Sunday, March 23, 2014

Memorandum to the Tea Parties (V)—and others

(I had prepared this essay before my last blog, entitled “Why?” There’s no reason to waste it while I decide whether to continue with the Tea Party Memoranda. I will make that decision by next Sunday.)

[Please forward]

Worst Decision of the Supreme Court of the United States, No. 2
Morrison v. Olson[1]

Separation of powers, the Independent Counsel, and Barack  Obama

Once the domain of judges, law professors, and constitutional lawyers, the subject of separation of powers has recently come to the fore as Barack Obama has usurped Congressional Article I power by using presidential Article II executive orders to “legislate” on matters clearly within the purview of Congress. His seemingly endless “amendment” of the Affordable Care Act and “enactment” of the Congressionally-rejected immigration Dream Act quickly come to mind.

Hence, even TV’s talking heads have suddenly awakened to the constitutional doctrine of separation of powers. (Separation of powers is discussed in Chapter 2, pages 66-68 of my The American Constitution and Ayn Rand’s "InnerContradiction".)

In the introduction to my March 16, 2014 blog on M’Culloch v. Maryland ( I laid the explanatory foundation for one of the three main pillars of American constitutionalism, Federalism.

The second pillar is Separation of Powers.

As I explained in the M'Culloch essay, Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” (My emphasis.) All!

Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.” (My emphasis.)
Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.” (My emphasis.)

Three pillars of American constitutionalism.

While the principle of federalism allocates power between the federal and state governments (in a sense, “vertically”), the principle of separation of powers allocates power among the three branches of federal (and state) governments (in a sense, “horizontally”).
It has been said about this horizontal division of legislative, executive, and judicial power that

“[p]erhaps no principle of American constitutionalism has attracted more attention than that of separation of powers.  It has in fact come to define the very character of the American political system.”[2] James Madison, among other Founders, deemed separation of powers “a first principle of free government.”[3]

The reason separation of powers is indispensable to democratic institutions was ably expressed by Justice Lewis Powell in the 1983 case of Immigration and Naturalization Service v. Chadha. [4]

The Framers perceived that “[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. * * * During the [period of the Articles of] Confederation, the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown." (My emphasis.)

Powell continued:

One abuse that was prevalent during the Confederation was the exercise of judicial power by the state legislatures. * * * Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and “[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy. . . .” The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London edition 1787)).  * * * It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches.

Despite the importance of the separation of powers principle in preventing those abuses, and the danger of tyranny potentially flowing from them, the Supreme Court—in Orwellian terms, the branch “more equal than others”—has frequently allowed one branch of government to invade the prerogatives of another, supposedly co-equal, branch. As we are all too aware, the Supreme Court has not yet spoken about Mr. Obama’s current power-grab of Congress’s legislative power.

In light of my following discussion, keep in mind that a separation of powers violation can occur whenever either of the three branches—legislative, executive, judicial—usurps the power of another. One example was Congressional enactment of the War Powers Act unconstitutionally restricting the President’s Article II commander-in-chief power. Harry Truman’s seizure of American steel mills during the Korean War was a violation of separation of powers, because he had no Congressional authorization. And so has been much of what Obama has been up to lately. Indeed, the President has acted contrary to the expressed wishes of Congress.

But before considering that we must revisit the Watergate scandal and its aftermath, when the Ethics in Government Act of 1978[5] was passed.  

One provision of the Act created a mechanism for the appointment of an Independent (note the word) Counsel in the Executive Branch. That provision dealt a severe blow to separation of powers in general and, in a reverse of the current problem with Mr. Obama where the President has encroached on the power of Congress, severely encroached on the power of the president.[6]

Under the Ethics in Government Act, if the Attorney General of the United States learned of information that was “sufficient to constitute grounds to investigate whether any person [to whom the Act applies] may have violated any federal criminal law,” the AG had no more than ninety days to look into the matter.  Within that time, or if his preliminary investigation was completed sooner, he was required to render a report to a special panel of judges.  

If the AG determined there was a lack of “reasonable grounds to believe that further investigation was warranted,” that’s what he was obliged to report to the judges.  His decision not to go forward could not be challenged by the judges, nor was his decision reviewable by any court. Not going forward—which has just occurred with Eric Holder’s decision not to seek a special prosecutor to investigate the IRS scandal—was his alone. In effect, prosecutorial discretion. Note that under the Act there was no Executive Branch control.

On the other hand, the Act provided that if the Attorney General found “reasonable grounds to believe that further investigation is warranted,” he would then apply to the special panel of judges for the appointment of an “independent counsel.”[7]
In that event, the judges then had to “appoint an appropriate Independent Counsel and shall define that independent counsel’s prosecutorial jurisdiction.”

