morrison olson argued april decided june case presents question constitutionality independent counsel provisions ethics government act act arose house judiciary committee began investigation justice department role controversy house environmental protection agency epa regard agency limited production certain documents subpoenaed earlier house investigation judiciary committee report suggested official attorney general office appellee olson given false testimony earlier epa investigation two officials office appellees schmults dinkins obstructed epa investigation wrongfully withholding certain documents copy report forwarded attorney general request pursuant act seek appointment independent counsel investigate allegations appellees ultimately pursuant act provisions special division special created act appointed appellant independent counsel respect olson gave jurisdiction investigate whether olson testimony matter related thereto violated federal law prosecute violations dispute arose independent counsel attorney general refused furnish related matters judiciary committee allegations schmults dinkins special division ruled grant jurisdiction counsel broad enough permit inquiry whether olson conspired others including schmults dinkins obstruct epa investigation appellant caused grand jury issue subpoenas appellees moved federal district quash subpoenas claiming act independent counsel provisions unconstitutional appellant accordingly authority proceed upheld act constitutionality denied motions later ordered appellees held contempt continuing refuse comply subpoenas appeals reversed holding act violated appointments clause constitution art ii cl limitations article iii principle separation powers interfering president authority article ii held merit appellant contention based blair limited issues may raised person held contempt failure comply grand jury subpoena constitutional issues addressed appeals raised appeal district contempt judgment appeals ruled appellant failed object district consideration merits appellees constitutional claims waived opportunity contend appeal blair barred review claims appellant contention jurisdictional sense waived failure raise proper time place sort claim defeat jurisdiction district showing article iii case controversy lacking pp violate appointments clause congress vest appointment independent counsel special division pp appellant inferior officer purposes clause providing appointment certain federal officials principal officers president senate advice consent congress may law vest appointment inferior officers think proper president alone courts law heads departments although appellant may subordinate attorney general president insofar act possesses degree independent discretion exercise powers delegated fact act authorizes removal attorney general indicates degree inferior rank authority moreover appellant empowered act perform certain limited duties restricted primarily investigation appropriate prosecution certain federal crimes addition appellant office limited jurisdiction granted special division pursuant request attorney general also appellant office temporary sense independent counsel appointed essentially accomplish single task task office terminated either counsel action special division pp merit appellees argument even appellant inferior officer clause empower congress place power appoint officer outside executive branch make interbranch appointments clause language inferior officers admits limitation interbranch appointments instead seems clearly give congress significant discretion determine whether proper vest appointment example executive officials courts law clause history provides support appellees position moreover congress concerned created office independent counsel conflicts interest arise situations executive branch called upon investigate officers logical place put appointing authority judicial branch light act provision making judges special division ineligible participate matters relating independent counsel appointed appointment independent counsel run afoul constitutional limitation incongruous interbranch appointments pp powers vested special division violate article iii executive administrative duties nonjudicial nature may imposed judges holding office article iii pp article iii objection special division exercise power act appoint independent counsel since power derives appointments clause source authority judicial action independent article iii moreover division appointments clause powers encompass power define independent counsel jurisdiction congress creates temporary office nature duties necessity vary factual circumstances giving rise need appointment first place may vest power define office scope incident appointment officer pursuant appointments clause however jurisdiction decides upon must demonstrably related factual circumstances gave rise attorney general request appointment independent counsel particular case pp article iii absolutely prevent congress vesting certain miscellaneous powers special division act one purpose broad prohibition upon courts exercise executive administrative duties nonjudicial nature maintain separation judiciary branches federal government ensuring judges encroach upon executive legislative authority undertake tasks properly accomplished branches division miscellaneous powers passive powers receive act specifically approve various reports independent counsel attorney general encroach upon executive branch authority act simply give division power supervise independent counsel exercise counsel investigative prosecutorial authority functions division empowered perform inherently executive directly analogous functions federal judges perform contexts pp special division power terminate independent counsel office counsel task completed although administrative extent requires division monitor progress counsel proceedings decide whether counsel job completed significant judicial encroachment upon executive power upon independent counsel prosecutorial discretion require act invalidated inconsistent article iii act termination provisions give division anything approaching power remove counsel investigation proceeding still underway power vested solely attorney general pp special division exercise various powers specifically granted pose threat impartial independent federal adjudication claims within judicial power act gives division power review independent counsel actions attorney general actions regard counsel accordingly risk partisan biased adjudication claims regarding independent counsel moreover act prevents division members participating judicial proceeding concerning matter involves independent counsel independent counsel serving office involves exercise independent counsel official duties regardless whether independent counsel still serving office pp act violate separation powers principles impermissibly interfering functions executive branch pp act provision restricting attorney general power remove independent counsel instances show good cause taken impermissibly interfere president exercise constitutionally appointed functions congress attempted gain role removal executive officials established powers impeachment conviction act instead puts removal power squarely hands executive branch bowsher synar myers distinguished determination whether constitution allows congress impose good cause restriction president power remove official turn whether official classified purely executive analysis contained removal cases designed define rigid categories officials may may removed president ensure congress interfere president exercise executive power constitutionally appointed duty take care laws faithfully executed article ii cf humphrey executor wiener act imposition good cause standard removal unduly trammel executive authority congressional determination limit attorney general removal power essential congress view establish necessary independence office independent counsel pp act taken whole violate principle separation powers unduly interfering executive branch role case involve attempt congress increase powers expense executive branch act empower certain members congress request attorney general apply appointment independent counsel attorney general duty comply request although must respond within certain time limit congress role act limited receiving reports information oversight independent counsel activities functions recognized generally incidental legislative function congress similarly act work judicial usurpation properly executive functions act impermissibly undermine powers executive branch disrupt proper balance coordinate branches preventing executive branch accomplishing constitutionally assigned functions even though counsel degree independent free executive branch supervision greater extent federal prosecutors act gives executive branch sufficient control independent counsel ensure president able perform constitutionally assigned duties pp rehnquist delivered opinion brennan white marshall blackmun stevens joined scalia filed dissenting opinion post kennedy took part consideration decision case alexia morrison appellant argued cause pro se briefs earl dudley louis claiborne michael davidson argued cause senate amicus curiae support appellant brief ken benjamin morgan frankel thomas martin argued cause appellees brief appellee olson anthony epstein david zerhusen david debruin carl nadler brendan sullivan barry simon jacob stein robert muse filed brief appellees schmults et al solicitor general fried argued cause amicus curiae support appellees brief assistant attorney general bolton deputy solicitors general cohen bryson deputy assistant attorneys general spears cynkar edwin kneedler richard taranto robert kopp douglas letter briefs amici curiae urging reversal filed american bar association robert maccrate irvin nathan common cause archibald cox donald simon paul freund philip heymann center constitutional rights morton stavis michael ratner frank askin daniel pollitt public citizen eric glitzenstein alan morrison burton linne et al edwin vieira lawrence walsh laurence tribe paul friedman guy miller struve briefs amici curiae urging affirmance filed michael deaver herbert miller randall turk edward levi et al david strauss briefs amici curiae filed speaker leadership group house representatives steven ross charles tiefer michael murray american federation labor congress industrial organizations robert weinberg michael gottesman lawrence gold whitney north seymour seymour pro se george hritz benjamin civiletti ramsey clark chief justice rehnquist delivered opinion case presents us challenge independent counsel provisions ethics government act et seq supp hold today provisions act violate appointments clause constitution art ii cl limitations article iii impermissibly interfere president authority article ii violation constitutional principle separation powers briefly stated title vi ethics government act title vi act supp allows appointment independent counsel investigate appropriate prosecute certain government officials violations federal criminal laws act requires attorney general upon receipt information determines sufficient constitute grounds investigate whether person covered act may violated federal criminal law conduct preliminary investigation matter attorney general completed investigation days elapsed required report special special division created act purpose appointing independent counsels supp attorney general determines reasonable grounds believe investigation warranted must notify special division result case division shall power appoint independent counsel however attorney general determined reasonable grounds believe investigation prosecution warranted shall apply division appointment independent counsel attorney general application shall contain sufficient information assist selecting independent counsel defining independent counsel prosecutorial jurisdiction upon receiving application special division shall appoint appropriate independent counsel shall define independent counsel prosecutorial jurisdiction respect matters within independent counsel jurisdiction act grants counsel full power independent authority exercise investigative prosecutorial functions powers department justice attorney general officer employee department justice functions independent counsel include conducting grand jury proceedings investigations participating civil criminal proceedings litigation appealing decision case counsel participates official capacity counsel powers include initiating conducting prosecutions competent jurisdiction framing signing indictments filing informations handling aspects case name counsel may appoint employees may request obtain assistance