The Horror of Morrison v. Olson — Part I: The Supreme Court’s Felt Necessities

Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.

Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.

The Pull of the Perception of Good Government

The first problem with Morrison is that the Court seemed especially influenced by its view that the independent counsel was an essential institution of good government.  The opinion does not say this explicitly, but at the time, virtually all Democrats and many Republicans believed that the IC was necessary to police wrongdoing by the executive branch. Thus, the nonoriginalist justices on the Supreme Court were not going to strike down this essential institution that they believed was so important.

The joke, however, turned out to be on these justices (and sadly on the Constitution). As time passed, the country came to understand that the IC statute was a poor one that was not essential to good government, but instead was an engine of partisanship and bad results. Thus, the Congress let the IC statute die at the end of the Clinton presidency, with both parties saying good riddance.

Notice how this case illustrates the problem with living constitutionalism. Not only did it involve a clear mistake by the Supreme Court as to policymaking. It also involved a politically biased one.  The IC statute was popular in 1987 with legal elites—Democrats and many moderate Republicans. It was only when it was used against a Democratic President that the elites changed their mind.

Reader Discussion

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on September 21, 2015 at 20:10:53 pm

Does that mean that the independent council is inherently evil? Or does it mean that it wasn't implemented in a way that was workable?

I suggest the latter.

The issue, if I understand it correctly, was that Congress had the power to create inferior offices. Congress created an office under the President to serve the political agenda of congressmen. The separation of powers was problematic in that system.

The problem that I see is not that having a neutral monitor in place to police members of government is a bad idea. Rather the problem is the neutrality of the monitor, and a poorly understood role of the monitor.

While the apparent role of such a monitor is to watch over government officials for misdeeds, half of the role can and should be to address the many false accusations of misdeeds. One reason for politicians join political parties is for political protection, much like kids join street gangs for protection. Isn't that why we currently have a Senate that is pluralistically elected? A monitor can address the multitude of politically motivated false accusations by researching those accusations and publicly declaring them false and publicly declaring that the accusers are false accusers. With a responsible party to monitor political shenanigans, partisanship becomes less desirable. In a senator or president, that is a good thing, but the House needs the frothiness of full-on partisan politics.

A monitor would be useful and has been implemented in various constitutions. In the case of the 1997 Thai constitution which was a very progressive liberal constitution (in the good way). It included a National Counter Corruption Commission to police and address political corruption. The constitutional government collapsed after about eight years due to internal corruption which included the members NCCC. (Oops.) The appointment of commissioners was from politicians, and that seems to be where the problem of NCCC corruption originated.

Canada has a similar office, if I recall correctly, that seems to work reasonably well.

The answer, I think, is to have a similar kind of office to monitor for corruption and to negate false claims of corruption, but its officers must be selected in a different manner than traditional political appointments and partisan elections. Having political appointees or partisan candidates creates substantial problems with credibility. This can be done. It is not that difficult. It's just a question of whether Americans wants to do so.

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Scott Amorian

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.