Whichever way the Attorney General went, his decision was not reviewable by any court. So there was neither executive nor judicial oversight over the AG.

Morrison was appointed Independent Counsel with the jurisdiction to investigate whether the testimony given by Olson—Assistant Attorney General for the Office of Legal Counsel—to a House committee, and every matter related to that testimony, violated any federal laws, including the federal perjury statute.

Eventually, a dispute arose between Special Counsel Morrison and the Department of Justice concerning the latter’s refusal to produce certain materials on the ground that they were beyond the Independent Counsel’s jurisdiction.  

The appointing judges ruled that the jurisdiction they had given Morrison did encompass the materials she had asked for.  

Subpoenas were issued, and Olson moved to quash them on the ground that the Ethics in Government Act violated separation of powers because Congress had created a literally unaccountable Independent Counsel, at the expense of the Executive Branch.
The federal district court upheld the Act’s constitutionality.

The United States Court of Appeals for the District of Columbia reversed, ruling that the Act, considered in its entirety, did violate separation of powers.

 The Supreme Court reversed the Court of Appeals.  The Act, including the Independent Counsel provisions, was constitutional. While there were several issues upon which the Court disagreed with the Court of Appeals, I'm concerned here only with the separation of powers aspect of the Supreme Court decision.

Caveat: Although the Morrison case involved Congress arguably exceeding its powers at the expense of the Executive Branch (although the Court disagreed), while Mr. Obama’s current unilateral exercise of presidential power is at the expense of Congressional legislative power, the separation of power principle at stake in each situation is the same: Usurpation of constitutionally delegated power, no matter which branch of the government is involved.

It’s useful to quote what I wrote above:

As I explained in the M'Culloch essay, Article I, Section 1, of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” All! (My emphasis.)

Article II, Section 1, provides that “[t]he executive Power shall be vested in a President of the United States of America.” (My emphasis.)

Article III, Section 1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in Such inferior courts as Congress may from time to time ordain and establish.” (My emphasis.)

Three pillars of American constitutionalism.

 The lone dissenter in Morrison v. Olson was Justice Antonin Scalia, whose opinion fully explains why the venerable principle of separation of powers was violated in the Morrison case, and why the majority’s decision was indefensible. His reasoning explains why Morrison belongs on the list of worst Supreme Court decisions. And Justice Scalia’s dissent speaks volumes about our current President’s executive order power-grab in violation of Articles I and II.

Scalia began his dissent by positing a bedrock principle of American constitutionalism, one that predated the United States Constitution itself:

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

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

Building his argument, Scalia then invoked the Framers, especially James Madison who in Federalist 47 wrote regarding separation of powers that: “no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” 

Justice Scalia then noted, as had Madison some two hundred years earlier, that even within the legislative branch the structure of Congress itself provided a distinct separation of powers because that body was divided into two chambers, the members of which were selected differently and the powers of which differed considerably.[8] 

Not so the President’s powers under Article II.  There is no textual dilution of his power, although during the framing of the Constitution there were proposals to do just that by having more than one executive or even a council of advisors.

Having laid this groundwork, elaborately, Scalia then bluntly named what Morrison v. Olson was all about: in a word, “Power.”  But more than that, Scalia recognized that although a separation of powers issue can come to the Court “clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf [the Independent Counsel provisions of the Act] comes as a wolf.”

How so?

Because, according to Scalia,

by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. 

Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates. [9]

In other words, Justice Scalia was saying that not only did Congress under Article I move into the area of presidential Article II power, but the legislature then made the Independent Counsel insulated from control even by the Executive Branch.

Once an Independent Counsel is appointed, virtually everything that follows is effectively “beyond the control” of the Executive Branch, i.e., beyond “the President and his subordinates.” Indeed, Scalia made the point that merely to describe the facts of the case is to decide it, else, he wrote, “the concept of a government of separate and coordinate powers no longer has meaning.”

Adverting again to Article II, Scalia reminded the Court’s majority that the Constitution vested the executive power in the President:  “As I described at the outset of this [dissenting] opinion,” Scalia wrote, “this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld [as the Supreme Court majority did not] on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power?[10]  [Damn clear analysis.]

No one can argue with the answer to Scalia’s first question.  It is manifestly “yes”—so much so that the Morrison majority did not, indeed could not, refute it.  Scalia continued:

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity [investigation and prosecution]: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute . . . .[11]    (My emphasis.)