department justice may accept referral matters attorney general matter falls within counsel jurisdiction defined special division act also independent counsel shall except possible comply written established policies department justice respecting enforcement criminal laws addition whenever matter referred independent counsel act attorney general justice department required suspend investigations proceedings regarding matter independent counsel full authority dismiss matters within prosecutorial jurisdiction without conducting investigation subsequent time prosecution consistent department justice policy two statutory provisions govern length independent counsel tenure office first defines procedure removing independent counsel section provides independent counsel appointed chapter may removed office impeachment conviction personal action attorney general good cause physical disability mental incapacity condition substantially impairs performance independent counsel duties provision governing tenure independent counsel defines procedures terminating counsel office office independent counsel terminates notifies attorney general completed substantially completed investigations prosecutions undertaken pursuant act addition special division acting either suggestion attorney general may terminate office independent counsel time finds investigation matters within prosecutorial jurisdiction independent counsel completed substantially completed appropriate department justice complete investigations prosecutions finally act provides congressional oversight activities independent counsel independent counsel may time time send congress statements reports activities appropriate committees congress given oversight jurisdiction regard official conduct independent counsel counsel required act cooperate congress exercise jurisdiction counsel required inform house representatives substantial credible information counsel receives may constitute grounds impeachment addition act gives certain congressional committee members power request writing attorney general apply appointment independent counsel attorney general required respond request within specified time required accede request proceedings case provide example act works practice two subcommittees house representatives issued subpoenas directing environmental protection agency epa produce certain documents relating efforts epa land natural resources division justice department enforce superfund law time appellee olson assistant attorney general office legal counsel olc appellee schmults deputy attorney general appellee dinkins assistant attorney general land natural resources division acting advice justice department president ordered administrator epa invoke executive privilege withhold certain documents ground contained enforcement sensitive information administrator obeyed order withheld documents response house voted hold administrator contempt administrator together filed lawsuit house conflict abated march administration agreed give house subcommittees limited access documents following year house judiciary committee began investigation justice department role controversy epa documents investigation appellee olson testified house subcommittee march testimony department complied several committee requests produce certain documents documents first withheld although documents eventually disclosed department committee learned existence majority members judiciary committee published lengthy report committee investigation report investigation role department justice withholding environmental protection agency documents congress report criticized various officials department justice role epa executive privilege dispute also suggested appellee olson given false misleading testimony subcommittee march appellees schmults dinkins wrongfully withheld certain documents committee thus obstructing committee investigation chairman judiciary committee forwarded copy report attorney general request pursuant seek appointment independent counsel investigate allegations olson schmults dinkins attorney general directed public integrity section criminal division conduct preliminary investigation section report concluded appointment independent counsel warranted investigate committee allegations respect three appellees consulting department officials however attorney general chose apply special division appointment independent counsel solely respect appellee olson attorney general accordingly requested appointment independent counsel investigate whether olson march testimony regarding completeness olc response judiciary committee request olc documents regarding knowledge epa willingness turn certain disputed documents congress violated provision federal criminal law attorney general report attorney general also requested independent counsel authority investigate matter related allegation april special division appointed james mckay independent counsel investigate whether testimony olson revision testimony march violated either provision federal law also ordered independent counsel shall jurisdiction investigate allegation evidence violation federal criminal law theodore olson developed investigations independent counsel referred connected arising investigation independent counsel shall jurisdiction prosecute violation order div cadc special division april january appellant asked attorney general pursuant refer related matters committee allegations appellees schmults dinkins attorney general refused refer matters concluding decision request appointment independent counsel regard matters final appellant asked special division order matters referred april division ruled attorney general decision seek appointment independent counsel respect schmults dinkins final unreviewable therefore authority make requested referral olson app ruled however original grant jurisdiction appellant broad enough permit inquiry whether olson may conspired others including schmults dinkins obstruct committee investigation following ruling may june appellant caused grand jury issue serve subpoenas ad testificandum duces tecum appellees three appellees moved quash subpoenas claiming among things independent counsel provisions act unconstitutional appellant accordingly authority proceed july district upheld constitutionality act denied motions quash sealed case supp dc subsequently ordered appellees held contempt pursuant continuing refuse comply subpoenas see app juris statement stayed effect contempt orders pending expedited appeal divided appeals reversed sealed case app majority ruled first independent counsel inferior officer purposes appointments clause accordingly found act invalid provide independent counsel nominated president confirmed senate clause requires principal officers went consider several alternative grounds conclusion statute unconstitutional majority view act also violates appointments clause insofar empowers law appoint inferior officer performs core executive functions act delegation various powers special division violates limitations article iii act restrictions attorney general power remove independent counsel violate separation powers finally act interferes executive branch prerogative take care laws faithfully executed art ii dissenting judge view act constitutional app appellant sought review noted probable jurisdiction reverse ii get merits first must deal appellant contention constitutional issues addressed appeals reviewed appeal district contempt judgment appellant relies blair limited rather sharply issues may raised individual subpoenaed grand jury witness held contempt failure comply subpoena facts case however find unnecessary consider whether blair since narrowed recent decisions appellees contend appeals found another related case sealed case app appellant admits failed object district consideration merits appellees constitutional claims result appeals ruled waived opportunity contend appeal review claims barred blair see reason appeals entitled conclude failure appellant object ground district sufficient reason refusing consider likewise decline consider appellant contention jurisdictional sense waived failure raise proper time place sort claim defeat jurisdiction district showing article iii case controversy lacking appellees subject burden complying grand jury subpoena result district contempt order legitimate adversarial relationship parties courts possess power redress resolve current controversy see bender williamsport area school district therefore turn consider merits appellees constitutional claims iii appointments clause article ii reads follows president shall nominate advice consent senate shall appoint ambassadors public ministers consuls judges officers whose appointments herein otherwise provided shall established law congress may law vest appointment inferior officers think proper president alone courts law heads departments art ii cl line inferior principal officers one far clear framers provided little guidance drawn see story commentaries constitution pp ed practical course government seem exact line drawn deemed inferior officers sense constitution whose appointment necessarily require concurrence senate need attempt decide exactly line falls two types officers view appellant clearly falls inferior officer side line several factors lead conclusion first appellant subject removal higher executive branch official although appellant may subordinate attorney general president insofar possesses degree independent discretion exercise powers delegated act fact removed attorney general indicates degree inferior rank authority second appellant empowered act perform certain limited duties independent counsel role restricted primarily investigation appropriate prosecution certain federal crimes admittedly act delegates appellant full power independent authority exercise investigative prosecutorial functions powers department justice grant authority include authority formulate policy government executive branch give appellant administrative duties outside necessary operate office act specifically provides policy matters appellant comply extent possible policies department third appellant office limited jurisdiction act restricted applicability certain federal officials suspected certain serious federal crimes independent counsel act within scope jurisdiction granted special division pursuant request attorney general finally appellant office limited tenure concededly time limit appointment particular counsel nonetheless office independent counsel temporary sense independent counsel appointed essentially accomplish single task task office terminated either counsel action special division unlike prosecutors appellant ongoing responsibilities extend beyond accomplishment mission appointed authorized special division undertake view factors relating ideas tenure duration duties independent counsel germaine supra sufficient establish appellant inferior officer constitutional sense conclusion consistent previous decisions considered question whether particular government official principal inferior officer eaton example approved department state regulations allowed executive officials appoint temporary absence consul terming subordinate officer notwithstanding appointment clause specific reference consuls principal officers stated subordinate officer charged performance duty superior limited time special temporary conditions thereby transformed superior permanent official ex parte siebold found federal supervisor elections charged various duties involving oversight local congressional elections see inferior officers purposes clause importing held commissioners inferior officers commissioners various judicial prosecutorial powers including power arrest imprison trial issue warrants institute prosecutions laws relating elective franchise civil rights consistent reference nixon office watergate special prosecutor whose authority similar appellant see subordinate officer however end inquiry appointments clause appellees argue even appellant inferior officer clause empower congress place power appoint officer outside executive branch contend clause contemplate congressional authorization interbranch appointments officer one branch appointed officers another branch relevant language appointments clause worth repeating reads congress may law vest appointment inferior officers think proper president alone courts law heads departments face language excepting clause admits limitation interbranch appointments indeed inclusion think proper seems clearly give congress significant discretion determine whether proper vest appointment example executive officials courts law recognized much one decisions area ex parte siebold supra stated doubt usual proper vest appointment