Wednesday, October 22, 2008

Kaplan and Hannapel on the Office of Special Counsel

Elaine Kaplan, former Special Counsel, and Tim Hannapel, former Deputy Special Counsel, released an ACS Issue Brief titled Reinvigorating the U.S. Office of Special Counsel: Suggestions for the Next Administration.  The Brief offers an excellent overview of the Office of Special Counsel and, as the title suggests, solid, practical recommendations for change from two veterans of the Office.

The Brief deals primarily with the history, policy, and politics of the Office--with special mention of the controversies under Scott Bloch--but it also offers something for those of us teaching appointment (and removal) power, separation of powers, and the unitary executive theory.  The authors explain:

The Office of Special Counsel is a uniquely independent Executive Branch agency.  While there are a number of boards and commissions within the Executive Branch that are composed of individuals who may not be removed by the President except for cause, we are unaware of any other agency led by a single individual (in this case, the Special Counsel) who does not serve at the pleasure of the President.  Congress mandated that the Special Counsel be appointed by the President, with Senate confirmation, to serve a five-year term, removable "by the President only for inefficiency, neglect of duty, or malfeasance in office."  Like the now-defunct "independent counsels" appointed under the Ethics in Government Act of 1978, these limitations on the President's authority were imposed by Congress because OSC's work may put it at odds with officials in high-level positions in other Executive Branch agencies.

For arguments why the Special Counsel violates separation-of-powers, see Christopher Yoo, Stephen Calabresi, and Anthony Colangelo's article, The Unitary Executive in the Modern Era, 1945-2004, espcially pages 693-94, where the authors discuss the Reagan administration's constitutional objections to the 1988 Whistleblower Protection Act.  (I highly recommend Yoo and Calabresi's relatively new book, The Unitary Executive: Presidential Power from Washington to Bush, which expands and elaborates on much in their earlier articles.  I'll review the book in a future post.)

The Special Counsel offers a wonderful case study in appointment, removal, separation of powers, and the unitary executive theory.  Kaplan and Hannapel's Brief is an especially useful complement to constitutional lessons, because it focuses on the practical, policy, and political side of the Office.

SDS

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