For Scalia and others who believe that separation of powers means true executive power under Article II of the Constitution remains vested in the President not some literally Independent Counsel appointed under the Ethics of Government Act of 1978, the majority’s recognition that in the Act Congress had deprived him of power should have swung the decision against the law’s constitutionality. 
As Scalia put the point:

It is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that ‘[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.’ * * *  

It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether ‘the President's need to control the exercise of [the independent counsel’s] discretion is so central to the functioning of the Executive Branch’ as to require complete control . . . , whether the conferral of his powers upon someone else ‘sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws’ . . .  and whether ‘the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties” . . . . It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.[12]     
It is understandable that the majority was unable to answer Scalia’s arguments, rooted as they were in facts about what the Act said and how it operated, and rooted as well in the majority’s own concessions

Nor did the majority deal with another salient point Scalia made: that the Court would have no difficulty finding a separation of powers violation if, for example, even a smidgen of judicial power was handed off to another branch of government—and no inquiry would be made about whether the Court retained sufficient other judicial powers.  Article III requires all judicial powers to be vested in courts, and that’s that.

But a Congressional nibbling away at the power of the President was acceptable to the Court—and Scalia’ eloquent final lament would not move his colleagues:

A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circumstances” mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much.  That opinion, like this one, will not be confined by any rule. * * * This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President. [Equally all purely legislative power must be under the control of Congress.]

The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential.  It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law.  The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”[13]  [And “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States. . . .”]

Returning to the separation of powers principles enunciated by Justice Scalia in Morrison v. Olson, let’s reverse the players in the current Obamacare situation. 

Congress enacted and the President signed the Affordable Care Act. Among other things, it contains specific provisions as to who is affected, in what way, and when and how certain events are to occur. It is a fact that the President has unilaterally altered at least a score of those provisions in a manner wholly at odds with the legislation enacted by Congress (and approved by him.)

Let’s consider Scalia’s two questions in his Morrison dissent, but as applied to my reversal of the parties: (1) Were the Affordable Care and Dream Acts the product of Congressional choices, and (2) have they been supplanted by the President?

The answer is a resounding “yes,” providing powerful ammunition to those who would attack the President’s unilateral unconstitutional actions, not in canned generalities but on the basis of a foundational constitutional principle.

[1] 487 U.S. 654 (1988).
[2] Wood, The Creation of the American Republic, 1776 – 1787, 151.  The author, writing in 1969, nearly fifty years ago, added in a footnote that “[t]he literature on separation of powers is enormous.”
[3] Wood, The Creation of the American Republic, 1776 – 1787, 152. 
[4] 462 U.S.919, (1983).
[5] 28 U.S.C. Section 591 et seq.
[6] Even though the Independent Counsel law has expired, Morrison v. Olson still stands as precedent for the proposition that the Supreme Court—a “separated power”—can arrogantly chip away at presidential constitutional prerogatives. And, in principle, the prerogatives of Congress as well.
[7] Under the Act, Congress could remove an Independent Counsel, as could the Attorney General.  But he could do so “only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such Independent Counsel’s duties.”  Other provisions imposed reporting requirements on the Attorney General if he removed an Independent Counsel, and allowed the removed official to obtain reinstatement.
[8] For example, the House possesses the power to impeach and to originate money bills, and is elected from congressional districts within a state.  The Senate is the “jury” in an impeachment proceeding, has to power to approve the President’s major appointments, and is elected statewide. There are hundreds of representatives, but only one hundred senators.
[9] Emphasis added.
[10] Emphasis in original.
[11] Emphasis in original.  Justice Scalia was just getting warmed up.  He immediately followed the quoted statement with this: “. . . I cannot refrain from pointing out that the Court greatly exaggerates the extent of that ‘some’ Presidential control. Most importan[t] among these controls, the Court asserts, is the Attorney General’s power to remove the counsel for good cause. * * * This is somewhat like referring to shackles as an effective means of locomotion. As we recognized [before]—indeed, what [the early case of] Humphrey's Executor was all about—limiting removal power to ‘good cause’ is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be an agency of the legislative and judicial departments, and wholly disconnected from the executive department . . . because it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter . . . . What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the most importan[t] means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the good cause limitation as protecting the independent counsel’s ability to act independently of the President's direct control since it permits removal only for misconduct.” Not content to let the majority’s arguments rest on this refutation, Scalia then addressed at length what he called the Court-identified “presumably less important controls that the President retains” and demolished them just as handily.   
[12] Emphasis in original. There’s an interesting side point here: Scalia was saying also that to make the Court the arbiter of whether the President has “sufficient” control of an Independent Counsel is to make the judiciary an accessory to the separation of powers violation because that’s not the Supreme Court’s job.
[13] Emphasis in original.