inferior officers department government executive judicial particular executive department duties officers appertain absolute requirement effect constitution difficult many cases determine department office properly belonged constitution stands selection appointing power functionaries named matter resting discretion congress looking subject practical light perhaps better rest country harassed endless controversies specific direction subject might given rise also note history clause provides support appellees position throughout process drafting constitution convention concentrated problem authority appoint judges suggestion james madison convention adopted proposal senate authority records federal convention pp farrand ed several attempts transfer appointment power president rejected see august draft constitution reported committee detail retained senate appointment judges provided also senate appointment ambassadors vested president authority appoint officers cases otherwise provided constitution scheme maintained september committee eleven reported suggestions convention committee suggested constitution amended state president shall nominate advice consent senate shall appoint ambassadors public ministers judges officers whose appointments otherwise herein provided addition consuls list committee proposal adopted subsequently reported convention committee style see point september gouverneur morris moved add excepting clause art ii one comment made motion madison felt clause go far enough allow congress vest appointment powers superior officers heads departments first vote morris motion ended tie put forward second time urging provision necessary omitted time proposal adopted discussion shows little debate question whether clause empowers congress provide interbranch appointments nothing suggest framers intended prevent congress power mean say congress power provide interbranch appointments inferior officers unlimited addition concerns arise provisions appointment potential impair constitutional functions assigned one branches siebold suggested congress decision vest appointment power courts improper incongruity functions normally performed courts performance duty appoint duty appoint inferior officers required thereto law constitutional duty courts present case incongruity duty required excuse courts performance render acts void case however think impermissible congress vest power appoint independent counsel specially created federal thus disagree appeals conclusion inherent incongruity power appoint prosecutorial officers recognized courts may appoint private attorneys act prosecutor judicial contempt judgments see young ex rel vuitton et fils importing approved appointment commissioners exercised certain limited prosecutorial powers siebold well indicated judicial appointment federal marshals executive officer inappropriate lower courts also upheld interim judicial appointments attorneys see solomon supp sdny congress vested power make interim appointments district courts see supp congress course concerned created office independent counsel conflicts interest arise situations executive branch called upon investigate officers remove appointing authority executive branch logical place put judicial branch light act provision making judges special division ineligible participate matters relating independent counsel appointed supp think appointment independent counsel runs afoul constitutional limitation incongruous interbranch appointments iv appellees next contend powers vested special division act conflict article iii constitution long recognized express provision article iii judicial power limited cases controversies see muskrat general rule broadly stated executive administrative duties nonjudicial nature may imposed judges holding office art iii constitution buckley citing ferreira hayburn case dall purpose limitation help ensure independence judicial branch prevent judiciary encroaching areas reserved branches see parole geraghty mind address turn various duties given special division act importantly act vests special division power choose serve independent counsel power define jurisdiction clearly accepted appointments clause gives congress power vest appointment officials independent counsel courts law article iii objection special division exercise power power derives appointments clause source authority judicial action independent article iii appellees contend however division appointments clause powers encompass power define independent counsel jurisdiction disagree view congress power clause vest appointment inferior officers courts may certain circumstances allow congress give courts discretion defining nature scope appointed official authority particularly congress creates temporary office nature duties necessity vary factual circumstances giving rise need appointment first place may vest power define scope office incident appointment officer pursuant appointments clause said think congress may give division unlimited discretion determine independent counsel jurisdiction order division definition counsel jurisdiction truly incidental power appoint jurisdiction decides upon must demonstrably related factual circumstances gave rise attorney general investigation request appointment independent counsel particular case act also vests special division various powers duties relation independent counsel involve appointing counsel defining jurisdiction said derive division appointments clause authority duties include granting extensions attorney general preliminary investigation receiving report attorney general conclusion preliminary investigation referring matters counsel upon request receiving reports counsel regarding expenses incurred receiving report attorney general following removal independent counsel granting attorney fees upon request individuals investigated indicted independent counsel receiving final report counsel deciding whether release counsel final report congress public determining whether protective orders issued terminating independent counsel task completed leaving aside moment division power terminate independent counsel think article iii absolutely prevents congress vesting miscellaneous powers special division pursuant act observed one purpose broad prohibition upon courts exercise executive administrative duties nonjudicial nature buckley maintain separation judiciary branches federal government ensuring judges encroach upon executive legislative authority undertake tasks properly accomplished branches case miscellaneous powers described impermissibly trespass upon authority executive branch allegedly supervisory powers conferred passive division merely receives reports counsel attorney general entitled act specifically approve disapprove contents provisions act require exercise judgment discretion powers granted provisions essentially ministerial act simply give division power supervise independent counsel exercise investigative prosecutorial authority functions special division empowered perform inherently executive indeed directly analogous functions federal judges perform contexts deciding whether allow disclosure matters occurring grand jury see fed rule crim proc deciding extend grand jury investigation rule awarding attorney fees see doubtful special division power terminate office independent counsel pursuant appellees suggest power terminate especially exercised division motion administrative extent requires special division monitor progress proceedings independent counsel come decision whether counsel job completed also power considered typically judicial analogues among traditional powers nonetheless appeals view provision significant judicial encroachment upon executive power upon prosecutorial discretion independent counsel think appeals overstated matter described power terminate broadsword rapier enables control pace depth independent counsel activities app provision tested practice mean say adventurous special reasonably construe provision appeals duty federal courts construe statute order save constitutional infirmities see commodity futures trading schor end think narrow construction appropriate termination provisions act give special division anything approaching power remove counsel investigation proceeding still underway power vested solely attorney general see termination may occur duties counsel truly completed substantially completed remains need continuing action independent counsel basically device removing public payroll independent counsel served purpose unwilling acknowledge fact construed special division power terminate pose sufficient threat judicial intrusion matters properly within executive authority require act invalidated inconsistent article iii believe appellees contend special division exercise various powers specifically granted act poses threat impartial independent federal adjudication claims within judicial power commodity futures trading schor supra reach conclusion two reasons first act currently stands gives special division power review actions independent counsel actions attorney general regard counsel accordingly risk partisan biased adjudication claims regarding independent counsel second act prevents members special division participating judicial proceeding concerning matter involves independent counsel independent counsel serving office involves exercise independent counsel official duties regardless whether independent counsel still serving office supp emphasis added see also preventing members special division participating review attorney general decision remove independent counsel think special judges sufficiently isolated statutory provisions review activities independent counsel avoid taint independence judiciary render act invalid article iii emphasize nevertheless special division authority take action undertake duties specifically authorized act gradual expansion authority special division might another context bureaucratic success story one serious constitutional ramifications record cases involving independent counsel indicate special division times given advisory opinions issued orders directly authorized act two examples cited appeals noted special division issued orders ostensibly exempted independent counsel laws see app citing deaver cadc special division july olson cadc special division june another case division reportedly ordered counsel postpone investigation certain allegations completion related state criminal proceedings see conf propriety special division actions instances us nonetheless think appropriate point authorization actions act division exercise unauthorized powers risks transgression constitutional limitations article iii discussed turn consider whether act invalid constitutional principle separation powers two related issues must addressed first whether provision act restricting attorney general power remove independent counsel instances show good cause taken impermissibly interferes president exercise constitutionally appointed functions second whether taken whole act violates separation powers reducing president ability control prosecutorial powers wielded independent counsel two terms ago occasion consider whether consistent separation powers congress pass statute authorized government official removable congress participate found executive powers bowsher synar held bowsher congress reserve power removal officer charged execution laws except impeachment primary antecedent ruling decision myers myers considered propriety federal statute certain postmasters removed president advice consent senate congress attempt involve removal executive official found sufficient grounds render statute invalid observed bowsher essence decision myers judgment constitution prevents congress draw ing power remove right participate exercise power go beyond words implications appointments clause infringe constitutional principle separation governmental powers myers supra unlike bowsher myers case involve attempt congress gain role removal executive officials established powers impeachment conviction act instead puts removal power squarely hands executive branch independent counsel may removed office personal action attorney general good cause requirement congressional approval attorney general removal decision though decision subject judicial review view removal provisions act make case analogous humphrey executor wiener myers bowsher humphrey executor issue whether statute restricting president power remove commissioners federal trade commission ftc inefficiency neglect duty malfeasance office consistent constitution stated whether congress condition president power removal fixing definite term precluding removal except cause depend upon character office contrary implication dicta