
The Difficulties with Functionalism
There are at least two problems with Strauss' approach to the
vesting clauses. First, even if one believes that the Court's responsibility in interpreting these clauses is to make sure that institutional
arrangements respect the functions they were expected to serve,
they serve more than that one function. As Strauss himself recognized, the vesting clauses not only allocate power in such a manner
as to allow the branches to check each other they also allocate it in
such a manner so as to ensure accountability. 20 1 They may even
serve more than two functions. For example, as Strauss recognizes
more implicitly in his discussion of the President's special responsibility for law administration, the vesting clauses seem to contemplate that each actor is best suited to having a more significant say in
certain types of decisions than in others. 20 2 Additionally, Congress
may be better suited to drawing up general rules than to applying
them to specific individuals. To treat one of these objectives, checks
and balances, as the function of article II, section 1 is to be a bad
functionalist, even assuming that functionalism is what is called for.
To put the point a little differently, one could perfectly well be a
functionalist without believing that the only thing to worry about is
checks and balances. An argument that functionalism is the appropriate interpretive method does not lead to the conclusion that
checks and balances is the single appropriate lodestar. 20 3 A separate argument would be required to demonstrate that, and Strauss
does not really make such an argument.
200. See Strauss, The Place of Agencies, supra note 186, at 616, 642 (outlining issues in administration of statutes).
201. See Strauss, FunctionalApproaches, supra note 186, at 523 (discussing balance necessary among branches to assure accountability); see also Strauss, The Place ofAgencies, supra note
186, at 582 (noting necessity of reliance on politics among branches to keep government
within control of people).
202. See Strauss, The Place of Agencies, supra note 186, at 581 (discussing substantial independent authority of President to direct those administering law).
203. See Strauss, FunctionalApproaches, supra note 186, at 492 (discussing functionalism as
appropriate interpretive method).
346
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Even more fundamentally, however, functionalism in its pure
form mistakes the objectives sought to be accomplished by the vesting clauses for the clauses themselves. The clauses adopt a rule
about the allocation of power. 20 4 That rule, to be sure, was premised on various purposes: to ensure (1) a certain amount of political control by actors accountable to the states, (2) a certain amount
of political control by an actor accountable to the people as a whole,
and (3) a certain amount of adherence to rules set out either by
prior political actors or by the people in the Constitutional Convention. 20 5 But even if it were demonstrated that one of these premises
was false, for example, that Senators in the modem world respond
more to national constituencies who contribute to their campaigns
than to the inhabitants of their state, that still would not warrant
departing from the requirement that they have roughly half of the
legislative power. 20 6 In setting up the government, the framers
chose not only ends, such as checks and balances, but a means, the
vesting of particular powers in particular actors selected in particular ways. Formalism takes that choice of means seriously on its own
terms and seeks to understand what that choice was. In its extreme
form, functionalism presumes that modem day legal scholars and
the courts will do a better job of figuring out how to accomplish the
20 7
framers' purposes than the framers have already done.
That is not to say that consideration of the function or functions
served by the vesting clauses plays no role in resolving problems the
clauses present. However, that role should be the traditional, considerably more modest one assigned to legislative or contractual
purpose as an interpretive aid to resolving ambiguities in the statute
or contract. 20 8 Moreover, there may even be a place in a small class
of cases for the balancing Strauss urges as a critical tool of analysis
in addressing separation of powers disputes. The difference is that
inquiry into whether the Constitution's textual commands have
been met should not be replaced with an inquiry into whether their
functions have been appropriately served. If a particular authority is
204. See U.S. CONST. art. I, § I (vesting legislative power in Congress); id. at art. II, § I
(vesting executive power in President); id. at art. III, § 1 (vesting judicial power in Supreme
Court).
205. See Strauss, FunctionalApproaches, supra note 186, at 523-25 (discussing premises behind vesting clauses); see also Strauss, The Place ofAgencies, supra note 186, at 582 (noting necessity of reliance on politics among branches to keep government within control of people).
206. Depending on how one counts the veto, it is somewhere between a halfand a third.
207. See Miller, supra note 52, at 55 (arguing that changed circumstances of modern society require new means to achieve framers' ends).
