Thursday, December 17, 2009
The Federalist Society is hosting two debates in their on-line debate series, one on the constitutionality of the "pay czar," the other on the constitutionality of the Public Company Accounting Oversight Board. (I posted on the "pay czar" most recently here; I posted on the PCAOB most recently here.)
The pair juxtapose nicely on separation-of-powers and Appointments Clause issues. The PCAOB debate, argued at the Supreme Court just last week in Free Enterprise Fund v. PCAOB, asks the question whether Congress overstepped its bounds and went too farin creating the PCAOB, an "independent" regulatory board within the already "independent" SEC. The "pay czar" debate asks whether Congress didn't go far enough in vesting the Secretary of the Treasury with appointment power for the Office of Master for Compensation.
The PCAOB arguments are more typical of the kinds of claims we've heard in cases like Morrison v. Olson (upholding the independent counsel), where the claim is that Congress intruded on an area reserved to the executive. We've also heard these arguments from unitary executive theorists, perhaps especially during the Bush Administration.
Arguments against the "pay czar," in contrast, say that Congress didn't go far enough--that it wasn't specific enough in its vesting to meet the demands for inferior officers under the Appointments Clause.
While the two debates together nicely bookend Appointments Clause and separation-of-powers questions, together they won't help us draw any lines. The PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive; the "pay czar" debate goes the other way and pushes the outer edges of what the executive can do without specific authorization from Congress. They make an interesting comparison, but they're too far apart to help us move forward in defining precise lines.