myers president power remove government officials simply respect civil officers exception judiciary provided constitution least regard agencies ftc authority congress creating agencies require act discharge duties independently executive control includes appropriate incident power fix period shall continue office forbid removal except cause meantime ibid humphrey executor found plain constitution give president illimitable power removal officers independent agencies ibid president power remove ftc commissioners coercive influence removal power threate independence commission similarly wiener considered whether president unfettered discretion remove member war claims commission established congress war claims act stat commission function receive adjudicate certain claims compensation suffered personal injury property damage hands enemy world war ii commissioners appointed president advice consent senate statute made provision removal officers perhaps commission limited existence humphrey executor however commissioners entrusted congress adjudicatory powers exercised free executive control context congress wish hang commission damocles sword removal president reason preferred commission men choosing accordingly rejected president attempt remove commissioner merely wanted appointees commission stating power given president directly constitution none impliedly conferred upon statute ibid appellees contend humphrey executor wiener distinguishable case involve officials performed core executive function argue decision humphrey executor rests distinction purely executive officials officials exercise powers view purely executive official involved governing precedent myers humphrey executor see humphrey executor supra myers president must absolute discretion discharge purely executive officials see myers undoubtedly rely terms distinguish officials involved humphrey executor wiener myers present considered view determination whether constitution allows congress impose good cause restriction president power remove official made turn whether official classified purely executive analysis contained removal cases designed define rigid categories officials may may removed president ensure congress interfere president exercise executive power constitutionally appointed duty take care laws faithfully executed article ii myers undoubtedly correct holding broader suggestion purely executive officials must removable president able accomplish constitutional role see noted wiener assumption myers case recognized president inherent constitutional power remove officials matter relation executive discharge duties matter restrictions congress may imposed regarding nature tenure considering moment good cause removal provision isolation parts act issue case say imposition good cause standard removal unduly trammels executive authority real dispute functions performed independent counsel executive sense law enforcement functions typically undertaken officials within executive branch noted however independent counsel inferior officer appointments clause limited jurisdiction tenure lacking policymaking significant administrative authority although counsel exercises small amount discretion judgment deciding carry duties act simply see president need control exercise discretion central functioning executive branch require matter constitutional law counsel terminable president think good cause removal provision issue impermissibly burdens president power control supervise independent counsel executive official execution duties act case power remove executive official completely stripped president thus providing means president ensure faithful execution laws rather independent counsel may terminated good cause executive attorney general retains ample authority assure counsel competently performing statutory responsibilities manner comports provisions act although need decide case exactly encompassed within term good cause act legislative history removal provision also makes clear attorney general may remove independent counsel misconduct see conf provision act conferring appointment authority independent counsel special congressional determination limit removal power attorney general essential view congress establish necessary independence office think limitation presently stands sufficiently deprives president control independent counsel interfere impermissibly constitutional obligation ensure faithful execution laws final question addressed whether act taken whole violates principle separation powers unduly interfering role executive branch time reaffirmed importance constitutional scheme separation governmental powers three coordinate branches see bowsher synar citing humphrey executor stated buckley valeo system separated powers checks balances established constitution regarded framers safeguard encroachment aggrandizement one branch expense hesitated invalidate provisions law violate principle see hand never held constitution requires three branches government operate absolute independence nixon see also nixon administrator general services citing james madison federalist joseph story commentaries constitution bigelow ed words justice jackson constitution diffuses power better secure liberty also contemplates practice integrate dispersed powers workable government enjoins upon branches separateness interdependence autonomy reciprocity youngstown sheet tube sawyer concurring opinion similarly think act works judicial usurpation properly executive functions apparent discussion appointments clause power appoint inferior officers independent counsel executive function constitutional sense least congress exercised power vest appointment inferior office courts law note nonetheless act special division power appoint independent counsel sua sponte may upon specific request attorney general courts specifically prevented reviewing attorney general decision seek appointment addition appointed counsel defined jurisdiction power supervise control activities counsel pointed discussion special division relation article iii various powers delegated statute division supervisory administrative functions constitution requires performed officials within executive branch act give federal power review attorney general decision remove independent counsel view function well within traditional power judiciary finally think act impermissibly undermine powers executive branch schor supra disrupts proper balance coordinate branches prevent ing executive branch accomplishing constitutionally assigned functions nixon administrator general services supra undeniable act reduces amount control supervision attorney general president exercises investigation prosecution certain class alleged criminal activity attorney general allowed appoint individual choice determine counsel jurisdiction power remove counsel limited nonetheless act give attorney general several means supervising controlling prosecutorial powers may wielded independent counsel importantly attorney general retains power remove counsel good cause power already concluded provides executive substantial ability ensure laws faithfully executed independent counsel independent counsel may appointed without specific request attorney general attorney general decision request appointment finds reasonable grounds believe investigation warranted committed unreviewable discretion act thus gives executive degree control power initiate investigation independent counsel addition jurisdiction independent counsel defined reference facts submitted attorney general counsel appointed act requires counsel abide justice department policy unless possible notwithstanding fact counsel degree independent free executive supervision greater extent federal prosecutors view features act give executive branch sufficient control independent counsel ensure president able perform constitutionally assigned duties vi sum conclude today violate appointments clause congress vest appointment independent counsel special division powers exercised special division act violate article iii act violate principle impermissibly interfering functions executive branch decision appeals therefore reversed footnotes supp statute applies violations federal criminal law violation classified class misdemeanor infraction see also federal criminal law violation classified class misdemeanor infraction section sets forth individuals may target investigation attorney general including president vice president cabinet level officials certain officials executive office president justice department director deputy director central intelligence commissioner internal revenue certain officials involved president national political campaign pursuant attorney general may also conduct preliminary investigation persons named investigation attorney general department justice official may result personal financial political conflict interest special division division appeals district columbia circuit supp consists three circuit judges justices appointed chief justice one judges must judge appeals district columbia circuit two judges may named special division particular judges appointed terms vacancy filled remainder period ibid act also requires attorney general apply appointment independent counsel days elapse receipt information triggering preliminary investigation without determination attorney general reasonable grounds believe investigation prosecution warranted pursuant attorney general decision apply special division appointment independent counsel reviewable upon request attorney general lieu appointing independent counsel special division may expand prosecutorial jurisdiction independent counsel section also authorizes special division fill vacancies arising death resignation removal independent counsel addition empowered grant limited extensions time attorney general preliminary investigation award attorney fees unindicted individuals subject investigation independent counsel amended pub stat attorney general however retains direction control matters specifically require attorney general personal action section title amendments act specify department justice shall pay costs relating establishment operation office independent counsel attorney general must report congress regarding amount expended investigations prosecutions independent counsel addition independent counsel must also file report major expenses special division every six months act originally enacted independent counsel removed obtain judicial review attorney general decision civil action commenced special division removal based error law fact order reinstatement appropriate relief sections also require independent counsel filed final report special division compliance comprehensive environmental response compensation liability act pub stat et seq attorney general concluded appellees schmults dinkins lacked requisite criminal intent obstruct committee investigation see report attorney general pursuant regarding allegations department justice officials house judiciary committee report apr filed cadc attorney general report clear appellant officer employee see buckley indeed light judicial experience prosecutors criminal cases said courts especially well qualified appoint prosecutors case judges given power appoint officer area special knowledge expertise example statute authorizing courts appoint officials department agriculture federal energy regulatory commission note also longstanding judicial practice appointing defense attorneys individuals unable afford representation see supp notwithstanding possibility appointed attorney may appear judge appointed several cases indicated article iii judicial power extend duties properly performed executive branch hayburn case example involved statute empowering federal state courts set pensions disabled veterans revolutionary war see act mar ch stat act undertook devolve upon circuit duty examining proofs determining amount monthly pay equivalent disability ascertained certify secretary war muskrat decision reported secretary war discretion either adopt reject findings ibid reach constitutional issue hayburn case opinions several circuit courts reported margins decision case since taken reflect proper understanding role judiciary constitution see ferreira ferreira congress passed statute authorizing federal florida hear adjudicate claims losses held responsible treaty spain ceded florida hayburn case results proceeding reported executive official secretary treasury make final determination whether pay claims recognized powers conferred judge statute judicial nature involved judgment discretion nonetheless judicial sense judicial power granted constitution courts ibid district decision ferreira exercise article iii judicial power ruled