561 U.S. 477 (U.S. 2010), 08-861, Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.

Docket Nº:08-861.
Citation:561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706, 78 U.S.L.W. 4766
Opinion Judge:Roberts, Chief Justice.
Party Name:FREE ENTERPRISE FUND and Beckstead and Watts, LLP, Petitioners, v. PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD et al.
Attorney:Michael A. Carvin argued the cause for petitioners. Elena Kagan argued the cause for respondent United States. Jeffrey A. Lamken argued the cause for respondents Public Company Accounting Oversight Board, et al. David M. Becker, General Counsel, Mark D. Cahn, Deputy General Counsel, Jacob H. Stil...
Judge Panel:ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined, post, p. 514. Justice BREYER, with whom Justice STEVENS, Justice GINSBURG, and Justice SOTO...
Case Date:June 28, 2010
Court:United States Supreme Court

Page 477

561 U.S. 477 (2010)

130 S.Ct. 3138, 177 L.Ed.2d 706, 78 U.S.L.W. 4766

FREE ENTERPRISE FUND and Beckstead and Watts, LLP, Petitioners,



No. 08-861.

United States Supreme Court

June 28, 2010

Argued December 7, 2009.


[177 L.Ed.2d 712] [130 S.Ct. 3142] Syllabus [*]

Respondent, the Public Company Accounting Oversight Board, was created as part of a series of accounting reforms in the Sarbanes-Oxley Act of 2002. The Board is composed of five members appointed by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry-such as the New York Stock Exchange-that investigate and discipline their own members subject to Commission oversight. Unlike these organizations, the Board is a Government-created entity with expansive powers to govern an entire industry. Every accounting firm that audits public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. The Board may inspect registered firms, initiate formal investigations, and issue severe sanctions in its disciplinary proceedings. The parties agree that the Board is "part of the Government" for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 397, 115 S.Ct. 961, 130 L.Ed.2d 902, and that [177 L.Ed.2d 713] its members are " 'Officers of the United States'" who "exercis[e] significant authority pursuant to the laws of the United States," Buckley v. Valeo, 424 U.S. 1, 125-126, 96 S.Ct. 612, 46 L.Ed.2d 659. While the SEC has oversight of the Board, it cannot remove Board members at will, but only "for good cause shown," "in accordance with" specified procedures. 15 U.S.C. § § 7211(e)(6), 7217(d)(3). The parties also agree that the Commissioners, in turn, cannot themselves be removed by the President except for " 'inefficiency, neglect of duty, or malfeasance in office.' " Humphrey's Executor v. United States, 295 U.S. 602, 620, 55 S.Ct. 869, 79 L.Ed. 1611.

The Board inspected petitioner accounting firm, released a report critical of its auditing procedures, and began a formal investigation. The firm and petitioner Free Enterprise Fund, a nonprofit organization of which the firm is a member, sued the Board and its members, seeking, inter alia, a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. Petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring executive power on Board members without subjecting them to Presidential control. The basis for petitioners'

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challenge was that Board members were insulated from Presidential control by two layers of tenure protection: Board members could only be removed by the Commission for good cause, and the Commissioners could in turn only be removed by the President for good cause. Petitioners also challenged the Board's appointment as violating the Appointments Clause, which requires officers to be appointed by the President with the Senate's advice and consent, or—in the case of "inferior Officers"—by "the President alone, ... the Courts of Law, or ... the Heads of Departments," Art. II, § 2, cl. 2. The United States intervened to defend the statute. The District Court found it had jurisdiction and granted summary judgment to respondents. The Court of Appeals affirmed. It first agreed that the District Court had jurisdiction. It then ruled that the dual restraints on Board members' removal are permissible, and that Board members are inferior officers [130 S.Ct. 3143] whose appointment is consistent with the Appointments Clause.


