The Volokh Conspiracy

The Committee, the Wikipedia entry labeled “United States Congress Joint Select Committee on Deficit Reduction” but redirected from “Super Congress” tells us (as of the time I write this),

is an illegal, unconstitutional joint select committee, created by the Budget Control Act of 2011, enacted on August 2, 2011. The Act was intended to consolidate dictatorial power and prevent the rapid process of sovereign default that would have resulted from the 2011 U.S. Debt Ceiling Crisis and forced the U.S. government to be more accountable for their actions.

I expect that the rhetoric will be removed in the Wikipedia entry in due course, but I’ve heard others likewise argue that the committee is somehow an unconstitutional “Super Congress” to which congressional power has been improperly delegated.

I don’t think this is right; Amanda Rice (Just Enrichment) has a good analysis of why the plan for the Committee (see Title IV of the Budget Control Act) is indeed constitutional, and commenter Brian Bishop adds more on the nondelegation point. Here’s my quick analysis:

1. Article I, § 5 of the Constitution provides that “Each House may determine the Rules of its proceedings.” This is the basis for how a wide variety of Congressional decisions are delegated in the first instance to committees, and how some matters are delegated to joint committees. And the Act makes clear that, “The provisions of this title are enacted by Congress ... as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply.”

2. This power doesn’t extend to actually allowing some other body, whether a Committee or not, to do things that themselves have the force of law. (See INS v. Chadha.) But under this proposal, the Joint Select Committee would simply submit its work product to Congress; as usual, the House and the Senate would decide whether to enact the law, and the President would decide whether to sign it. To be sure, the fast-track mechanism, with the restrictions on amendments and on the time available for debate, is unusual, and is intended to make the Committee’s work product especially influential. But again that’s part of the Houses’ power to make rules — the time available for debate and the possibility of amendment are themselves artifacts of the current rules of the Houses, and each House may alter those rules for particular kinds of legislation. (My understanding is that this is what has happened, for instance, with the fast-track trade agreement rules.)

3. Of course, the rules made by the Houses at one point may be changed later, and the Act acknowledges this: “The provisions of this title are enacted by Congress ... with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.” It might be politically difficult to go back on the fast-track system created by the Act — just as it’s politically difficult to cut back on the filibuster in the Senate, another example of an important feature of our political system that’s created by a Rule of one of the Houses — and I think the authors of the Act wanted that to be politically difficult. But that doesn’t make the rule change unconstitutional.

Congressional power questions aren’t my core area of expertise, so perhaps I’m missing something here. But my sense is that the establishment and the planned operation of the Joint Select Committee are constitutional, whatever pragmatic objections there might or might not be to this approach.

UPDATE: I originally just said that that the Wikipedia material was quoted from “the Wikipedia entry,” but I revised this when I realized — prompted by a reader comment — that the language is now present only in the entry at http://en.wikipedia.org/wiki/Super_Congress, which is titled “‘United States Congress Joint Select Committee on Deficit Reduction ... (Redirected from Super Congress).” That text has been removed in the http://en.wikipedia.org/wiki/United_States_Congress_Joint_Select_Committee_on_Deficit_Reduction entry, and I expect that it will soon be removed from the other entry as well. Unfortunately, the “revision history” link at the Wikipedia “Super_Congress” entry actually points to the revision history for the other entry, so it wasn’t clear what was happening; and it appears to me that the “edit” link at the “Super_Congress” entry also points to the page that edits the other entry (though I just looked at the link, without trying to edit it). It sounds like the Wikipedia redirection technology has a bit of a bug there.

GWU law professor Jonathan Turley has filed suit against the Obama Administration on behalf of several members of Congress, including Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC).  The complaint alleges that President Obama acted unlawfully by going to war in Libya  without Congressional authorization and seeks, among other things, an order that the military action in Libya constitutes a war that was undertaken without Congressional authorization, as required by the Constitution, and an injunction ”to end the violations alleged above, including but not limited to an order to suspend military operations in Libya absent a declaration of war from Congress.”

