U.S. Supreme Court Morrison v. Olson, 487
U.S. 654 (1988) Morrison v. Olson No. 87-1279 Argued April 26, 1988 Decided June 29, 1988 487
U.S. 654 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus This case presents the question of the constitutionality of the
independent counsel provisions of the Ethics in Government Act of
1978 (Act). It arose when the House Judiciary Committee began an
investigation into the Justice Department's role in a controversy
between the House and the Environmental Protection Agency (EPA)
with regard to the Agency's limited production of certain documents
that had been subpoenaed during an earlier House Investigation. The
Judiciary Committee's Report suggested that an official of the
Attorney General's Office (appellee Olson) had given false
testimony during the earlier EPA investigation, and that two other
officials of that Office (appellees Schmults and Dinkins) had
obstructed the EPA investigation by wrongfully withholding certain
documents. A copy of the Report was forwarded to the Attorney
General with a request, pursuant to the Act, that he seek
appointment of an independent counsel to investigate the
allegations against appellees. Ultimately, pursuant to the Act's
provisions, the Special Division (a special court created by the
Act) appointed appellant as independent counsel with respect to
Olson only, and gave her jurisdiction to investigate whether
Olson's testimony, or any other matter related thereto, violated
federal law, and to prosecute any violations. When a dispute arose
between independent counsel and the Attorney General, who refused
to furnish as "related matters" the Judiciary Committee's
allegations against Schmults and Dinkins, the Special Division
ruled that its grant of jurisdiction to counsel was broad enough to
permit inquiry into whether Olson had conspired with others,
including Schmults and Dinkins, to obstruct the EPA investigation.
Appellant then caused a grand jury to issue subpoenas on appellees,
who moved in Federal District Court to quash the subpoenas,
claiming that the Act's independent counsel provisions were
unconstitutional and that appellant accordingly had no authority to
proceed. The court upheld the Act's constitutionality, denied the
motions, and later ordered that appellees be held in contempt for
continuing to refuse to comply with the subpoenas. The Court of
Appeals reversed, holding that the Act violated the Appointments
Clause of the Constitution, Art. II, § 2, cl. 2; the
limitations Page 487 U. S. 655 of Article III; and the principle of separation of powers by
interfering with the President's authority under Article II. Held: 1. There is no merit to appellant's contention -- based on Blair v. United States, 250 U. S. 273 ,
which limited the issues that may be raised by a person who has
been held in contempt for failure to comply with a grand jury
subpoena -- that the constitutional issues addressed by the Court
of Appeals cannot be raised on this appeal from the District
Court's contempt judgment. The Court of Appeals ruled that, because
appellant had failed to object to the District Court's
consideration of the merits of appellees' constitutional claims,
she had waived her opportunity to contend on appeal that Blair
barred review of those claims. Appellant's contention is not
"jurisdictional" in the sense that it cannot be waived by failure
to raise it at the proper time and place. Nor is it the sort of
claim which would defeat jurisdiction in the District Court by
showing that an Article III "Case or Controversy" is lacking. Pp. 487 U. S.
669 -670.

															2. It does not violate the Appointments Clause for Congress to
vest the appointment of independent counsel in the Special
Division. Pp. 487 U. S.
670 -677.

															(a) Appellant is an "inferior" officer for purposes of the
Clause, which -- after providing for the appointment of certain
federal officials ("principal" officers) by the President with the
Senate's advice and consent -- states that "the Congress may by Law
vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the
Heads of Departments." Although appellant may not be "subordinate"
to the Attorney General (and the President) insofar as, under the
Act, she possesses a degree of independent discretion to exercise
the powers delegated to her, the fact that the Act authorizes her
removal by the Attorney General indicates that she is to some
degree "inferior" in rank and authority. Moreover, appellant is
empowered by the Act to perform only certain, limited duties,
restricted primarily to investigation and, if appropriate,
prosecution for certain federal crimes. In addition, appellant's
office is limited in jurisdiction to that which has been granted by
the Special Division pursuant to a request by the Attorney General.
Also, appellant's office is "temporary" in the sense that an
independent counsel is appointed essentially to accomplish a single
task, and when that task is over, the office is terminated, either
by counsel herself or by action of the Special Division. Pp. 487 U. S.
670 -673.

															(b) There is no merit to appellees' argument that, even if
appellant is an "inferior" officer, the Clause does not empower
Congress to place the power to appoint such an officer outside the
Executive Branch -- that Page 487 U. S. 656 is, to make "interbranch appointments." The Clause's language as
to "inferior" officers admits of no limitation on interbranch
appointments, but instead seems clearly to give Congress
significant discretion to determine whether it is "proper" to vest
the appointment of, for example, executive officials in the "courts
of Law." The Clause's history provides no support for appellees'
position. Moreover, Congress was concerned when it created the
office of independent counsel with the conflicts of interest that
could arise in situations when the Executive Branch is called upon
to investigate its own high-ranking officers, and the most logical
place to put the appointing authority was in the Judicial Branch.
In light of the Act's provision making the judges of the Special
Division ineligible to participate in any matters relating to an
independent counsel they have appointed, appointment of independent
counsel by that court does not run afoul of the constitutional
limitation on "incongruous" interbranch appointments. Pp. 487 U. S.
673 -677.

															3. The powers vested in the Special Division do not violate
Article III, under which executive or administrative duties of a
nonjudicial nature may not be imposed on judges holding office
under Article III. Pp. 487 U. S.
677 -685.

															(a) There can be no Article III objection to the Special
Division's exercise of the power, under the Act, to appoint
independent counsel, since the power itself derives from the
Appointments Clause, a source of authority for judicial action that
is independent of Article III. Moreover, the Division's
Appointments Clause powers encompass the power to define the
independent counsel's jurisdiction. When, as here, Congress creates
a temporary "office," the nature and duties of which will by
necessity vary with the factual circumstances giving rise to the
need for an appointment in the first place, it may vest the power
to define the office's scope in the court as an incident to the
appointment of the officer pursuant to the Appointments Clause.
However, the jurisdiction that the court decides upon must be
demonstrably related to the factual circumstances that gave rise to
the Attorney General's request for the appointment of independent
counsel in the particular case. Pp. 487 U.S. 678 -679.

															(b) Article III does not absolutely prevent Congress from
vesting certain miscellaneous powers in the Special Division under
the Act. One purpose of the broad prohibition upon the courts'
exercise of executive or administrative duties of a nonjudicial
nature is to maintain the separation between the Judiciary and the
other branches of the Federal Government by ensuring that judges do
not encroach upon executive or legislative authority or undertake
tasks that are more properly accomplished by those branches. Here,
the Division's miscellaneous powers -- such as the passive powers
to "receive" (but not to act on or specifically approve) various
reports from independent counsel or the Attorney General -- do not
encroach upon the Executive Branch's authority. The Act Page 487 U. S. 657 simply does not give the Division power to "supervise" the
independent counsel in the exercise of counsel's investigative or
prosecutorial authority. And, the functions that the Division is
empowered to perform are not inherently "Executive," but are
directly analogous to functions that federal judges perform in
other contexts. Pp. 487 U. S.
680 -681.

															(c) The Special Division's power to terminate an independent
counsel's office when counsel's task is completed -- although
"administrative" to the extent that it requires the Division to
monitor the progress of counsel's proceedings and to decide whether
counsel's job is "completed" -- is not such a significant judicial
encroachment upon executive power or upon independent counsel's
prosecutorial discretion as to require that the Act be invalidated
as inconsistent with Article III. The Act's termination provisions
do not give the Division anything approaching the power to remove
the counsel while an investigation or court proceeding is still
underway -- this power is vested solely in the Attorney General.
Pp. 487 U. S.
682 -683.

															(d) Nor does the Special Division's exercise of the various
powers specifically granted to it pose any threat to the impartial
and independent federal adjudication of claims within the judicial
power of the United States. The Act gives the Division itself no
power to review any of the independent counsel's actions or any of
the Attorney General's actions with regard to the counsel.
Accordingly, there is no risk of partisan or biased adjudication of
claims regarding the independent counsel by that court. Moreover,
the Act prevents the Division's members from participating in

															"any judicial proceeding concerning a matter which involves such
independent counsel while such independent counsel is serving in
that office or which involves the exercise of such independent
counsel's official duties, regardless of whether such independent
counsel is still serving in that office."

															Pp. 487 U. S.
683 -685.

															4. The Act does not violate separation of powers principles by
impermissibly interfering with the functions of the Executive
Branch. Pp. 487 U. S.
685 -696.

															(a) The Act's provision restricting the Attorney General's power
to remove the independent counsel to only those instances in which
he can show "good cause," taken by itself, does not impermissibly
interfere with the President's exercise of his constitutionally
appointed functions. Here, Congress has not attempted to gain a
role in the removal of executive officials other than its
established powers of impeachment and conviction. The Act instead
puts the removal power squarely in the hands of the Executive
Branch. Bowsher v. Synar, 478 U. S.
714 ; and Myers v. United States, 272 U. S. 52 ,
distinguished. The determination of whether the Constitution allows
Congress to impose a "good cause"-type restriction on the
President's power to remove an official does not turn on whether or
not that official is classified as "purely executive." The Page 487 U. S. 658 analysis contained in this Court's removal cases is designed not
to define rigid categories of those officials who may or may not be
removed at will by the President, but to ensure that Congress does
not interfere with the President's exercise of the "executive
power" and his constitutionally appointed duty to "take care that
the laws be faithfully executed" under Article II. Cf.
Humphrey's Executor v. United States, 295 U.
S. 602 ; Wiener v. United States, 357 U.
S. 349 . Here, the Act's imposition of a "good cause"
standard for removal by itself does not unduly trammel on executive
authority. The congressional determination to limit the Attorney
General's removal power was essential, in Congress' view, to
establish the necessary independence of the office of independent
counsel. Pp. 487 U. S.
685 -693.

															(b) The Act, taken as a whole, does not violate the principle of
separation of powers by unduly interfering with the Executive
Branch's role. This case does not involve an attempt by Congress to
increase its own powers at the expense of the Executive Branch. The
Act does empower certain Members of Congress to request the
Attorney General to apply for the appointment of an independent
counsel, but the Attorney General has no duty to comply with the
request, although he must respond within a certain time limit.
Other than that, Congress' role under the Act is limited to
receiving reports or other information and to oversight of the
independent counsel's activities, functions that have been
recognized generally as being incidental to the legislative
function of Congress. Similarly, the Act does not work any judicial
usurpation of properly executive functions. Nor does the Act
impermissibly undermine the powers of the Executive Branch, or
disrupt the proper balance between the coordinate branches by
preventing the Executive Branch from accomplishing its
constitutionally assigned functions. Even though counsel is to some
degree "independent" and free from Executive Branch supervision to
a greater extent than other federal prosecutors, the Act gives the
Executive Branch sufficient control over the independent counsel to
ensure that the President is able to perform his constitutionally
assigned duties. Pp. 487 U. S.
693 -696.

															267 U.S.App.D.C. 178, 838 F.2d 476, reversed.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ.,
joined. SCALIA, J., filed a dissenting opinion, post, p. 487 U. S. 697 .
KENNEDY, J., took no part in the consideration or decision of the
case. Page 487 U. S. 659 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															This case presents us with a challenge to the independent
counsel provisions of the Ethics in Government Act of 1978, 28
U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold Page 487 U. S. 660 today that these provisions of the Act do not violate the
Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or
the limitations of Article III, nor do they impermissibly interfere
with the President's authority under Article II in violation of the
constitutional principle of separation of powers. I Briefly stated, Title VI of the Ethics in Government Act (Title
VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V), [ Footnote 1 ] allows for the appointment
of an "independent counsel" to investigate and, if appropriate,
prosecute certain high ranking Government officials for violations
of federal criminal laws. [ Footnote
2 ] The Act requires the Attorney General, upon receipt of
information that he determines is "sufficient to constitute grounds
to investigate whether any person [covered by the Act] may have
violated any Federal criminal law," to conduct a preliminary
investigation of the matter. When the Attorney Page 487 U. S. 661 General has completed this investigation, or 90 days has
elapsed, he is required to report to a special court (the Special
Division) created by the Act "for the purpose of appointing
independent counsels." 28 U.S.C. § 49 (1982 ed., Supp. V).
[ Footnote 3 ] If the Attorney
General determines that "there are no reasonable grounds to believe
that further investigation is warranted," then he must notify the
Special Division of this result. In such a case, "the division of
the court shall have no power to appoint an independent counsel." §
592(b)(1). If, however, the Attorney General has determined that
there are "reasonable grounds to believe that further investigation
or prosecution is warranted," then he "shall apply to the division
of the court for the appointment of an independent counsel."
[ Footnote 4 ] The Attorney
General's application to the court

															"shall contain sufficient information to assist the [court] in
selecting an independent counsel and in defining that independent
counsel's prosecutorial jurisdiction."

															§ 592(d). Upon receiving this application, the Special Division
"shall appoint an appropriate independent counsel and shall define
that independent counsel's prosecutorial jurisdiction." § 593(b).
[ Footnote 5 ] Page 487 U. S. 662 With respect to all matters within the independent counsel's
jurisdiction, the Act grants the counsel

															"full power and independent authority to exercise all
investigative and prosecutorial functions and powers of the
Department of Justice, the Attorney General, and any other officer
or employee of the Department of Justice."

															§ 594(a). [ Footnote 6 ] The
functions of the independent counsel include conducting grand jury
proceedings and other investigations, participating in civil and
criminal court proceedings and litigation, and appealing any
decision in any case in which the counsel participates in an
official capacity. §§ 594(a)(1)-(3). Under § 594(a)(9), the
counsel's powers include

															"initiating and conducting prosecutions in any court of
competent jurisdiction, framing and signing indictments, filing
informations, and handling all aspects of any case, in the name of
the United States."

															The counsel may appoint employees, § 594(c), may request and
obtain assistance from the Department of Justice, § 594(d), and may
accept referral of matters from the Attorney General if the matter
falls within the counsel's jurisdiction as defined by the Special
Division, § 594(e). The Act also states that an independent
counsel

															"shall, except where not possible, comply with the written or
other established policies of the Department of Justice respecting
enforcement of the criminal laws."

															§ 594(f). In addition, whenever a matter has been referred to an
independent counsel under the Act, the Attorney General Page 487 U. S. 663 and the Justice Department are required to suspend all
investigations and proceedings regarding the matter. § 597(a). An
independent counsel has

															"full authority to dismiss matters within [his or her]
prosecutorial jurisdiction without conducting an investigation or
at any subsequent time before prosecution, if to do so would be
consistent"

															with Department of Justice policy. § 594(g). [ Footnote 7 ]

															Two statutory provisions govern the length of an independent
counsel's tenure in office. The first defines the procedure for
removing an independent counsel. Section 596(a)(1) provides:

															"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."

															If an independent counsel is removed pursuant to this section,
the Attorney General is required to submit a report to both the
Special Division and the Judiciary Committees of the Senate and the
House "specifying the facts found and the ultimate grounds for such
removal." § 596(a)(2). Under the current version of the Act, an
independent counsel can obtain judicial review of the Attorney
General's action by filing a civil action in the United States
District Court for the District of Columbia. Members of the Special
Division "may not hear or determine any such civil action or any
appeal of a decision Page 487 U. S. 664 in any such civil action." The reviewing court is authorized to
grant reinstatement or "other appropriate relief." § 596(a)(3).
[ Footnote 8 ]

															The other provision governing the tenure of the independent
counsel defines the procedures for "terminating" the counsel's
office. Under § 596(b)(1), the office of an independent counsel
terminates when he or she notifies the Attorney General that he or
she has completed or substantially completed any investigations or
prosecutions undertaken pursuant to the Act. In addition, the
Special Division, acting either on its own or on the suggestion of
the Attorney General, may terminate the office of an independent
counsel at any time if it finds that

															"the investigation of all matters within the prosecutorial
jurisdiction of such independent counsel . . . have been completed
or so substantially completed that it would be appropriate for the
Department of Justice to complete such investigations and
prosecutions."

															§ 596(b)(2). [ Footnote
9 ]

															Finally, the Act provides for congressional oversight of the
activities of independent counsel. An independent counsel may from
time to time send Congress statements or reports on his or her
activities. § 595(a)(2). The "appropriate committees of the
Congress" are given oversight jurisdiction in regard to the
official conduct of an independent counsel, and the counsel is
required by the Act to cooperate with Congress in the exercise of
this jurisdiction. § 595(a)(1). The counsel is required to inform
the House of Representatives of Page 487 U. S. 665 "substantial and credible information which [the counsel]
receives . . . that may constitute grounds for an impeachment." §
595(c). In addition, the Act gives certain congressional committee
members the power to "request in writing that the Attorney General
apply for the appointment of an independent counsel." § 592(g)(1).
The Attorney General is required to respond to this request within
a specified time, but is not required to accede to the request. §
592(g)(2).

