an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Structure of Government and Today's Argument in the Sarbanes-Oxley Act Case
As someone who has followed the important issues in this case closely, including by filing an amicus curiae brief on behalf of seven former Chairmen of the SEC in support of the government's position, there were a number of surprising comments from various Justices about central administrative law issues. I will only note the first of these here; with time, I will note a few others.
Independent agencies, like the SEC, the FCC, the FTC, have been held constitutional since the famous Humphrey’s Executor case. But today, Justice Scalia asserted -- at the very start of the government's argument -- that independent agencies are constitutional only because the President has the power to remove the Chair of these agencies. This did not seem a casual comment from Justice Scalia; it also seemed that some other Justices might share this view.
The first reason this is such a surprising position is that it has never been expressed before, at least as far as I know. Certainly, it has not been expressed in any Court opinion, including Humphrey's Executor, when the Court upheld the constitutionality of these agencies.
Second, there's a problem with the point: although the President now has authority to select the Chairman of the SEC from among the Commissioners and remove him from that position at will, that was not the way the statutes worked at the time Humphrey’s Executor was decided (for either the FTC or the SEC). In 1935, the Commissioners themselves chose the Chairman from among their own membership; the President had no greater authority over him than he had over any other Commissioner. See Humphrey’s Executor v. United States, 295 U.S. 602, 620 (1935) (“The commission shall choose a chairman from its own membership.” (quoting ch. 311, § 1, 38 Stat. 717, 718 (1914)). The President was only given authority over the Chairman in 1950. See Reorganization Plan No. 8 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (“The functions of the [Federal Trade] Commission with respect to choosing a Chairman from among the membership of the Commission are hereby transferred to the President.”); Reorganization Plan No. 10 of 1950, § 3, 15 Fed. Reg. 3175, 3175 (May 25, 1950) (same for SEC). So the Court certainly could not have thought, at the time it decided Humphrey's Executor, that the FTC was constitutional only because the President could remove the Chairman of the FTC.
To put the point another way, the position of a Chairman only exists because Congress by statute eventually decided to create one -- and Congress could eliminate the position of Chair. For example, the President does not appoint a Chairman of the Federal Election Commission; that position rotates among the six Commissioners. Does Justice Scalia believe the Constitution affirmatively requires Congress to create a Chair of an independent agency -- and that the President be given the power to remove that Chair at will?
I find it hard to believe that Justice Scalia, or any other Justice, really thinks that, once he sits down to think it through. But that would seem to be the logic of the position that independent agencies are only constitutional if the President can remove their Chairs.
This was only one of several, similarly surprising comments from the Court at today's important argument. With time, I will try to address some of the others. Posted
by Rick Pildes [link]