It is extremely unlikely this lawsuit will go anywhere.  I would be very surprised were it not dismissed on political questions grounds, and simply flabbergasted were a court to actually order that the U.S. military suspend operations in Libya (or anywhere else, for that matter).  If Congress feels that the President has overstepped his authority, then Congress has to act directly, conducting oversight and (if necessary) cutting off funds for operations it seeks to stop.

I doubt Congress will use the power of the purse, but a milder confrontation over the war power is possible.  Speaker of the House John Boehner recently called upon the Adminsitration to seek Congressional approval of the Libya operations or explain why the War Powers Act is inapplicable.  As Charlie Savage reports in the NYT, the Obama Administration has taken the latter course, telling Congress that this is not the sort of operation covered by the Act.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

The article also contains this interesting tidbit, which raises the possibility that the Justice Department’s Office of Legal Counsel does not wholly agree with the official Administration position. Writes Savage:

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon’s veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980,the Office of Legal Counsel concluded that it was within Congress’s constitutional power to enact such a limit on unauthorized hostilities.

Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

It was not clear whether the Office of Legal Counsel has endorsed the White House’s interpretation of what “hostilities” means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations.

Another interesting aspect of this conflict is that, in the past Republicans were the ones to be dismissive of the War Powers Act, often claiming it impermissibly interfered with the executive’s commander-in-chief power. Today, however, some seem all too happy to rely upon the Act if they think it can hamstring a Democratic president, just as some Democrats seem to forget the limits on executive authority they championed under Presidents named Reagan or Bush.

A federal statute enacted in 1976 — Pub. L. 94-503, quoted in the notes follow 28 U.S.C.A. § 532 — says that the Director of the FBI shall be appointed by the President, with the advice and consent of the Senate, for 10 years, and “A Director may not serve more than one ten-year term.” (That was apparently a reaction to the power accumulated by J. Edgar Hoover during his many years in office.) Now “The Obama administration is asking Congress to extend by two years the term of FBI Director Robert Mueller, who transformed the bureau to fight terrorism.” (See this Bloomberg story.)

I don’t have much to say about the question whether Mueller should serve an extra two years; but I do think that statutes such as this create an interesting constitutional situation. The Constitution’s Appointments Clause provides:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

This allows the President to appoint certain officers, if the Senate agrees, but it leaves no role for the House, or for previous sessions of the Senate. Congressional statutes therefore may not limit the President’s power under the Appointments Clause to appoint whomever he chooses.

But at the same time the Senate is entitled to block the President’s nomination, for whatever reason strikes the Senators as suitable, including that the Senators believe the appointee had already served long enough. And though the decision is left to today’s Senators, and not past Senators plus Representatives, today’s Senators may choose to follow the 10-year limit set forth by the statute, if they so wish. So the statute is not legally binding, it seems to me; but it’s an expression of the earlier wishes of the Senate and the House, and it might well sway today’s Senate to follow the policy expressed in the statute.

In any event, that’s my opinion; but the real expert on this is my sister-in law Prof. Hanah Metchis Volokh, who has written an article on this topic, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. Pa. J. Const. L. 745 (2008). Here’s what she had to say when I asked her:

[First,] there’s nothing wrong with having a set amount of time for the initial term, even of a principal officer. Some offices are by nature temporary. For those that are likely to be permanent, there may be good reasons for Congress to want the President (and the Senate) to have to reevaluate who should hold the position after a certain amount of time. Particularly in sensitive positions such as the FBI, which are susceptible to both abuse and power-concentration at the same time, it makes sense to limit the length of an officer’s initial term.

The statutory ban on appointing the same person for a second term, though, in my view violates the Appointments Clause for all the reasons I discuss in my paper. The President has the sole power to nominate, and the Senate has the sole power to confirm, an appointment that is done through the advice and consent process. The House of Representatives has no role and no power to constrain the joint action of the President and Senate. If the Senate doesn’t want to reappoint the same person once the initial term is up, they should make that clear to the President without involving the House of Representatives.

But Congress also can’t constrain the removal power of the President by forcing someone to leave office, except through impeachment. This means that the existence of a term limit doesn’t mean that the office-holder actually has to quit doing the job at the end of the term if the President doesn’t want him to. He should be able to stay on in an acting capacity, just as a new person (the new nominee or a lower-ranked person in the office) would do prior to confirmation of someone else.