208. I use the term to refer to the ends that particular legislators or contracting parties
sought to accomplish as indicated by the legislative or contracting history as well as the problem that, from the context of the times, the legislation was apparently designed to address.
1989]
FORMALISTIC PERSPECTIVE
347
part of the executive power, as I contend the authority to supervise
any officers administering the laws is, then the President must retain
that power with respect to all officers; even if it is of no particular
20 9
importance in protecting his ability to perform his core functions.
Despite these criticisms, Strauss' theory has four weighty points in
its favor. First, the proposition that there can be complete separation, in the sense that Congress, the President, and the Supreme
Court can be completely immune from each other's influence, is inconsistent with the constitutional design. 2 10 To the extent that that
proposition provides the basis for formalist claims that Congress
209. Two of the reasons Strauss gives for adopting his approach also strike me as excessively instrumentalist, as well as questionable even if one accepts an instrumentalist approach
to constitutional interpretation. First, he argues that his view has the advantage that it is
consistent with the way the government has actually developed, in that it no longer comports
with reality to describe officers exercising a particular type of power, legislative, executive, or
judicial. Strauss, Functional Approaches, supra note 186, at 492. Second, he notes that he
adopted his position originally in part because he thought it was necessary to avoid excessive
presidential power over officers charged with law administration. Id. at 494-95.
The fact that a theory justifies the status quo is not much of a virtue. It would be better if
the political branches always devised institutions that complied with the Constitution. If they
do not, however, even if the error is so longstanding that it cannot be corrected without so
much upheaval that the error should be allowed to stand, the status quo receives its due if the
existing institutions are allowed to stand but the error is not extended to the next set of
institutions. The law is strengthened rather than weakened when a court limits a mistaken
interpretation to the context in which it has already applied it rather than extending it. See
Flood v. Kuhn, 407 U.S. 258, 282-84 (1972) (honoring precedent of exempting professional
baseball teams from antitrust laws even though other interstate professional sports were not
similarly exempt). As for the desirability of the President having more or less power, I am
hard pressed to see how that is relevant to the interpretive issue of what power he has (beyond
the general presumption that the Constitution is a rational document that should not be read
to require absurd results).
Strauss also overstates the extent to which modern government is inconsistent with the
notion that there are three types of powers. Many of the anomalies he refers to go away once
one accepts the proposition that execution of the laws includes interstitial policymaking. See
supra notes 190-91 and accompanying text (discussing functionalist approach to separation of
powers). At that point, most activities of law-administering officers are appropriately characterized as executive. The one set of duties that creates significant problems is adjudicative
responsibilities. The problems are twofold: the relative unreviewability of the adjudicators'
findings of fact by courts in various situations that seem to fall within the judicial power, and
the fact that the possibility of presidential intervention in particular adjudications seems quite
inappropriate but constitutionally required. It is no answer to the latter problem to say, as
Professor Miller suggests, that due process forbids presidential interference. See Miller, supra
note 52, at 83. The only way non-life-tenured officers constitutionally can decide the questions they are charged with is if they are exercising executive rather than judicial power, in
which case the vesting clause requires that the President be able to intervene. If presidential
intervention would violate the due process clause, and a bar on presidential intervention
would violate the vesting clause, non-article III adjudications covered by due process requirements would be unconstitutional. As Brennan suggested in Schor and Northern Pipeline, however, this is a far better argument for confining the exceptions to article III as narrowly as
possible than for devising constitutional arguments to save them. See Commodity Futures
Trading Comm'n v. Schor, 478 U.S. 833, 844 (1986) (upholding CFTC's assumption ofjurisdiction over common law counterclaims); Northern Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 76 (1982) (finding congressionally created bankruptcy court unconstitutional as not within exceptions to article III).
210. See Strauss, The Place ofAgencies, supra note 186, at 581 (advocating some overlapping
of functions among branches).
348
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:313
may not, for example, regulate removal, it is not only inconsistent
with the Constitution but with much mutual influencing that goes
on all the time, which formalists have not and cannot attack. For
example, everybody would agree that Congress can influence how
the laws are executed by passing different substantive laws or lowering the appropriation for an agency utilizing enforcement policies of
which Congress may disapprove.