															The proceedings in this case provide an example of how the Act
works in practice. In 1982, two Subcommittees of the House of
Representatives issued subpoenas directing the Environmental
Protection Agency (EPA) to produce certain documents relating to
the efforts of the EPA and the Land and Natural Resources Division
of the Justice Department to enforce the "Superfund Law." [ Footnote 10 ] At that time, appellee
Olson was the Assistant Attorney General for the Office of Legal
Counsel (OLC), appellee Schmults was Deputy Attorney General, and
appellee Dinkins was the Assistant Attorney General for the Land
and Natural Resources Division. Acting on the advice of the Justice
Department, the President ordered the Administrator of EPA to
invoke executive privilege to withhold certain of the documents on
the ground that they contained "enforcement-sensitive information."
The Administrator obeyed this order and withheld the documents. In
response, the House voted to hold the Administrator in contempt,
after which the Administrator and the United States together filed
a lawsuit against the House. The conflict abated in March, 1983,
when the administration agreed to give the House Committees limited
access to the documents.

															The following year, the House Judiciary Committee began an
investigation into the Justice Department's role in the controversy
over the EPA documents. During this investigation, appellee Olson
testified before a House Subcommittee Page 487 U. S. 666 on March 10, 1983. Both before and after that testimony, the
Department complied with several Committee requests to produce
certain documents. Other documents were at first withheld, although
these documents were eventually disclosed by the Department after
the Committee learned of their existence. In 1985, the majority
members of the Judiciary Committee published a lengthy report on
the Committee's investigation. Report on Investigation of the Role
of the Department of Justice in the Withholding of Environmental
Protection Agency Documents from Congress in 1982-83, H.R.Rep. No.
99-435 (1985). The report not only criticized various officials in
the Department of Justice for their role in the EPA executive
privilege dispute, but it also suggested that appellee Olson had
given false and misleading testimony to the Subcommittee on March
10, 1983, and that appellees Schmults and Dinkins had wrongfully
withheld certain documents from the Committee, thus obstructing the
Committee's investigation. The Chairman of the Judiciary Committee
forwarded a copy of the report to the Attorney General with a
request, pursuant to 28 U.S.C. § 592(c), that he seek the
appointment of an independent counsel to investigate the
allegations against Olson, Schmults, and Dinkins.

															The Attorney General directed the Public Integrity Section of
the Criminal Division to conduct a preliminary investigation. The
Section's report concluded that the appointment of an independent
counsel was warranted to investigate the Committee's allegations
with respect to all three appellees. After consulting with other
Department officials, however, the Attorney General chose to apply
to the Special Division for the appointment of an independent
counsel solely with respect to appellee Olson. [ Footnote 11 ] The Attorney General
accordingly Page 487 U. S. 667 requested appointment of an independent counsel to investigate
whether Olson's March 10, 1983, testimony

															"regarding the completeness of [OLC's] response to the Judiciary
Committee's request for OLC documents, and regarding his knowledge
of EPA's willingness to turn over certain disputed documents to
Congress, violated 18 U.S.C. § 1505, § 1001, or any other provision
of federal criminal law."

															Attorney General Report, at 2-3. The Attorney General also
requested that the independent counsel have authority to
investigate "any other matter related to that allegation." Id. at 11.

															On April 23, 1986, the Special Division appointed James C. McKay
as independent counsel to investigate

															"whether the testimony of . . . Olson and his revision of such
testimony on March 10, 1983, violated either 18 U.S.C. § 1505 or §
1001, or any other provision of federal law."

															The court also ordered that the independent counsel

															"shall have jurisdiction to investigate any other allegation of
evidence of violation of any Federal criminal law by Theodore Olson
developed during investigations, by the Independent Counsel,
referred to above, and connected with or arising out of that
investigation, and Independent Counsel shall have jurisdiction to
prosecute for any such violation."

															Order, Div. No. 86-1 (CADC Special Division, April 23, 1986).
McKay later resigned as independent counsel, and on May 29, 1986,
the Division appointed appellant Morrison as his replacement, with
the same jurisdiction.

															In January, 1987, appellant asked the Attorney General pursuant
to § 594(e) to refer to her as "related matters" the Committee's
allegations against appellees Schmults and Dinkins. The Attorney
General refused to refer the matters, concluding that his decision
not to request the appointment of Page 487 U. S. 668 an independent counsel in regard to those matters was final
under § 592(b)(1). Appellant then asked the Special Division to
order that the matters be referred to her under § 594(e). On April
2, 1987, the Division ruled that the Attorney General's decision
not to seek appointment of an independent counsel with respect to
Schmults and Dinkins was final and unreviewable under § 592(b)(1),
and that therefore the court had no authority to make the requested
referral. In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34.
The court ruled, however, that its original grant of jurisdiction
to appellant was broad enough to permit inquiry into whether Olson
may have conspired with others, including Schmults and Dinkins, to
obstruct the Committee's investigation. Id. at 181-182,
818 F.2d at 47-48.

															Following this ruling, in May and June, 1987, appellant caused a
grand jury to issue and serve subpoenas ad testificandum and duces tecum on appellees. All three appellees moved to
quash the subpoenas, claiming, among other things, that the
independent counsel provisions of the Act were unconstitutional,
and that appellant accordingly had no authority to proceed. On July
20, 1987, the District Court upheld the constitutionality of the
Act and denied the motions to quash. In re Sealed
Case, 665 F. Supp.
56 (DC). The court subsequently ordered that appellees be held
in contempt pursuant to 28 U.S.C. § 1826(a) for continuing to
refuse to comply with the subpoenas. See App. to Juris.
Statement 140a, 143a, 146a. The court stayed the effect of its
contempt orders pending expedited appeal.

															A divided Court of Appeals reversed. In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled first
that an independent counsel is not an "inferior Officer" of the
United States for purposes of the Appointments Clause. Accordingly,
the court found the Act invalid because it does not provide for the
independent counsel to be nominated by the President and confirmed
by the Senate, as the Clause requires for "principal" officers. The
court then Page 487 U. S. 669 went on to consider several alternative grounds for its
conclusion that the statute was unconstitutional. In the majority's
view, the Act also violates the Appointments Clause insofar as it
empowers a court of law to appoint an "inferior" officer who
performs core executive functions; the Act's delegation of various
powers to the Special Division violates the limitations of Article
III; the Act's restrictions on the Attorney General's power to
remove an independent counsel violate the separation of powers; and
finally, the Act interferes with the Executive Branch's prerogative
to "take care that the Laws be faithfully executed," Art. II, § 3.
The dissenting judge was of the view that the Act was
constitutional. 267 U.S.App.D.C. at 238, 838 F.2d at 536. Appellant
then sought review by this Court, and we noted probable
jurisdiction. 484 U.S. 1058 (1988). We now reverse. II Before we get to the merits, we first must deal with appellant's
contention that the constitutional issues addressed by the Court of
Appeals cannot be reviewed on this appeal from the District Court's
contempt judgment. Appellant relies on Blair v. United
States, 250 U. S. 273 (1919), in which this Court limited rather sharply the issues that
may be raised by an individual who has been subpoenaed as a grand
jury witness and has been held in contempt for failure to comply
with the subpoena. On the facts of this case, however, we find it
unnecessary to consider whether Blair has since been
narrowed by our more recent decisions, as appellees contend and the
Court of Appeals found in another related case, In re Sealed
Case, 264 U.S.App.D.C. 125, 827 F.2d 776 (1987). Appellant
herself admits that she failed to object to the District Court's
consideration of the merits of appellees' constitutional claims,
and as a result, the Court of Appeals ruled that she had waived her
opportunity to contend on appeal that review of those claims was
barred by Blair. We see no reason why the Court of Appeals
was not entitled to conclude Page 487 U. S. 670 that the failure of appellant to object on this ground in the
District Court was a sufficient reason for refusing to consider it,
and we likewise decline to consider it. Appellant's contention is
not "jurisdictional" in the sense that it cannot be waived by
failure to raise it at the proper time and place. It is not the
sort of claim which would defeat jurisdiction in the District Court
by showing that an Article III "Case" or "Controversy" is lacking.
Appellees are subject to the burden of complying with the grand
jury subpoena as a result of the District Court's contempt order,
there is a legitimate adversarial relationship between the parties,
and the courts possess the power to redress or resolve the current
controversy. See Bender v. Williamsport Area School
District, 475 U. S. 534 , 475 U. S.
541 -543 (1986). We therefore turn to consider the merits
of appellees' constitutional claims. III The Appointments Clause of Article II reads as follows:

															"[The 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 supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments."

															U.S.Const., Art. II, § 2, cl. 2. The parties do not dispute that
"[t]he Constitution for purposes of appointment . . . divides all
its officers into two classes." United States v. Germaine, 99 U. S. 508 , 99 U. S. 509 (1879). As we stated in Buckley v. Valeo, 424 U. S.
1 , 424 U. S. 132 (1976):

															"Principal officers are selected by the President with the
advice and consent of the Senate. Inferior officers Congress may
allow to be appointed by the President alone, by the heads of
departments, or by the Judiciary."

															The initial Page 487 U. S. 671 question is, accordingly, whether appellant is an "inferior" or
a "principal" officer. [ Footnote
12 ] If she is the latter, as the Court of Appeals concluded,
then the Act is in violation of the Appointments Clause.

															The line between "inferior" and "principal" officers is one that
is far from clear, and the Framers provided little guidance into
where it should be drawn. See, e.g., 2 J. Story,
Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858)
("In the practical course of the government, there does not seem to
have been any exact line drawn, who are and who are not to be
deemed inferior officers, in the sense of the
constitution, whose appointment does not necessarily require the
concurrence of the senate"). We need not attempt here to decide
exactly where the line falls between the two types of officers,
because, in our view, appellant clearly falls on the "inferior
officer" side of that line. Several factors lead to this
conclusion.

															First, appellant is subject to removal by a higher Executive
Branch official. Although appellant may not be "subordinate" to the
Attorney General (and the President) insofar as she possesses a
degree of independent discretion to exercise the powers delegated
to her under the Act, the fact that she can be removed by the
Attorney General indicates that she is, to some degree, "inferior"
in rank and authority. Second, appellant is empowered by the Act to
perform only certain, limited duties. An independent counsel's role
is restricted primarily to investigation and, if appropriate,
prosecution for certain federal crimes. Admittedly, the Act
delegates to appellant "full power and independent authority to
exercise all investigative and prosecutorial functions and powers
of the Department of Justice," § 594(a), but this grant of
authority does not include any authority to formulate policy for
the Government or the Executive Branch, nor does it give appellant
any administrative duties outside of those necessary Page 487 U. S. 672 to operate her office. The Act specifically provides that, in
policy matters, appellant is to comply to the extent possible with
the policies of the Department. § 594(f).

															Third, appellant's office is limited in jurisdiction. Not only
is the Act itself restricted in applicability to certain federal
officials suspected of certain serious federal crimes, but an
independent counsel can only act within the scope of the
jurisdiction that has been granted by the Special Division pursuant
to a request by the Attorney General. Finally, appellant's office
is limited in tenure. There is concededly no time limit on the
appointment of a particular counsel. Nonetheless, the office of
independent counsel is "temporary" in the sense that an independent
counsel is appointed essentially to accomplish a single task, and
when that task is over, the office is terminated, either by the
counsel herself or by action of the Special Division. Unlike other
prosecutors, appellant has no ongoing responsibilities that extend
beyond the accomplishment of the mission that she was appointed for
and authorized by the Special Division to undertake. In our view,
these factors relating to the "ideas of tenure, duration . . . and
duties" of the independent counsel, Germaine, supra, at 99 U. S. 511 ,
are sufficient to establish that appellant is an "inferior" officer
in the constitutional sense.

															This conclusion is consistent with our few previous decisions
that considered the question of whether a particular Government
official is a "principal" or an "inferior" officer. In United
States v. Eaton, 169 U. S. 331 (1898), for example, we approved Department of State regulations
that allowed executive officials to appoint a "vice-consul" during
the temporary absence of the consul, terming the "vice-consul" a
"subordinate officer" notwithstanding the Appointment Clause's
specific reference to "Consuls" as principal officers. As we
stated:

															"Because the subordinate officer is charged with the performance
of the duty of the superior for a limited time and under special
and temporary conditions, he is not thereby transformed into the
superior and permanent official. " Page 487 U. S. 673 Id. at 169 U. S. 343 .
In Ex parte Siebold, 100 U. S. 371 (1880), the Court found that federal "supervisor[s] of elections,"
who were charged with various duties involving oversight of local
congressional elections, see id. at 100 U. S.
379 -380, were inferior officers for purposes of the
Clause. In Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S.
352 -353 (1931), we held that "United States
commissioners are inferior officers." Id. at 282 U. S. 352 .
These commissioners had various judicial and prosecutorial powers,
including the power to arrest and imprison for trial, to issue
warrants, and to institute prosecutions under "laws relating to the
elective franchise and civil rights." Id. at 282 U. S. 353 ,
n. 2. All of this is consistent with our reference in United
States v. Nixon, 418 U. S. 683 , 418 U. S. 694 , 418 U. S. 696 (1974), to the office of Watergate Special Prosecutor -- whose
authority was similar to that of appellant, see id. at 418 U. S. 694 ,
n. 8 -- as a "subordinate officer."

															This does not, however, end our inquiry under the Appointments
Clause. Appellees argue that, even if appellant is an "inferior"
officer, the Clause does not empower Congress to place the power to
appoint such an officer outside the Executive Branch. They contend
that the Clause does not contemplate congressional authorization of
"interbranch appointments," in which an officer of one branch is
appointed by officers of another branch. The relevant language of
the Appointments Clause is worth repeating. It reads:

															". . . but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the courts of Law, or in the Heads of Departments."

															On its face, the language of this "excepting clause" admits of
no limitation on interbranch appointments. Indeed, the inclusion of
"as they think proper" seems clearly to give Congress significant
discretion to determine whether it is "proper" to vest the
appointment of, for example, executive officials in the "courts of
Law." We recognized as much in one of our few decisions in this
area, Ex parte Siebold, supra, where we stated: Page 487 U. S. 674 "It is no doubt usual and proper to vest the appointment of
inferior officers in that department of the government, executive
or judicial, or in that particular executive department to which
the duties of such officers appertain. But there is no absolute
requirement to this effect in the Constitution; and, if there were,
it would be difficult in many cases to determine to which
department an office properly belonged. . . ."

															"But as the Constitution stands, the selection of the appointing
power, as between the functionaries named, is a matter resting in
the discretion of Congress. And, looking at the subject in a
practical light, it is perhaps better that it should rest there
than that the country should be harassed by the endless
controversies to which a more specific direction on this subject
might have given rise." Id. at 100 U. S.
397 -398. Our only decision to suggest otherwise, Ex parte
Hennen , 13 Pet. 230 (1839), from which the first
sentence in the above quotation from Siebold was derived,
was discussed in Siebold and distinguished as

															"not intended to define the constitutional power of Congress in
this regard, but rather to express the law or rule by which it
should be governed."

															100 U.S. at 100 U. S. 398 .
Outside of these two cases, there is very little, if any, express
discussion of the propriety of interbranch appointments in our
decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the
excepting clause.

															We also note that the history of the Clause provides no support
for appellees' position. Throughout most of the process of drafting
the Constitution, the Convention concentrated on the problem of who
should have the authority to appoint judges. At the suggestion of
James Madison, the Convention adopted a proposal that the Senate
should have this authority, 1 Records of the Federal Convention of
1787, pp. 232-233 (M. Farrand ed.1966), and several attempts to
transfer the appointment power to the President were rejected. Page 487 U. S. 675 See 2 id. at 42-44, 80-83. The August 6, 1787,
draft of the Constitution reported by the Committee of Detail
retained Senate appointment of Supreme Court Judges, provided also
for Senate appointment of ambassadors, and vested in the President
the authority to "appoint officers in all cases not otherwise
provided for by this Constitution." Id. at 183, 185. This
scheme was maintained until September 4, when the Committee of
Eleven reported its suggestions to the Convention. This Committee
suggested that the Constitution be amended to state that the
President

															"shall nominate and by and with the advice and consent of the
Senate shall appoint ambassadors, and other public Ministers,
Judges of the Supreme Court, and all other Officers of the [United
States], whose appointments are not otherwise herein provided
for." Id. at 498-499. After the addition of "Consuls" to the
list, the Committee's proposal was adopted, id. at 539,
and was subsequently reported to the Convention by the Committee of
Style. See id. at 599. It was at this point, on September
15, that Gouverneur Morris moved to add the Excepting Clause to
Art. II, § 2. Id. at 627. The one comment made on this
motion was by Madison, who felt that the Clause did not go far
enough, in that it did not allow Congress to vest appointment
powers in "Superior Officers below Heads of Departments." The first
vote on Morris' motion ended in a tie. It was then put forward a
second time, with the urging that "some such provision [was] too
necessary to be omitted." This time the proposal was adopted. Id. at 627-628. As this discussion shows, there was little
or no debate on the question whether the Clause empowers Congress
to provide for interbranch appointments, and there is nothing to
suggest that the Framers intended to prevent Congress from having
that power.

