The various powers delegated by the Ethics in Government Act to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court power to review the Attorney General's decision to remove an independent counsel, but this is a function that is well within the traditional power of the Judiciary.
The Special Division appointed appellant as independent counsel to investigate appellees (Olson) for violations of federal criminal laws pursuant to the Ethics in Government Act of 1978, 28 U.S.C.S § 591 et seq. Appellant caused a grand jury to issue and serve subpoenas on appellees. All three appellees moved to quash the subpoenas, claiming that the independent counsel provisions of the Act were unconstitutional. The court upheld the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoenas. The trial court dismissed appellees' motions, but the appellate court reversed the decision when it found that the Act violated the Appointments Clause of the Constitution.
Is the power granted to the Special Division an encroachment on Executive power?
Article III of the Constitution does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powers -- such as the passive powers to "receive" (but not to act on or specifically approve) various reports from independent counsel or the Attorney General -- do not encroach upon the Executive Branch's authority. The Act simply does not give the Division power to "supervise" the independent counsel in the exercise of counsel's investigative or prosecutorial authority. And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts.