Abstract

The story of Morrison v. Olson is the story of the shifting fate of an idea-that through institutional design, a prosecutor could be placed beyond the influence of politics-and its fallout for the unitary executive debate over the constitutional status of independent agencies. In response to Watergate, Congress enacted an independent counsel statute that contained the critical elements that the Watergate special prosecutor model did not have: a statutory protection from presidential removal and appointment by a court. With President Reagan's inauguration, the statute's limitation on the President's power was caught in a larger constitutional battle over the central ground of the unitary executive debate: Congress's authority to limit the President's power to remove executive officers at will. Despite the Reagan Justice Department's accumulation of precedent to challenge the constitutional foundation of independent agencies, the independent counsel statute's origins as a Watergate reform provided a vehicle for the Supreme Court to validate, at least in form, Congress's authority to restrict the President's removal power and thus independent agencies in Morrison v. Olson. As notes from the Supreme Court's conference reflect, the opinion was written to "construe and uphold" the statute. Indeed, the Morrison Court premised its decision in part on the similarity between the independent counsel and the Watergate special prosecutor, not their differences. That premise holds an important wrinkle for the Court's upholding of the statute's removal restrictions. It calls into question how much protection those restrictions provide, either to the independent counsel or to independent agencies, and thus the view that Morrison amounted to a straightforward defeat for the strongly unitary executive position. It also exposes the logic which led the Court to a decision which many now view as a misjudgment. Once the Court made the analogy between the independent counsel and the Watergate special prosecutor, it was difficult not to see a set of circumstances in which the statute, as construed, would be valid. In ruling on a facial challenge, the Court needed to find only a valid application to uphold the statute. The chapter draws on the Watergate hearings, the legislative history of the independent counsel statute, the litigation leading to the Morrison decision, the Supreme Court's deliberations, including Justice Blackmun's papers, and the responses of all three branches to the Court's decision.