Second, this lack of complete separation means that the non-influence theory cannot be the real basis for a valid separation of powers
objection to a removal limitation. Either there must be something
else formally special about removal if one is a formalist, or the removal limitation must have a particularly significant effect on interbranch relations if one is a functionalist. Myers does not really make
a plausible formalist argument that there is anything special about
the connection between the executive power and the power to remove officers, and I do not believe such an argument can be
made. 2 1' Instead, Myers and the Decision of 1789 are actuallyfunctionalist decisions that disguise their functionalist arguments as ana21 2
lytic truths, as Strauss claims formalist arguments inevitably do.
Because these decisions do not look into the entire network of relations, however, once one accepts the premises of functionalism the
decisions are open to criticism for this failure. 21 3 That may explain
at least in part why they did not survive in Morrison, although what
they were replaced by is considerably less defensible in either functionalist or formalist terms.
Third, Strauss' contention that the key to the vesting clauses is the
nature of relations an officer has with Congress, the President, and
the courts, rather than which branch the officer is a part of, redirects
the inquiry in the right direction. 2 14 I disagree with Strauss as to
what that inquiry yields. In my view, depending on the nature of the
power an officer exercises, the vesting clauses require certain specific relations with one of those entities and forbid others. Strauss,
211. See infra note 241 (discussing removal argument in Myers). j' ers also made a formalist argument for the President's removal power based on the appointments clause, contending
that the power to remove was incidental to the power to appoint. That argument is outside
the scope of this Article.
212. See Strauss, Functional Approaches, supra note 186, at 526 (describing formalism as
mere proxy of functionalism). I do not believe that there is anything inevitable about this
occurrence. That does not make Strauss' criticism of functionalist arguments disguised. as
formalism less powerful when it is applied to Myers, because the Court in Myers makes precisely this error.
213. Of course, if one does not accept those premises, the decisions are open to criticism
for accepting functionalism as well.
214. See Strauss, FunctionalApproaches, supra note 186, at 493 (discussing basis of determining type of power officers exercise).
1989]
FORMALISTIC PERSPECTIVE
349
on the other hand, would approve any number of possible relationships depending on their overall effect on the balance of powers between branches.2 1 5 Nevertheless, his critical insight that
relationships are key to what the clauses regulate seems quite right.
Finally, functionalist analysis is a serious attempt to come to terms
with the Constitution and, properly conducted, should produce the
same general results as good formalist analysis. This is because a
serious effort to determine what result is consistent with the functions of the vesting clauses generally should yield the same conclusion as an effort to determine what result is consistent with the
vesting clauses themselves. Indeed, the outcomes of the cases
Strauss advocates mostly replicate the ones produced by careful formalism.2 1 6 Therefore, if the only thing wrong with Morrison was that
it was a well done functionalist opinion, it would not present that
serious a problem.
C.
Morrison and Functionalism
Unfortunately, Morrison is not a serious attempt at functionalism
either. In the first place, although Strauss would ask the same question as the Court in Morrison-whether the independent counsel
statute impairs the President's ability to perform his core functions-Strauss recognizes the need to determine what those core
functions are before answering that question. 2 17 Moreover, he
would find that one of those core functions is "significant, ongoing
relationships with all agencies responsible for law-administration. '2 18 In Strauss' view, these should include the power to direct
an administrator's discretion, at least where it conflicted with another administrator's exercise of discretion.2 1 9 That is a core function both because it is the minimum necessary to give some content
to the take care clause and because some significance should be attached to the framers' decision that a unitary executive was necessary to ensure effective administration as well as to create an actor
powerful enough to prevent congressional dominance. 220 Therefore, Strauss would not ask the question the Court addressed in
Morrison: "Is it necessary to the President's performance of his core
responsibilities that he be able to control the discretion of a particu215. See id. at 516 (noting key factor is whether relationship undermines constitutional
distribution of authority).
216. Id.
217.
218.
Id. at 489.
Strauss, The Place ofAgencies, supra note 186, at 648.
219. Id. at 662-63.
220.
Id. at 641, 648-50.
350
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 38:313
lar officer?" 2 2 1 Instead, Strauss would treat as a core responsibility
at least some measure of control over the officer's exercise of his
222
discretion.
