| Venue: | SCOTUS |
| Facts: | A special prosecutor is appointed to investigate the EPA (this is in the wake of Gorsuch, acutally). The appointment process is defined by the Ethics in Government act (28 U.S.C. § 49, 598, et. seq.). A special prosecutor is just appointed by the Attorney General (i.e., an executive), and there are no congressional confirmation hearings. |
| Posture: | Unknown. Doubtless it is super-complex. |
| Issue: | Does the Ethics in Government act violate the Appointments Clause (Art. II, § 2, cl. 2) with its definition of how we get special prosecutors? Also, does this imposition violate the separation of powers by interfering with the constitutionally assigned functions of the executive branch? |
| Holding: | No and no. |
| Rule: | Art. II: the president can appoint "inferior officers." This
is an ambiguous standard, but clearly a special prosecutor
is one of those: subject to removal, and empowered only for
limited duties.
This isn't a separation of powers problem because congress isn't enlarging its influence-- it exerts no control over the prosecutor. The AG isn't even obligated to appoint a special prosecutor. |
| Reasoning: | See above. |
| Dicta: | Scalia (dissenting): Prosecuting crimes is an executive function. This takes some of that power and makes it independent. Also, look how Orwellian it is: huge resources unaccountable to anyone, pursuing some poor victim. |