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The Independent Counsel Mess, 102 Harvard Law Review 105 (1988)

Abstract

To many contemporary commentators, the doctrine of separation of powers is a hoary non sequitur used to justify reactionary results. To the evident frustration of the critics, however, the Supreme Court has recently been quite solicitous of the original understanding on the way in which federal power is to be distributed. In the face of a chorus of calls for innovative legislative action to undo a supposed government paralysis or to reverse a perceived concentration of authority in the executive branch, the Supreme Court has generally stuck to its guns, consistently reminding the Congress and the nation that policy inconsistent with the structure of government mandated by the Constitution is impermissible. So, for example, the Justices made short work of the legislative veto and of the automatic budget sequestration provisions of Gramm-Rudman-Hollings. The principle of separation of powers, the Court explained in those cases, cannot yield to claimed gains in efficiency, for the constitutional rule that is subverted one day with the best intentions can just as easily be evaded the next day with the worst.

Against this background, many observers were surprised by the Court's 7-I vote last Term in Morrison v. Olson, which sustained the constitutionality of a key provision of the Ethics in Government Act. That statute, passed in the heady days after Richard Nixon was toppled from office, permits judicial appointment of independent counsels, popularly known as special prosecutors, to investigate allegations of criminal wrongdoing in the executive branch, and, if necessary, to prosecute the wrongdoers.

Date of Authorship for this Version

1988

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