In Morrison the Court, by contrast, assumed that the independent
counsel statute denies the President any control over the counsel's
discretion and merely allows the President to fire the counsel for
disregard of statutory responsibilities. 2 2 3 Employing that assumption the statute, in all likelihood, would not pass muster under
Strauss' approach. 224 The statutory provision for appointment of
the counsel by a court with no presidential participation would make
it even more questionable in Strauss' eyes, because it would further
weaken the President's ties to the counsel. 22 5 Finally, the counsel's
22 6
statutorily-mandated reporting relationship with Congress,
although relatively weak at least in theory, indicates that the most
legitimate reason (in Strauss' view) for placing barriers between an
officer and the President-to protect the officer from political interference 22 7-was not imposed on all possible political actors who
might be tempted to interfere. Moreover, the Morrison case itself,
which centrally involved a dispute between the President and Congress over executive privilege, certainly suggests that this temptation is hardly unimaginable.
In addition, Strauss recognized that the vesting clauses performed
an additional function, beyond checks and balances, that should be
protected as well. The clauses were designed to ensure that one of
the principal actors selected through the means established by the
Constitution would be accountable for all law administration decisions. 228 In light of that purpose, the independent counsel's very
221. See Morrision v. Olson, 108 S. Ct. 2597, 2619 (1988) (holding that removal provision
did not impermissibly burden President's power to control independent counsel's execution
of statutory duties).
222. Strauss, The Place of Agencies, supra note 186, at 662-63.
223. See Morrison, 108 S. Ct. at 2619 (characterizing President's power to remove independent counsel for good cause as his means of ensuring faithful execution of laws).
224. Moreover, it should be noted that the statute specifically denies the President the
ability to make one type of decision that Strauss views as plainly within his province, the balancing of competing statutory objectives. See Strauss, The Place of Agencies, supra note 186, at
663-67. The independent counsel, not the President, is empowered to resolve disputes between herself and the State Department regarding classification decisions. See 28 U.S.C.
§ 594 (a)(6) (1982) (giving independent counsel authority to contest in court any claim of
privilege on national security grounds).
225. See 28 U.S.C. § 49(a) (1982) (providing for assignment of three judges to special
court to appoint independent counsel).
226. See id. § 595(a) (allowing independent counsel to report to Congress "from time to
time").
227. See Strauss, The Place of Agencies, supra note 186, at 587-91 (discussing presidential
direction of agencies).
228.
Strauss, FunctionalApproaches, supra note 186, at 523.
1989]
FORMALISTIC PERSPECTIVE
independence presents serious problems. Moreover, Professor
Strauss' proposed mechanism for assuring accountability on the
part of agency heads insulated from Congress and the Presidentmore intense judicial review of their decisions-has not been
adopted in the independent counsel statute and would be quite unworkable. 2 29 Prosecutorial discretion has long been understood 23to0
involve policy decisions peculiarly unsuited to judicial review.
The Court in Morrison offered no solution to, and indeed indicated
no awareness of, this grave accountability problem.
Finally, Morrison's suggestion, echoing Schor, that separation of
powers challenges based on attempts by one branch to encroach on
another's functions should be reviewed much more stringently than
attempts by one branch to take away the power of one branch but
not draw it to itself,23 ' is insensitive to the critical insight of checks
and balances theory that the relative power of the branches is central to preservation of the equilibrium among them. 23 2 If the theory
of checks and balances is true, the withdra~val of a portion of a
branch's powers is just as destabilizing and dangerous as a partial
usurpation, at least unless a similar amount of power is taken away
from the other branches as well. Strauss' theory accommodates that
insight. Morrison disregards it and provides no other explanation as
to why the two situations should be evaluated under different
23 3
standards.
It is tempting to claim that the poorness of Morrison's functionalist
analysis, coupled with Justice White's Chadha and Synar dissents,
which Strauss also criticizes, 23 4 gives rise to a further argument
against this approach: that courts are institutionally incapable of using the functionalist approach effectively. But the fact that judges
can make mistakes in applying a theory probably does not really say
too much about its merits. In this instance, it may suggest some
tendency on the part of the Court to not treat the functionalist in229. See id. at 525 (suggesting need for greater judicial control over independent
agencies).
230. See United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc) (holding that prosecutor's decision to indict is discretionary and not subject to judicial review), cert. denied, 381
U.S. 935 (1965).
