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The case of Morrison, Independent Counsel v. Olson et al. concerns the constitutionality of the Ethics in Government Act of 1978, which allows for the appointment of an independent counsel to investigate and prosecute high-ranking government officials for federal criminal law violations. The independent counsel has full power and authority to conduct investigations and prosecutions, including grand jury proceedings, and can request assistance from the Department of Justice. The Act outlines the procedure for removing and terminating an independent counsel from office, which can only be done by the Attorney General for specific reasons. The Supreme Court upheld the constitutionality of the independent counsel provisions of the Act and found that the independent counsel is an "inferior officer" based on several factors, including limited duties and authority to investigate and prosecute federal crimes. The Act does not violate the Constitution's separation of powers principle by restricting the President's power to remove an independent counsel, as Congress can limit the President's power of removal for officers of independent agencies to ensure their independence. The key question is whether the removal restrictions hinder the President's ability to fulfill his constitutional duty, and the Act must be evaluated to determine if it unduly interferes with the Executive Branch's role.
The Independent Counsel Act violates the Constitution's separation of powers principle by depriving the President of exclusive control over the independent counsel, which is a quintessentially executive activity. The Act weakens the Presidency and affects the balance of powers. The appellant's appointment as an officer of the United States is constitutional as an "inferior" officer, but her limited removal only for "good cause" or incapacity does not establish her as an inferior officer. The Act grants her full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice, and makes her removable only for good cause to ensure her independence. Therefore, her appointment without the advice and consent of the Senate is unconstitutional. The Court's decision to extend the holding that the removal of inferior officers appointed by the Executive can be restricted to inferior officers appointed by the courts is criticized as an unjustified extension. The Court's present view is that Congress cannot interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed."
The Court's decision to restrict the removal of executive officers could hinder the President's ability to execute laws. The Independent Counsel's institutional environment increases the risk of having too narrow a focus. The Ethics in Government Act has negative effects on the government and justice system. The Court's decision lacks a clear rule and sets a dangerous precedent. The Constitution vests executive power in the President and should be respected in legal decisions. The ad hoc approach to constitutional adjudication is not reliable or consistent with the Constitution's history. A lower court may have erred in its decision if it had enacted the Ethics in Government Act or made a similar decision on executive power.
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