Everything I said in the last two paragraphs would be totally different if we were talking about an officer with a vested appointment [i.e., an office as to which the Congress has exercised its power to "by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments" -EV]. If the FBI director were still appointed by the Attorney General without the involvement of the President and the Senate, Congress could set restrictions on who may hold the office and for how long. The Constitution says that “Congress may by law vest the appointment of such inferior officers, as they think proper,” and I believe that these vested appointments laws can include qualifications on who may hold office. I explore this argument at length in my paper.

I think that statutory extension of the initial term is probably fine, for both vested and advise-and-consent appointments. Particularly if there are no limits on early removal of the officer, it doesn’t affect any power of the President. (I might have a different view if the officer was protected from removal during good behavior, but I’d have to think about it.) It doesn’t really affect the power of the Senate either, because the Senate has no power to confirm anyone until the President nominates someone, and if the President decides to let the office stay open with an acting person instead of a confirmed person, there’s not a problem with that.

UPDATE: Hanah asked me to add this update (which also led me to strike out one of the paragraphs above):

I stated in my original e-mail that after an officer’s term runs out, the President can re-appoint that person under an “acting” title even if Congress tries to forbid it. On reflection, I don’t think that’s right. The Constitution doesn’t give the President any power to appoint acting officers to advice-and-consent positions. That power is granted through statute. I think the best way to think about those acting positions is that they are separate, temporary offices created by Congress and vested in the President under the vesting section of the Appointments Clause. Since they’re vested appointments, Congress can set limits on who may hold the office, including a limitation of not appointing the person whose term has just ended. However, the President still retains the power to nominate the same person again to a second term, and Congress cannot restrict his nomination power in any way.

This might be problematic if we are dealing with a principal officer, because only inferior officers can have vested appointments. (This isn’t an issue in the case of the FBI Director, because I think it’s pretty clear that is an inferior, not a principal, office.) But if Congress wants to allow the President to appoint acting officers in principal positions, there’s a good argument to be made that this is also constitutional. You would argue that the “acting” office is a different entity from the “regular” office, and that either (1) the “acting” office is necessarily inferior because it’s temporary, or (2) the “acting” office is inferior to the (vacant) principal office.

Via Althouse, I learn the following from Jake Tapper:

One rider [to the bill] – Section 2262 — de-funds certain White House adviser positions – or “czars.” The president in his signing statement declares that he will not abide by it.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”

Therefore, the president wrote, “the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.”

This raises an extremely serious constitutional question: if Congress has refused to fund the “czars,” where exactly does President Obama get the authority and funding to pay them?

Remember Iran-Contra? The problem for the Reagan Administration there was that Congress banned the president from allocating money to the Contras. The Administration, quite illegally in my view, tried to get around that ban by using funds from arm sales to Iran to subvert the Congressional ban.

At least the Reagan Administration had the decency to do this secretly, knowing that it was acting unconstitutionally. Moreover, the Reagan folks at least were able to claim that they technically weren’t violating the Congressional ban, because they weren’t using Congressionally allocated funds, but the proceeds from arms sales.

The Obama Administration, by contrast, seems to be brazenly violating the Constitution. As I tell my constitutional law students, Congress’s ultimate power is the power of the purse. If Congress objects, for example, to military action engaged in by the president, it can simply refuse to allocate funds.

But the Obama Administration’s position seems to be that so long as it issues a signing statement refusing to abide by restrictions on funding that it deems to interfere with executive prerogatives, it can simply create the funding out of thin air. If there is no statutory funding for the czars, where exactly is the money coming from?

This is a very dangerous position for the Executive branch to take, and I hope even Obama partisans will recoil at this. Imagine if a future Republican president gets the U.S. involved in a deeply unpopular war. A Democratic Congress passes a military spending bill that specifically denies the president authority to spend any additional money on that war after a 60 day period to get the troops out. The president signs the bill, but with a signing statement that says that the bill’s ban on war funding violates the separation of powers and therefore “the executive branch will construe the relevant section not to abrogate these Presidential prerogatives.” Democrats, and anyone concerned with the Constitution for that matter, would be up in arms, and rightly so.

