Morrison v. Olson (1988)

The Ethics in Government Act of 1978 provided for independent counsels, appointed by a special panel of federal judges at the Attorney General's request to investigate senior officials, and removable by the Attorney General only for good cause. In 1983 a dispute between Congress and the Environmental Protection Agency over Superfund documents led to allegations that Justice Department official Theodore Olson had given misleading testimony. An independent counsel, Alexia Morrison, was appointed, and Olson challenged the law as unconstitutional.

On June 29, 1988, the Supreme Court upheld the law 7 to 1, with Justice Anthony Kennedy not participating. Chief Justice William Rehnquist wrote that the independent counsel was an inferior officer whose appointment Congress could vest in a court, and that the good-cause removal limit did not impede the President's ability to perform his constitutional duties. The decision replaced rigid categories with a functional test asking whether a restriction interferes with the executive's core functions.

Justice Antonin Scalia dissented alone, arguing that criminal prosecution is a purely executive power that the President must fully control, and warning that the arrangement would invite politically driven investigations, writing that this wolf comes as a wolf. Many observers on both sides later came to share his concerns after high-profile independent counsel investigations, including of President Bill Clinton, and Congress let the law expire in 1999. Later decisions, including Seila Law v. CFPB in 2020, have narrowed Morrison's reasoning, and some justices have suggested it should be overruled.