S. 2644 — THE SPECIAL COUNSEL INDEPENDENCE AND INTEGRITY ACT — IS
CONSTITUTIONAL
Restricting the President’s ability to remove the Special Counsel and/or
giving the judiciary the power to review such a removal is constitutional.
The binding Supreme Court precedent in ​Morrison v. Olson, ​487 U.S. 654 (1988),
upheld a similar provision in the ​Ethics in Government Act of 1978 restricting the
Attorney General’s power to remove the independent counsel except for good cause.
The Court found that the Act did not impermissibly interfere with the President's
exercise of his constitutionally appointed functions or violate the separation of powers.
Courts have long held that Congress may place restrictions on the
President's ability to remove inferior officers.
The Special Counsel is an inferior officer appointed not by the President, but by the
Attorney General (or, in this case, the Deputy Attorney General). In the case of inferior
officers, Congress may “limit and restrict the power of removal as it deems best for the
public interest.” ​United States v. Perkins​, 116 U.S. 483, 485 (1886), cited with approval
in ​Myers v. ​United States​, 272 U.S. 52​, 161–163, 164 (1926), and ​Morrison v. Olson​, 487
U.S. 654, 689 n.27 (1988). ​See​ ​also​ ​Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd.​, 561 U.S. 477, 483, 495 (2010).

S. 2644 does not impermissibly interfere with the President’s ability to
fulfill his executive function.
Under the Constitution, the executive function does not include the power to act for
corrupt purposes. Rather, the President must take care that the laws be faithfully
executed and may not attempt to execute them in bad faith or with a corrupt intent. The
Supreme Court has held in a line of cases going back to ​Humphrey’s Executor v. United
States​ in 1935 that its primary concern with Congressional restrictions on the executive
removal power is interference with the President’s ability to carry out the executive
function. Thus, limiting the President’s ability to remove a Special Counsel except for
good cause does not impair the President’s ability to faithfully execute the laws. It only
limits his ability to act upon bad faith motivations, which are necessarily not part of his
executive power and are therefore not protected from intrusion by Congress.