If Obama had such serious constitutional objections to Section 2262, he had only one constitutionally proper move to make, and that was to veto the bill.

UPDATE: A commenter points out that the signing statement doesn’t explicitly state that Obama would/will fund “czars” against a Congressional ban on such funding. I read “legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities ... violate the separation of powers” to mean such, but I suppose it’s possible the administration wouldn’t take it that far. Apparently, also from the comments, the administration is claiming that the defunding language won’t have any practical impact, so I guess we won’t find out.

I would hope, however, for a clarifying comment from the White House that it is NOT asserting the authority to fund positions/actions when Congress has passed a bill signed by the president specifically banning such funding.

Also, I’m not asserting that funding a secret war and paying presidential advisors is on the same level of practical malfeasance. As a matter of simple policy, the former is obviously more important.

What I am arguing is that the principle that Obama seems to be asserting, that the president can allocate money from budgetary funds even when the law says he can’t, goes beyond the constitutional sins of the Reagan Administration. Under Reagan, when Congress refused to allow funding for the Contras from normal budgetary funds, Reagan didn’t say, “this violates the separation of powers, so I’m going to spend the money anyway.” Rather, he authorized a secret operation to use funds from arm sales to Iran to fund the Contras. That was itself, in my view, illegal and otherwise problematic, but it still paid fealty to the idea that the president cannot spend funds budgeted by Congress in a way that Congress has explicitly prohibited. Unless we get a contrary clarification from the Obama Administration, its signing statement threatens to become a precedent that erodes or even eviscerates that principle. The long-term endpoint would be that the president, once he ariculates separation of powers concerns, could simply take money that’s been allocated for one thing and spend it not just on something else, but on something else specifically prohibited by law. And I don’t want ANY president, Republican or Democrat, to have such authority.

This Thursday, I will be taking part in a panel on the legal issues raised by US intervention in the Libya, sponsored by the George Mason University International Law Society. The panel is entitled “Is There Any Law to Hold Us in Libya?” and will be held at George Mason University School of Law at noon. The address is 3301 Fairfax Drive in Arlington, Room 121.

The other panelists will be my law school colleague Jeremy Rabkin, Professor Jeremy Mayer of the GMU School of Public Policy, and Professor Agnieszka Paczynska of the Institute for Conflict Analysis and Resolution.

Perhaps best of all, there will be free food, including pizza.

I previously wrote about the constitutionality of the Libya intervention here, here, and here.

National Review has posted a symposium on the constitutionality of the Libya intervention. The symposium includes a large number of legal scholars and commentators, mostly conservative ones, as one would expect from a conservative publication. Interestingly, most of the participants reject the view (advanced by John Yoo and some others in the George W. Bush administration) that the president has unilateral authority to commit US forces to battle at any time, regardless of the scale of the conflict envisioned. My own contribution to the symposium is here. It largely tracks the position I outlined in greater detail in several VC posts on this issue (see here, here, and here).

My bottom-line view is that, while the president can undertake small-scale military actions on his own, engagements large enough to amount to a “war” require congressional authorization, unless the president is responding to an actual or imminent attack. The fact that we cannot draw an absolutely precise line between the two categories doesn’t mean that the distinction between them is meaningless, any more than our inability to precisely specify the exact minimum height at which a person can be considered “tall” proves that there is no meaningful difference in height between a seven foot tall man and one who is only five feet tall.

Several liberal Democratic members of Congress are claiming that President Obama’s decision to use force against Libyan dictator Muammar Gaddafi requires congressional authorization:

A hard-core group of liberal House Democrats is questioning the constitutionality of U.S. missile strikes against Libya, with one lawmaker raising the prospect of impeachment during a Democratic Caucus conference call on Saturday.

Reps. Jerrold Nadler (N.Y.), Donna Edwards (Md.), Mike Capuano (Mass.), Dennis Kucinich (Ohio), Maxine Waters (Calif.), Rob Andrews (N.J.), Sheila Jackson Lee (Texas), Barbara Lee (Calif.) and Del. Eleanor Holmes Norton (D.C.) “all strongly raised objections to the constitutionality of the president’s actions” during that call, said two Democratic lawmakers who took part.

