The same result of unconstitutionality is therefore plainly indicated by our case law in these areas. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 1826(a) for continuing to refuse to comply with the subpoenas. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? 1. PLAY. Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action Article II, 2, cl.
219 The court stayed the effect of its contempt orders pending expedited appeal. 2; the limitations
In re Sealed Case, 665 F. Supp.
There is concededly no time limit on the appointment of a particular counsel. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Id., at 694 (emphasis added). As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). U.S. 200, 211 See Civil Rights Act of 1964, Title VII, 42 U.S.C. Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today. Nonetheless, the office of independent counsel is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. V).
Federalist No. rapier" that enables the court to "control the pace and depth of the independent counsel's activities."
The provision has not been tested in practice, and we do not mean to say that an adventurous special court could not reasonably construe the provision as did the Court of Appeals; but it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e. g., Commodity Futures Trading Comm'n v. Schor, Facts Summary. 51, p. 321 (J. Madison), can effectively be resisted. The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. 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." Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.
A copy of the Report was forwarded to the Attorney General with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. to Juris. 2000e et seq. 596(a) (1) (1982 ed., Supp. That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause.
The court also ordered that the independent counsel 412 Rep. No. An independent counsel is selected, and the scope of his or her authority prescribed, by a
By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. 596(b)(2). Finally, the Act provides for congressional oversight of the activities of independent counsel. The apparent source of these factors is a statement in United States v. Germaine, (1880), we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the overseeing 478
More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses - even if applied correctly to the facts of this case - are determinative of the question of inferior officer status. With him on the brief were Assistant Attorney General Bolton, Deputy Solicitors General Cohen and Bryson, Deputy Assistant Attorneys General Spears and Cynkar, Edwin S. Kneedler, Richard G. Taranto, Robert E. Kopp, and Douglas Letter.
If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress.
The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. Federalist No.
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