America's Unwritten Constitution: The Precedents and Principles We Live By (61 page)

Nothing in the Constitution’s ratification debates or in early federal practice offers any support for a legislative veto, a statutory device that first appeared in federal statute books in 1932, nearly a century and a half after the ink had dried on the Constitution.
⁴⁷

When the legislative-veto issue finally reached the justices in a landmark 1983 case,
INS v. Chadha
, a broad coalition of jurists from across the spectrum laughed the device out of court. Only one justice, Byron White, voted to uphold the constitutionality of the device, and even he joined a later opinion that reaffirmed and extended
Chadha
’
s
basic teaching.
⁴⁸

How, then, are we to make sense of the fascinating fact that even after
Chadha
, Congress has continued to slip legislative-veto clauses into statutes? Two points are key. First, even as presidents both before and after
Chadha
have signed omnibus bills containing these dubious devices, America’s chief executives have routinely attacked these clauses and at times publicly announced that they would treat attempted legislative vetoes as legal nullities. Unlike other innovations that have endured (such as independent agencies), the legislative veto never won the considered and consistent support of all the branches of government. In
Chadha
itself, the Court noted that “11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional.” In the years since
Chadha
, America’s presidents have continued this tradition of official opposition.
⁴⁹

Second, post-
Chadha
legislative-veto clauses may operate politically even if they do not create valid law that courts will respect or that presidents will routinely follow. Imagine, for example, an omnibus bill funding the federal judiciary that contains a clause purporting to give the senior senator from Nebraska the right to pick the next federal district judge from Nebraska. Legally, such a provision is preposterous and unenforceable, because the Constitution is clear: Presidents, not senators, select judges. Nevertheless, as politics actually play out, a president might choose to give Nebraska’s senior senator de facto authority to call the shots on a judicial nomination from the senator’s home state, perhaps in order to win the senator’s support for other elements of the president’s agenda. Although the official nomination would always come from the president himself, everyone
might know that it was the senior senator who unofficially made the selection. Thus, the hypothetical Nebraska clause, though
legally
invalid, might nevertheless work
politically
, memorializing an informal arrangement that this president (or a future president) may hesitate to dishonor even if the chief executive has an absolute constitutional right to do so. Post-
Chadha
legislative-veto clauses may similarly operate politically today even though they are, from a strictly legal point of view, obviously invalid.

CONSIDER NEXT THE POST-WATERGATE REGIME
of
independent counsels
—an institution that ultimately led to the only impeachment of an elected president in American history.
^*

Ordinarily, federal criminal investigations and prosecutions occur within the Justice Department, headed by the attorney general, who serves at the pleasure of the president. But in the early 1970s, shocked Americans came to learn that several prominent members of the Nixon administration—including the president himself, several of his top White House aides, and his attorney general, John Mitchell—were themselves criminal wrongdoers. In situations such as this, could the Justice Department be trusted to properly investigate and prosecute?

Obviously not, thought many reformers. Thus, a 1978 statute and successor legislation authorized a special panel of Article III judges to appoint a lawyer independent of the Justice Department to make the key investigatory and prosecutorial decisions in certain specified situations where the department was arguably untrustworthy. Between 1978 and 2000, judicial panels appointed at least eighteen independent counsels in low- and high-profile cases alike—most famously, Ken Starr, who was tapped to investigate possible wrongdoing by officials in the Clinton administration, including the president himself. At the end of the millennium, Counsel Starr’s ever-widening investigation provided the basis for Clinton’s impeachment by the House. The Senate ultimately acquitted.
⁵⁰

Despite its good intentions, the 1978-style independent-counsel regime violated the Constitution’s plain meaning and warped the document’s basic
structure. This poorly designed system ultimately imploded, and this implosion in turn occurred precisely because of the 1978 statute’s failure to mesh with the carefully calibrated institutional gears created by the written Constitution.

True, the Constitution’s text allows Congress by law to empower courts to make certain appointments—but only of “inferior” officers. Independent counsels were not truly inferior. How, indeed, can one be both truly independent and truly inferior? Like the legislative-veto device, the independent-counsel regime wore its unconstitutionality on its sleeve.

Elsewhere in the Constitution, whenever the word “inferior” appeared, it conjured up a
relational
idea. Each inferior had a superior. Thus the document described lower federal courts as “inferior to” the Supreme Court, which would in turn be supreme over the inferior courts (and not, as some might think, over the other branches or over the Constitution itself). Analogously, the plain purpose of the inferior-officer-appointment clause was to allow a court, pursuant to statute, to appoint officers inferior to the appointing court, such as law clerks or special-purpose magistrates.

This plain purpose was confirmed and clarified early on, when Congress and President Washington implemented the appointments clause’s companion language allowing an executive department head/principal officer to name an “inferior” officer whenever federal law so provided. In the ensemble of statutes enacted as part of the Decision of 1789, Congress first authorized the secretary of foreign affairs (soon renamed the secretary of state) to appoint an “inferior officer” who would serve as the “chief Clerk in the Department,” and thereafter authorized the three other department heads (the war secretary, the treasury secretary, and the postmaster general) to appoint similar assistants within their respective departments. The obvious principle put into practice here was that statutes could allow each appointing authority to pick its own assistants.
⁵¹

Judicial appointments of prosecutors under the 1978 system shattered this Founding-era principle and precedent, for the simple reason that federal prosecutors are not now and never have been proper judicial assistants. On the contrary, prosecutors wield quintessentially executive power—prosecutorial power. Allowing judges to pick prosecutors was almost as outlandish as authorizing them to appoint admirals or ambassadors.
⁵²

Read at face value, the appointments clause preserved political accountability. If an inferior goofed, the public could blame the superior who appointed him, and who was responsible for monitoring his conduct. But the 1978 law blurred accountability. Once picked, an independent counsel effectively answered to no one. Had the judicial panel that appointed a particular independent counsel genuinely tried to supervise his actions as his investigation and prosecutorial decision-making proceeded, the judges would have thereby transformed themselves into super-prosecutors, in obvious violation of basic precepts of separation of powers.