Kucinich, who wanted to bring impeachment articles against both former President George W. Bush and Vice President Dick Cheney over Iraq — only to be blocked by his own leadership — asked why the U.S. missile strikes aren’t impeachable offenses....

Saturday’s conference call was organized by Rep. John Larson (Conn.), chairman of the Democratic Caucus and the fourth-highest ranking party leader. Larson has called for Obama to seek congressional approval before committing the United States to any anti-Qadhafi military operation.

“They consulted the Arab League. They consulted the United Nations. They did not consult the United States Congress,” one Democrat lawmaker said of the White House. “They’re creating wreckage, and they can’t obviate that by saying there are no boots on the ground. … There aren’t boots on the ground; there are Tomahawks in the air.”

Andrew McCarthy, a prominent conservative legal commentator, makes a similar argument here.

This is another of those rare cases where I agree with Dennis Kucinich, though I would not go so far as to advocate impeachment. Unlike Kucinich (and Andrew McCarthy), I tentatively think that Obama has chosen the right policy on Libya. But whether right or not, military action on this scale surely does require congressional authorization under the Constitution.

Article I of the Constitution clearly gives Congress, not the president, the “power... to declare War.” The Founding Fathers sought to avoid a situation where one man had the power to commit the nation to war on his own initiative.

It’s arguable that some small-scale uses of force don’t rise to the level of a war and therefore can be undertaken by the president acting alone under his authority as commander-in-chief of the armed forces. President Reagan’s 1986 airstrike on Libya might be an example, as were Bill Clinton’s 1998 missile strikes against Al Qaeda base camps in Afghanistan. If all the Obama administration intends is to launch a few Tomahawk missiles, perhaps this action would fall in the same category. However, it seems highly likely that the president plans to go well beyond this. Military operations are likely to continue for some time, perhaps until Gaddafi has either been overthrown or at least compelled to leave the rebel-controlled parts of Libya unmolested. If so, it seems quite clear that congressional authorization for military action on that scale is required.

Congressional authorization also might not be needed if all the president is responding to an ongoing or imminent attack. However, Gaddafi has not attacked the US in recent years (though he did sponsor numerous anti-American terrorist attacks in the 1980s and early 90s) and there doesn’t seem to be any evidence that he had any immediate intention of doing so.

As Andrew McCarthy recognizes, congressional authorization need not specifically use the words “declaration of war.” It is enough that it clearly authorize large-scale military operations against the enemy in question, as the Authorization for the Use of Military Force against Al Qaeda and the Taliban did in 2001.

For all the hoopla about the supposedly overwhelming growth of presidential power, presidents have in fact gotten advance or nearly simultaneous congressional authorization for almost every major military intervention the United States has undertaken since World War II. This was true in Korea, Vietnam, the two Iraq wars, and many other cases. Bill Clinton’s 1999 military action in Kosovo was the one time during that period when a president entered into a major conflict in the face of actual opposition by the majority in Congress. In part for that reason, Clinton strictly limited the scale of American involvement, avoiding the use of ground forces and ensuring that US troops didn’t suffer any combat casualties. Perhaps Obama plans to do the same thing with Libya; but if so, he will be in a difficult position if more coercion is needed to succeed.

In addition to constitutional reasons, presidents also have strong political incentives to seek congressional support for military action. Without it, the president will have to take the sole political blame if anything goes wrong.

In this case, I have little doubt that Obama could get congressional authorization if he tries to do so. There is considerable Republican support for the Libya intervention, and Obama can also count on the support of most of his fellow Democrats. The Democratic leadership in both the House and the Senate is backing him, despite the opposition of some House liberals.

For both constitutional and political reasons, the administration should seek a congressional vote as soon as possible.

UPDATE: I have changed the spelling of the Libyan dictator’s name in this post to what seems to be the more common English usage at this time: “Gaddafi.”

UPDATE #2: It’s worth noting that then-Senator Obama reached a similar conclusion back in 2007, when he said the following:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Obama’s 2007 position is actually more sweeping than mine, since it appears to apply to all military attacks, whereas I think that the president can unilaterally launch small-scale military operations that are not large enough to amount to a war.