jurisdiction hear appeal think judicial exercise power appoint per se way inconsistent functional matter courts exercise article iii powers note courts long participated appointment officials commissioners magistrates see importing without disruption normal judicial functions certainly ex parte hennen pet deemed entirely appropriate authority appoint clerk conclusion power define counsel jurisdiction incidental power appoint also applies division authority expand jurisdiction counsel upon request attorney general view provision empower expand original scope counsel jurisdiction may done upon request attorney general pursuant authorizes simply refer matters relate independent counsel prosecutorial jurisdiction already defined special division must determine whether attorney general shown good cause request extension time limit preliminary investigation must decide whether extent release public counsel final report attorney general removal report may consider propriety request attorney fees way comparison also note federal courts judges long performed variety functions like functions involved necessarily directly involve adversarial proceedings within trial appellate example federal courts traditionally supervised grand juries assisted investigative function necessary compelling testimony witnesses see brown federal courts also participate issuance search warrants see fed rule crim proc review applications wiretaps see ed supp iv may require consider nature scope criminal investigations basis evidence affidavits submitted ex parte proceeding young ex rel vuitton et fils recognized federal courts possess inherent authority initiate contempt proceedings disobedience orders authority necessarily includes ability appoint private attorney prosecute contempt dissenting opinion noted termination provision intended serve measure last resort see sealed case app senate report provision paragraph provides unlikely situation special prosecutor may try remain special prosecutor responsibilities chapter completed drastic remedy terminating office special prosecutor without consent special prosecutor obviously executed caution see impropriety special division actions regard response appellant request referral additional matters case see olson app special division division statutory authority respond appellant request pursuant proper first consider whether exercise statutory authority without running afoul constitution division alleged reinterpretation original grant jurisdiction power reinterpret clarify original grant may seen incidental referral power order decide whether refer matter counsel must able determine whether matter falls within scope original grant see supra express view merits division interpretation original grant ruling regard power refer matters attorney general previously refused refer noted independent counsel may also removed impeachment conviction addition attorney general may remove counsel physical disability mental incapacity condition substantially impairs performance duties expressly disapproved statements myers harmony views expressed humphrey executor recognized issue actually decided myers president power remove postmaster first class without advice consent senate required act congress see described ftc administrative body created congress carry effect legislative policies embodied statute accordance legislative standard therein prescribed perform specified duties legislative judicial aid agency arm eye executive commissioners intended perform duties without executive leave free executive control put time powers ftc purely executive ibid argument raised solicitor general bowsher synar although justice white noted dissent case argument clearly accepted time nn indeed never held constitution prevents congress imposing limitations president power remove executive officials simply wield executive power myers expressly distinguished cases congress chosen vest appointment inferior executive officials head department see situation saw specific constitutional impediment congressionally imposed restrictions president removal powers see also perkins constitutional authority congress thus vest appointment inferior officers heads departments implies authority limit restrict regulate removal laws congress may enact relation officers appointed quoting claims decision case difficulty defining categories executive officials illustrated comparison decisions cases humphrey executor buckley valeo bowsher supra buckley indicated functions federal election commission administrative legislative judicial nature kinds usually performed independent regulatory agencies department executive branch direction act congress bowsher found functions comptroller general executive nature required exercise judgment concerning facts affect application act must interpret provisions act determine precisely budgetary calculations required compare description ftc powers humphrey executor stated occupie place executive department ftc administrative body created congress carry effect legislative policies embodied statute accordance legislative standard therein prescribed perform specified duties legislative judicial aid justice white noted dissent bowsher hard dispute powers ftc time humphrey executor present time considered executive least degree see dissent says language article ii vesting executive power president requires every officer exercising part power must serve pleasure president removable post rigid demarcation demarcation incapable altered law slightest degree applicable tens thousands holders offices neither known foreseen framers depends upon extrapolation general constitutional language think text bear also contrary holding perkins supra decided century ago terms also may used describe circumstances congress might inclined find degree independence executive afforded good cause removal standard necessary proper functioning agency official difficult imagine situations congress might desire official performing functions example free executive political control note way comparison various federal agencies whose officers covered good cause removal restrictions exercise civil enforcement powers analogous prosecutorial powers wielded independent counsel see giving ftc authority bring civil actions recover civil penalties violations rules respecting unfair competition giving consumer product safety commission authority obtain injunctions apply seizure hazardous products indeed hearings amendments act justice department official testified good cause standard contained amendments make special prosecutor independent officers many independent agencies executive branch ethics government act amendments hearing subcommittee oversight government management senate committee governmental affairs associate attorney general giuliani see constitutional problem fact act provides judicial review removal decision purpose review ensure independent counsel removed accordance congress expressed act possibility judicial review inject judicial branch removal decision put additional burden president exercise executive authority indeed note legislative history recent amendment act indicates scope review exercised courts standards established existing case law removal officials subject good cause removal conf provisions degree control exercised executive branch independent counsel clearly diminished relation exercised prosecutors attorneys appointed president subject termination justice scalia dissenting proud boast democracy government laws men many americans familiar phrase many know derivation comes part first article xxx massachusetts constitution reads full follows government commonwealth legislative department shall never exercise executive judicial powers either executive shall never exercise legislative judicial powers either judicial shall never exercise legislative executive powers either end may government laws men principle separation powers expressed constitution first section first three articles article provides legislative powers herein granted shall vested congress shall consist senate house representatives article iii provides judicial power shall vested one inferior courts congress may time time ordain establish provision issue art ii cl provides executive power shall vested president america mere words bill rights framers recognized insufficiency mere parchment delineation boundaries achieve separation powers federalist hamilton great security wrote madison gradual concentration several powers department consists giving administer department necessary constitutional means personal motives resist encroachments others provision defense must cases made commensurate danger attack federalist pp madison continued possible give department equal power republican government legislative authority necessarily predominates remedy inconveniency divide legislature different branches render different modes election different principles action little connected nature common functions common dependence society admit weight legislative authority requires thus divided weakness executive may require hand fortified suit power allocation power among congress president courts fashion preserve equilibrium constitution sought establish gradual concentration several powers department federalist madison effectively resisted frequently issue sort come clad speak sheep clothing potential asserted principle effect important change equilibrium power immediately evident must discerned careful perceptive analysis wolf comes wolf present case began legislative executive branches became embroiled dispute concerning scope congressional investigatory power house representatives supp dc often case interbranch conflicts became quite acrimonious course oversight hearings administration superfund environmental protection agency epa two subcommittees house representatives requested subpoenaed numerous internal epa documents president responded personally directing epa administrator turn certain documents see memorandum november president reagan administrator environmental protection agency reprinted pp attorney general notify congressional subcommittees assertion executive privilege see letters november attorney general william french smith hon john dingell hon elliott levitas reprinted decision assert executive privilege president counseled appellee olson assistant attorney general department justice office legal counsel post traditionally responsibility providing legal advice president subject approval attorney general house response pass resolution citing epa administrator possession documents contempt contempt congress criminal offense see attorney however member executive branch initially took steps prosecute contempt citation instead executive branch sought immediate assistance third branch filing civil action asking district declare epa administrator acted lawfully withholding documents claim executive privilege see ibid district declined view correctly get involved controversy urged two branches try ompromise cooperation rather confrontation haggling two branches eventually reached agreement giving house subcommittees limited access contested documents congress however leave things certain members house remained angered confrontation particularly role played department justice specifically judiciary committee remained disturbed possibility department persuaded president assert executive privilege despite reservations epa department deliberately unnecessarily precipitated constitutional confrontation congress department properly reviewed selected documents executive privilege asserted department directed attorney present contempt certification involving epa administrator grand jury prosecution department made decision sue house representatives department adequately advised represented president epa epa administrator describing unresolved questions basis judiciary committee investigation accordingly staff counsel house judiciary committee commissioned apparently without knowledge many committee members see investigate justice department role controversy investigation lasted years produced report issued committee vigorous dissent one members report among charges questioned truthfulness certain statements made assistant attorney general olson testimony front committee early stages investigation sent attorney general along formal request appoint independent counsel investigate olson others general matter act us requires attorney general apply appointment independent counsel within days receiving request unless determines within period reasonable grounds believe investigation prosecution warranted practical matter surprising attorney general choice assuming statute constitutional seek appointment independent counsel pursue charges principal object