Title VI of the Ethics in Government Act of 1978 (the "Act"),1 the statutory provisions authorizing the appointment of independent counsels, expired on June 30, 1999.2 Kenneth W. Starr's tenure as independent counsel apparently demonstrated to Democrats the folly of the law. Because most Republicans were already opposed to the law, it died not with a bang but a whimper. After the impeachment proceedings, even Judge Stan testified before a Senate committee against renewing the Act.3
Despite the Act's demise, the idea behind it still has support in Congress. Many in Congress believe there is a need for investigations by independent counsels when high-level executive-branch officials are suspected of wrongdoing. Senators have proposed modifying the Act to make the independent counsel more accountable for its activities but still independent of the Justice Department.4
The idea of a statutorily created prosecutor who retains some independence from the Executive Branch raises constitutional questions concerning separation of powers and the executive powers in Article II of the Constitution. The Supreme Court addressed these questions in Morrison v. Olson and upheld the constitutionality of the Independent Counsel Act.5 This note argues that Mortson was wrongly decided and that the Independent Counsel Act was unconstitutional.
An extremely important issue that neither the majority nor the dissent in Morrison addressed was the constitutionality of the so-called independent agencies, such as the Federal Trade Commission and the Federal Communications Commission. This is understandable. A court is only supposed to rule on the controversy before it, not to pontificate about the effects its ruling might have on related matters. That is a job for legal commentators. It is my contention that the Supreme Court upheld the Independent Counsel Act in part because it did not want to endanger the independent agencies. If the Act were held unconstitutional, then the constitutionality of these independent agencies might also be challenged. The Court did not want to undermine the legitimacy of these agencies and open the door to a flood of challenges by plaintiffs claiming, for example, that the FCC is unconstitutional and therefore cannot raise license fees. To fully understand Morrison, it is best to keep in mind the importance of independent agencies in modern American government.
My thesis is two-fold. First, the Independent Counsel Act was unconstitutional. And second, at least part of the reason the Supreme Court upheld the Act was the Court's wish that the constitutionality of the independent agencies not be placed in doubt.
This note proceeds in the following order. Part II briefly summarizes the provisions of the Independent Counsel Act. Part III argues that the executive power is given exclusively to the President. It also describes the power the President has over the Executive Branch and how the Court in Morrison interpreted the President's power too narrowly.
Part IV argues that the independent counsel is not an "inferior officer" under Article II of the Constitution, but is rather a principal officer who must be appointed by the President and approved by the Senate.6 If the Court had found the independent counsel to be a principal officer under Article II and therefore invalidly appointed, the ruling would not have affected the status of the independent agencies. The commissioners of the independent agencies are appointed by the President and approved by the Senate. In this respect, the independent agencies stand on firmer ground than the Independent Counsel Act. Finding the independent counsel to be a principal officer would thus have been a constitutionally solid way to strike down the Act without giving the independent agencies reason to worry. The Court, unfortunately, got its analysis of the difference between inferior and non-inferior officers wrong. …