UPDATE: I should acknowledge that President Truman in the Korea War never did get a clear congressional authorization for the war. I was wrong to suggest otherwise and apologize for the error. On the other hand, Truman’s decision to enter the war did enjoy overwhelming support in Congress, and most of the congressional criticism of his waging of the war came from Republicans who claimed that he wasn’t waging it aggressively enough.

In Free Enterprise Fund v. PCAOB, a five-justice majority found a provision of the Sarbanes-Oxley law unconstitutional, yet left the SarbOx regulatory structure largely intact.  With almost surgical precision, the Court erased the limitations on removal of members of the Public Company Accounting Oversight Board (PCAOB), thereby granting petitioners a victory on their constitutional claim without providing them with much (if any) practical relief.  This reinforces the formalist nature of the opinion insofar as the Court’s majority is insisting that Congress not obstruct executive authority but not doing much else to constrain the regulatory apparatus Congress constructed.  The Court drew a line in the sand to safeguard executive power and ensure greater accountability, but did so without picking much of a fight.

To summarize what the Court did: It held that Congress many not insulate a federal officer from executive control through double for-cause removal authority.  So while it is acceptable for Congress to prevent the removal of SEC commissioners except for cause, Congress cannot also require cause for the removal of officers who are only removable by the SEC.  In reaching this conclusion the Court held that the members of the PCAOB are, in fact, officers.  Stripped of the for-cause requirement for removal, PCAOB members are sufficiently controlled by the SEC that they are “inferior” officers, and thus may be appointed by the SEC (and not the President).  Further, the Court held, once thefor-cause limitation on removal is removed, there is no constitutional problem with the PCAOB as constituted nor with the scope of its authority, so it may continue to operate as it has.

I’ve highlighted some interesting, and perhaps important, passages from the Chief Justice’s majority opinion below the fold.  For additional commentary, see John Elwood’s comment below.  Here are additional early thoughts from David Zaring, Larry Ribstein, Megan McArdle, Rick Pildes, and Stephen Bainbridge (here, here, and here).

Continue reading ‘Thoughts on Free Enterprise Fund v. PCAOB’ »

I have long thought that if the Court invalidated any provision of Sarbanes-Oxley in Free Enterprise Fund v. PCAOB, 08-861, it would base its decision on the Act’s dual good-cause removal restrictions for Board members. First, because that was the strongest claim as a matter of doctrine. But also because doing so wouldn’t break much china. As the Court noted today in doing just that, “[t]he parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure.”

Free Enterprise Fund thus reminds me a bit of United States v. Lopez, 514 U.S. 549 (1995), in which the Court invalidated the Gun Free School Zones Act of 1990 on the ground it exceeded Congress’s Commerce Clause authority. The offense at question in Lopez was charged fairly infrequently, and thus the Court could warn Congress of the limitations on its power in a case yielding a minimum of immediate disruption.  The same is true here. Aside from some administrative law judges identified by counsel for PCAOB, who might be subject to two layers of for-cause removal restrictions, today’s opinion won’t have much immediate effect outside of the PCAOB. It would have been far more disruptive if the Court would have held for F.E.F. on one of the other grounds it advocated (e.g., that the Board members were principal officers; that a multi-member body cannot be the “head” of a department for Appointment Clause purposes). 

The comparison to Lopez is also apt because it’s the first time the Court has invalidated a law on this basis in a while.

UPDATE:  Over at Balkinization, Prof. Rick Pildes has an excellent post that is in a similar vein:

I view Chief Justice Roberts’s opinion * * * as a symbolic victory for the “unitary executive branch” view of the Presidency, but as little more than symbolic. The decision has no practical effect at all on the Sarbanes-Oxley Act; the SEC and the Board that administers the Act will go on as before. Indeed, lost in the headlines will be the fact that the Court actually rejected all the most expansive constitutional challenges to the SEC and to SOX. It accepted only the most narrow challenge * * * .
* * * * *
Moreover, despite the headline of “Court holds SOX unconstitutional,” the decision is also a loss on many fronts to the “unitary executive branch” view.