															We do not mean to say that Congress' power to provide for
interbranch appointments of "inferior officers" is unlimited. In
addition to separation of powers concerns, which would arise if
such provisions for appointment had the potential to Page 487 U. S. 676 impair the constitutional functions assigned to one of the
branches, Siebold itself suggested that Congress' decision
to vest the appointment power in the courts would be improper if
there was some "incongruity" between the functions normally
performed by the courts and the performance of their duty to
appoint. 100 U.S. at 100 U. S. 398 ("[T]he duty to appoint inferior officers, when required thereto by
law, is a constitutional duty of the courts; and in the present
case, there is no such incongruity in the duty required as to
excuse the courts from its performance, or to render their acts
void"). In this case, however, we do not think it impermissible for
Congress to vest the power to appoint independent counsel in a
specially created federal court. We thus disagree with the Court of
Appeals' conclusion that there is an inherent incongruity about a
court having the power to appoint prosecutorial officers. [ Footnote 13 ] We have recognized that
courts may appoint private attorneys to act as prosecutor for
judicial contempt judgments. See Young v. United States ex rel.
Vuitton et Fils S.A., 481 U. S. 787 (1987). In Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), we approved court appointment of United States
commissioners, who exercised certain limited prosecutorial powers. Id. at 282 U. S. 353 ,
n. 2. In Siebold, as well, we indicated that judicial
appointment of federal marshals, who are "executive officer[s],"
would not be inappropriate. Lower courts have also upheld interim
judicial appointments of United States Attorneys, see United
States v. Solomon, 216 F.
Supp. 835 (SDNY 1963), and Congress itself has vested the power
to make these interim appointments in the district courts, see 28 Page 487 U. S. 677 U.S.C. § 546(d) (1982 ed., Supp. V). [ Footnote 14 ] Congress of course was concerned when it
created the office of independent counsel with the conflicts of
interest that could arise in situations when the Executive Branch
is called upon to investigate its own high-ranking officers. If it
were to remove the appointing authority from the Executive Branch,
the most logical place to put it was in the Judicial Branch. In the
light of the Act's provision making the judges of the Special
Division ineligible to participate in any matters relating to an
independent counsel they have appointed, 28 U.S.C. § 49(f) (1982
ed., Supp. V), we do not think that appointment of the independent
counsel by the court runs afoul of the constitutional limitation on
"incongruous" interbranch appointments. IV Appellees next contend that the powers vested in the Special
Division by the Act conflict with Article III of the Constitution.
We have long recognized that by the express provision of Article
III, the judicial power of the United States is limited to "Cases"
and "Controversies." See Muskrat v. United States, 219 U. S. 346 , 219 U. S. 356 (1911). As a general rule, we have broadly stated that "executive
or administrative duties of a nonjudicial nature may not be imposed
on judges holding office under Art. III of the Constitution." Buckley, 424 U.S. at 424 U. S. 123 (citing United States v.
Ferreira , 13 How. 40 (1852); Hayburn's
Case , 2 Dall. 409 (1792)). [ Footnote 15 ] The purpose Page 487 U. S. 678 of this limitation is to help ensure the independence of the
Judicial Branch and to prevent the judiciary from encroaching into
areas reserved for the other branches. See United States Parole
Comm'n v. Geraghty, 445 U. S. 388 , 445 U. S. 396 (1980). With this in mind, we address in turn the various duties
given to the Special Division by the Act.

															Most importantly, the Act vests in the Special Division the
power to choose who will serve as independent counsel and the power
to define his or her jurisdiction. § 593(b). Clearly, once it is
accepted that the Appointments Clause gives Congress the power to
vest the appointment of officials such as the independent counsel
in the "courts of Law," there can be no Article III objection to
the Special Division's exercise of that power, as the power itself
derives from the Appointments Clause, a source of authority for
judicial action Page 487 U. S. 679 that is independent of Article III. [ Footnote 16 ] Appellees contend, however, that the
Division's Appointments Clause powers do not encompass the power to
define the independent counsel's jurisdiction. We disagree. In our
view, Congress' power under the Clause to vest the "Appointment" of
inferior officers in the courts may, in certain circumstances,
allow Congress to give the courts some discretion in defining the
nature and scope of the appointed official's authority.
Particularly when, as here, Congress creates a temporary "office"
the nature and duties of which will by necessity vary with the
factual circumstances giving rise to the need for an appointment in
the first place, it may vest the power to define the scope of the
office in the court as an incident to the appointment of the
officer pursuant to the Appointments Clause. This said, we do not
think that Congress may give the Division unlimited discretion to
determine the independent counsel's jurisdiction. In order for the
Division's definition of the counsel's jurisdiction to be truly
"incidental" to its power to appoint, the jurisdiction that the
court decides upon must be demonstrably related to the factual
circumstances that gave rise to the Attorney General's
investigation and request for the appointment of the independent
counsel in the particular case. [ Footnote 17 ] Page 487 U. S. 680 The Act also vests in the Special Division various powers and
duties in relation to the independent counsel that, because they do
not involve appointing the counsel or defining his or her
jurisdiction, cannot be said to derive from the Division's
Appointments Clause authority. These duties include granting
extensions for the Attorney General's preliminary investigation, §
592(a)(3); receiving the report of the Attorney General at the
conclusion of his preliminary investigation, §§ 592(b)(1),
593(c)(2)(B); referring matters to the counsel upon request, §
594(e); [ Footnote 18 ]
receiving reports from the counsel regarding expenses incurred, §
594(h)(1)(A); receiving a report from the Attorney General
following the removal of an independent counsel, § 596(a)(2);
granting attorney's fees upon request to individuals who were
investigated but not indicted by an independent counsel, § 593(f);
receiving a final report from the counsel, § 594(h)(1)(B); deciding
whether to release the counsel's final report to Congress or the
public and determining whether any protective orders should be
issued, § 594(h)(2); and terminating an independent counsel when
his or her task is completed, § 596(b)(2).

															Leaving aside for the moment the Division's power to terminate
an independent counsel, we do not think that Article III absolutely
prevents Congress from vesting these other miscellaneous powers in
the Special Division pursuant to the Act. As we observed above, one
purpose of the broad prohibition upon the courts' exercise of
"executive or administrative duties of a nonjudicial nature," Buckley, 424 U.S. at 424 U. S. 123 ,
is to maintain the separation between the judiciary and the other
branches of the Federal Government by ensuring that judges do not
encroach upon executive or legislative authority or undertake tasks
that are more properly accomplished Page 487 U. S. 681 by those branches. In this case, the miscellaneous powers
described above do not impermissibly trespass upon the authority of
the Executive Branch. Some of these allegedly "supervisory" powers
conferred on the court are passive: the Division merely "receives"
reports from the counsel or the Attorney General; it is not
entitled to act on them or to specifically approve or disapprove of
their contents. Other provisions of the Act do require the court to
exercise some judgment and discretion, [ Footnote 19 ] but the powers granted by these
provisions are themselves essentially ministerial. The Act simply
does not give the Division the power to "supervise" the independent
counsel in the exercise of his or her investigative or
prosecutorial authority. And the functions that the Special
Division is empowered to perform are not inherently "Executive";
indeed, they are directly analogous to functions that federal
judges perform in other contexts, such as deciding whether to allow
disclosure of matters occurring before a grand jury, see Fed.Rule Crim.Proc. 6(e), deciding to extend a grand jury
investigation, Rule 6(g), or awarding attorney's fees, see,
e.g., 42 U.S.C. § 1988. [ Footnote 20 ] Page 487 U. S. 682 We are more doubtful about the Special Division's power to
terminate the office of the independent counsel pursuant to §
596(b)(2). As appellees suggest, the power to terminate, especially
when exercised by the Division on its own motion, is
"administrative" to the extent that it requires the Special
Division to monitor the progress of proceedings of the independent
counsel and come to a decision as to whether the counsel's job is
"completed." § 596(b)(2). It also is not a power that could be
considered typically "judicial," as it has few analogues among the
court's more traditional powers. Nonetheless, we do not, as did the
Court of Appeals, view this provision as a significant judicial
encroachment upon executive power or upon the prosecutorial
discretion of the independent counsel.

															We think that the Court of Appeals overstated the matter when it
described the power to terminate as a "broadsword and . . . rapier"
that enables the court to "control the pace and depth of the
independent counsel's activities." 267 U.S.App.D.C. at 217, 838
F.2d at 515. The provision has not been tested in practice, and we
do not mean to say that an adventurous special court could not
reasonably construe the provision as did the Court of Appeals; but
it is the duty of federal courts to construe a statute in order to
save it from constitutional infirmities, see, e.g., Commodity
Futures Trading Comm'n v. Schor, 478 U.
S. 833 , 478 U. S. 841 (1986), and to that end we think a narrow construction is
appropriate here. The termination provisions of the Act do not give
the Special Division anything approaching the power to remove the
counsel while an investigation or court proceeding is still
underway -- this power is vested solely in the Attorney General. As
we see it, "termination" may occur only when the duties of Page 487 U. S. 683 the counsel are truly "completed" or "so substantially
completed" that there remains no need for any continuing action by
the independent counsel. [ Footnote 21 ] It is basically a device for removing from
the public payroll an independent counsel who has served his or her
purpose, but is unwilling to acknowledge the fact. So construed,
the Special Division's power to terminate does not pose a
sufficient threat of judicial intrusion into matters that are more
properly within the Executive's authority to require that the Act
be invalidated as inconsistent with Article III.

															Nor do we believe, as appellees contend, that the Special
Division's exercise of the various powers specifically granted to
it under the Act poses any threat to the "impartial and independent
federal adjudication of claims within the judicial power of the
United States." Commodity Futures Trading Comm'n v. Schor,
supra, at 478 U. S. 850 .
We reach this conclusion for two reasons. First, the Act as it
currently stands gives the Special Division itself no power to
review any of the actions of the independent counsel or any of the
actions of the Attorney General with regard to the counsel.
Accordingly, there is no risk of partisan or biased adjudication of
claims regarding the independent counsel by that court. Second, the
Act prevents members of the Special Division from participating
in

															" any judicial proceeding concerning a matter which
involves such independent counsel while such independent counsel is
serving in that office or which involves the exercise of such
independent counsel's official duties, regardless Page 487 U. S. 684 of whether such independent counsel is still serving in that
office."

															28 U.S.C. § 49(f) (1982 ed., Supp. V) (emphasis added); see
also § 596(a)(3) (preventing members of the Special Division
from participating in review of the Attorney General's decision to
remove an independent counsel). We think both the special court and
its judges are sufficiently isolated by these statutory provisions
from the review of the activities of the independent counsel so as
to avoid any taint of the independence of the judiciary such as
would render the Act invalid under Article III.

															We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties
that are not specifically authorized by the Act. The gradual
expansion of the authority of the Special Division might, in
another context, be a bureaucratic success story, but it would be
one that would have serious constitutional ramifications. The
record in other cases involving independent counsel indicate that
the Special Division has at times given advisory opinions or issued
orders that are not directly authorized by the Act. Two examples of
this were cited by the Court of Appeals, which noted that the
Special Division issued "orders" that ostensibly exempted the
independent counsel from conflict of interest laws. See 267 U.S.App.D.C. at 216, and n. 60, 838 F.2d at 514, and n. 60
(citing In re Deaver, No. 86-2 (CADC Special Division,
July 2, 1986) and In re Olson, No. 86-1 (CADC Special
Division, June 18, 1986)). In another case, the Division reportedly
ordered that a counsel postpone an investigation into certain
allegations until the completion of related state criminal
proceedings. See H.R.Rep. Conf. Rep. No. 100-452, p. 26
(1987). The propriety of the Special Division's actions in these
instances is not before us as such, but we nonetheless think it
appropriate to point out not only that there is no authorization
for such actions in the Act itself, but that the Division's
exercise of unauthorized Page 487 U. S. 685 powers risks the transgression of the constitutional limitations
of Article III that we have just discussed. [ Footnote 22 ] V We now turn to consider whether the Act is invalid under the
constitutional principle of separation of powers. Two related
issues must be addressed: the first is whether the provision of the
Act restricting the Attorney General's power to remove the
independent counsel to only those instances in which he can show
"good cause," taken by itself, impermissibly interferes with the
President's exercise of his constitutionally appointed functions.
The second is whether, taken as a whole, the Act violates the
separation of powers by reducing the President's ability to control
the prosecutorial powers wielded by the independent counsel. A Two Terms ago, we had occasion to consider whether it was
consistent with the separation of powers for Congress to pass a
statute that authorized a Government official who is removable only
by Congress to participate in what we found to be "executive
powers." Bowsher v. Synar, 478 U.
S. 714 , 478 U. S. 730 (1986). We held in Bowsher that "Congress cannot
reserve Page 487 U. S. 686 for itself the power of removal of an officer charged with the
execution of the laws except by impeachment." Id. at 478 U. S. 726 .
A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U. S. 52 . Myers had considered the propriety of a federal statute by
which certain postmasters of the United States could be removed by
the President only "by and with the advice and consent of the
Senate." There too, Congress' attempt to involve itself in the
removal of an executive official was found to be sufficient grounds
to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that
the Constitution prevents Congress from

															"draw[ing] to itself . . . the power to remove or the right to
participate in the exercise of that power. To do this would be to
go beyond the words and implications of the [Appointments Clause]
and to infringe the constitutional principle of the separation of
governmental powers." Myers, supra, at 272 U. S.
161 .

															Unlike both Bowsher and Myers, this case does
not involve an attempt by Congress itself to gain a role in the
removal of executive officials other than its established powers of
impeachment and conviction. The Act instead puts the removal power
squarely in the hands of the Executive Branch; an independent
counsel may be removed from office, "only by the personal action of
the Attorney General, and only for good cause." § 596(a)(1).
[ Footnote 23 ] There is no
requirement of congressional approval of the Attorney General's
removal decision, though the decision is subject to judicial
review. § 596(a)(3). In our view, the removal provisions of the Act
make this case more analogous to Humphrey's Executor v. United
States, 295 U. S. 602 (1935), and Wiener v. United States, 357 U.
S. 349 (1958), than to Myers or Bowsher. Page 487 U. S. 687 In Humphrey's Executor, the issue was whether a statute
restricting the President's power to remove the commissioners of
the Federal Trade Commission only for "inefficiency, neglect of
duty, or malfeasance in office" was consistent with the
Constitution. 295 U.S. at 295 U. S. 619 .
We stated that whether Congress can

															"condition the [President's power of removal] by fixing a
definite term and precluding a removal except for cause will depend
upon the character of the office." Id. at 295 U. S. 631 .
Contrary to the implication of some dicta in Myers, [ Footnote 24 ] the
President's power to remove Government officials simply was not
"all-inclusive in respect of civil officers with the exception of
the judiciary provided for by the Constitution." 295 U.S. at 295 U. S. 629 .
At least in regard to "quasi-legislative" and "quasi-judicial"
agencies such as the FTC, [ Footnote 25 ]

															"[t]he authority of Congress, in creating [such] agencies, to
require them to act in discharge of their duties independently of
executive control . . . includes, as an appropriate incident, power
to fix the period during which they shall continue in office, and
to forbid their removal except for cause in the meantime." Ibid. In Humphrey's Executor, we found it
"plain" that the Constitution did not give the President
"illimitable power of removal" over the officers of independent
agencies. Ibid. Were the President to have Page 487 U. S. 688 the power to remove FTC commissioners at will, the "coercive
influence" of the removal power would "threate[n] the independence
of [the] commission." Id. at 295 U. S.
630 .

															Similarly, in Wiener, we considered whether the
President had unfettered discretion to remove a member of the War
Claims Commission, which had been established by Congress in the
War Claims Act of 1948, 62 Stat. 1240. The Commission's function
was to receive and adjudicate certain claims for compensation from
those who had suffered personal injury or property damage at the
hands of the enemy during World War II. Commissioners were
appointed by the President, with the advice and consent of the
Senate, but the statute made no provision for the removal of
officers, perhaps because the Commission itself was to have a
limited existence. As in Humphrey's Executor, however, the
Commissioners were entrusted by Congress with adjudicatory powers
that were to be exercised free from executive control. In this
context,

															"Congress did not wish to have hang over the Commission the
Damocles' sword of removal by the President for no reason other
than that he preferred to have on that Commission men of his own
choosing."

															357 U.S. at 357 U. S. 356 .
Accordingly, we rejected the President's attempt to remove a
Commissioner "merely because he wanted his own appointees on [the]
Commission," stating that "no such power is given to the President
directly by the Constitution, and none is impliedly conferred upon
him by statute." Ibid. Appellees contend that Humphrey's Executor and Wiener are distinguishable from this case because they did
not involve officials who performed a "core executive function."
They argue that our decision in Humphrey's Executor rests
on a distinction between "purely executive" officials and officials
who exercise "quasi-legislative" and "quasi-judicial" powers. In
their view, when a "purely executive" official is involved, the
governing precedent is Myers, not Humphrey's
Executor. See Humphrey's Executor, supra, at 295 U. S. 628 .
And, under Myers, the President must have absolute
discretion to Page 487 U. S. 689 discharge "purely" executive officials at will. See
Myers, 272 U.S. at 272 U. S.
132 -134. [ Footnote
26 ]

															We undoubtedly did rely on the terms "quasi-legislative" and
"quasi-judicial" to distinguish the officials involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the
determination of whether the Constitution allows Congress to impose
a "good cause"-type restriction on the President's power to remove
an official cannot be made to turn on whether or not that official
is classified as "purely executive." [ Footnote 27 ] The analysis contained in our removal cases
is designed not to define rigid categories of those officials who
may or may not be removed at will by the President, [ Footnote 28 ] but to ensure that Congress
does Page 487 U. S. 690 not interfere with the President's exercise of the "executive
power" and his constitutionally appointed duty to "take care that
the laws be faithfully executed" under Article II. Myers was undoubtedly correct in its holding, and in its broader
suggestion that there are some "purely executive" officials who
must be removable by the President at will if he is to be able to
accomplish his constitutional role. [ Footnote 29 ] See 272 U.S. at 272 U. S.
132 -134. But as the Court noted in Wiener: "The assumption was short-lived that the Myers case
recognized the President's inherent constitutional power to remove
officials no matter what the relation of the executive to the
discharge of their duties and no matter what restrictions Congress
may have imposed regarding the nature of their tenure."