231. See Morrison v. Olson, 108 S. Ct. 2597, 2620 (1988) (noting that statute was not
attempt by Congress to increase its powers at expense of executive branch).
232. See L. TRIBE, AMERICAN CONsTrrTTIONAL LAw 18 (2d ed. 1988) (noting that focus of
separation of powers is to preserve independence of branches and ability of each to check
others to preserve interdependence and to prevent domination).
233. See Morrison, 108 S. Ct. at 2608 (allowing special court to appoint independent counsel because counsel is inferior officer).
234. See Strauss, The Place ofAgencies, supra note 186, at 634 (illustrating distinction never
observed by dissenters in Chadha); Strauss, FunctionalApproaches, supra note 186, at 499 (suggesting alternative inquiry to that used in Synar dissent).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:313
quiry quite as seriously as it would in resolving a question that
sounded more like "real law" (such as whether a particular authority
is part of the executive power). However, this may overstate the
23 5
matter.
IV. A
FORMALIST RESOLUTION OF MORRISON
As noted above, there are really three different challenges to the
independent counsel statute that can be brought on the basis of the
vesting clause. First, the grant of independent authority to the
counsel is unconstitutional. Second, the restrictions the statute
places on removal of the independent counsel are unconstitutional.
Finally, these two features of the statute, coupled with the fact that
the independent counsel is appointed by a court rather than the
2 6
President or his appointees, make the statute unconstitutional. "
As I also discussed above, I would resolve the first question
235. Also it could be argued that rather than relying on functionalist grounds, Morrison
should be defended on the ground that the Court should not intervene in separation of powers disputes. SeeJ. CHOPERJUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESs 260-379
(1980) (discussing Court's role in separation of powers questions); cf. In re Sealed Case, 838
F.2d 476, 532 (D.C. Cir.) (Ginsburg, J., dissenting) (urging more relaxed judicial scrutiny of
question of who is inferior officer), rev'd sub nom. Morrison v. Olson, 108 S. Ct. 2597 (1988).
Without addressing all of the arguments that could be made on each side of this claim, I
would like simply to mention a few reasons why that resolution seems improper to me. First,
the Court's concern in Marbury v. Madison that without judicial review the political branches,
particularly Congress, might be tempted to exceed their constitutional limitations seems eminently applicable to such disputes. See Marbury v. Madison, 5 U.S. (I Cranch) 137, 176
(1803). Judicial nonintervention will permit the stronger branch, rather than the one given
the constitutional authority in the area, to win. Second, the more constitutional questions
resemble ordinary legal questions, the more applicable Marbury's central claim becomes.
Such disputes are just like the kinds of issues courts ordinarily resolve, and therefore, the
Constitution intended the judiciary to resolve them. Id. at 178-79.
Although in one very important respect the vesting clauses are very different from ordinary
legal provisions in that they perform the central political function of granting power to the
national government, in another respect they are very like the provisions of a contract. The
vesting clauses give legal effect to a particular arrangement that gains its force only through
the agreement of the people and is, therefore, the product of convention rather than natural
law. Moreover, the vesting clauses do so somewhat precisely by selecting a specific set of
institutions: they do not say "the powers of the United States shall be vested in a government
designed to secure liberty," but choose a particular means whereby that end is to be accomplished. The clauses vest particular powers with particular agents of the people. The Bill of
Rights, by contrast, does not even necessarily purport to establish a legal regime so much as
to acknowledge the regime natural law requires. Marbury's argument forjudicial review works
better where the court is being asked to resolve disputes about the meaning of a conventional
arrangement established through words than where it is being asked to decide what natural
law requires. In 1789, courts did the former all the time and the latter rather infrequently, if
at all. Although I am fairly confident that the Bill of Rights' presence in the Constitution
turns it, too, into a conventional legal arrangement and hence unequivocally subject to judicial interpretation, I think to a lawyer in the 1790s this conclusion would have been less than
clear.
236. See supra notes 9-27 and accompanying text (outlining challenges to independent
counsel statute based on vesting of executive power in President).
