December 15, 1987
Like its predecessors, H.R. 2939, the Independent Counsel Reauthorization Act of 1987, raises constitutional issues of the most fundamental and enduring importance to the Government of the United States. During the years leading up to the original enactment of this statute, and thereafter, the Department of Justice has repeatedly expressed profound concern over the serious departures authorized by the act from separation of powers principles. The Congress has not heeded these concerns, apparently convinced that it is empowered to divest the President of his fundamental constitutional authority to enforce our nation's laws. In fact, H.R. 2939 contains a number of new provisions that aggravate the infirmities in existing law.
I fully endorse the goal manifested in the Independent Counsel Act of ensuring public confidence in the impartiality and integrity of criminal law investigations of high-level executive branch officials. Indeed, despite constitutional misgivings, my administration has faithfully and consistently complied with all of the requirements of the act. Even as the constitutional issues grew more clear, aided by the pronouncements of the Supreme Court in INS v. Chadha in 1983 and Bowsher v. Synar in 1986, we took extraordinary measures to protect against constitutional challenge the work of the more recently appointed independent counsel by offering each of them appointments in the Department of Justice.
Continuance of these independent counsel investigations was deemed important to public confidence in our government. Nevertheless, this goal, however sound, may not justify disregard for the carefully crafted restraints spelled out in the Constitution. An officer of the United States exercising executive authority in the core area of law enforcement necessarily, under our constitutional scheme, must be subject to executive branch appointment, review, and removal. There is no other constitutionally permissible alternative, and I regret that the Congress and the President have been unable to agree under that framework on a procedure to ensure impartial, forthright, and unimpeded criminal law investigations of high-level executive branch officials.
In view of the longstanding and continuing differences in the positions maintained by the executive and the legislative branches about the constitutionality of a statutory scheme providing for judicial appointment and supervision of officers exercising executive power, I am gratified that the constitutional issues presented by the statute are now squarely before the United States Court of Appeals for the District of Columbia Circuit. We will continue to express our constitutional objections in that case as it moves through the courts.
Action on this bill, however, cannot await the resolution of that case. In order to ensure that public confidence in government not be eroded while the courts are in the process of deciding these questions, I am taking the extraordinary step of signing this bill despite my very strong doubts about its constitutionality.
Note: H.R. 2939, approved December 15, was assigned Public Law No. 100 - 191.