															357 U.S. at 357 U. S.
352 .

															At the other end of the spectrum from Myers, the
characterization of the agencies in Humphrey's Executor and Wiener Page 487 U. S. 691 as "quasi-legislative" or "quasi-judicial" in large part
reflected our judgment that it was not essential to the President's
proper execution of his Article II powers that these agencies be
headed up by individuals who were removable at will. [ Footnote 30 ] We do not mean to
suggest that an analysis of the functions served by the officials
at issue is irrelevant. But 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 Page 487 U. S. 692 law that the counsel be terminable at will by the President.
[ Footnote 31 ]

															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. [ Footnote 32 ] Although we need not decide in this case
exactly what is encompassed within the term "good cause" under the
Act, the legislative history of the removal provision also makes
clear that the Attorney General may remove an independent counsel
for "misconduct." See H.R.Conf.Rep. No. 100-452, p. 37
(1987). Here, as with the provision of the Act conferring the
appointment authority of Page 487 U. S. 693 the independent counsel on the special court, the congressional
determination to limit the removal power of the Attorney General
was essential, in the view of Congress, to establish the necessary
independence of the office. We do not think that this limitation as
it presently stands sufficiently deprives the President of control
over the independent counsel to interfere impermissibly with his
constitutional obligation to ensure the faithful execution of the
laws. [ Footnote 33 ] B The final question to be addressed is whether the Act, taken as
a whole, violates the principle of separation of powers by unduly
interfering with the role of the Executive Branch. Time and again
we have reaffirmed the importance in our constitutional scheme of
the separation of governmental powers into the three coordinate
branches. See, e.g., Bowsher v. Synar, 478 U.S. at 478 U. S. 725 (citing Humphrey's Executor, 295 U.S. at 295 U. S.
629 -630). As we stated in Buckley v. Valeo, 424 U. S. 1 (1976),
the system of separated powers and checks and balances established
in the Constitution was regarded by the Framers as "a
self-executing safeguard against the encroachment or aggrandizement
of one branch at the expense of the other." Id. at 424 U. S. 122 .
We have not hesitated to invalidate provisions of law which violate
this principle. See id. at 424 U. S. 123 .
On the other hand, we have never held that the Constitution
requires that the three Page 487 U. S. 694 Branches of Government "operate with absolute independence." United States v. Nixon, 418 U.S. at 418 U. S. 707 ; see also Nixon v. Administrator of General Services, 433 U. S. 425 , 433 U. S. 442 (1977) (citing James Madison in The Federalist No. 47, and Joseph
Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th
ed.1905)). In the often-quoted words of Justice Jackson:

															"While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but
reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.
S. 579 , 343 U. S. 635 (1952) (concurring opinion).

															We observe first that this case does not involve an attempt by
Congress to increase its own powers at the expense of the Executive
Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478
U.S. at 478 U. S. 856 .
Unlike some of our previous cases, most recently Bowsher v.
Synar, this case simply does not pose a "dange[r] of
congressional usurpation of Executive Branch functions." 478 U.S.
at 478 U. S. 727 ; see also INS v. Chadha, 462 U. S. 919 , 462 U. S. 958 (1983). Indeed, with the exception of the power of impeachment --
which applies to all officers of the United States -- Congress
retained for itself no powers of control or supervision over an
independent counsel. The Act does empower certain Members of
Congress to request the Attorney General to apply for the
appointment of an independent counsel, but the Attorney General has
no duty to comply with the request, although he must respond within
a certain time limit. § 592(g). Other than that, Congress' role
under the Act is limited to receiving reports or other information
and oversight of the independent counsel's activities, § 595(a),
functions that we have recognized generally as being incidental to
the legislative function of Congress. See McGrain v.
Daugherty, 273 U. S. 135 , 273 U. S. 174 (1927). Page 487 U. S. 695 Similarly, we do not think that the Act works any judicial
usurpation of properly executive functions. As should be apparent
from our discussion of the Appointments Clause above, the power to
appoint inferior officers such as independent counsel is not, in
itself, an "executive" function in the constitutional sense, at
least when Congress has exercised its power to vest the appointment
of an inferior office in the "courts of Law." We note nonetheless
that, under the Act, the Special Division has no power to appoint
an independent counsel sua sponte; it may only do so upon
the specific request of the Attorney General, and the courts are
specifically prevented from reviewing the Attorney General's
decision not to seek appointment, § 592(f). In addition, once the
court has appointed a counsel and defined his or her jurisdiction,
it has no power to supervise or control the activities of the
counsel. As we pointed out in our discussion of the Special
Division in relation to Article III, the various powers delegated
by the statute to the Division are not supervisory or
administrative, nor are they functions that the Constitution
requires be performed by officials within the Executive Branch. The
Act does give a federal court the power to review the Attorney
General's decision to remove an independent counsel, but in our
view this is a function that is well within the traditional power
of the judiciary.

															Finally, we do not think that the Act "impermissibly
undermine[s]" the powers of the Executive Branch, Schor
supra, at 478 U. S. 856 ,
or

															"disrupts the proper balance between the coordinate branches
[by] prevent[ing] the Executive Branch from accomplishing its
constitutionally assigned functions," Nixon v. Administrator of General Services, supra, at 433 U. S. 443 .
It is undeniable that the Act reduces the amount of control or
supervision that the Attorney General and, through him, the
President exercises over the investigation and prosecution of a
certain class of alleged criminal activity. The Attorney General is
not allowed to appoint the individual of his choice; he does not
determine the counsel's jurisdiction; and his Page 487 U. S. 696 power to remove a counsel is limited. [ Footnote 34 ] Nonetheless, the Act does give the
Attorney General several means of supervising or controlling the
prosecutorial powers that may be wielded by an independent counsel.
Most importantly, the Attorney General retains the power to remove
the counsel for "good cause," a power that we have already
concluded provides the Executive with substantial ability to ensure
that the laws are "faithfully executed" by an independent counsel.
No independent counsel may be appointed without a specific request
by the Attorney General, and the Attorney General's decision not to
request appointment if he finds "no reasonable grounds to believe
that further investigation is warranted" is committed to his
unreviewable discretion. The Act thus gives the Executive a degree
of control over the power to initiate an investigation by the
independent counsel. In addition, the jurisdiction of the
independent counsel is defined with reference to the facts
submitted by the Attorney General, and once a counsel is appointed,
the Act requires that the counsel abide by Justice Department
policy unless it is not "possible" to do so. Notwithstanding the
fact that the counsel is to some degree "independent" and free from
Executive supervision to a greater extent than other federal
prosecutors, in our view, these features of the Act give the
Executive Branch sufficient control over the independent counsel to
ensure that the President is able to perform his constitutionally
assigned duties. VI In sum, we conclude today that it does not violate the
Appointments Clause for Congress to vest the appointment of
independent counsel in the Special Division; that the powers
exercised by the Special Division under the Act do not violate Page 487 U. S. 697 Article III; and that the Act does not violate the separation of
powers principle by impermissibly interfering with the functions of
the Executive Branch. The decision of the Court of Appeals is
therefore Reversed. JUSTICE KENNEDY took no part in the consideration or decision of
this case.

															[ Footnote 1 ]

															The Act was first enacted by Congress in 1978, Pub.L. 95-521, 92
Stat. 1867, and has been twice reenacted, with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191, 101
Stat. 1293. The current version of the statute states that, with
certain exceptions, it shall "cease to be effective five years
after the date of the enactment of the Independent Counsel
Reauthorization Act of 1987." 28 U.S.C. § 599 (1982 ed., Supp.
V).

															[ Footnote 2 ]

															Under 28 U.S.C. § 591(a) (1982 ed., Supp. V), the statute
applies to violations of "any Federal criminal law other than a
violation classified as a Class B or C misdemeanor or an
infraction." See also § 591(c) ("any Federal criminal law
other than a violation classified as a Class B or C misdemeanor or
an infraction"). Section 591(b) sets forth the individuals who may
be the target of an investigation by the Attorney General,
including the President and Vice President, Cabinet level
officials, certain high ranking officials in the Executive Office
of the President and the Justice Department, the Director and
Deputy Director of Central Intelligence, the Commissioner of
Internal Revenue, and certain officials involved in the President's
national political campaign. Pursuant to § 591(c), the Attorney
General may also conduct a preliminary investigation of persons not
named in § 591(b) if an investigation by the Attorney General or
other Department of Justice official "may result in a personal,
financial, or political conflict of interest."

															[ Footnote 3 ]

															The Special Division is a division of the United States Court of
Appeals for the District of Columbia Circuit. 28 U.S.C. § 49 (1982
ed., Supp. V). The court consists of three circuit court judges or
justices appointed by the Chief Justice of the United States. One
of the judges must be a judge of the United States Court of Appeals
for the District of Columbia Circuit, and no two of the judges may
be named to the Special Division from a particular court. The
judges are appointed for 2-year terms, with any vacancy being
filled only for the remainder of the 2-year period. Ibid. [ Footnote 4 ]

															The Act also requires the Attorney General to apply for the
appointment of an independent counsel if 90 days elapse from the
receipt of the information triggering the preliminary investigation
without a determination by the Attorney General that there are no
reasonable grounds to believe that further investigation or
prosecution is warranted. § 592(c)(1). Pursuant to § 592(f), the
Attorney General's decision to apply to the Special Division for
the appointment of an independent counsel is not reviewable "in any
court."

															[ Footnote 5 ]

															Upon request of the Attorney General, in lieu of appointing an
independent counsel the Special Division may "expand the
prosecutorial jurisdiction of an independent counsel." § 593(c).
Section 593 also authorizes the Special Division to fill vacancies
arising because of the death, resignation, or removal of an
independent counsel. § 593(e). The court, in addition, is empowered
to grant limited extensions of time for the Attorney General's
preliminary investigation, § 592(a)(3), and to award attorney's
fees to unindicted individuals who were the subject of an
investigation by an independent counsel, § 593(f) (as amended by
Pub.L. 101-191, 101 Stat. 1293).

															[ Footnote 6 ]

															The Attorney General, however, retains "direction or control as
to those matters that specifically require the Attorney General's
personal action under section 2516 of title 18." § 594(a).

															[ Footnote 7 ]

															The 1987 amendments to the Act specify that the Department of
Justice "shall pay all costs relating to the establishment and
operation of any office of independent counsel." The Attorney
General must report to Congress regarding the amount expended on
investigations and prosecutions by independent counsels. §
594(d)(2). In addition, the independent counsel must also file a
report of major expenses with the Special Division every six
months. § 594(h)(1)(A).

															[ Footnote 8 ]

															Under the Act as originally enacted, an independent counsel who
was removed could obtain judicial review of the Attorney General's
decision in a civil action commenced before the Special Division.
If the removal was "based on error of law or fact," the court could
order "reinstatement or other appropriate relief." 28 U.S.C. §
596(a)(3).

															[ Footnote 9 ]

															Sections 596(b)(1)(B) and 596(b)(2) also require that the
independent counsel have filed a final report with the Special
Division in compliance with § 594(h)(1)(B).

															[ Footnote 10 ]

															Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, Pub.L. 96-510, 94 Stat. 2767, 42 U.S.C. §
9601 et seq. [ Footnote 11 ]

															The Attorney General concluded that appellees Schmults and
Dinkins lacked the requisite "criminal intent" to obstruct the
Committee's investigation. See Report of Attorney General
Pursuant to 28 U.S.C. § 592(c)(1) Regarding Allegations Against
Department of Justice Officials in United States House Judiciary
Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC)
(Attorney General Report).

															[ Footnote 12 ]

															It is clear that appellant is an "officer" of the United States,
not an "employee." See Buckley, 424 U.S. at 424 U. S. 126 ,
and n. 162.

															[ Footnote 13 ]

															Indeed, in light of judicial experience with prosecutors in
criminal cases, it could be said that courts are especially well
qualified to appoint prosecutors. This is not a case in which
judges are given power to appoint an officer in an area in which
they have no special knowledge or expertise, as in, for example, a
statute authorizing the courts to appoint officials in the
Department of Agriculture or the Federal Energy Regulatory
Commission.

															[ Footnote 14 ]

															We note also the longstanding judicial practice of appointing
defense attorneys for individuals who are unable to afford
representation, see 18 U.S.C. § 3006A(b) (1982 ed., Supp.
V), notwithstanding the possibility that the appointed attorney may
appear in court before the judge who appointed him.

															[ Footnote 15 ]

															In several cases, the Court has indicated that Article III
"judicial Power" does not extend to duties that are more properly
performed by the Executive Branch. Hayburn's Case, for
example, involved a statute empowering federal and state courts to
set pensions for disabled veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The Act

															"undertook to devolve upon the Circuit Court of the United
States the duty of examining proofs, of determining what amount of
the monthly pay would be equivalent to the disability ascertained,
and to certify the same to the Secretary of War." Muskrat, 219 U.S. at 219 U. S. 352 .
The court's decision was to be reported to the Secretary of War,
who had the discretion to either adopt or reject the court's
findings. Ibid. This Court did not reach the
constitutional issue in Hayburn's Case, but the opinions
of several Circuit Courts were reported in the margins of the
Court's decision in that case, and have since been taken to reflect
a proper understanding of the role of the judiciary under the
Constitution. See, e.g., Ferreira, 13 How. at 54 U. S.
50 -51.

															In Ferreira, Congress passed a statute authorizing a
federal court in Florida to hear and adjudicate claims for losses
for which the United States was to be held responsible under the
1819 treaty with Spain that ceded Florida to the United States. Id. at 54 U. S. 45 . As
in Hayburn's Case, the results of the court proceeding
were to be reported to an executive official, the Secretary of the
Treasury, who would make the final determination whether to pay the
claims. 13 How. at 54 U. S. 47 . The
Court recognized that the powers conferred on the judge by the
statute were "judicial in their nature," in that they involved
"judgment and discretion." Id. at 54 U. S. 48 .
Nonetheless, they were not "judicial . . . in the sense in which
judicial power is granted by the Constitution to the courts of the
United States." Ibid. Because the District Court's
decision in Ferreira was not an exercise of Article III
judicial power, the Court ruled that it had no jurisdiction to hear
the appeal. Id. at 54 U. S.
51 -52.

															[ Footnote 16 ]

															We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter
with the courts' exercise of their Article III powers. We note that
courts have long participated in the appointment of court officials
such as United States commissioners or magistrates, see Go-Bart
Importing Co. v. United States, 282 U.
S. 344 (1931); 28 U.S.C. § 631(a), without disruption of
normal judicial functions. And certainly the Court in Ex parte
Hennen , 13 Pet. 230 (1839), deemed it entirely
appropriate that a court should have the authority to appoint its
own clerk.

															[ Footnote 17 ]

															Our conclusion that the power to define the counsel's
jurisdiction is incidental to the power to appoint also applies to
the Division's authority to expand the Jurisdiction of the counsel
upon request of the Attorney General under § 593(c)(2).

															[ Footnote 18 ]

															In our view, this provision does not empower the court to expand
the original scope of the counsel's jurisdiction; that may be done
only upon request of the Attorney General pursuant to § 593(c)(2).
At most, § 594(e) authorizes the court simply to refer matters that
are "relate[d] to the independent counsel's prosecutorial
jurisdiction" as already defined.

															[ Footnote 19 ]

															The Special Division must determine whether the Attorney General
has shown "good cause" for his or her request for an extension of
the time limit on his or her preliminary investigation, §
592(a)(3); the court must decide whether and to what extent it
should release to the public the counsel's final report or the
Attorney General's removal report, §§ 596(a)(2), (b)(2); and the
court may consider the propriety of a request for attorney's fees,
§ 593(f).

															[ Footnote 20 ]

															By way of comparison, we also note that federal courts and
judges have long performed a variety of functions that, like the
functions involved here, do not necessarily or directly involve
adversarial proceedings within a trial or appellate court. For
example, federal courts have traditionally supervised grand juries
and assisted in their "investigative function" by, if necessary,
compelling the testimony of witnesses. See Brown v. United
States, 359 U. S. 41 , 359 U. S. 49 (1959). Federal courts also participate in the issuance of search
warrants, see Fed.Rule Crim.Proc. 41, and review
applications for wiretaps, see 18 U.S.C. §§ 2516, 2518
(1982 ed. and Supp. IV), both of which may require a court to
consider the nature and scope of criminal investigations on the
basis of evidence or affidavits submitted in an ex parte proceeding. In Young v. United States ex rel. Vuitton et Fils
S.A., 481 U. S. 787 , 481 U. S.
793 -802 (1987), we recognized that federal courts
possess inherent authority to initiate contempt proceedings for
disobedience to their orders, and this authority necessarily
includes the ability to appoint a private attorney to prosecute the
contempt.

															[ Footnote 21 ]

															As the dissenting opinion noted below, the termination provision
was "intended to serve only as a measure of last resort." See
In re Sealed Case, 267 U.S.App.D.C. 178, 224, n. 13, 838 F.2d
476, 522, n. 13 (1988). The Senate Report on the provision
states:

															"This paragraph provides for the unlikely situation where a
special prosecutor may try to remain as special prosecutor after
his responsibilities under this chapter are completed. . . . The
drastic remedy of terminating the office of special prosecutor
without the consent of the special prosecutor should obviously be
executed with caution."

