I am currently participating in on online debate under the auspices of the Federalist Society regarding a case hardly anyone has heard of that is now before the U.S. Supreme Court. The case is called Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB). It poses the question whether Congress acted permissibly in structuring the PCAOB. Its members are (a) appointed by the Securities and Exchange Commission, not by the President, and (b) removable only by the Securities and Exchange Commission – not by the President – and only for good cause. The Federalist Society has asked its debaters to discuss whether these appointment and removal provisions are unconstitutional.
As my colleague Hal Bruff writes in a forthcoming essay, this is the kind of case only separation of powers cognoscenti typically follow, even though it has the potential – albeit, just slight potential – to revolutionize our separation of powers law. That is because, if the Court overturns the removal provisions, it may well cast into doubt the great many statutes that create administrative agencies throughout the federal government, such as the Federal Trade Commission and the Federal Communications Commission. It could instead vindicate so-called Unitary Executive Theory, which I try to refute in Madison’s Nightmare.
I have reprinted below my opening entry in the debate. Anyone intrigued can follow the unfolding conversation here. The other invited participants are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Christian G. Vergonis, and Christian J. Ward. * * *
Appointments: There’s no real doubt that members of the PCAOB are “officers of the United States.” That is, they have duties regarding the implementation of public law that go beyond the tasks Congress could assign to one of its own committees. Hence, its members must be appointed pursuant to the Appointments Clause. And, under the Appointments Clause, they must be appointed by the President with the advice and consent of the Senate, unless they are “inferior officers,” in which case they may be appointed by the president alone, by the head of a department, or by a court of law.
This is the PCAOB’s greatest vulnerability. The members of the PCAOB may well not be “inferior” in the constitutional sense. Although members are removable for good cause by the SEC, their jurisdiction is far more wide-ranging than that of the independent counsel upheld in Morrison v. Olson. The Court could leave Morrison and its antecedents intact, and enjoin the enforcement operations of the PCAOB on noninferiority grounds.
This is doctrinally the most modest way to overturn the PCAOB, and I predict this will be the result, with hardly any greater implications for separation of powers law. If PCAOB members are deemed “inferior,” then I do not see any other vulnerability on the appointments side. As the Court observed in Morrison, Congress’s discretion in choosing among the designated modes of appointing inferior officers is not limited by the text. There would not be anything constitutionally anomalous in giving the SEC power to appoint people with expertise in corporate accounting.
Removal: The more controversial question involves the limitation on direct removals by the President. It is not controversial under Morrison v. Olson. Morrison said that limitations on presidential removal powers are permissible unless they interfere with the President’s capacity to discharge his constitutionally assigned functions. The President, of course, is constitutionally obligated to take care that the laws be faithfully executed. If a PCAOB member is derelict in this regard, the President must be able to instigate that member’s discharge. Under Sarbanes-Oxley, he cannot do so directly – which was also true in Morrison v. Olson – but the failure of the SEC to correct any such dereliction would presumably be good cause for the dismissal of any recalcitrant SEC Commissioner. Under Morrison, this holds up.
The rub, of course, is that there may well be five members of the Court who would now like to overrule Morrison – Roberts, Alito, Scalia, and Thomas, almost certainly, and quite possibly, Kennedy, who recused himself in Morrison. Reaching out to limit or reverse Morrison, however, would be a conspicuous piece of judicial immodesty, especially since the PCAOB can be invalidated on the less controversial ground of noninferiority. I thus predict the Court will not attack Morrison – but this may be wishful thinking on my part because (a) I agree with Morrison and (b) modesty on the Roberts Court is, at best, an occasional virtue.
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The Eisenhower-Obama Doctrine? Ending the Military’s “Blank Check”
December 2, 2009In the current political climate, the most dramatic point of President Obama’s West Point speech on Afghanistan. was neither his commitment of additional forces or the precise timing to begin a drawdown of our troops. It was his determination to apply cost-benefit analysis to our military commitments.
Of course, it helps a President who has not served in the military if he can cite an iconic general for what should be a common-sense point. So, he invoked Dwight D. Eisenhower for the doctrine: “Each proposal must be weighed in the light of a broader consideration: the need to maintain balance in and among national programs.”
In post-Eisenhower Washington, this is revolutionary stuff. As progressives propose initiative after initiative to improve the health, education and welfare of the American people, we are continually pounded by ominous predictions of ruinous cost. Yet, when it comes to national defense, there appears to be no ambition too excessive, no cost too burdensome, no deficit too large.
By reciting what we might now call the Eisenhower-Obama Doctrine, President Obama, to my mind, is setting the stage for the rest of a two-term presidency. He inherited, as he frequently reminds us, two wars, a huge budget deficit and an economy on the brink of depression. He is willing to devote much of his first term energies to cleaning up the inherited messes in the economy and national security. What he is not willing to do is put off the pursuit of other critical national priorities indefinitely.
In a wise essay, Jacob Weisberg recently predicted that Obama, by State of the Union time, is likely to appear as having accomplished more in the first year of his presidency than any chief executive since FDR. Like Weisberg, I do not believe Democrats will scuttle health insurance reform altogether, and even the most modest version of what is being proposed would bring huge help to millions of Americans. Add that to the start of an economic recovery and a repositioning of America in the eyes of the world and it looks like a pretty good year.
And how will things look by 2012? President Obama has promised a complete withdrawal of combat troops from Iraq by the end of 2011. I now predict he will do the same for Afghanistan by 2013. Why? In 18 months, there will either be discernible improvement in Afghanistan or not. If there is, he has the same basis for phased withdrawal as now exists in Iraq. If not, the American people will simply insist on a strategic exit. And, if job growth begins to pick up next year or by spring of 2011, the Obama Administration will have set the table for a second term largely devoted to the domestic reforms that are pretty obviously at the top of the President’s personal to-do list.
That does not mean, of course, that jobs, education, financial services reform, climate change and the rest of the domestic agenda will be on hold until 2012. There is much that might still be accomplished in the first term. But the timing of withdrawal from Iraq and the beginning of a drawdown in Afghanistan helps to set a timeline for progress on the home front, as well.
In saying this, I do not want to be misinterpreted as happy with the current pace of change. Like many progressives, I am angered by how slowly, if at all, those who undermined the rule of law and our economic security over the last decades have been brought to any measure of accountability. The scope of congressional ambition with regard to health care, climate change, financial regulation, and education strikes me as too narrow – and I wish the Administration were turning its back yet more dramatically on Bush-era abuses and preposterous claims of executive power.
But President Obama has given me hope. One of his favorite words is “persistence,” and his West Point speech seems to me to be signaling the time frame within which a persistent President can help deliver “change we can believe in.” Even as progressives rightfully keep pushing, President Obama seems determined not to let America’s reflexive support for all things military to blur his focus on other national priorities. That’s a very big deal. President Eisenhower would be proud.
Tags:afghanistan, military spending, national security, progressives
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