congressional request olson merely political consequences president seeming break law refusing substantial public ask indictment drawn representatives years even establish reasonable grounds believe investigation prosecution warranted respect least principal alleged culprit act establishes practical compulsion although opinion asserts attorney general duty comply congressional request ante entirely accurate duty comply unless conclude reasonable grounds believe prosecution warranted merely investigation warranted supp emphasis added investigation prohibited using routine investigative techniques grand juries plea bargaining grants immunity even subpoenas see also makes much fact courts specifically prevented reviewing attorney general decision seek appointment ante yes congress prevented reviewing context statute acrid smell threatened impeachment request appointment independent counsel come judiciary committee either house congress attorney general must decides seek appointment explain committee see also supp independent counsel must report house representatives information may constitute grounds impeachment thus application statute present case congress effectively compelled criminal investigation appointee president connection actions arising bitter power dispute president legislative branch olson may may guilty crime know know investigation commenced necessarily president authorized subordinates believe interest sense warrants diversion resources efforts worth cost money possible damage governmental interests even leaving aside normally considered factors president authorized subordinates necessarily believe investigation likely unearth violation worth prosecuting attorney general affirm congress demands reasonable grounds believe investigation warranted decisions regarding scope investigation duration finally whether prosecution ensue likewise beyond control president subordinates ii describe case decide concept government separate coordinate powers longer meaning devotes attention relatively technical details appointments clause removal power addressing briefly end opinion separation powers prologue suggests think backwards opinions full recognition principle separation powers inseparable corollary department defense must made commensurate danger attack federalist madison gives comprehensible content appointments clause determines appropriate scope removal power thus subsequently discuss appointments removal jurisprudence support today holding begin consideration fountainhead jurisprudence separation equilibration powers first however think well call mind important unusual premise underlies deliberations premise expressly contradicted opinion view faithfully observed rare case dealing one constitutionality statute passed congress find anywhere opinion usual almost formulary caution owe great deference congress view done constitutional see rostker goldberg fullilove klutznick opinion burger columbia broadcasting system democratic national committee national dairy products decline apply statute presumption constitutionality overcome see fullilove supra columbia broadcasting supra caution recited present case apply private citizen challenges action government grounds unrelated separation powers harmonious functioning system demands ordinarily give deference presumption validity actions political branches agreed least within respective spheres issue pertains separation powers political branches disagreement neither presumed correct reason stated concisely madison several departments perfectly terms common commission neither evident pretend exclusive superior right settling boundaries respective powers federalist playing field present case words level one one interested coordinate parties underlying constitutional dispute congress president entitled benefit doubt repeat article ii cl constitution provides executive power shall vested president concedes real dispute functions performed independent counsel executive though qualifies concession adding sense law enforcement functions typically undertaken officials within executive branch ante qualifier adds nothing atmosphere sense one identify executive power supposed vested president unless includes everything executive branch given except reference always everywhere conducted government conducted never legislature never courts always executive possible doubt independent counsel functions fit description vested full power independent authority exercise investigative prosecutorial functions powers department justice attorney general supp emphasis added governmental investigation prosecution crimes quintessentially executive function see heckler chaney buckley valeo nixon second question whether statute us deprives president exclusive control quintessentially executive activity possibly assert indeed whole object statute instead points president attorney general least control concession alone enough invalidate statute refrain pointing greatly exaggerates extent presidential control importan among controls asserts attorney general power remove counsel good cause ante somewhat like referring shackles effective means locomotion recognized humphrey executor indeed humphrey executor limiting removal power good cause impediment effective grant presidential control said limitation necessary respect members federal trade commission found agency legislative judicial departments wholly disconnected executive department quite evident one holds office pleasure another depended upon maintain attitude independence latter humphrey executor found means eliminating presidential control today considers importan means assuring presidential control congress course operated illusion enacted statute describing good cause limitation protecting independent counsel ability act independently president direct control since permits removal misconduct conf moving presumably less important controls president retains notes independent counsel may appointed without specific request attorney general discussed condition renders request mandatory inability find reasonable grounds believe investigation warranted insubstantial attorney general discretion severely confined referral made special division determine scope duration investigation see supp event limited power referral irrelevant question whether appointed independent counsel exercises executive power free president control finally points act directs independent counsel abide general justice department policy except possible see supp exception alone shows empty promise even without however one hard put come many investigative prosecutorial policies imposed constitution congress law absolute almost investigative prosecutorial decisions including ultimate decision whether technical violation law found prosecution warranted involve balancing innumerable legal practical considerations indeed even political considerations nonpartisan sense must considered exemplified recent decision independent counsel subpoena former ambassador canada producing considerable tension relations country see times may another political decision whether getting conviction particular case worth disclosure national security information necessary justice department intelligence agencies often disagreement point justice department always win present act even goes far specifically take resolution dispute away president give independent counsel supp sum balancing various legal practical political considerations none absolute essence prosecutorial discretion take away remove core prosecutorial function merely presidential control said however ultimately irrelevant much statute reduces presidential control case acknowledges must undeniable act reduces amount control supervision attorney general president exercises investigation prosecution certain class alleged criminal activity ante effects revolution constitutional jurisprudence determined purely executive functions issue functions given person whose actions fully within supervision control president nonetheless proceed sit judgment whether president need control exercise independent counsel discretion central functioning executive branch require complete control ante emphasis added whether conferral powers upon someone else sufficiently deprives president control independent counsel interfere impermissibly constitutional obligation ensure faithful execution laws ante emphasis added whether act give executive branch sufficient control independent counsel ensure president able perform constitutionally assigned duties ante emphasis added us determine never presumed determine much purely executive powers government must within full control president constitution prescribes utter incompatibility approach constitutional traditions made clear perhaps applying powers two branches conceivable congress passed statute depriving less full entire control insignificant area legislation inquire whether matter central functioning legislative branch really require complete control whether statute gives congress sufficient control surrogate legislator ensure congress able perform constitutionally assigned duties course none determined purely legislative power issue require exercised wholly entirely congress bring point closer home consider statute giving iii judges tiny bit purely judicial power relatively insignificant field substantial control though total control courts perhaps clear error review fair judicial equivalent attorney general cause removal power doubt pause inquire whether matter central functioning judicial branch really require complete control whether retained sufficient control matters decided able perform constitutionally assigned duties say constitutionally assigned duties include complete control exercises judicial power plurality opinion said northern pipeline construction marathon pipe line inexorable command article iii clear definite judicial power must exercised courts attributes prescribed art iii say president constitutionally assigned duties include complete control investigation prosecution violations law inexorable command article ii clear definite executive power must vested president unthinkable president exclusive power even alleged crimes close associates issue congress exclusive power legislation even issue exemption burdens certain laws see civil rights act title vii et seq prohibiting employers defined include discriminating basis race color religion sex national origin exclusive power pronounce final decision justiciable cases controversies even pertaining constitutionality statute reducing salaries justices see system separate coordinate powers necessarily involves acceptance exclusive power theoretically abused reiterate day truism constitutional protections costs coy iowa post separation powers may prevent us righting every wrong order ensure lose liberty checks branch abuse exclusive powers twofold first retaliation one branch use exclusive powers congress example impeach executive willfully fails enforce laws executive decline prosecute unconstitutional statutes cf lovett courts dismiss malicious prosecutions second ultimately political check people replace political branches branches dangerous political rights constitution federalist guilty abuse political pressures produced special prosecutors teapot dome watergate example long statute created independent counsel see act ch stat fed reg nonetheless replaced clear constitutional prescription executive power belongs president balancing test standards determine balance struck much removal presidential power much many countries world get along executive much weaker fact entirely dependent upon continued support legislature depart text constitution short stop amazing feature opinion even purport give answer simply announces analysis ability control decision whether investigate prosecute president closest advisers indeed president central functioning executive branch constitutionally required within president control apparently say abandoned basis decisionmaking text article ii executive power must vested president even attempt craft substitute criterion justiciable standard see baker carr coleman miller however remote constitution today governs future govern decision questions evidently governing standard might called unfettered wisdom majority revealed obedient people basis government laws constitution established government laws view moreover even ad hoc standardless judgment conclusion must wrong statute passed president taking action disagreeable congress executive officer giving advice president testifying congress concerning one many matters two branches time time odds assured acts motives adjudged insofar decision whether conduct criminal investigation prosecute concerned executive branch forum attuned interests policies