The Independent Counsel Statute: Reading Good Cause in Light of Article II

Abstract

This paper uses the independent counsel statute to examine constitutional limits on legislative power to restrict the President’s ability to remove executive officers. As a federal prosecutor, the independent counsel exercises executive power. In the Ethics in Government Act, Congress provided that the President may remove an independent counsel only “for good cause, physical or mental disability, . . . or any other condition that substantially impairs the performance of such independent counsel’s duties.” 28 U.S.C. § 594(c)(1994). Using a multifactor balancing test, the Court in Morrison v. Olson held that the restriction did not unconstitutionally interfere with the executive power vested in the President by Article II or the President’s Article II duty to “take Care that the laws be faithfully executed.” In sharp contrast, Justice Scalia’s dissent argued that any restriction on the removability of an executive officer contradicts Article II’s Vesting Clause, which assigns all of “[t]he executive Power” to the President. After examining the Decision of 1789—the debate in the First Congress over the removal power—the paper suggests that the permissibility of congressional restrictions on removal raises a serious, hard-to-resolve constitutional question. In its 1789 debate over the President’s power to remove the Secretary of Foreign Affairs, the House split into three roughly equal factions: The first contended that the President has illimitable removal power; the second contended that Congress has discretion to determine an officer’s removability; and the third maintained that the President needed the advice and consent of the Senate to remove officers appointed by and with such advice and consent. After examining the arguments in that thoughtful and extensive debate (which occurred in the shadow of ratification), the paper concludes that the removal question constitutes a classic “difficult constitutional question”—the very sort that the modern canon of avoidance seeks to resolve through statutory construction rather than judicial review. The paper then argues that by reading open-ended “good cause” provisions to allow the President to remove executive officers for insubordination, the Court can avoid difficult constitutional questions about the scope of the President’s power.