															S.Rep. No. 95-170, p. 75 (1977).

															[ Footnote 22 ]

															We see no impropriety in the Special Division's actions with
regard to its response to appellant's request for referral of
additional matters in this case. See In re Olson, 260
U.S.App.D.C. 168, 818 F.2d 34 (Special Division 1987). The Division
has statutory authority to respond to appellant's request pursuant
to § 594(e), and it was only proper that it first consider whether
it could exercise its statutory authority without running afoul of
the Constitution. As to the Division's alleged "reinterpretation"
of its original grant of jurisdiction, the power to "reinterpret"
or clarify the original grant may be seen as incidental to the
court's referral power. After all, in order to decide whether to
refer a matter to the counsel, the court must be able to determine
whether the matter falls within the scope of the original grant. See n 18, supra. We express no view on the merits of the Division's
interpretation of the original grant or of its ruling in regard its
power to refer matters that the Attorney General has previously
refused to refer.

															[ Footnote 23 ]

															As noted, an independent counsel may also be removed through
impeachment and conviction. In addition, the Attorney General may
remove a counsel for "physical disability, mental incapacity, or
any other condition that substantially impairs the performance" of
his duties. § 596(a)(1).

															[ Footnote 24 ]

															The Court expressly disapproved of any statements in Myers that "are out of harmony" with the views expressed
in Humphrey's Executor. 295 U.S. at 295 U. S. 626 .
We recognized that the only issue actually decided in Myers was that

															"the President had power to remove a postmaster of the first
class, without the advice and consent of the Senate as required by
act of Congress."

															295 U.S. at 295 U. S.
626 .

															[ Footnote 25 ] See id. at 295 U. S.
627 -628. We described the FTC as

															"an administrative body created by Congress to carry into effect
legislative policies embodied in the statute in accordance with the
legislative standard therein prescribed, and to perform other
specified duties as a legislative or as a judicial aid."

															Such an agency was not "an arm or an eye of the executive," and
the commissioners were intended to perform their duties "without
executive leave and . . . free from executive control." Id. at 295 U. S. 628 .
As we put it at the time, the powers of the FTC were not "purely"
executive, but were "quasi-legislative or quasi-judicial." Ibid. [ Footnote 26 ]

															This same argument was raised by the Solicitor General in Bowsher v. Synar, 478 U. S. 714 (1986), although, as JUSTICE WHITE noted in dissent in that case,
the argument was clearly not accepted by the Court at that time. Id. at 478 U. S.
738 -739, and nn. 1-3.

															[ Footnote 27 ]

															Indeed, this Court has never held that the Constitution prevents
Congress from imposing limitations on the President's power to
remove all executive officials simply because they wield
"executive" power. Myers itself expressly distinguished
cases in which Congress had chosen to vest the appointment of
"inferior" executive officials in the head of a department. See 272 U.S. at 272 U. S.
161 -163, 272 U. S. 164 .
In such a situation, we saw no specific constitutional impediment
to congressionally imposed restrictions on the President's removal
powers. See also United States v. Perkins, 116 U.
S. 483 , 116 U. S. 485 (1886) (" The constitutional authority in Congress to thus vest
the appointment [of inferior officers in the heads of departments]
implies authority to limit, restrict, and regulate the removal by
such laws as Congress may enact in relation to the officers so
appointed'") (quoting the Court of Claims' decision in the
case). [ Footnote 28 ]

															The difficulty of defining such categories of "executive" or
"quasi-legislative" officials is illustrated by a comparison of our
decisions in cases such as Humphrey's Executor, Buckley v.
Valeo, 424 U. S. 1 , 424 U. S.
140 -141 (1976), and Bowsher, supra, at 478 U. S.
732 -734. In Buckley, we indicated that the
functions of the Federal Election Commission are "administrative,"
and "more legislative and judicial in nature," and are

															"of kinds usually performed by independent regulatory agencies
or by some department in the Executive Branch under the direction
of an Act of Congress."

															424 U.S. at 424 U. S.
140 -141. In Bowsher, we found that the
functions of the Comptroller General were "executive" in nature, in
that he was required to "exercise judgment concerning facts that
affect the application of the Act," and he must "interpret the
provisions of the Act to determine precisely what budgetary
calculations are required." 478 U.S. at 478 U. S. 733 .
Compare this with the description of the FTC's powers in Humphrey's Executor, which we stated "occupie[d] no place
in the executive department:"

															"The [FTC] is an administrative body created by Congress to
carry into effect legislative policies embodied in the statute in
accordance with the legislative standard therein prescribed, and to
perform other specified duties as a legislative or as a judicial
aid."

															295 U.S. at 295 U. S. 628 .
As JUSTICE WHITE noted in his dissent in Bowsher, 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. See 478
U.S. at 478 U. S. 761 ,
n. 3.

															[ Footnote 29 ]

															The dissent says that the language of Article II vesting the
executive power of the United States in the President requires that
every officer of the United States exercising any part of that
power must serve at the pleasure of the President and be removable
by him at will. Post at 487 U. S. 705 .
This rigid demarcation -- a demarcation incapable of being altered
by law in the slightest degree, and applicable to tens of thousands
of holders of offices neither known nor foreseen by the Framers --
depends upon an extrapolation from general constitutional language
which we think is more than the text will bear. It is also contrary
to our holding in United States v. Perkins, supra, decided
more than a century ago.

															[ Footnote 30 ]

															The terms also may be used to describe the circumstances in
which Congress might be more inclined to find that a degree of
independence from the Executive, such as that afforded by a "good
cause" removal standard, is necessary to the proper functioning of
the agency or official. It is not difficult to imagine situations
in which Congress might desire that an official performing
"quasi-judicial" functions, for example, would be free of executive
or political control.

															[ Footnote 31 ]

															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).

															[ Footnote 32 ]

															Indeed, during the hearings on the 1982 amendments to the Act, a
Justice Department official testified that the "good cause"
standard contained in the amendments "would make the special
prosecutor no more independent than officers of the many so-called
independent agencies in the executive branch." Ethics in Government
Act Amendments of 1982, Hearing before the Subcommittee on
Oversight of Government Management of the Senate Committee on
Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate
Attorney General Giuliani).

															[ Footnote 33 ]

															We see no constitutional problem in the fact that the Act
provides for judicial review of the removal decision. § 596(a)(3).
The purpose of such review is to ensure that an independent counsel
is removed only in accordance with the will of Congress as
expressed in the Act. The possibility of judicial review does not
inject the Judicial Branch into the removal decision, nor does it,
by itself, put any additional burden on the President's exercise of
executive authority. Indeed, we note that the legislative history
of the most recent amendment to the Act indicates that the scope of
review to be exercised by the courts under § 596(a)(3) is to be
"the standards established by existing case law on the removal of
[other] officials" who are subject to "good cause" removal.
H.R.Conf.Rep. No. 100-452, p. 37 (1987).

															[ Footnote 34 ]

															With these provisions, the degree of control exercised by the
Executive Branch over an independent counsel is clearly diminished
in relation to that exercised over other prosecutors, such as the
United States Attorneys, who are appointed by the President and
subject to termination at will.

															JUSTICE SCALIA, dissenting.

															It is the proud boast of our democracy that we have "a
government of laws, and not of men." Many Americans are familiar
with that phrase; not many know its derivation. It comes from Part
the First, Article XXX, of the Massachusetts Constitution of 1780,
which reads in full as follows:

															"In the government of this Commonwealth, the legislative
department shall never exercise the executive and judicial powers,
or either of them: The executive shall never exercise the
legislative and judicial powers, or either of them: The judicial
shall never exercise the legislative and executive powers, or
either of them: to the end it may be a government of laws, and not
of men."

															The Framers of the Federal Constitution similarly viewed the
principle of separation of powers as the absolutely central
guarantee of a just government. In No. 47 of The Federalist,
Madison wrote that "[n]o political truth is certainly of greater
intrinsic value, or is stamped with the authority of more
enlightened patrons of liberty." The Federalist No. 47, p. 301 (C.
Rossiter ed.1961) (hereinafter Federalist). Without a secure
structure of separated powers, our Bill of Rights would be
worthless, as are the bills of rights of many nations of the world
that have adopted, or even improved upon, the mere words of
ours.

															The principle of separation of powers is expressed in our
Constitution in the first section of each of the first three
Articles. Article I, § 1, provides that

															"[a]ll legislative Powers herein granted shall be vested in a
Congress of the United Page 487 U. S. 698 States, which shall consist of a Senate and House of
Representatives."

															Article III, § 1, provides 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 the provision at issue here, Art. II, § 1, cl. 1, provides
that "[t]he executive Power shall be vested in a President of the
United States of America."

															But just as the mere words of a Bill of Rights are not
self-effectuating, the Framers recognized "[t]he insufficiency of a
mere parchment delineation of the boundaries" to achieve the
separation of powers. Federalist No. 73, p. 442 (A. Hamilton).
"[T]he great security," wrote Madison,

															"against a gradual concentration of the several powers in the
same department consists in giving to those who administer each
department the necessary constitutional means and personal motives
to resist encroachments of the others. The provision for defense
must in this, as in all other cases, be made commensurate to the
danger of attack."

															Federalist No. 51, pp. 321-322. Madison continued:

															"But it is not possible to give to each department an equal
power of self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this
inconveniency is to divide the legislature into different branches;
and to render them, by different modes of election and different
principles of action, as little connected with each other as the
nature of their common functions and their common dependence on the
society will admit. . . . As the weight of the legislative
authority requires that it should be thus divided, the weakness of
the executive may require, on the other hand, that it should be
fortified." Id. at 322-323. The major "fortification" provided, of
course, was the veto power. But in addition to providing
fortification, the founders conspicuously and very consciously
declined to sap the Executive's strength in the same way they had
weakened Page 487 U. S. 699 the Legislature: by dividing the executive power. Proposals to
have multiple executives, or a council of advisers with separate
authority, were rejected. See 1 M. Farrand, Records of the
Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev.
ed.1966); 2 id. at 335-337, 533, 537, 542. Thus, while

															"[a]ll legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of Representatives,"

															U.S.Const., Art. I, § 1 (emphasis added), "[t]he executive Power
shall be vested in a President of the United States, " Art.
II, § 1, cl. 1 (emphasis added).

															That is what this suit is about. Power. The allocation of power
among Congress, the President, and the courts in such fashion as to
preserve the equilibrium the Constitution sought to establish -- so
that "a gradual concentration of the several powers in the same
department," Federalist No. 51, p. 321 (J. Madison), can
effectively be resisted. Frequently an issue of this sort will come
before the Court clad, so to speak, in sheep's clothing: the
potential of the asserted principle to effect important change in
the equilibrium of power is not immediately evident, and must be
discerned by a careful and perceptive analysis. But this wolf comes
as a wolf. I The present case began when the Legislative and Executive
Branches became "embroiled in a dispute concerning the scope of the
congressional investigatory power," United States v. House of
Representatives of United States, 556 F.
Supp. 150 , 152 (DC 1983), which -- as is often the case with
such interbranch conflicts -- became quite acrimonious. In the
course of oversight hearings into the administration of the
Superfund by the Environmental Protection Agency (EPA), two
Subcommittees of the House of Representatives requested and then
subpoenaed numerous internal EPA documents. The President responded
by personally directing the EPA Administrator not to turn over
certain of the documents, Page 487 U. S. 700 see Memorandum of November 30, 1982, from President
Reagan for the Administrator, Environmental Protection Agency,
reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by
having the Attorney General notify the congressional Subcommittees
of this assertion of executive privilege, see Letters of
November 30, 1982, from Attorney General William French Smith to
Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id. at 1168-1177. In his decision to assert executive
privilege, the President was counseled by appellee Olson, who was
then Assistant Attorney General of the Department of Justice for
the Office of Legal Counsel, a post that has traditionally had
responsibility for providing legal advice to the President (subject
to approval of the Attorney General). The House's response was to
pass a resolution citing the EPA Administrator, who had possession
of the documents, for contempt. Contempt of Congress is a criminal
offense. See 2 U.S.C. § 192. The United States Attorney,
however, a member of the Executive Branch, initially took no steps
to prosecute the contempt citation. Instead, the Executive Branch
sought the immediate assistance of the Third Branch by filing a
civil action asking the District Court to declare that the EPA
Administrator had acted lawfully in withholding the documents under
a claim of executive privilege. See ibid. The District
Court declined (in my view correctly) to get involved in the
controversy, and urged the other two Branches to try "[c]ompromise
and cooperation, rather than confrontation." 556 F.
Supp. at 153 . After further haggling, the two Branches
eventually reached an agreement giving the House Subcommittees
limited access to the contested documents.

															Congress did not, however, leave things there. Certain Members
of the House remained angered by the confrontation, particularly by
the role played by the Department of Justice. Specifically, the
Committee remained disturbed by the possibility that the Department
had persuaded the President to assert executive privilege despite
reservations by the Page 487 U. S. 701 EPA; that the Department had "deliberately and unnecessarily
precipitated a constitutional confrontation with Congress"; that
the Department had not properly reviewed and selected the documents
as to which executive privilege was asserted; that the Department
had directed the United States Attorney not to present the contempt
certification involving the EPA Administrator to a grand jury for
prosecution; that the Department had made the decision to sue the
House of Representatives; and that the Department had not
adequately advised and represented the President, the EPA and the
EPA Adminstrator. H.R.Rep. No. 99-435, p. 3 (1985) (describing
unresolved "questions" that were the basis of the Judiciary
Committee's investigation). Accordingly, staff counsel of the House
Judiciary Committee were commissioned (apparently without the
knowledge of many of the Committee's members, see id. at
731) to investigate the Justice Department's role in the
controversy. That investigation lasted 2 1/2 years, and produced a
3,000-page report issued by the Committee over the vigorous dissent
of all but one of its minority-party members. That report, which
among other charges questioned the truthfulness of certain
statements made by Assistant Attorney General Olson during
testimony in front of the Committee during the early stages of its
investigation, was sent to the Attorney General, along with a
formal request that he appoint an independent counsel to
investigate Mr. Olson and others.

															As a general matter, the Act before us here requires the
Attorney General to apply for the appointment of an independent
counsel within 90 days after receiving a request to do so, unless
he determines within that period that "there are no reasonable
grounds to believe that further investigation or prosecution is
warranted." 28 U.S.C. § 592(b)(1). As a practical matter, it would
be surprising if the Attorney General had any choice (assuming this
statute is constitutional) but to seek appointment of an
independent counsel to pursue the charges against the principal
object of the congressional Page 487 U. S. 702 request, Mr. Olson. Merely the political consequences (to him
and the President) of seeming to break the law by refusing to do so
would have been substantial. How could it not be, the public would
ask, that a 3,000-page indictment drawn by our representatives over
2 1/2 years does not even establish "reasonable grounds to believe"
that further investigation or prosecution is warranted with respect
to at least the principal alleged culprit? But the Act establishes
more than just practical compulsion. Although the Court's opinion
asserts that the Attorney General had "no duty to comply with the
[congressional] request," ante at 487 U. S. 694 ,
that is not entirely accurate. He had a duty to comply unless he
could conclude that there were " no reasonable grounds to
believe, " not that prosecution was warranted, but merely that
" further investigation " was warranted, 28 U.S.C. §
592(b)(1) (1982 ed., Supp. V) (emphasis added), after a 90-day
investigation in which he was prohibited from using such routine
investigative techniques as grand juries, plea bargaining, grants
of immunity or even subpoenas, see § 592(a)(2). The Court
also makes much of the fact that "the courts are specifically
prevented from reviewing the Attorney General's decision not to
seek appointment, § 592(f)." Ante at 487 U. S. 695 .
Yes, [ Footnote 2/1 ] but Congress is
not prevented from reviewing it. The context of this statute is
acrid with the smell of threatened impeachment. Where, as here, a
request for appointment of an independent Page 487 U. S. 703 counsel has come from the Judiciary Committee of either House of
Congress, the Attorney General must, if he decides not to seek
appointment, explain to that Committee why. See also 28
U.S.C. § 595(c) (1982 ed., Supp. V) (independent counsel must
report to the House of Representatives information "that may
constitute grounds for an impeachment").

															Thus, by the application of this statute in the present case,
Congress has effectively compelled a criminal investigation of a
high-level appointee of the President in connection with his
actions arising out of a bitter power dispute between the President
and the Legislative Branch. Mr. Olson may or may not be guilty of a
crime; we do not know. But we do know that the investigation of him
has been commenced, not necessarily because the President or his
authorized subordinates believe it is in the interest of the United
States, in the sense that it warrants the diversion of resources
from other efforts and is worth the cost in money and in possible
damage to other governmental interests; and not even, leaving aside
those normally considered factors, because the President or his
authorized subordinates necessarily believe that an investigation
is likely to unearth a violation worth prosecuting; but only
because the Attorney General cannot affirm, as Congress demands,
that there are no reasonable grounds to believe that
further investigation is warranted. The decisions regarding the
scope of that further investigation, its duration, and, finally,
whether or not prosecution should ensue, are likewise beyond the
control of the President and his subordinates. II If to describe this case is not to decide it, the concept of a
government of separate and coordinate powers no longer has meaning.
The Court devotes most of its attention to such relatively
technical details as the Appointments Clause and the removal power,
addressing briefly and only at the end of its opinion the
separation of powers. As my prologue suggests, Page 487 U. S. 704 I think that has it backwards. Our opinions are full of the
recognition that it is the principle of separation of powers, and
the inseparable corollary that each department's "defense must . .
. be made commensurate to the danger of attack," Federalist No. 51,
p. 322 (J. Madison), which gives comprehensible content to the
Appointments Clause, and determines the appropriate scope of the
removal power. Thus, while I will subsequently discuss why our
appointments and removal jurisprudence does not support today's
holding, I begin with a consideration of the fountainhead of that
jurisprudence, the separation and equilibration of powers.

