Is the Special Counsel Constitutional? Only Probably.

The Office of the Special Counsel that I wrote about in Office of Special Counsel Stirs from its Torpor is an independent agency headed by an official appointed according to 5 USC § 1211(b):

The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

There's some question as to whether this statute is constitutional; if it isn't, then the whole office is unconstitutional and all its acts could be declared void.

In Morrison v. Olson, 487 US 654 (1988), the Supreme Court considered the office of the other special counsel — the special prosecutors we no longer have because the statute sunsetted and was not renewed. That office differed from this one in two important ways.

First, the old special prosecutor was located in the Justice Department, and nominally responsible to the Attorney General. That fact allowed the Supreme Court to classify the Special Prosecutor as an “inferior officer of the United States” (who if Congress so chooses can be appointed by a court, or by the President alone, or by an Officer of the United States), as opposed to a more important official, like a Cabinet Secretary who, being an “Officer of the United States”, can only be appointed by the President, by and with the consent of the Senate. There's little doubt that the Special Counsel here, the head of a free-standing agency, would count as an “Officer of the United States” — and that since he's appointed in conformity with the Appointments Clause, that's not a Morrison problem.

Rather, the potential problem is the second difference: the two removal clauses.

The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Contrast this to the removal provision approved (for an inferior officer) in Morrison:

An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.

(The statute also contemplated possible removal proceedings by the same judicial panel that appointed the Special Prosecutor, but the Supreme Court in Morrison chose to read that power very narrowly — limited to recognizing when others informed it that the job was done — to avoid what the Court thought would otherwise be probable violations of the separation of powers.)

In approving the second removal provision in Morrison, the Supreme Court explained the factors it found relevant:

the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There 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 undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.[FN31]

[FN31. We note by way of comparison that various federal agencies whose officers are covered by “good cause” removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).]

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

In addition to what it called the limited scope, duration, and discretion of the Special Prosecutor, the Court also pointed to two other factors:

…this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

…we do not think that the Act works any judicial usurpation of properly executive functions

How does the removal provision for this Special Counsel stack up to the Morrison test?

I'm going to take it as given that this special counsel's function is no greater an usurpation of the President's powers than that of the special prosecutor in Morrison (without taking a position on how big an usurpation that is — Justice Scalia's Morrison dissent argues passionately that it is enormous). The only argument that I can see for the proposition that the current Special Counsel is a greater threat to the President's powers is that the office is permanent; the Supreme Court noted that the special prosecutor was only temporary. In hindsight, given that Special Prosecutor David Barrett's investigation of Henry Cisneros consumed $21 million dollars and more than ten years' investigation but produced only a misdemeanor conviction (later pardoned), the distinction may seem academic at best. Indeed, the Special Counsel only has a five year term, arguably making his tenure more limited…)

On the one hand, since the Special Counsel is an “Officer,” rather than an “inferior officer” like the Special Prosecutor, the stakes are higher, and the requirement for Presidential control might be higher too. It follows that any removal provision that reduces the President's powers below that which the Attorney General enjoyed in Morrison are very likely to be unconstitutional; indeed even a removal provision as limited as that in Morrison might limit the President's removal power too severely for the Court unless footnote 31 quoted above is seen as controlling approval in dicta. And of course, given how reluctant the court seemed in Morrison, it is hard to imagine that a much a narrower removal provision would pass muster.

So which of these two statutes gives the removing authority less power:

  • removal for “good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties,” or
  • removal “for inefficiency, neglect of duty, or malfeasance in office.”

If you think the top statute, Morrison's, gives more removal power than the second one, then the Special Counsel law is almost certainly unconstitutional. If you think they are about the same, it's a hard call given the different nature of the jobs, but the Special Counsel might be OK. If you think that the second list more greatly empowers the removing authority (i.e. applies to a broader set of circumstances) than the top, then there's probably nothing for the Special Counsel to worry about.

My own view is that the difference between “good cause” and “inefficiency, neglect of duty, or malfeasance in office” is not very great. Thus, given the case law to date, this seems like a hard case to me, but one where the Special Counsel might squeak through on the strength of footnote 31's approving dicta. On the other hand, were the Supreme Court to decide in light of experience that Justice Scalia was right in Morrison — which after Ken Starr and David Barrett is a view now shared by many — this statute (and several others which create independent agencies) might just be for the chop.

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One Response to Is the Special Counsel Constitutional? Only Probably.

  1. Pat Gudridge says:

    There are a few steps, I believe, that I would take before trying to reach a conclusion about constitutionality here. (1) I would not try to think through section 1211 until after I put it in the context of the subsequent substantive provisions describing the job of the special counsel. In particular, I would want to think hard about section 1213 — insofar as it is large part the job of the special counsel, after investigation, to demand reports from agency heads regarding (primarily, anyway) personnel management matters, and then either report agency heads to the President and to Congress if they don’t report or pass on the reports (with recommendations) to the President and to Congress, this special counsel doesn’t look much like a Morrison special prosecutor, and ultimate presidential decisionmaking authority (and congressional oversight responsibility) appear to be acknowledged. But there’s also a lot more in the subsequent provisions which I haven’t worked through yet. (2) I would try to think through which provisions of the Constitution authorized Congress to enact this law in the first place. Maybe the Necessary and Proper Clause in this instance glossing the Take Care Clause? We don’t think, do we, that the Take Care Clause describes a responsibility that Congress cannot structure so long as Congress acts consistently with the Take Care Clause’s own point? Here, maybe, Congress is addressing a conflict of interest problem — sometimes the President might be immediately involved in the matters that come to the attention of the special counsel; more often, the agency heads will have been appointed by the President, who will (often, anyway) feel some personal or more likely political obligation to support them. Isn’t Congress acting consistently with the constitutional idea that the President “take care that the laws be faithfully executed” — where the key term is “faithfully” — by according the special counsel some measure of protection against retaliatory firing, especially if ultimate presidential responsibility is not substantively limited? Isn’t “faithful” (with its attendant conflict of interest implications) a limit as well as a grant of authority? (3) I would take the footnote in Morrison seriously: If the special counsel here is an at will employee (notwithstanding the congressional effort), why aren’t FTC commissioners, for example, also removable at will notwithstanding congressional declarations? Is it your argument — ultimately — that Humphrey’s Executor is simply wrong? As I remember it, the opinion there is full of “quasi” talk (never a good sign), but haven’t we subsequently limited agency independence enough through our recognition of agency interdependence — e.g., OMB supervision of agency expenditures — and through administrative law more generally? If so — unless you’ve joined the unitary executive team — I’m not sure why Humphrey’s Executor is an easy overrule, and if it’s not Morrision needs to be read appropriately. These are, obviously, just first thoughts and maybe all wrong.

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