Further compounding the constitutional perversity of the 1978 system, judges making these decidedly unjudicial appointments decisions operated wholly outside the traditional framework governing ordinary judicial decision-making. When adjudicating “cases” and “controversies,” judges are ordinarily expected to explain their rulings via written opinions (or some other public statement of reasons), to deploy the tools of legal analysis in rendering their decisions, and to sharply limit their off-the-record ex parte communications with interested government officials. But picking prosecutors turned this regime topsy-turvy. Deciding which of the countless lawyers in America should be chosen above all others to serve as an independent counsel was essentially a political act, not a legal one. This decision called for a suitably political selection process in which judges, acting as an appointments panel, needed to, and presumably did, confer confidentially with top politicos to decide which candidates had the most political and prosecutorial credibility. (Shortly before naming Ken Starr as the special counsel to investigate Bill and Hillary Clinton, the head of the three-judge panel, Judge David Sentelle, lunched privately with two prominent critics of the Clintons, Republican senators Lauch Faircloth and Jesse Helms.)
⁵³

Some of the constitutional defects of the 1978 law were curable, perhaps, via aggressive use of the president’s pardon pen. A counsel might in some sense be inferior (albeit not to the panel that appointed him) if the president himself kept the counsel in line. A president could ordinarily do so by pardoning the target of an independent counsel’s investigation if the counsel ever went too far by spending too much time and money chasing trivial misconduct that did not merit Javert-style justice. Some post-1978 presidents did in fact use their pardon power—most notably, President George H.W. Bush, who pardoned former cabinet officer Caspar Weinberger
before trial and thereby obliged the independent counsel in the case, Lawrence Walsh, to fold his tent.

As this episode illustrated, no person could ever be prosecuted by the independent counsel or by anyone else so long as the president strongly objected and was willing to act on that objection. The 1978 statute promised something that it could never really deliver. So long as the pardon power meant what it said—and nothing in the 1978 regime took direct aim at the pardon power—no prosecution could be legally independent of the chief executive.

With one notable exception: A president could never properly pardon himself. Such gross self-dealing was obviously unconstitutional, akin to a man sitting in judgment of his own case. Thus, uniquely among independent counsels, Ken Starr could not be controlled via the actual or threatened use of the presidential pardon pen, because Starr’s investigation focused in part on the possibly criminal conduct of the president himself. Starr correctly recognized that he could not properly initiate an ordinary criminal prosecution against a sitting president. But this self-restraint hardly meant that Starr was a truly “inferior” officer.

Although the Supreme Court in the 1988 case of
Morrison v. Olson
initially winked at the constitutional flaws of the 1978 statute, Justice Antonin Scalia penned a powerful dissent that has come to prevail in both political and legal circles. Politically, no American president either before or after
Morrison
was ever willing to agree to the 1978 regime except as a temporary statutory experiment that would require periodic reassessment and reenactment. In 1992, the experiment lapsed when the first President Bush successfully opposed reenactment; but his successor, Bill Clinton, unwisely agreed to give the statute another run in 1994. Several years and several independent counsels later, the Clinton administration came to its senses. In testimony before Congress signaling that any additional attempt to reenact the law would meet a constitutionally based presidential veto, Attorney General Janet Reno repeatedly invoked Scalia’s dissent. She concluded that the Independent Counsel Act was “structurally flawed, and… these flaws cannot be corrected within our constitutional framework.” No veto proved necessary; Congress allowed the law to lapse in 1999, and no president or congressional leader since then has shown much interest in reviving this failed experiment.
⁵⁴

Legally, the Supreme Court has all but overruled
Morrison
, treating it as a dubious decision strictly limited to its unique facts. According to one of the Court’s most recent pronouncements on the appointments clause,
Edmond v. United States
, “the term ‘inferior officer’ connotes a relationship with some higher ranking officer.” As a rule, “whether one is an ‘inferior’ officer depends on whether he has a superior.” This test and much of the other language of
Edmond came
directly from Justice Scalia’s
Morrison
dissent, and Scalia himself was indeed the author of the
Edmond
majority opinion. None of the justices from the
Morrison
majority remains on the Court today.

The collapse of the 1978 experiment does not mean that America in the twenty-first century must do wholly without independent counsels, and must simply trust the Justice Department and the president to do the right thing out of the goodness of their hearts. Rather, the demise of the 1978 statute has simply restored the
political
system of independent counsels that had worked beautifully in Watergate itself.

Under that system, whenever doubt arose about the propriety of a Justice Department investigation of one of its own officials or some other sensitive target, political and professional pressure would build until the attorney general or the president himself named a special prosecutor outside the department and informally promised that prosecutor some zone of autonomy. If no such person was named, or if the zone of autonomy was unduly constricted, Congress could use or threaten to use its own vast powers of inquest and impeachment to prod the executive branch into action. If the special prosecutor, once appointed, went too far too fast, she could be legally dismissed by the superior officer who had appointed her (either the AG or the president himself); but if dismissal occurred for some seemingly corrupt reason, it would generate a political backlash. Politics kept the system in balance via the interplay of vigorous press oversight, congressional powers of inquest and impeachment, and executive powers of appointment, removal, supervision, and pardon. The game’s ultimate umpires were not some tiny clump of judges meeting secretly, but the American people themselves in the press and at the ballot box.