I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally. As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal. But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally.
This is a peculiar way to analyze the separation of powers. The Court seemed to believe that the different provisions could pass muster under the particular appointment and removal doctrines, but still violate the separation of powers cumulatively. Given the Court’s premises – a belief in lenient appointment and removal doctrines and a belief that the separation of powers was about some kind of balance between the branches – I suppose the Court’s analysis made some sense. But these premises are extremely problematic. The language of the Constitution neither adopts such lenient doctrines nor requires an independent judicial balancing between the branches.
Instead, the correct way to analyze these matters was to apply – in an unbiased way – the Appointments Clause and the Removal Doctrine (implementing the Vesting Clause). And that is it. There is no additional separation of powers test. The separation of powers is simply the relevant provisions, not some other judicial principle that the justices divine. Thus, if the IC statute passed the appointment and removal issues, then it was constitutional. If it did not, then it was unconstitutional.
Or to put the point differently, the balancing of the branches is already conducted by the Appointments Clause and Executive Power Vesting Clause, not by the court under a vague test of whether the law unduly interferes with the executive power.
Let me conclude by discussing another problem with the Court’s general separation of powers test. One aspect of the Court’s approach is to draw a distinction between 1) congressional aggrandizement and 2) Congress expanding or limiting the powers of the other branches. The Court has indicated that when Congress expands its own powers – such as claiming an appointment power or a veto power – this aggrandizement will be subjected to relatively strict scrutiny. By contrast, if the Congress either expands executive power (say by delegating quasi legislative power to the executive) or restricts executive power (say by restricting the President’s removal power), then it will be subject to much more lenient scrutiny.
In my view, this approach is also quite wrongheaded. For one thing, the Constitution no more prohibits Congress from expanding its powers than it prohibits Congress from expanding or contracting the powers of the other branches. For another thing, Congress can achieve similar results by either technique. Congress can expand its power relative to the President either by increasing its own power or decreasing the President’s power. Moreover, Congress can often benefit itself by giving another branch power, as when Congress avoids responsibility for controversial regulations by delegating quasi-legislative power to the executive.
In the end, Morrison v. Olson was a travesty. The opinion was written by Chief Justice Rehnquist. While many on the right praised Rehnquist, I was not much of a fan. And he was never worse than in Morrison.