Hans Bader opines in the Examiner:
Is it constitutional to vest the appointment of an independent agency, not in the President, but in the members of another independent agency? That is a question presented by a case argued in the Supreme Court on December 7, Free Enterprise Fund v. Public Company Accounting Oversight Board.
I have argued in court briefs and elsewhere that it violates the Constitution's appointments clause, which requires that federal officers be picked by the President and confirmed by the Senate, unless they are inferior officers, who can be picked either by the President, or by the head of a department, or by a court. So have leading law professors like Stephen Bainbridge and Donna Nagy.
As I noted in an earlier commentary, the members of the Public Company Accounting Oversight Board, an agency being challenged in the Supreme Court on December 7, aren't appointed by the President, nor can he remove them. The General Accounting Office describes the PCAOB as "an independent board with sweeping powers and authority"; its rules and red tape cost the economy billions of dollars every year (with a long-term cost of perhaps a trillion dollars).
Yet the Government suggests in its brief that the President has “fully effective control” over the PCAOB (see pg. 46 of that brief). That’s not the only peculiar claim made in the PCAOB’s defense.
The case raises the issue of whether members of an agency (the PCAOB) picked by the members of yet another independent agency (the five SEC Commissioners acting as a group) are, in light of their broad policymaking role, actually “principal officers” who thus should have been picked instead by the President under the Constitution’s Appointments Clause. Alternatively, assuming the PCAOB members are mere “inferior” officers, the case raises the issue of whether they should, as the Appointments Clause requires for inferior officers, have been picked by the "Head" of a "Department," rather than the SEC Commissioners acting collectively
via www.examiner.com
Bader's article goes on to blow the government argument out of the water. For my take on the PCAOB case, read Peekaboo, the Constitution Doesn't See You.