1989]
FORMALISTIC PERSPECTIVE
353
against the independent counsel. 2 37 The authority to investigate
and prosecute is law-execution, hence executive power. The grant
of the executive power to the President must mean either that he
can exercise any law-executing authority himself or direct how it is
exercised. Otherwise, the power is not vested in him but in the independent counsel. That does not mean that Congress is required
to grant the power to him directly, as opposed to granting it to an
officer. Congress' power to pass all laws necessary and proper for
carrying into execution its own powers includes the power to select
an instrument for carrying those powers into effect. But because the
the inexecutive power must remain in the hands of the President,
2 38
directs.
President
the
as
only
used
be
must
strument
Let us imagine, however, that Congress had not granted the counsel independent authority but instead had only limited the President's removal authority and denied him appointment authority.
Let us also imagine that there was no case law suggesting that the
President did not have inherent authority to give the independent
counsel direction, 23 9 so that the President believed himself legally
free to do so. In my view, a vesting clause challenge to such a statute should fail. 240 There would be no legal impediment to the Presconcerning fulfillment of
ident's directing the counsel
responsibilities; I do not believe the set of arrangements would
make it practically impossible for him to do so either. For although
the President might not have any effective sanction or loyalty to rely
on in enforcing his directives, they would be partially enforceable.
If the counsel acted contrary to the President's directive, the counsel
would no longer be acting as his agent, in which case those acts
would be void as executive power exercised by somebody not qualified to use it. The legal situation would precisely parallel the one
presented by an action of an executive officer in excess of statutory
authority or by a court in excess of its jurisdiction.
This is precisely enough to protect the President's power if one
237. See supra notes 21-24 and accompanying text (discussing unconstitutionality of grant
of independent authority to counsel).
238. See supra notes 18-20 and accompanying text (noting necessity of President's ability
to direct executive officers).
239. See supra notes 36-38 and accompanying text (discussing Court's holding in
Humphrey's Executor).
240.
I believe that a challenge to the method of appointment should have succeeded
under the appointments clause, U.S. CONsT. art. II, § 2, cl. 2, because I do not think the
independent counsel would be an inferior officer or that the clause permits cross-appointments. Also, I think that the portions of Morrison to the contrary are wrong, but that is for
another article. It is possible that a challenge to the removal provision should also succeed on
account of the appointments clause, but I have not thought the appointment/removal link
through enough even to indicate a tentative view.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 38:313
accepts the view of the extent of that power suggested above. The
principal weakness of this view, as far as the President is concerned,
is that he may give orders until he turns blue only to have them
disregarded with no affirmative mechanism to get them implemented. But this weakness is an unsurprising corollary of the limitation on his power hypothesized in order to make sense of the
necessary and proper clause; namely that Congress can require that
certain executive actions be performed by an officer, albeit under
the President's direction, rather than by the President himself. 241
The view of the scope of presidential power proposed is actually
rather moderate compared with either of two possible extreme
views: that the President has no inherent authority to direct those
involved in law execution, or that he must be able to execute the
laws himself. It makes more sense, however, than the intermediate
position proposed in Myers that the President cannot decide himself
but can remove those who decide incorrectly. 24 2 The power acknowledged in Myers, to remove officers involved in law administration, is not enough if the officers have already acted contrary to a
Presidential directive and too much to the extent that it gives any
weight to the President's affirmative right to have done what he
wants by an instrumentality whose attributes Congress has the
power to define.
Two questions remain even after all this is granted. First, what if
Congress' sole purpose in enacting the removal and appointments
restrictions was to make it hard for the President to direct the counsel? Second, what if Congress had actually succeeded in devising a
241. One possible objection is that there might be no way of obtaining judicial review of
the special counsel's action, either because Congress passed a special statute withdrawing
federal jurisdiction or because of standing or ripeness limitations. For example, the counsel
might make all sorts of decisions in the course of litigation from issuing a subpoena to convening a grand jury contrary to a President's order, and in the context of which the courts
would not allow this challenge. The answer to this objection, however, is that either the jurisdiction limiting power is plenary or it is not. If it is plenary, there is no reason why claims
based on Presidential authority should have greater protection than anything else. If it is not
plenary, claims of this type would be constitutionally based and should fall therefore outside
the permissible scope of the exceptions power. The problem is not different in kind-and no
worse-than any other problem resulting from the fact that judicial enforcement of the Constitution may depend on congressional provision for its enforcement. It has not been suggested in the context of, for example, a prohibition on judicial busing orders that the
withdrawal of that judicial remedy creates a right to self-help.
