Academic

The Supreme Court May Be Gunning for PCAOB and SarbOx

By Gordon Smith, Christine, Hurt, Vic Fleischer, Fred Tung, Lisa Fairfax, David Zaring

The Court just granted cert. on the case raising the question whether PCAOB's structure interferes with the President's removal powers.  PCAOB's members can only be fired for cause, and are appointed by the SEC, whose members can also only be fired for cause.  That insulates them from politicization, but conservatives think it interferes with the "unitary executive" theory by which the president must have a great deal of control over his bureaucracy, due to his responsibility for taking care that the laws be executed.

PCAOB survived D.C. Circuit review over a fiery dissent by a former aide to independent counsel Ken Starr.  I don't think it is very difficult to justify the board on constitutional grounds - the unitary executive theory's best day was when Myers v. United States was decided, in 1926, and ever since, various impositions on the President's removal power have been permitted.  But I'd bet on it being thrown out by this Court, given this grant, considering the plaintiff (a libertarian public interest group), and the bona fides of the dissent.  PCAOB's defenders will have to make a strong case for the functional necessity of the agency (centrist justices may not wish to throw out a unit that is actually performing a critical function or two); that's what saved the SEC itself from the unitary executive theory during the 1930s.  It also saved the independent counsel in the mid-1980s, much to everyone's regret later.  HT: Volokh

UPDATE: Rick Pildes, who knows a great deal about separation of powers and has represented some former SEC commissioners in the case, makes the case for constitutionality over at Balkinization.

Full post as published by Conglomerate on May 18, 2009 (boomark / email).