# Morrison v. Olson **487 U.S. 654 (1988).** Decided **29 June 1988, 7–1**, Chief Justice Rehnquist writing; Justice Kennedy took no part, having been seated only that February. The Court upheld the independent counsel provisions of the Ethics in Government Act of 1978. ⭐ **It is now chiefly famous for the dissent.** [[Antonin Scalia]] wrote alone, lost 7–1, and won the argument over the following three decades. This is the rare case where the losing opinion became the operative law and the majority survives only as a narrow exception carved out of its own reasoning. ## The statute and the facts Title VI of the Ethics in Government Act let the Attorney General, after a preliminary investigation, apply to a **Special Division** of three judges designated by the Chief Justice, which would appoint an independent counsel and define that counsel's jurisdiction. The counsel held "full power and independent authority to exercise all investigative and prosecutorial functions" of the Justice Department, and could be removed by the Attorney General **only for good cause**, subject to judicial review. The occasion was mundane. Theodore Olson, then head of the Office of Legal Counsel, had advised in 1982 that the President could assert executive privilege over EPA Superfund enforcement documents subpoenaed by House committees. A 1985 House Judiciary Committee report alleged he had given false and misleading testimony about it. Attorney General Edwin Meese sought an independent counsel as to Olson alone; the Special Division appointed Alexia Morrison; Olson moved to quash her grand jury subpoena on the ground that the statute was facially unconstitutional. The D.C. Circuit agreed with him. The Supreme Court reversed. ## The holding **Appointments Clause.** The independent counsel is an [[Inferior Officer]], so Congress could vest the appointment in "the Courts of Law." Four factors: removable by a superior executive officer; limited duties, with no policymaking or significant administrative authority; limited jurisdiction; limited tenure, existing to finish one task. **Removal and Article II.** The good-cause restriction was valid because it left removal *inside* the executive branch rather than with Congress. The Court abandoned the rigid "purely executive" line drawn from *Myers* and *Humphrey's Executor* and asked instead whether the restriction "impede[s] the President's ability to perform his constitutional duty." It did not. ## The dissent > [!quote] Scalia, dissenting, 487 U.S. at 699 > "Frequently an issue of this sort will come before 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 comes as a wolf." His structure was two questions — is criminal prosecution purely executive power, and does the statute deprive the President of exclusive control over it? — and his complaint was that the Court conceded both and then declined the conclusion. The premise is [[Unitary Executive Theory]] in its strongest form: Article II vests *all* executive power in the President, so any diminution is unconstitutional regardless of how a court weighs the practical burden. "That is what this suit is about. Power." He also predicted the statute would be turned against the political enemies of whoever held office. ## What happened to the statute, and to the case **The statute died on schedule.** The independent counsel provisions **sunset on 30 June 1999** and Congress declined to reauthorize them after the Starr investigation. Attorney General Reno replaced them the same week with regulations at **28 C.F.R. Part 600** (64 Fed. Reg. 37038, effective 1 July 1999): a [[Special Counsel]] appointed *by the Attorney General*, removable by the Attorney General, subject to Department rules, with no judicial appointment and no judicial review of removal. Every subsequent special counsel — Mueller, Smith, Hur, Weiss — operates under that regime, not under *Morrison*. **The doctrine turned.** *Edmond v. United States* (1997) replaced *Morrison*'s four factors with a supervision test: an inferior officer is one "directed and supervised at some level" by a Senate-confirmed principal. *Free Enterprise Fund* (2010) struck two layers of for-cause protection. [[Seila Law v. CFPB]] (2020) then recast the whole line of precedent as **two narrow exceptions** to at-will removal — *Humphrey's Executor* for multimember expert bodies, and *Morrison* for "inferior officers with limited duties and no policymaking or administrative authority." [[United States v. Arthrex]] (2021) applied *Edmond*-style supervision doctrine. **Then one of the two exceptions was destroyed.** [[Trump v. Slaughter]], decided **29 June 2026** — thirty-eight years to the day after *Morrison* — **overruled *Humphrey's Executor*** outright: "If anything more is left of *Humphrey's*, we overrule it." The companion case *Trump v. Cook* preserved for-cause protection for Federal Reserve governors specifically. > [!important] Is *Morrison* still good law? > Formally yes, and *Slaughter* cites it approvingly without narrowing it. But it survives only as *Seila Law* re-described it — a narrow inferior-officer exception, not the functional-balancing principle Rehnquist actually wrote. With *Humphrey's Executor* gone, **it is the last surviving for-cause removal precedent of its generation**, upheld on reasoning the Court has since replaced with Scalia's. ## The appointment question came back *Trump v. United States* (2024) did not reach special-counsel appointment, but Justice Thomas's solo concurrence questioned whether Jack Smith's office was "established by law." Weeks later, on **15 July 2024**, Judge [[Aileen Cannon]] dismissed the Mar-a-Lago indictment on exactly that ground, holding no statute authorized the appointment — and **distinguishing *Morrison* on the ground that the statute it upheld had expired.** That ruling was never reviewed. Smith appealed, then moved to drop Trump from the appeal after the November 2024 election, and the Eleventh Circuit dismissed what remained on **11 February 2025**. **Cannon's decision stands as an unreviewed district-court opinion** — persuasive only, vacated by nobody, and the most consequential live authority on whether the post-*Morrison* special counsel regime is itself constitutional. ## See Also - [[Inferior Officer]] — the taxonomy, from *Buckley* through *Edmond* to *Arthrex* - [[Unitary Executive Theory]] — the dissent's premise, now the majority's - [[Special Counsel]] — the regulatory regime that replaced the statute - [[Seila Law v. CFPB]] · [[Trump v. Slaughter]] · [[United States v. Arthrex]] — the removal line - [[Antonin Scalia]] — the dissent - [[Public Integrity Section]] — what happened to the career alternative to special counsels - [[Jack Smith]] · [[Aileen Cannon]]