															First, however, I think it well to call to mind an important and
unusual premise that underlies our deliberations, a premise not
expressly contradicted by the Court's opinion, but in my view not
faithfully observed. It is rare in a case dealing, as this one
does, with the constitutionality of a statute passed by the
Congress of the United States, not to find anywhere in the Court's
opinion the usual, almost formulary caution that we owe great
deference to Congress' view that what it has done is
constitutional, see, e.g., Rostker v. Goldberg, 453 U. S. 57 , 453 U. S. 64 (1981); Fullilove v. Klutznick, 448 U.
S. 448 , 448 U. S. 472 (1980) (opinion of Burger, C.J.); Columbia Broadcasting System,
Inc. v. Democratic National Committee, 412 U. S.
94 , 412 U. S. 102 (1973); United States v. National Dairy Products Corp., 372 U. S. 29 , 372 U. S. 32 (1963), and that we will decline to apply the statute only if the
presumption of constitutionality can be overcome, see
Fullilove, supra, at 448 U. S. 473 ; Columbia Broadcasting, supra, at 412 U. S. 103 .
That caution is not recited by the Court in the present case, because it does not apply. Where a private citizen
challenges action of the Government on grounds unrelated to
separation of powers, harmonious functioning of the system demands
that we ordinarily give some deference, or a presumption of
validity, to the actions of the political branches in what is
agreed, between themselves at least, to be within their respective
spheres. But where the issue pertains to separation of powers, Page 487 U. S. 705 and the political branches are (as here) in disagreement,
neither can be presumed correct. The reason is stated concisely by
Madison:

															"The several departments being perfectly co-ordinate by the
terms of their common commission, neither of them, it is evident,
can pretend to an exclusive or superior right of settling the
boundaries between their respective powers. . . ."

															Federalist No. 49, p. 314. The playingfield for the present
case, in other words, is a level one. As one of the interested and
coordinate parties to the underlying constitutional dispute,
Congress, no more than the President, is entitled to the benefit of
the doubt.

															To repeat, Article II, § 1, cl. 1, of the Constitution
provides:

															"The executive Power shall be vested in a President of the
United States."

															As I described at the outset of this opinion, this does not mean some of the executive power, but all of the
executive power. It seems to me, therefore, that the decision of
the Court of Appeals invalidating the present statute must be
upheld on fundamental separation of powers principles if the
following two questions are answered affirmatively: (1) Is the
conduct of a criminal prosecution (and of an investigation to
decide whether to prosecute) the exercise of purely executive
power? (2) Does the statute deprive the President of the United
States of exclusive control over the exercise of that power?
Surprising to say, the Court appears to concede an affirmative
answer to both questions, but seeks to avoid the inevitable
conclusion that, since the statute vests some purely executive
power in a person who is not the President of the United States, it
is void.

															The Court concedes that "[t]here is no real dispute that the
functions performed by the independent counsel are executive',"
though it qualifies that concession by adding "in the sense that
they are `law enforcement' functions that typically have been
undertaken by officials within the Executive Branch." Ante at 487 U. S. 691 .
The qualifier adds nothing but atmosphere. Page 487 U. S. 706 In what other sense can one identify "the executive
Power" that is supposed to be vested in the President (unless it
includes everything the Executive Branch is given to do) except by reference to what has always and everywhere --
if conducted by government at all -- been conducted never by the
legislature, never by the courts, and always by the executive.
There is no possible doubt that the independent counsel's functions
fit this description. She is vested with the

															"full power and independent authority to exercise all investigative and prosecutorial functions and powers of
the Department of Justice [and] the Attorney General."

															28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis added).
Governmental investigation and prosecution of crimes is a
quintessentially executive function. See Heckler v.
Chaney, 470 U. S. 821 , 470 U. S. 832 (1985); Buckley v. Valeo, 424 U. S.
1 , 424 U. S. 138 (1976); United States v. Nixon, 418 U.
S. 683 , 418 U. S. 693 (1974).

															As for the second question, whether the statute before us
deprives the President of exclusive control over that
quintessentially executive activity: the Court does not, and could
not possibly, assert that it does not. That is indeed the whole
object of the statute. Instead, the Court points out that the
President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute,
but I cannot refrain from pointing out that the Court greatly
exaggerates the extent of that "some" Presidential control. "Most
importan[t]" among these controls, the Court asserts, is the
Attorney General's "power to remove the counsel for good
cause.'" Ante at 487 U. S. 696 .
This is somewhat like referring to shackles as an effective means
of locomotion. As we recognized in Humphrey's Executor v.
United States, 295 U. S. 602 (1935) -- indeed, what Humphrey's Executor was all about
-- limiting removal power to "good cause" is an impediment to, not
an effective grant of, Presidential control. We said that
limitation was necessary with respect to members of the Federal
Trade Commission, which we found to be "an agency of the
legislative and judicial Page 487 U. S. 707 departments," and "wholly disconnected from the executive
department," id. at 295 U. S. 630 ,
because

															"it is quite evident that one who holds his office only during
the pleasure of another cannot be depended upon to maintain an
attitude of independence against the latter's will." Id. at 295 U. S. 629 .
What we in Humphrey's Executor found to be a means of
eliminating Presidential control, the Court today considers the
"most importan[t]" means of assuring Presidential control.
Congress, of course, operated under no such illusion when it
enacted this statute, describing the "good cause" limitation as
"protecting the independent counsel's ability to act independently
of the President's direct control," since it permits removal only
for "misconduct." H.R. Conf Rep. 100-452, p. 37 (1987).

															Moving on to the presumably "less important" controls that the
President retains, the Court notes that no independent counsel may
be appointed without a specific request from the Attorney General.
As I have discussed above, the condition that renders such a
request mandatory (inability to find "no reasonable grounds to
believe" that further investigation is warranted) is so
insubstantial that the Attorney General's discretion is severely
confined. And once the referral is made, it is for the Special
Division to determine the scope and duration of the investigation. See 28 U.S.C. § 593(b) (1982 ed., Supp. V). And in any
event, the limited power over referral is irrelevant to the
question whether, once appointed, the independent counsel
exercises executive power free from the President's control.
Finally, the Court points out that the Act directs the independent
counsel to abide by general Justice Department policy, except when
not "possible." See 28 U.S.C. § 594(f) (1982 ed., Supp.
V). The exception alone shows this to be an empty promise. Even
without that, however, one would be hard put to come up with many
investigative or prosecutorial "policies" (other than those imposed
by the Constitution or by Congress through law) that are absolute.
Almost all investigative and prosecutorial decisions Page 487 U. S. 708 -- including the ultimate decision whether, after a technical
violation of the law has been found, prosecution is warranted --
involve the balancing of innumerable legal and practical
considerations. Indeed, even political considerations (in the
nonpartisan sense) must be considered, as exemplified by the recent
decision of an independent counsel to subpoena the former
Ambassador of Canada, producing considerable tension in our
relations with that country. See N.Y. Times, May 29, 1987,
p. A12, col. 1. Another preeminently political decision is whether
getting a conviction in a particular case is worth the disclosure
of national security information that would be necessary. The
Justice Department and our intelligence agencies are often in
disagreement on this point, and the Justice Department does not
always win. The present Act even goes so far as specifically to
take the resolution of that dispute away from the President and
give it to the independent counsel. 28 U.S.C. § 594(a)(6) (1982
ed., Supp. V). In sum, the balancing of various legal, practical,
and political considerations, none of which is absolute, is the
very essence of prosecutorial discretion. To take this away is to
remove the core of the prosecutorial function, and not merely
"some" Presidential control.

															As I have said, however, it is ultimately irrelevant how
much the statute reduces Presidential control. The case is
over when the Court acknowledges, as it must, that

															"[i]t is undeniable that the Act reduces the amount of control
or supervision that the Attorney General and, through him, the
President exercises over the investigation and prosecution of a
certain class of alleged criminal activity." Ante at 487 U. S. 695 .
It effects a revolution in our constitutional jurisprudence for the
Court, once it has determined that (1) purely executive functions
are at issue here, and (2) those functions have been given to a
person whose actions are not fully within the supervision and
control of the President, nonetheless to proceed further to sit in
judgment of whether

															"the President's need to control the exercise of [the
independent counsel's] Page 487 U. S. 709 discretion is so central to the functioning of the
Executive Branch"

															as to require complete control, ante at 487 U. S. 691 (emphasis added), whether the conferral of his powers upon someone
else

															" sufficiently deprives the President of control over
the independent counsel to interfere impermissibly with [his]
constitutional obligation to ensure the faithful execution of the
laws," ante at 487 U. S. 693 (emphasis added), and whether

															"the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President
is able to perform his constitutionally assigned duties," ante at 487 U. S. 696 (emphasis added). It is not for us to determine, and we have never
presumed to determine, how much of the purely executive powers of
government must be within the full control of the President. The
Constitution prescribes that they all are.

															The utter incompatibility of the Court's approach with our
constitutional traditions can be made more clear, perhaps, by
applying it to the powers of the other two Branches. Is it
conceivable that, if Congress passed a statute depriving itself of
less than full and entire control over some insignificant area of
legislation, we would inquire whether the matter was " so
central to the functioning of the Legislative Branch" as
really to require complete control, or whether the statute gives
Congress " sufficient control over the surrogate legislator
to ensure that Congress is able to perform its constitutionally
assigned duties"? Of course we would have none of that. Once we
determined that a purely legislative power was at issue, we would
require it to be exercised, wholly and entirely, by Congress. Or to
bring the point closer to home, consider a statute giving to
non-Article III judges just a tiny bit of purely judicial power in
a relatively insignificant field, with substantial control, though
not total control, in the courts -- perhaps "clear error" review,
which would be a fair judicial equivalent of the Attorney General's
"for cause" removal power here. Is there any doubt that we would
not pause to inquire whether the matter was " so central to
the Page 487 U. S. 710 functioning of the Judicial Branch" as really to require
complete control, or whether we retained " sufficient control over the matters to be decided that we are able to perform
our constitutionally assigned duties"? We would say that our
"constitutionally assigned duties" include complete control over all exercises of the judicial power -- or, as the
plurality opinion said in Northern Pipeline Construction Co. v.
Marathon Pipe Line Co., 458 U. S. 50 , 458 U. S. 58 -59
(1982), that

															"[t]he inexorable command of [Article III] is clear and
definite: the judicial power of the United States must be exercised
by courts having the attributes prescribed in Art. III."

															We should say here that the President's constitutionally
assigned duties include complete control over
investigation and prosecution of violations of the law, and that
the inexorable command of Article II is clear and definite: the
executive power must be vested in the President of the United
States.

															Is it unthinkable that the President should have such exclusive
power, even when alleged crimes by him or his close associates are
at issue? No more so than that Congress should have the exclusive
power of legislation, even when what is at issue is its own
exemption from the burdens of certain laws. See Civil
Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States,
from discriminating on the basis of race, color, religion, sex, or
national origin). No more so than that this Court should have the
exclusive power to pronounce the final decision on justiciable
cases and controversies, even those pertaining to the
constitutionality of a statute reducing the salaries of the
Justices. See United States v. Will, 449 U.
S. 200 , 449 U. S.
211 -217 (1980). A system of separate and coordinate
powers necessarily involves an acceptance of exclusive power that
can theoretically be abused. As we reiterate this very day, "[i]t
is a truism that constitutional protections have costs." Coy v.
Iowa, post at 487 U. S.
1020 . While the separation of powers may prevent us from
righting every wrong, it does so in order to ensure that we do not
lose liberty. Page 487 U. S. 711 The checks against any branch's abuse of its exclusive powers
are twofold: first, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach
the executive who willfully fails to enforce the laws; the
executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.
S. 303 (1946); and the courts can dismiss malicious
prosecutions. Second, and ultimately, there is the political check
that the people will replace those in the political branches (the
branches more "dangerous to the political rights of the
Constitution," Federalist No. 78, p. 465) who are guilty of abuse.
Political pressures produced special prosecutors -- for Teapot Dome
and for Watergate, for example -- long before this statute created
the independent counsel. See Act of Feb. 8, 1924, ch. 16,
43 Stat. 5-6; 38 Fed.Reg. 30738 (1973).

															The Court has, nonetheless, replaced the clear constitutional
prescription that the executive power belongs to the President with
a "balancing test." What are the standards to determine how the
balance is to be struck, that is, how much removal of Presidential
power is too much? Many countries of the world get along with an
executive that is much weaker than ours -- in fact, entirely
dependent upon the continued support of the legislature. Once we
depart from the text of the Constitution, just where short of that
do we stop? The most amazing feature of the Court's opinion is that
it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control
the decision whether to investigate and prosecute the President's
closest advisers, and indeed the President himself, is not "so
central to the functioning of the Executive Branch" as to be
constitutionally required to be within the President's control.
Apparently that is so because we say it is so. Having abandoned as
the basis for our decisionmaking the text of Article II that "the
executive Power" must be vested in the President, the Court does
not even attempt to craft a substitute criterion -- a
"justiciable standard," see, e.g., 369 U.
S. Carr, Page 487 U. S. 712 369 U. S. 186 , 369 U. S. 210 (1962); Coleman v. Miller, 307 U.
S. 433 , 307 U. S.
454 -455 (1939), however remote from the Constitution --
that today governs, and in the future will govern, the decision of
such questions. Evidently, the governing standard is to be what
might be called the unfettered wisdom of a majority of this Court,
revealed to an obedient people on a case-by-case basis. This is not
only not the government of laws that the Constitution established;
it is not a government of laws at all.

															In my view, moreover, even as an ad hoc, standardless
judgment, the Court's conclusion must be wrong. Before this statute
was passed, the President, in taking action disagreeable to the
Congress, or an executive officer giving advice to the President or
testifying before Congress concerning one of those many matters on
which the two Branches are from time to time at odds, could be
assured that his acts and motives would be adjudged -- insofar as
the decision whether to conduct a criminal investigation and to
prosecute is concerned -- in the Executive Branch, that is, in a
forum attuned to the interests and the policies of the Presidency.
That was one of the natural advantages the Constitution gave to the
Presidency, just as it gave Members of Congress (and their staffs)
the advantage of not being prosecutable for anything said or done
in their legislative capacities. See U.S.Const., Art. I, §
6, cl. 1; Gravel v. United States, 408 U.
S. 606 (1972). It is the very object of this legislation
to eliminate that assurance of a sympathetic forum. Unless it can
honestly be said that there are "no reasonable grounds to believe"
that further investigation is warranted, further investigation must
ensue; and the conduct of the investigation, and determination of
whether to prosecute, will be given to a person neither selected by
nor subject to the control of the President -- who will in turn
assemble a staff by finding out, presumably, who is willing to put
aside whatever else they are doing, for an indeterminate period of
time, in order to investigate and prosecute the President or a
particular named individual in his administration. The prospect is
frightening (as I will discuss Page 487 U. S. 713 at some greater length at the conclusion of this opinion) even
outside the context of a bitter, interbranch political dispute.
Perhaps the boldness of the President himself will not be affected
-- though I am not even sure of that. (How much easier it is for
Congress, instead of accepting the political damage attendant to
the commencement of impeachment proceedings against the President
on trivial grounds -- or, for that matter, how easy it is for one
of the President's political foes outside of Congress -- simply to
trigger a debilitating criminal investigation of the Chief
Executive under this law.) But as for the President's high-level
assistants, who typically have no political base of support, it is
as utterly unrealistic to think that they will not be intimidated
by this prospect, and that their advice to him and their advocacy
of his interests before a hostile Congress will not be affected, as
it would be to think that the Members of Congress and their staffs
would be unaffected by replacing the Speech or Debate Clause with a
similar provision. It deeply wounds the President, by substantially
reducing the President's ability to protect himself and his staff.
That is the whole object of the law, of course, and I cannot
imagine why the Court believes it does not succeed.

