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63 B.U. L. Rev. 59 (1983)
The Constitutionality of Independent Officers as Checks on Abuses of Executive Power

handle is hein.journals/bulr63 and id is 67 raw text is: THE CONSTITUTIONALITY OF INDEPENDENT OFFICERS AS CHECKS ON ABUSES OF EXECUTIVE POWERt CHARLES TIEFER* I. INTRODUCTION During the past decade, Congress has become increasingly concerned with checking potential abuses of power by the Executive branch. The long-term cause of this concern was the perceived development of an Imperial Presi- dency, with immunities and powers that had grown excessive and un- checked; the immediate impetus was the abuse of those immunities and powers during the Nixon Administration.' In response to this concern, Congress enacted a set of statutes, referred to here as the oversight frame- work laws. These statutes utilize officers statutorily endowed with inde- pendence from Executive control to check abuse in the Executive branch. There are four principal oversight framework laws. The Ethics in Govern- ment Act of 1978 authorizes independent special prosecutors, now called independent counsels, to investigate and prosecute crimes by high officials.2 The Impoundment Control Act of 1974, one element of a larger effort at budget reform and control, authorizes the independent Comptroller General to sue to challenge Executive impoundments.3 The General Ac- counting Office Act of 1980 authorizes the Comptroller General to sue to t © 1983 by Charles Tiefer. * Assistant United States Senate Legal Counsel. B.A. summa cum laude, Colum- bia College, 1974; J.D. magna cum laude, Harvard Law School, 1977. The views expressed herein are solely those of the author. For discussions of the rise of Congress' concern, and the legislative response, see J. SUNDQUIST, THE DECLINE AND RESURGENCE OF CONGRESS (1981); A. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973). 2 Ethics in Government Act of 1978, Pub. L. No. 95-521, § 601(a), 92 Stat. 1867 (1978) (codified as amended at 28 U.S.C. §§ 591 et seq. (Supp. IV 1980)). In 1982, Congress renewed for five years the Attorney General's authority to appoint special prosecutors by enacting the Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409 (December 27, 1982). The 1982 Act made several revisions in the 1978 Act but preserved the Attorney's General's nondiscretionary duty to trigger the appointment of an officer to investigate and prosecute Executive crimes without being subject to removal without cause by the Attorney General or the President. Although the new act designates those officers independent coun- sels, in conformance with prior law and popular understanding this Article will use the terms independent counsels and special prosecutors interchangeably. I Impoundment Control Act of 1974, 31 U.S.C. § 1400 et seq. (1976) (enacted as Title X of the Congressional Budget and Control Act of 1974, 31 U.S.C. §§ 1301 et seq. (1976)).

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