It could be argued that Myers is right after all, because what it really does is give the President an alternative remedy to judicial invalidation, i.e., the power to remove an uncooperative
officer. That, it could be claimed, would be like giving the victim of an illegal search a damages remedy rather than the exclusionary rule. That, however, is not really what Myers says.
Instead, it states that the independence of the officer is legal so long as the President has the
removal authority. See Myers v. United States, 272 U.S. 52, 135 (1926).
242. Id. at 135.
1989]
FORMALISTIC PERSPECTIVE
355
set of arrangements that made it impossible for the President to do
so?
The first question finds its answer in the only real limitation on
Congress' necessary and proper power in selecting means to carry
its own powers into effect. As Justice Marshall stated, the end must
be legitimate; that is, the measure must be truly designed to carry
one of those powers into execution. 243 This requires a determination of congressional purpose, which is notoriously difficult. At the
very least, however, if no purpose could be hypothesized for a removal restriction other than a congressional desire to interfere with
the President's ability to direct the independent counsel, the restriction should be struck down as outside the necessary and proper
clause. 244 This would lead to upholding the removal restrictions in
the civil service context, because it is plausible to view their purpose
as being the attraction of better people to the government. However, it also might lead to their invalidation in the present independent counsel statute, where they seem directed at preventing the
President from influencing the counsel's decisions.
The second question suggests that even the most ardent formalist
may have to recognize a place for functionalism. For it could be
argued that it is only a happy accident that the statute hypothesized
in the second question would not make it practically impossible for
the President to exercise his constitutional power. The formalist
still must deal with the possibility that a statute might leave the President the legal power to issue directives but make it impossible for
him to do so in practice. For example, a requirement that all his
directives to the Director of the Central Intelligence Agency (CIA)
be made on the public record would render his power to direct nugatory (or invite disregard of the law). To take a less obvious example, perhaps Congress could devise a structure for the executive
branch so thoroughly fractionated that it would make it impossible
for the President to give directives fast enough.
One possible answer to the CIA director problem is that Congress
cannot use the necessary and proper clause power to regulate the
manner in which the President exercises his directory power. Regulation of this type would go beyond the regulation of the instrumentality Congress selected for carrying its own powers into execution
to regulation of the President's powers. Congress can furnish the
243. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 421 (1819).
244. Van Alstyne, supra note 120, at 114-15. A balancing test would have a minor role to
play here, in that if the interest served by the restriction were miniscule and were only slightly
advanced or not advanced at all by the restriction and the restriction were very significant,
such imbalance would suggest an illegitimate purpose.
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President means to exercise that power. For example, it can pass a
law establishing a chain of command through which the President
may act if he chooses to, but it cannot prevent him from using other
means, if he prefers them. This is because the horizontal necessary
and proper power only extends to laws "necessary and proper for
carryinginto Execution... all other Powers vested ...in the Government of the United States, or any Department or Officer thereof. '24 5
A law hindering the President's exercise of his directory power obviously would not qualify.
The constitutionality of the executive-fractionating law would
present a more difficult question if it really did effectively deprive
the President of his supervisory authority. Moreover, some kind of
functionalist inquiry would be hard to avoid at that point. Once that
determination had been made, however, no further functionalist inquiry would be necessary into, for example, whether such a law denied the President a core function. The law would simply be
unconstitutional. 2 46 One advantage to my suggested approach is
that it is relatively difficult to imagine laws that would present this
issue. That is not only a prudential advantage but also an argument
that is correct as an interpretive judgment. An interpretation of the
relative scopes of the executive power and the necessary and proper
clause that concludes that head-on collisions will occur relatively infrequently is, ceteris paribus, somewhat more likely to be right than
one that concludes that they will happen all the time, because it is
clear that neither participants in the Constitutional Convention nor
those in the ratifying conventions and surrounding debates thought
that this was a major problem.