															Besides weakening the Presidency by reducing the zeal of his
staff, it must also be obvious that the institution of the
independent counsel enfeebles him more directly in his constant
confrontations with Congress, by eroding his public support.
Nothing is so politically effective as the ability to charge that
one's opponent and his associates are not merely wrongheaded,
naive, ineffective, but, in all probability, "crooks." And nothing
so effectively gives an appearance of validity to such charges as a
Justice Department investigation and, even better, prosecution. The
present statute provides ample means for that sort of attack,
assuring that massive and lengthy investigations will occur, not
merely when the Justice Department in the application of its usual
standards believes they are called for, but whenever it Page 487 U. S. 714 cannot be said that there are "no reasonable grounds to believe"
they are called for. The statute's highly visible procedures
assure, moreover, that, unlike most investigations, these will be
widely known and prominently displayed. Thus, in the 10 years since
the institution of the independent counsel was established by law,
there have been nine highly publicized investigations, a source of
constant political damage to two administrations. That they could
not remotely be described as merely the application of "normal"
investigatory and prosecutory standards is demonstrated by, in
addition to the language of the statute ("no reasonable grounds to
believe"), the following facts: Congress appropriates approximately
$50 million annually for general legal activities, salaries, and
expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice,
Hearings before a Subcommittee of the House Committee on
Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988)
(DOJ Budget Request). This money is used to support "[f]ederal
appellate activity," "[o]rganized crime prosecution," "[p]ublic
integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug
prosecution," "[i]nternal security," "[g]eneral litigation and
legal advice," "special investigations," "[p]rosecution support,"
"[o]rganized crime drug enforcement," and "[m]anagement &
administration." Id. at 284. By comparison, between May,
1986, and August, 1987, four independent counsel (not all of whom
were operating for that entire period of time) spent almost $5
million (one-tenth of the amount annually appropriated to the
entire Criminal Division), spending almost $1 million in the month
of August, 1987, alone. See Washington Post, Oct. 21,
1987, p. A21, col. 5. For fiscal year 1989, the Department of
Justice has requested $52 million for the entire Criminal Division,
DOJ Budget Request 285, and $7 million to support the activities of
independent counsel, id. at 25.

															In sum, this statute does deprive the President of substantial
control over the prosecutory functions performed by the Page 487 U. S. 715 independent counsel, and it does substantially affect the
balance of powers. That the Court could possibly conclude otherwise
demonstrates both the wisdom of our former constitutional system,
in which the degree of reduced control and political impairment
were irrelevant, since all purely executive power had to be in the
President, and the folly of the new system of standardless judicial
allocation of powers we adopt today. III As I indicated earlier, the basic separation of powers
principles I have discussed are what give life and content to our
jurisprudence concerning the President's power to appoint and
remove officers. The same result of unconstitutionality is
therefore plainly indicated by our case law in these areas.

															Article II, § 2, cl. 2, of the Constitution provides as
follows:

															"[The President] shall nominate, and by and with the Advice and
Consent of the the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments."

															Because appellant (who all parties and the Court agree is an
officer of the United States, ante at 487 U. S. 671 ,
n. 12) was not appointed by the President with the advice and
consent of the Senate, but rather by the Special Division of the
United States Court of Appeals, her appointment is constitutional
only if (1) she is an "inferior" officer within the meaning of the
above Clause, and (2) Congress may vest her appointment in a court
of law.

															As to the first of these inquiries, the Court does not attempt
to "decide exactly" what establishes the line between Page 487 U. S. 716 principal and "inferior" officers, but is confident that,
whatever the line may be, appellant "clearly falls on the inferior officer' side" of it. Ante at 487 U. S. 671 .
The Court gives three reasons: first, she "is subject to removal by
a higher Executive Branch official," namely, the Attorney General. Ibid. Second, she is "empowered by the Act to perform only
certain, limited duties." Ibid. Third, her office is
"limited in jurisdiction" and "limited in tenure." Ante at 487 U. S.
672 . The first of these lends no support to the view that appellant
is an inferior officer. Appellant is removable only for "good
cause" or physical or mental incapacity. 28 U.S.C. § 596(a)(1)
(1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed
by the President at will. I fail to see how the fact that
appellant is more difficult to remove than most principal officers
helps to establish that she is an inferior officer. And I do not
see how it could possibly make any difference to her superior or
inferior status that the President's limited power to remove her
must be exercised through the Attorney General. If she were
removable at will by the Attorney General, then she would be
subordinate to him, and thus properly designated as inferior; but
the Court essentially admits that she is not subordinate. See
ante at 487 U. S. 671 .
If it were common usage to refer to someone as "inferior" who is
subject to removal for cause by another, then one would say that
the President is "inferior" to Congress.

															The second reason offered by the Court -- that appellant
performs only certain, limited duties -- may be relevant to whether
she is an inferior officer, but it mischaracterizes the extent of
her powers. As the Court states:

															"Admittedly, the Act delegates to appellant [the] ' full
power and independent authority to exercise all investigative and
prosecutorial functions and powers of the Department of
Justice. '" Ibid., quoting 28 U.S.C. § 594(a) (1982 ed., Supp. V)
(emphasis Page 487 U. S. 717 added). [ Footnote 2/2 ] Moreover,
in addition to this general grant of power, she is given a broad
range of specifically enumerated powers, including a power not even
the Attorney General possesses: to "contes[t] in court . . . any
claim of privilege or attempt to withhold evidence on grounds of
national security." § 594(a)(6). [ Footnote 2/3 ] Once all of this is "admitted," it
seems Page 487 U. S. 718 to me impossible to maintain that appellant's authority is so
"limited" as to render her an inferior officer. The Court seeks to
brush this away by asserting that the independent counsel's power
does not include any authority to "formulate policy for the
Government or the Executive Branch." Ante at 487 U. S. 671 .
But the same could be said for all officers of the Government, with
the single exception of the President. All of them only formulate
policy within their respective spheres of responsibility -- as does
the independent counsel, who must comply with the policies of the
Department of Justice only to the extent possible. § 594(f).

															The final set of reasons given by the Court for why the
independent counsel clearly is an inferior officer emphasizes the
limited nature of her jurisdiction and tenure. Taking the latter
first, I find nothing unusually limited about the independent
counsel's tenure. To the contrary, unlike most high ranking
Executive Branch officials, she continues to serve until she (or
the Special Division) decides that her work is substantially
completed. See §§ 596(b)(1), (b)(2). This particular
independent prosecutor has already served more than two years,
which is at least as long as many Cabinet officials. As to the
scope of her jurisdiction, there can be no doubt that is small
(though far from unimportant). But within it, she exercises more
than the full power of the Attorney General. The Ambassador to
Luxembourg is not anything less than a principal officer simply
because Luxembourg is small. And the federal judge who sits in a
small district is not for that reason "inferior in rank and
authority." If the mere fragmentation of executive responsibilities
into small compartments suffices to render the heads of each of
those compartments inferior officers, then Congress could deprive
the President of the right to appoint his chief law enforcement
officer by dividing up the Attorney General's responsibilities
among a number of "lesser" functionaries. Page 487 U. S. 719 More fundamentally, however, it is not clear from the Court's
opinion why the factors it discusses -- even if applied correctly
to the facts of this case -- are determinative of the question of
inferior officer status. The apparent source of these factors is a
statement in United States v. Germaine, 99 U. S.
508 , 99 U. S. 511 (1879) (discussing United States v.
Hartwell , 6 Wall. 385, 73 U. S. 393 (1868)), that "the term [officer] embraces the ideas of tenure,
duration, emolument, and duties." See ante at 487 U. S. 672 .
Besides the fact that this was dictum, it was dictum in a case
where the distinguishing characteristics of inferior officers
versus superior officers were in no way relevant, but rather only
the distinguishing characteristics of an "officer of the United
States" (to which the criminal statute at issue applied), as
opposed to a mere employee. Rather than erect a theory of
who is an inferior officer on the foundation of such an
irrelevancy, I think it preferable to look to the text of the
Constitution and the division of power that it establishes. These
demonstrate, I think, that the independent counsel is not an
inferior officer, because she is not subordinate to any
officer in the Executive Branch (indeed, not even to the
President). Dictionaries in use at the time of the Constitutional
Convention gave the word "inferiour" two meanings which it still
bears today: (1) "[l]ower in place, . . . station, . . . rank of
life, . . . value or excellency," and (2) "[s]ubordinate." S.
Johnson, Dictionary of the English Language (6th ed. 1785). In a
document dealing with the structure (the constitution) of a
government, one would naturally expect the word to bear the latter
meaning -- indeed, in such a context, it would be unpardonably
careless to use the word unless a relationship of
subordination was intended. If what was meant was merely "lower in
station or rank," one would use instead a term such as "lesser
officers." At the only other point in the Constitution at which the
word "inferior" appears, it plainly connotes a relationship of
subordination. Article III vests the judicial Power of the United
States in "one supreme Court, and in such inferior Courts
as Page 487 U. S. 720 the Congress may from time to time ordain and establish."
U.S.Const., Art. III, § 1 (emphasis added). In Federalist No. 81,
Hamilton pauses to describe the "inferior" courts authorized by
Article III as inferior in the sense that they are "subordinate" to
the Supreme Court. See id. at 485, n., 490, n.

															That "inferior" means "subordinate" is also consistent with what
little we know about the evolution of the Appointments Clause. As
originally reported to the Committee on Style, the Appointments
Clause provided no "exception" from the standard manner of
appointment (President with the advice and consent of the Senate)
for inferior officers. 2 M. Farrand, Records of the Federal
Convention of 1787, pp. 498-499, 599 (rev. ed.1966). On September
15, 1787, the last day of the Convention before the proposed
Constitution was signed, in the midst of a host of minor changes
that were being considered, Gouverneur Morris moved to add the
exceptions clause. Id. at 627. No great debate ensued; the
only disagreement was over whether it was necessary at all. Id. at 627-628. Nobody thought that it was a fundamental
change, excluding from the President's appointment power and the
Senate's confirmation power a category of officers who might
function on their own, outside the supervision of those appointed
in the more cumbersome fashion. And it is significant that, in the
very brief discussion, Madison mentions (as in apparent contrast to
the "inferior officers" covered by the provision) "Superior
Officers." Id. at 637. Of course, one is not a "superior
officer" without some supervisory responsibility, just as, I
suggest, one is not an "inferior officer" within the meaning of the
provision under discussion unless one is subject to supervision by
a "superior officer." It is perfectly obvious, therefore, both from
the relative brevity of the discussion this addition received and
from the content of that discussion, that it was intended merely to
make clear (what Madison thought already was clear, see
id. at 627) that those officers appointed by the President
with Senate Page 487 U. S. 721 approval could on their own appoint their subordinates, who
would, of course, by chain of command, still be under the direct
control of the President.

															This interpretation is, moreover, consistent with our admittedly
sketchy precedent in this area. For example, in United States
v. Eaton, 169 U. S. 331 (1898), we held that the appointment by an Executive Branch
official other than the President of a "vice-consul," charged with
the duty of temporarily performing the function of the consul, did
not violate the Appointments Clause. In doing so, we repeatedly
referred to the "vice-consul" as a "subordinate" officer. Id. at 331 U. S. 343 . See also United States v. Germaine, supra, at 99 U. S. 511 (comparing "inferior" commissioners and bureau officers to heads of
department, describing the former as "mere . . . subordinates")
(dicta); United States v. Hartwell, supra, at 73 U. S. 394 (describing clerk appointed by Assistant Treasurer with approval of
Secretary of the Treasury as a "subordinate office[r]") (dicta).
More recently, in United States v. Nixon, 418 U.
S. 683 (1974), we noted that the Attorney General's
appointment of the Watergate Special Prosecutor was made pursuant
to the Attorney General's "power to appoint subordinate
officers to assist him in the discharge of his duties." Id. at 418 U. S. 694 (emphasis added). The Court's citation of Nixon as support
for its view that the independent counsel is an inferior officer is
simply not supported by a reading of the case. We explicitly stated
that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney
General could have removed him at any time, if by no other means
than amending or revoking the regulation defining his authority. Id. at 418 U. S. 696 .
Nor are any of the other cases cited by the Court in support of its
view inconsistent with the natural reading that an inferior officer
must at least be subordinate to another officer of the United
States. In Ex parte Siebold, 100 U.
S. 371 (1880), we upheld the appointment by a court of
federal "Judges of Election," who were charged with various duties
involving the overseeing Page 487 U. S. 722 of local congressional elections. Contrary to the Court's
assertion, see ante at 487 U. S. 673 ,
we did not specifically find that these officials were inferior
officers for purposes of the Appointments Clause, probably because
no one had contended that they were principal officers. Nor can the
case be said to represent even an assumption on our part that they
were inferior without being subordinate. The power of assisting in
the judging of elections that they were exercising was assuredly
not a purely executive power, and, if we entertained any
assumption, it was probably that they, like the marshals who
assisted them, see id. at 380, were subordinate to the
courts, see id. at 100 U. S. 397 .
Similarly, in Go-Bart Importing Co. v. United States, 282 U. S. 344 (1931), where we held that United States commissioners were
inferior officers, we made plain that they were subordinate to the
district courts which appointed them:

															"The commissioner acted not as a court, or as a judge of any
court, but as a mere officer of the district court in proceedings
of which that court had authority to take control at any time." Id. at 282 U. S.
354 .

															To be sure, it is not a sufficient condition for
"inferior" officer status that one be subordinate to a principal
officer. Even an officer who is subordinate to a department head
can be a principal officer. That is clear from the brief exchange
following Gouverneur Morris' suggestion of the addition of the
excepting clause for inferior officers. Madison responded:

															"It does not go far enough if it be necessary at all -- Superior Officers below Heads of Departments ought in some
cases to have the appointment of the lesser offices."

															2 M. Farrand, Records of the Federal Convention, of 1787, p. 627
(rev. ed.1966) (emphasis added). But it is surely a necessary condition for inferior officer status that the
officer be subordinate to another officer.

															The independent counsel is not even subordinate to the
President. The Court essentially admits as much, noting that

															"appellant may not be 'subordinate' to the Attorney General Page 487 U. S. 723 (and the President) insofar as she possesses a degree of
independent discretion to exercise the powers delegated to her
under the Act." Ante at 487 U. S. 671 .
In fact, there is no doubt about it. As noted earlier, the Act
specifically grants her the " full power and independent authority to exercise all investigative and prosecutorial functions of the Department of
Justice," 28 U.S.C. § 594(a) (1982 ed., Supp. V), and makes her
removable only for "good cause," a limitation specifically intended
to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H.R. Conf Rep. No. 100-452, p. 37 (1987).

															Because appellant is not subordinate to another officer, she is
not an "inferior" officer, and her appointment other than by the
President with the advice and consent of the Senate is
unconstitutional. IV I will not discuss at any length why the restrictions upon the
removal of the independent counsel also violate our established
precedent dealing with that specific subject. For most of it, I
simply refer the reader to the scholarly opinion of Judge Silberman
for the Court of Appeals below. See In re Sealed Case, 267
U.S.App.D.C. 178, 838 F.2d 476 (1988). I cannot avoid commenting,
however, about the essence of what the Court has done to our
removal jurisprudence today.

															There is of course no provision in the Constitution stating who
may remove executive officers, except the provisions for removal by
impeachment. Before the present decision, it was established,
however, (1) that the President's power to remove principal
officers who exercise purely executive powers could not be
restricted, see Myers v. United States, 272 U. S.
52 , 272 U. S. 127 (1926), and (2) that his power to remove inferior officers who
exercise purely executive powers, and whose appointment Congress
had removed from the usual procedure of Presidential appointment
with Senate consent, could be restricted, at least where the
appointment had been made by Page 487 U. S. 724 an officer of the Executive Branch, see ibid.; United States
v. Perkins, 116 U. S. 483 , 116 U. S. 485 (1886). [ Footnote 2/4 ]

															The Court could have resolved the removal power issue in this
case by simply relying upon its erroneous conclusion that the
independent counsel was an inferior officer, and then extending our
holding that the removal of inferior officers appointed by the
Executive can be restricted, to a new holding that even the removal
of inferior officers appointed by the courts can be restricted.
That would, in my view, be a considerable and unjustified
extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive
officer. The course the Court has chosen, however, is even
worse.

															Since our 1935 decision in Humphrey's Executor v. United
States, 295 U. S. 602 --
which was considered by many at the time the product of an
activist, anti-New Deal Court bent on reducing the power of
President Franklin Roosevelt -- it has been established that the
line of permissible restriction upon removal of principal officers
lies at the point at which the powers exercised by those officers
are no longer purely executive. Thus, removal restrictions have
been generally regarded as lawful for so-called "independent
regulatory Page 487 U. S. 725 agencies," such as the Federal Trade Commission, see
ibid.; 15 U.S.C. § 41, the Interstate Commerce Commission, see 49 U.S.C. § 10301(c) (1982 ed., Supp. IV), and the
Consumer Product Safety Commission, see 15 U.S.C. §
2053(a), which engage substantially in what has been called the
"quasi-legislative activity" of rulemaking, and for members of
Article I courts, such as the Court of Military Appeals, see 10 U.S.C. § 867(a)(2), who engage in the
"quasi-judicial" function of adjudication. It has often been
observed, correctly in my view, that the line between "purely
executive" functions and "quasi-legislative" or "quasi-judicial"
functions is not a clear one, or even a rational one. See
ante at 487 U. S.
689 -691; Bowsher v. Synar, 478 U.
S. 714 , 478 U. S. 761 ,
n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U. S. 470 , 343 U. S.
487 -488 (1952) (Jackson, J., dissenting). But at least
it permitted the identification of certain officers, and certain
agencies, whose functions were entirely within the control of the
President. Congress had to be aware of that restriction in its
legislation. Today, however, Humphrey's Executor is swept
into the dustbin of repudiated constitutional principles. "[O]ur
present considered view," the Court says,

															"is that the determination of whether the Constitution allows
Congress to impose a 'good cause'-type restriction on the
President's power to remove an official cannot be made to turn on
whether or not that official is classified as 'purely
executive.'" Ante at 487 U. S. 689 .
What Humphrey's Executor (and presumably Myers )
really means, we are now told, is not that there are any "rigid
categories of those officials who may or may not be removed at will
by the President," but simply that Congress cannot

															"interefere with the President's exercise of the 'executive
power' and his constitutionally appointed duty to 'take care that
the laws be faithfully executed,'" ante at 487 U. S.
689 -690.