1. The District Court had jurisdiction over these claims. The Commission may review any Board rule or sanction, and an aggrieved party may challenge the Commission's "final order" or "rule" in a court of appeals under 15 U.S.C. § 78y. The Government reads § 78y as an exclusive route to review, but the text does not expressly or implicitly limit the jurisdiction that other statutes confer on district courts. It is presumed that Congress does not intend to limit jurisdiction if "a finding of preclusion could foreclose all meaningful judicial review"; if the suit is " 'wholly "collateral"' to a statute's review provisions"; and if the claims are "outside the agency's expertise." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212-213, 114 S.Ct. 771,127 L.Ed.2d 29.

These considerations point against any limitation on review here. Section 78y provides only for review of Commission action, and petitioners' challenge is "collateral" to any Commission orders or rules from which review might be sought. The Government advises petitioners to raise their claims by appealing a Board sanction, [177 L.Ed.2d 714] but petitioners have not been sanctioned, and it is no "meaningful" avenue of relief, id., at 212, 114 S.Ct. 771, 127 L.Ed.2d 29, to require a plaintiff to incur a sanction in order to test a law's validity, Med-Immune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604. Petitioners' constitutional claims are also outside the Commission's competence and expertise, and the statutory questions involved do not require technical considerations of agency policy. Pp. 3150-3151, 177 L.Ed.2d, at 720-722.

2. The dual for-cause limitations on the removal of Board members contravene the Constitution's separation of powers. Pp. 3151-3161, 177 L.Ed.2d, at 718-719.

(a) The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." Art. II, §1, cl. 1. Since 1789, the Constitution has been understood to empower the

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President to keep executive officers accountable-by removing them from office, if necessary. See generally Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160. This Court has determined that this authority is not without limit. In Humphrey's Executor, supra, this Court held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause. And in United States v. Perkins, 116 U.S. 483, 6 S.Ct. 449, 29 L.Ed. 700, 21 Ct. Cl. 499, and Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569, the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. However, this Court has not addressed the consequences of more than one level of good-cause tenure. Pp. 3151-3153, 177 L.Ed.2d, at 722-724.

(b) Where this Court has upheld limited restrictions on the President's removal power, only one level of protected tenure separated the President from an officer exercising executive power. The President-or a subordinate he could remove at will-decided whether the officer's conduct merited removal under the good-cause standard. Here, the Act not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested in other tenured officers-the Commissioners-who are not subject to the President's direct control. Because the Commission cannot remove a Board member at will, the President cannot hold the Commission[130 S.Ct. 3144] fully accountable for the Board's conduct. He can only review the Commissioner's determination of whether the Act's rigorous good-cause standard is met. And if the President disagrees with that determination, he is powerless to intervene-unless the determination is so unreasonable as to constitute " 'inefficiency, neglect of duty, or malfeasance in office.' " Humphrey's Executor, supra, at 620, 55 S.Ct. 869, 79 L.Ed. 1611.

This arrangement contradicts Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. If this dispersion of responsibility were allowed to [177 L.Ed.2d 715] stand, Congress could multiply it further by adding still more layers of good-cause tenure. Such diffusion of power carries with it a diffusion of accountability; without a clear and effective chain of command, the public cannot determine where the blame for a pernicious measure should fall. The Act's restrictions are therefore incompatible with the Constitution's separation of powers. Pp. 3153 – 3155, 177 L.Ed.2d, at 720-721.

(c) The " 'fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will

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not save it if it is contrary to the Constitution. " Bowsher v. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181, 92 L.Ed.2d 583. The Act's multilevel tenure protections provide a blueprint for the extensive expansion of legislative power. Congress controls the salary, duties, and existence of executive offices, and only Presidential oversight can counter its influence. The Framers created a structure in which "[a] dependence on the people" would be the "primary controul on the government," and that dependence is maintained by giving each branch "the necessary constitutional means and personal motives to resist encroachments of the others." The Federalist No. 51, p. 349. A key "constitutional means" vested in the President was "the power of appointing, overseeing, and controlling those who execute the laws." 1 Annals of Congress 463. While a government of "opposite and rival interests" may sometimes inhibit the smooth...

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