presidency one natural advantages constitution gave presidency gave members congress staffs advantage prosecutable anything said done legislative capacities see art cl gravel object legislation eliminate assurance sympathetic forum unless honestly said reasonable grounds believe investigation warranted investigation must ensure conduct investigation determination whether prosecute given person neither selected subject control president turn assemble staff finding presumably willing put aside whatever else indeterminate period time order investigate prosecute president particular named individual administration prospect frightening discuss greater length conclusion opinion even outside context bitter interbranch political dispute perhaps boldness president affected though even sure much easier congress instead accepting political damage attendant commencement impeachment proceedings president trivial grounds matter easy one president political foes outside congress simply trigger debilitating criminal investigation chief executive law president assistants typically political base support utterly unrealistic think intimidated prospect advice advocacy interests hostile congress affected think members congress staffs unaffected replacing speech debate clause similar provision deeply wounds president substantially reducing president ability protect staff whole object law course imagine believes succeed besides weakening presidency reducing zeal staff must also obvious institution independent counsel enfeebles directly constant confrontations congress eroding public support nothing politically effective ability charge one opponent associates merely wrongheaded naive ineffective probability crooks nothing effectively gives appearance validity charges justice department investigation even better prosecution present statute provides ample means sort attack assuring massive lengthy investigations occur merely justice department application usual standards believes called whenever said reasonable grounds believe called statute highly visible procedures assure moreover unlike investigations widely known prominently displayed thus years since institution independent counsel established law nine highly publicized investigations source constant political damage two administrations remotely described merely application normal investigatory prosecutory standards demonstrated addition language statute reasonable grounds believe following facts congress appropriates approximately million annually general legal activities salaries expenses criminal division department justice see budget request department justice hearings subcommittee house committee appropriations pt pp doj budget request money used support ederal appellate activity rganized crime prosecution ublic integrity raud matters arcotic dangerous drug prosecution nternal security eneral litigation legal advice special investigations rosecution support rganized crime drug enforcement anagement administration comparison may august four independent counsel operating entire period time spent almost million amount annually appropriated entire criminal division spending almost million month august alone see washington post fiscal year department justice requested million entire criminal division doj budget request million support activities independent counsel sum statute deprive president substantial control prosecutory functions performed independent counsel substantially affect balance powers possibly conclude otherwise demonstrates wisdom former constitutional system degree reduced control political impairment irrelevant since purely executive power president folly new system standardless judicial allocation powers adopt today iii indicated earlier basic principles discussed give life content jurisprudence concerning president power appoint remove officers result unconstitutionality therefore plainly indicated case law areas article ii cl constitution provides follows president shall nominate advice consent senate shall appoint ambassadors public ministers consuls judges officers whose appointments herein otherwise provided shall established law congress may law vest appointment inferior officers think proper president alone courts law heads departments first inquiries attempt decide exactly establishes line principal inferior officers confident whatever line may appellant clearly falls inferior officer side ante gives three reasons first subject removal higher executive branch official namely attorney general ibid second empowered act perform certain limited duties ibid third office limited jurisdiction limited tenure ante first lends support view appellant inferior officer appellant removable good cause physical mental incapacity supp contrast principal officers executive branch may removed president fail see fact appellant difficult remove principal officers helps establish inferior officer see possibly make difference superior inferior status president limited power remove must exercised attorney general removable attorney general subordinate thus properly designated inferior essentially admits subordinate see ante common usage refer someone inferior subject removal cause another one say president inferior congress second reason offered appellant performs certain limited duties may relevant whether inferior officer mischaracterizes extent powers admittedly act delegates appellant full power independent authority exercise investigative prosecutorial functions powers department justice quoting supp emphasis added moreover addition general grant power given broad range specifically enumerated powers including power even attorney general possesses contes claim privilege attempt withhold evidence grounds national security admitted seems impossible maintain appellant authority limited render inferior officer seeks brush away asserting independent counsel power include authority formulate policy government executive branch ante said officers government single exception president formulate policy within respective spheres responsibility independent counsel must comply policies department justice extent possible final set reasons given independent counsel clearly inferior officer emphasizes limited nature jurisdiction tenure taking latter first find nothing unusually limited independent counsel tenure contrary unlike high ranking executive branch officials continues serve special division decides work substantially completed see particular independent prosecutor already served two years least long many cabinet officials scope jurisdiction doubt small though far unimportant within exercises full power attorney general ambassador luxembourg anything less principal officer simply luxembourg small federal judge sits small district reason inferior rank authority mere fragmentation executive responsibilities small compartments suffices render heads compartments inferior officers congress deprive president right appoint chief law enforcement officer dividing attorney general responsibilities among number lesser functionaries fundamentally however clear opinion factors discusses even applied correctly facts case determinative question inferior officer status apparent source factors statement germaine discussing hartwell wall term officer embraces ideas tenure duration emolument duties see ante besides fact dictum dictum case distinguishing characteristics inferior officers versus superior officers way relevant rather distinguishing characteristics officer criminal statute issue applied opposed mere employee rather erect theory inferior officer foundation irrelevancy think preferable look text constitution division power establishes demonstrate think independent counsel inferior officer subordinate officer executive branch indeed even president dictionaries use time constitutional convention gave word inferiour two meanings still bears today ower place station rank life value excellency ubordinate johnson dictionary english language ed document dealing structure constitution government one naturally expect word bear latter meaning indeed context unpardonably careless use word unless relationship subordination intended meant merely lower station rank one use instead term lesser officers point constitution word inferior appears plainly connotes relationship subordination article iii vests judicial power one inferior courts congress may time time ordain establish art iii emphasis added federalist hamilton pauses describe inferior courts authorized article iii inferior sense subordinate see inferior means subordinate also consistent little know evolution appointments clause originally reported committee style appointments clause provided exception standard manner appointment president advice consent senate inferior officers farrand records federal convention pp rev ed september last day convention proposed constitution signed midst host minor changes considered gouverneur morris moved add exceptions clause great debate ensued disagreement whether necessary nobody thought fundamental change excluding president appointment power senate confirmation power category officers might function outside supervision appointed cumbersome fashion significant brief discussion madison mentions apparent contrast inferior officers covered provision superior officers course one superior officer without supervisory responsibility suggest one inferior officer within meaning provision discussion unless one subject supervision superior officer perfectly obvious therefore relative brevity discussion addition received content discussion intended merely make clear madison thought already clear see officers appointed president senate approval appoint subordinates course chain command still direct control president interpretation moreover consistent admittedly sketchy precedent area example eaton held appointment executive branch official president charged duty temporarily performing function consul violate appointments clause repeatedly referred subordinate officer see also germaine supra comparing inferior commissioners bureau officers heads department describing former mere subordinates dicta hartwell supra describing clerk appointed assistant treasurer approval secretary treasury subordinate office dicta recently nixon noted attorney general appointment watergate special prosecutor made pursuant attorney general power appoint subordinate officers assist discharge duties emphasis added citation nixon support view independent counsel inferior officer simply supported reading case explicitly stated special prosecutor subordinate office end president attorney general removed time means amending revoking regulation defining authority cases cited support view inconsistent natural reading inferior officer must least subordinate another officer ex parte siebold upheld appointment federal judges election charged various duties involving overseeing local congressional elections contrary assertion see ante specifically find officials inferior officers purposes appointments clause probably one contended principal officers case said represent even assumption part inferior without subordinate power assisting judging elections exercising assuredly purely executive power entertained assumption probably like marshals assisted see siebold subordinate courts see similarly gobart importing held commissioners inferior officers made plain subordinate district courts appointed commissioner acted judge mere officer district proceedings authority take control time sure sufficient condition inferior officer status one subordinate principal officer even officer subordinate department head principal officer clear brief exchange following gouverneur morris suggestion addition exceptions clause inferior officers madison responded go far enough necessary superior officers heads departments cases appointment lesser offices farrand records federal convention rev ed emphasis added independent counsel even subordinate president essentially admits much noting appellant may subordinate attorney general president insofar possesses degree independent discretion exercise powers delegated act ante fact doubt noted earlier act specifically grants full power independent authority exercise investigative prosecutorial functions department justice supp makes removable good cause limitation specifically intended ensure independent subordinate president attorney general see conf appellant subordinate another officer inferior officer appointment president advice consent senate unconstitutional iv discuss length restrictions upon removal independent counsel also violate established precedent dealing specific subject simply refer reader scholarly opinion judge silberman appeals see sealed case app avoid commenting however essence done