															One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same
indignity (with much less justification) to Chief Justice Page 487 U. S. 726 Taft's opinion 10 years earlier in Myers v. United
States, 272 U. S. 52 (1926)
-- gutting, in six quick pages devoid of textual or historical
precedent for the novel principle it set forth, a carefully
researched and reasoned 70-page opinion. It is in fact comforting
to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the
Constitution. Humphrey's Executor at least had the decency
formally to observe the constitutional principle that the President
had to be the repository of all executive power, see 295 U.S. at 295 U. S.
627 -628, which, as Myers carefully explained,
necessarily means that he must be able to discharge those who do
not perform executive functions according to his liking. As we
noted in Bowsher, once an officer is appointed

															"'it is only the authority that can remove him, and not the
authority that appointed him, that he must fear and, in the
performance of his functions, obey.'"

															478 U.S. at 478 U. S. 726 ,
quoting Synar v. United States, 626 F.
Supp. 1374 , 1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.).
By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long
as the President remains "able to accomplish his constitutional
role." Ante at 487 U. S. 690 .
There are now no lines. If the removal of a prosecutor, the virtual
embodiment of the power to "take care that the laws be faithfully
executed," can be restricted, what officer's removal cannot? This
is an open invitation for Congress to experiment. What about a
special Assistant Secretary of State, with responsibility for one
very narrow area of foreign policy, who would not only have to be
confirmed by the Senate but could also be removed only pursuant to
certain carefully designed restrictions? Could this possibly render
the President "[un]able to accomplish his constitutional role"? Or
a special Assistant Secretary of Defense for Procurement? The
possibilities are endless, and the Court does not understand what
the separation of powers, what "[a]mbition . . . counteract[ing]
ambition," Federalist No. 51, p. 322 (Madison), is all about if it
does not expect Congress to try them. As far as I can discern from
the Court's opinion, it is now Page 487 U. S. 727 open season upon the President's removal power for all executive
officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says
to the President: "Trust us. We will make sure that you are able to
accomplish your constitutional role." I think the Constitution
gives the President -- and the people -- more protection than
that. V The purpose of the separation and equilibration of powers in
general, and of the unitary Executive in particular, was not merely
to assure effective government but to preserve individual freedom.
Those who hold or have held offices covered by the Ethics in
Government Act are entitled to that protection as much as the rest
of us, and I conclude my discussion by considering the effect of
the Act upon the fairness of the process they receive.

															Only someone who has worked in the field of law enforcement can
fully appreciate the vast power and the immense discretion that are
placed in the hands of a prosecutor with respect to the objects of
his investigation. Justice Robert Jackson, when he was Attorney
General under President Franklin Roosevelt, described it in a
memorable speech to United States Attorneys, as follows:

															"There is a most important reason why the prosecutor should
have, as nearly as possible, a detached and impartial view of all
groups in his community. Law enforcement is not automatic. It isn't
blind. One of the greatest difficulties of the position of
prosecutor is that he must pick his cases, because no prosecutor
can even investigate all of the cases in which he receives
complaints. If the Department of Justice were to make even a
pretense of reaching every probable violation of federal law, ten
times its present staff will be inadequate. We know that no local
police force can strictly enforce the traffic laws, or it would
arrest half the driving population on Page 487 U. S. 728 any given morning. What every prosecutor is practically required
to do is to select the cases for prosecution and to select those in
which the offense is the most flagrant, the public harm the
greatest, and the proof the most certain."

															"If the prosecutor is obliged to choose his case, it follows
that he can choose his defendants. Therein is the most dangerous
power of the prosecutor: that he will pick people that he thinks he
should get, rather than cases that need to be prosecuted. With the
law books filled with a great assortment of crimes, a prosecutor
stands a fair chance of finding at least a technical violation of
some act on the part of almost anyone. In such a case, it is not a
question of discovering the commission of a crime and then looking
for the man who has committed it, it is a question of picking the
man and then searching the law books, or putting investigators to
work, to pin some offense on him. It is in this realm -- in which
the prosecutor picks some person whom he dislikes or desires to
embarrass, or selects some group of unpopular persons and then
looks for an offense, that the greatest danger of abuse of
prosecuting power lies. It is here that law enforcement becomes
personal, and the real crime becomes that of being unpopular with
the predominant or governing group, being attached to the wrong
political views, or being personally obnoxious to or in the way of
the prosecutor himself."

															R. Jackson, The Federal Prosecutor, Address Delivered at the
Second Annual Conference of United States Attorneys, April 1,
1940.

															Under our system of government, the primary check against
prosecutorial abuse is a political one. The prosecutors who
exercise this awesome discretion are selected, and can be removed,
by a President whom the people have trusted enough to elect.
Moreover, when crimes are not investigated and prosecuted fairly,
nonselectively, with a reasonable Page 487 U. S. 729 sense of proportion, the President pays the cost in political
damage to his administration. If federal prosecutors "pick people
that [they] thin[k] [they] should get, rather than cases that need
to be prosecuted," if they amass many more resources against a
particular prominent individual, or against a particular class of
political protesters, or against members of a particular political
party, than the gravity of the alleged offenses or the record of
successful prosecutions seems to warrant, the unfairness will come
home to roost in the Oval Office. I leave it to the reader to
recall the examples of this in recent years. That result, of
course, was precisely what the Founders had in mind when they
provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he
ingredients which constitute safety in the republican sense are a
due dependence on the people, and a due responsibility." Federalist
No. 70, p. 424. The President is directly dependent on the people,
and, since there is only one President, he is
responsible. The people know whom to blame, whereas "one of the
weightiest objections to a plurality in the executive . . . is that
it tends to conceal faults and destroy responsibility." Id. at 427.

															That is the system of justice the rest of us are entitled to,
but what of that select class consisting of present or former
high-level Executive-Branch officials? If an allegation is made
against them of any violation of any federal criminal law (except
Class B or C misdemeanors or infractions), the Attorney General
must give it his attention. That in itself is not objectionable.
But if, after a 90-day investigation without the benefit of normal
investigatory tools, the Attorney General is unable to say that
there are "no reasonable grounds to believe" that further
investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the
people," and whose flaws cannot be blamed on the President. An
independent counsel is selected, and the scope of his or her
authority prescribed, by a Page 487 U. S. 730 panel of judges. What if they are politically partisan, as
judges have been known to be, and select a prosecutor antagonistic
to the administration, or even to the particular individual who has
been selected for this special treatment? There is no remedy for
that, not even a political one. Judges, after all, have life
tenure, and appointing a sure-fire enthusiastic prosecutor could
hardly be considered an impeachable offense. So if there is
anything wrong with the selection, there is effectively no one to
blame. The independent counsel thus selected proceeds to assemble a
staff. As I observed earlier, in the nature of things, this has to
be done by finding lawyers who are willing to lay aside their
current careers for an indeterminate amount of time, to take on a
job that has no prospect of permanence and little prospect for
promotion. One thing is certain, however: it involves investigating
and perhaps prosecuting a particular individual. Can one imagine a
less equitable manner of fulfilling the Executive responsibility to
investigate and prosecute? What would be the reaction if, in an
area not covered by this statute, the Justice Department posted a
public notice inviting applicants to assist in an investigation and
possible prosecution of a certain prominent person? Does this not
invite what Justice Jackson described as "picking the man and then
searching the law books, or putting investigators to work, to pin
some offense on him"? To be sure, the investigation must relate to
the area of criminal offense specified by the life-tenured judges.
But that has often been (and nothing prevents it from being) very
broad -- and should the independent counsel or his or her staff
come up with something beyond that scope, nothing prevents him or
her from asking the judges to expand his or her authority or, if
that does not work, referring it to the Attorney General, whereupon
the whole process would recommence and, if there was "reasonable
basis to believe" that further investigation was warranted, that
new offense would be referred to the Special Division, which would
in all likelihood assign it to the same Page 487 U. S. 731 independent counsel. It seems to me not conducive to fairness.
But even if it were entirely evident that unfairness was in fact
the result -- the judges hostile to the administration, the
independent counsel an old foe of the President, the staff refugees
from the recently defeated administration -- there would be no
one accountable to the public to whom the blame could be
assigned. I do not mean to suggest that anything of this sort (other than
the inevitable self-selection of the prosecutory staff) occurred in
the present case. I know and have the highest regard for the judges
on the Special Division, and the independent counsel herself is a
woman of accomplishment, impartiality, and integrity. But the
fairness of a process must be adjudged on the basis of what it
permits to happen, not what it produced in a particular case. It is
true, of course, that a similar list of horribles could be
attributed to an ordinary Justice Department prosecution -- a
vindictive prosecutor, an antagonistic staff, etc. But the
difference is the difference that the Founders envisioned when they
established a single Chief Executive accountable to the people: the
blame can be assigned to someone who can be punished.

															The above-described possibilities of irresponsible conduct must,
as I say, be considered in judging the constitutional acceptability
of this process. But they will rarely occur, and, in the average
case, the threat to fairness is quite different. As described in
the brief filed on behalf of three ex-Attorneys General from each
of the last three administrations:

															"The problem is less spectacular, but much more worrisome. It is
that the institutional environment of the Independent Counsel --
specifically, her isolation from the Executive Branch and the
internal checks and balances it supplies -- is designed to
heighten, not to check, all of the occupational hazards of the
dedicated prosecutor; the danger of too narrow a focus, of the loss
of perspective, of preoccupation with the pursuit of one alleged
suspect to the exclusion of other interests."

															Brief for Edward Page 487 U. S. 732 H. Levi, Griffin B. Bell, and William French Smith as Amici
Curiae 11.

															It is, in other words, an additional advantage of the unitary
Executive that it can achieve a more uniform application of the
law. Perhaps that is not always achieved, but the mechanism to
achieve it is there. The mini-Executive that is the independent
counsel, however, operating in an area where so little is law and
so much is discretion, is intentionally cut off from the unifying
influence of the Justice Department, and from the perspective that
multiple responsibilities provide. What would normally be regarded
as a technical violation (there are no rules defining such things),
may in his or her small world assume the proportions of an
indictable offense. What would normally be regarded as an
investigation that has reached the level of pursuing such picayune
matters that it should be concluded, may to him or her be an
investigation that ought to go on for another year. How frightening
it must be to have your own independent counsel and staff
appointed, with nothing else to do but to investigate you until
investigation is no longer worthwhile -- with whether it is
worthwhile not depending upon what such judgments usually hinge on,
competing responsibilities. And to have that counsel and staff
decide, with no basis for comparison, whether what you have done is
bad enough, willful enough, and provable enough, to warrant an
indictment. How admirable the constitutional system that provides
the means to avoid such a distortion. And how unfortunate the
judicial decision that has permitted it. * * * * The notion that every violation of law should be prosecuted,
including -- indeed, especially -- every violation by
those in high places, is an attractive one, and it would be risky
to argue in an election campaign that that is not an absolutely
overriding value. Fiat justitia, ruat coelum. Let justice
be done, though the heavens may fall. The reality is, however, that
it is not an absolutely overriding value, and it Page 487 U. S. 733 was with the hope that we would be able to acknowledge and apply
such realities that the Constitution spared us, by life tenure, the
necessity of election campaigns. I cannot imagine that there are
not many thoughtful men and women in Congress who realize that the
benefits of this legislation are far outweighed by its harmful
effect upon our system of government, and even upon the nature of
justice received by those men and women who agree to serve in the
Executive Branch. But it is difficult to vote not to enact, and
even more difficult to vote to repeal, a statute called,
appropriately enough, the Ethics in Government Act. If Congress is
controlled by the party other than the one to which the President
belongs, it has little incentive to repeal it; if it is controlled
by the same party, it dare not. By its shortsighted action today, I
fear the Court has permanently encumbered the Republic with an
institution that will do it great harm.

															Worse than what it has done, however, is the manner in which it
has done it. A government of laws means a government of rules.
Today's decision on the basic issue of fragmentation of executive
power is ungoverned by rule, and hence ungoverned by law. It
extends into the very heart of our most significant constitutional
function the "totality of the circumstances" mode of analysis that
this Court has in recent years become fond of. Taking all things
into account, we conclude that the power taken away from the
President here is not really too much. The next time executive
power is assigned to someone other than the President, we may
conclude, taking all things into account, that it is too
much. That opinion, like this one, will not be confined by any
rule. We will describe, as we have today (though I hope more
accurately) the effects of the provision in question, and will
authoritatively announce:

															"The President's need to control the exercise of the [subject
officer's] discretion is so central to the functioning of the
Executive Branch as to require complete control."

															This is not analysis; it is ad hoc judgment. And it
fails to explain why it is not true that -- as the text of Page 487 U. S. 734 the Constitution seems to require, as the Founders seemed to
expect, and as our past cases have uniformly assumed -- all purely
executive power must be under the control of the President.

															The ad hoc approach to constitutional adjudication has
real attraction, even apart from its work-saving potential. It is
guaranteed to produce a result, in every case, that will make a
majority of the Court happy with the law. The law is, by
definition, precisely what the majority thinks, taking all things
into account, it ought to be. I prefer to rely upon the
judgment of the wise men who constructed our system, and of the
people who approved it, and of two centuries of history that have
shown it to be sound. Like it or not, that judgment says, quite
plainly, that "[t]he executive Power shall be vested in a President
of the United States."

															[ Footnote 2/1 ]

															I agree with the Court on this point, but not because of the
section of the statute that it cites, § 592(f). What that provides
is that

															"[t]he Attorney General's determination . . . to apply to
the division of the court for the appointment of an independent
counsel shall not be reviewable in any court. "

															Quite obviously, the determination to apply is not the same as
the determination not to apply. In other contexts, we have sternly
avoided "construing" a statute to mean what it plainly does not
say, merely in order to avoid constitutional problems. See
Commodity Futures Trading Comm'n v. Schor, 478 U.
S. 833 , 478 U. S. 841 (1986). In my view, however, the Attorney General's decision not to
refer would in any event be nonreviewable as the exercise of
prosecutorial discretion. See Heckler v. Chaney, 470 U. S. 821 (1985).

															[ Footnote 2/2 ]

															The Court omits the further provision that the independent
counsel exercises within her sphere the "full power" of

															" the Attorney General, [with one minor exception
relating to wiretap authorizations] and any other officer or
employee of the Department of Justice[.]"

															§ 594(a). This is, of course, quite difficult to square with the
Court's assertion that appellant is " inferior' in rank and
authority" to the Attorney General. Ante at 487 U. S.
671 . [ Footnote 2/3 ]

															The independent counsel's specifically enumerated powers include
the following:

															"(1) conducting proceedings before grand juries and other
investigations;"

															"(2) participating in court proceedings and engaging in any
litigation, including civil and criminal matters, that [the]
independent counsel deems necessary;"

															"(3) appealing any decision of a court in any case or proceeding
in which [the] independent counsel participates in an official
capacity;"

															"(4) reviewing all documentary evidence available from any
source;"

															"(5) determining whether to contest the assertion of any
testimonial privilege;"

															"(6) receiving appropriate national security clearances and, if
necessary contesting in court . . . any claim of privilege or
attempt to withhold evidence on grounds of national security;"

															"(7) making applications to any Federal court for a grant of
immunity to any witness . . . or for warrants, subpoenas, or other
court orders, and for purposes of sections 6003, 6004, and 6005 of
title 18, exercising the authority vested in a United States
attorney or the Attorney General;"

															"(8) inspecting, obtaining, or using the original or a copy of
any tax return. . . ;"

															"(9) initiating and conducting prosecutions in any court of
competent jurisdiction, framing and signing indictments, filing
informations, and handling all aspects of any case filed in the
name of the United States; and"

															"(10) consulting with the United States Attorney for the
district in which the violation was alleged to have occurred."

															§§ 594(a)(1)-(10).

															In addition, the statute empowers the independent counsel to
hire a staff of a size as large as she "deems necessary," § 594(c),
and to enlist and receive "where necessary to perform [her] duties"
the assistance, personnel and resources of the Department of
Justice, § 594(d).

															[ Footnote 2/4 ]

															The Court misunderstands my opinion to say that

															"every officer of the United States exercising any part of [the
executive] power must serve at the pleasure of the President and be
removable by him at will." Ante at 487 U. S. 690 ,
n. 29. Of course, as my discussion here demonstrates, that has
never been the law, and I do not assert otherwise. What I do assert -- and what the Constitution seems plainly to
prescribe -- is that the President must have control over all
exercises of the executive power. See supra at 487 U. S. 705 .
That requires that he have plenary power to remove principal
officers such as the independent counsel, but it does not require
that he have plenary power to remove inferior officers. Since the
latter are, as I have described, subordinate to, i.e., subject to the supervision of, principal officers who (being
removable at will) have the President's complete confidence, it is
enough -- at least if they have been appointed by the President or
by a principal officer -- that they be removable for
cause, which would include, of course, the failure to accept
supervision. Thus, Perkins is in no way inconsistent with
my views.