If the Court wanted to reconsider the removal issue from square
one, as it essentially ended up doing, I believe this resolution would
have a lot to recommend it. To be sure, there would be three serious practical objections: (1) that it might permit the President to
use his directory power to prevent the uncovering of wrongdoing by
high-ranking executive branch officials, (2) that it would invalidate
the existing independent agencies, and (3) that it would permit
presidential interference with article I tribunals. I believe there are
adequate answers to each.
I think the first objection is greatly overrated. If the concern is
wrongdoing by anyone other than the President, Congress can es245. U.S. CONsT. art. I, § 8, cl.18 (emphasis added).
246. The President's inability to direct effectively, of course, would have to be the actual
effect of the law standing alone. An inability to direct caused by a President's political weakness would not violate the Constitution.
1989]
FORMALISTIC PERSPECTIVE
357
tablish investigators who report only to him. The President's oath
to the Constitution and laws, combined with political forces, would
protect these officers from interference. The best mechanism might
be a standing authorization for a certain number of special prosecutors that could take effect upon Presidential order. The position is
significant enough that, as a policy matter, it should be a Senateconfirmed post. 2 4 7 This also would permit the Congress to have
confidence in the person put in charge. If the President himself
were suspected of wrongdoing, of course, presidential interference
might occur, but impeachment is really the appropriate first remedy
for that situation. 248 In fact, from a practical point of view it may be
a good thing if a President suspected of wrongdoing is tempted into
interfering with an investigation of his conduct, because it will probably make it easier to impeach him.
The second objection assumes that there are actually a number of
agencies with statutory independence doing business. In fact, there
are very few. Most of the independent agencies are only so called
because their officers are insulated from Presidential removal. 24 9
Because there is no problem with the removal limitation, these
agencies are basically just fine. All that is needed is for the President to be told that he can give them directions, notwithstanding
Humphrey's Executor.250 Those few agencies that do have statutory
independence would probably be saved by a finding that those
clauses were severable, so that they would continue to function minus their legal protection from presidential supervision. For the
reasons discussed by Strauss, this probably would make relatively
little difference anyway: the President has many ways to ensure that
his policies are carried out, and most Presidents have used them to
251
some degree on the independent agencies.
The article I courts do present a serious problem, in that generally presidential intervention in their adjudications would be improper. 2 52 But I think that it is better to face that problem head on,
leave the existing bodies in place out of respect for stare decisis, and
construe the exceptions that have led to their existence narrowly, as
247. I do not address whether the appointments clause so requires.
248. See J. CHOPER, supra note 235, at 286-88, 314 (noting that although impeachment
process seems defective and destructive, history and experience suggest it works).
249. See K. DAvIs, ADMINISTRATIVE LAW TREATISE § 2.7 at 85 (2d ed. 1978) (stating meaningful test of agency independence is President's authority to remove agency head without
cause).
250. See Humphrey's Executor v. United States, 295 U.S. 602, 628 (1934) (holding that
Federal Trade Commission was not executive agency).
251. Strauss, The Place of Agencies, supra note 186, at 594.
252. Id. at 607-08.
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Justice Brennan suggested in Northern Pipeline and Schor.2 5 3 The alternative view that any theory treating established institutions as
constitutionally suspect cannot be right turns out in this instance to
encourage the creation of more of them, ultimately to the detriment
of constitutional rights. Failing the adoption of this view, the Court
would have done better to stick to Myers, which, notwithstanding its
analytic imperfections, is much closer to the balance struck by the
Constitution than anything the Court suggested in Morrison.
CONCLUSION
A number of members of the legal community will be tempted to
proclaim the Morrison decision's splendor on the ground that they
approve of its result in political terms. For the sake of argument,
however, I would ask them to consider the following hypothetical
statute before they become too committed to that view. Imagine
that Congress passed a law providing for habeas officers, appointed
by the President alone and removable by the district judge to whom
they were attached only for failure to perform their statutorily assigned responsibilities. Also imagine that these officers were
granted independent authority to decide habeas petitions, subject
only to the requirement that they conform to that court's precedents
except where not possible. I suspect that those approving of Morrson politically would think that this statute violates article III's requirement that the judicial power be vested in judges with life
tenure. Whether one is a functionalist or a formalist, Morrison and
the hypothetical are not very easy to distinguish.
253. See supra note 209 (citing Justice Brennan's suggestion of narrowing exceptions to
article III).