removal jurisprudence today course provision constitution stating may remove executive officers except provisions removal impeachment present decision established however president power remove principal officers exercise purely executive powers restricted see myers power remove inferior officers exercise purely executive powers whose appointment congress removed usual procedure presidential appointment senate consent restricted least appointment made officer executive branch see ibid perkins resolved removal power issue case simply relying upon erroneous conclusion independent counsel inferior officer extending holding removal inferior officers appointed executive restricted new holding even removal inferior officers appointed courts restricted view considerable unjustified extension giving executive full discretion neither selection removal purely executive officer course chosen however even worse since decision humphrey executor considered many time product activist deal bent reducing power president franklin roosevelt established line permissible restriction upon removal principal officers lies point powers exercised officers longer purely executive thus removal restrictions generally regarded lawful independent regulatory agencies federal trade commission see ibid interstate commerce commission see supp iv consumer product safety commission see engage substantially called activity rulemaking members article courts military appeals see engage function adjudication often observed correctly view line purely executive functions functions clear one even rational one see ante bowsher synar white dissenting ftc ruberoid jackson dissenting least permitted identification certain officers certain agencies whose functions entirely within control president congress aware restriction legislation today however humphrey executor swept dustbin repudiated constitutional principles ur present considered view says determination whether constitution allows congress impose good restriction president power remove official made turn whether official classified purely executive ante humphrey executor presumably myers really means told rigid categories officials may may removed president simply congress interefere president exercise executive power constitutionally appointed duty take care laws faithfully executed ante one hardly grieve shoddy treatment given today humphrey executor accorded indignity much less justification chief justice taft opinion years earlier myers gutting six quick pages devoid textual historical precedent novel principle set forth carefully researched reasoned opinion fact comforting witness reality lives ipse dixit dies ipse dixit one must grieve constitution humphrey executor least decency formally observe constitutional principle president repository executive power see myers carefully explained necessarily means must able discharge perform executive functions according liking noted bowsher officer appointed authority remove authority appointed must fear performance functions obey quoting synar supp dc scalia johnson gasch contrast present considered view simply executive officer removal restricted long president remains able accomplish constitutional role ante lines removal prosecutor virtual embodiment power take care laws faithfully executed restricted officer removal open invitation congress experiment special assistant secretary state responsibility one narrow area foreign policy confirmed senate also removed pursuant certain carefully designed restrictions possibly render president un able accomplish constitutional role special assistant secretary defense procurement possibilities endless understand separation powers mbition counteract ing ambition federalist madison expect congress try far discern opinion open season upon president removal power executive officers even superficially principled restriction humphrey executor cover essentially says president trust us make sure able accomplish constitutional role think constitution gives president people protection purpose separation equilibration powers general unitary executive particular merely assure effective government preserve individual freedom hold held offices covered ethics government act entitled protection much rest us conclude discussion considering effect act upon fairness process receive someone worked field law enforcement fully appreciate vast power immense discretion placed hands prosecutor respect objects investigation justice robert jackson attorney general president franklin roosevelt described memorable speech attorneys follows important reason prosecutor nearly possible detached impartial view groups community law enforcement automatic blind one greatest difficulties position prosecutor must pick cases prosecutor even investigate cases receives complaints department justice make even pretense reaching every probable violation federal law ten times present staff inadequate know local police force strictly enforce traffic laws arrest half driving population given morning every prosecutor practically required select cases prosecution select offense flagrant public harm greatest proof certain prosecutor obliged choose case follows choose defendants therein dangerous power prosecutor pick people thinks get rather cases need prosecuted law books filled great assortment crimes prosecutor stands fair chance finding least technical violation act part almost anyone case question discovering commission crime looking man committed question picking man searching law books putting investigators work pin offense realm prosecutor picks person dislikes desires embarrass selects group unpopular persons looks offense greatest danger abuse prosecuting power lies law enforcement becomes personal real crime becomes unpopular predominant governing group attached wrong political views personally obnoxious way prosecutor jackson federal prosecutor address delivered second annual conference attorneys april system justice rest us entitled select class consisting present former executive branch officials allegation made violation federal criminal law except class misdemeanors infractions attorney general must give attention objectionable investigation without benefit normal investigatory tools attorney general unable say reasonable grounds believe investigation warranted process set motion full control persons dependent people whose flaws blamed president independent counsel selected scope authority prescribed panel judges politically partisan judges known select prosecutor antagonistic administration even particular individual selected special treatment remedy even political one judges life tenure appointing surefire enthusiastic prosecutor hardly considered impeachable offense anything wrong selection effectively one blame independent counsel thus selected proceeds assemble staff observed earlier nature things done finding lawyers willing lay aside current careers indeterminate amount time take job prospect permanence little prospect promotion one thing certain however involves investigating perhaps prosecuting particular individual one imagine less equitable manner fulfilling executive responsibility investigate prosecute reaction area covered statute justice department posted public notice inviting applicants assist investigation possible prosecution certain prominent person invite justice jackson described picking man searching law books putting investigators work pin offense sure investigation must relate area criminal offense specified judges often nothing prevents broad independent counsel staff come something beyond scope nothing prevents asking judges expand authority work referring attorney general whereupon whole process recommence reasonable basis believe investigation warranted new offense referred special division likelihood assign independent counsel seems conducive fairness even entirely evident unfairness fact result judges hostile administration independent counsel old foe president staff refugees recently defeated administration one accountable public blame assigned mean suggest anything sort inevitable prosecutory staff occurred present case know highest regard judges special division independent counsel woman accomplishment impartiality integrity fairness process must adjudged basis permits happen produced particular case true course similar list horribles attributed ordinary justice department prosecution vindictive prosecutor antagonistic staff etc difference difference founders envisioned established single chief executive accountable people blame assigned someone punished described possibilities irresponsible conduct must say considered judging constitutional acceptability process rarely occur average case threat fairness quite different described brief filed behalf three general last three administrations problem less spectacular much worrisome institutional environment independent counsel specifically isolation executive branch internal checks balances supplies designed heighten check occupational hazards dedicated prosecutor danger narrow focus loss perspective preoccupation pursuit one alleged suspect exclusion interests brief edward levi griffin bell william french smith amici curiae worse done however manner done government laws means government rules today decision basic issue fragmentation executive power ungoverned rule hence ungoverned law extends heart significant constitutional function totality circumstances mode analysis recent years become fond taking things account conclude power taken away president really much next time executive power assigned someone president may conclude taking things account much opinion like one confined rule describe today though hope accurately effects provision question authoritatively announce president need control exercise subject officer discretion central functioning executive branch require complete control analysis ad hoc judgment fails explain true text constitution seems require founders seemed expect past cases uniformly assumed purely executive power must control president ad hoc approach constitutional adjudication real attraction even apart potential guaranteed produce result every case make majority happy law law definition precisely majority thinks taking things account prefer rely upon judgment wise men constructed system people approved two centuries history shown sound like judgment says quite plainly executive power shall vested president agree point section statute cites provides attorney general determination apply division appointment independent counsel shall reviewable quite obviously determination apply determination apply contexts sternly avoided construing statute mean plainly say merely order avoid constitutional problems see commodity futures trading schor view however attorney general decision refer event nonreviewable exercise prosecutorial discretion see heckler chaney omits provision independent counsel exercises within sphere full power attorney general one minor exception relating wiretap authorizations officer employee department justice course quite difficult square assertion appellant inferior rank authority attorney general ante independent counsel specifically enumerated powers include following conducting proceedings grand juries investigations participating proceedings engaging litigation including civil criminal matters independent counsel deems necessary appealing decision case proceeding independent counsel participates official capacity reviewing documentary evidence available source determining whether contest assertion testimonial privilege receiving appropriate national security clearances necessary contesting claim privilege attempt withhold evidence grounds national security making applications federal grant immunity witness warrants subpoenas orders purposes sections title exercising authority vested attorney attorney general inspecting obtaining using original copy tax return initiating conducting prosecutions competent jurisdiction framing signing indictments filing informations handling aspects case filed name consulting attorney district violation alleged occurred misunderstands opinion say every officer exercising part executive power must serve pleasure president removable ante course discussion demonstrates never law assert otherwise assert constitution seems plainly prescribe president must control exercises executive power see supra requires plenary power remove principal officers independent counsel require plenary power remove inferior officers since latter described subordinate subject supervision principal officers removable president complete confidence enough least appointed president principal officer removable cause include course failure accept supervision thus perkins way inconsistent views