Thursday, November 05, 2009

Separation of Powers and the Administrative State

Rick Pildes

As I've noted here before, in early December the Supreme Court is going to engage one of the most important cases of the Term, Free Enterprise Fund v. The Public Company Accounting Oversight Board, which raises questions about how the Constitution assigns powers between Congress and the President over the control of administrative entities. The case arises in the complex area of financial regulation; it involves a constitutional challenge to the institutions Congress created in the Sarbanes-Oxley Act of 2002 to oversee accounting and auditing practices for public companies, in the wake of the Enron, Worldcomm, and serious corporate failings of that moment. Given the new institutions Congress is considering or might consider for financial regulation in response to the recent financial crisis, the Court's decision could have direct implications for these policy choices.

The Vanderbilt Law Review has created an online Symposium to discuss and debate the issues in the case. The Symposium introductory essay is written by Professor Peter Strauss, and the contributors are Professors Steven Calabresi, Harold Bruff, Gary Lawson, and myself. For those interested, the Symposium is here:

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