Lead Opinion
OPINION OF THE COURT
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delivered the opinion of the Court.
Our Constitution divided the “powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.” INS v. Chadha,
Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States,
We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the
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President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?
We hold that such multilevel protection from removal is contrary to Article IPs vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.” Id., at 693,
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After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745. Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms 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. Congress created the Board as a private “nonprofit corporation,” and Board members and employees are not considered Government “officer[s] or employee [s]” for statutory purposes. 15 U.S.C. §§ 7211(a), (b). The Board can thus recruit its members and employees from
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the private sector by paying salaries far above the standard Government pay scale. See §§ 7211(f)(4), 7219.
Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§ 7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes-Oxley Act, the securities laws, the Commission’s rules, its own rules, and professional accounting standards. §§ 7215(b)(1), (c)(4). To this end, the Board may regulate every detail of an accounting firm’s practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and “such other requirements as the Board may prescribe.” § 7213(a)(2)(B).
The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§ 7213-7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq.—a federal crime punishable by up to 20 years’ imprisonment or $25 million in fines ($5 million for a natural person). §§ 78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm’s registration, a permanent ban on a person’s associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). § 7215(c)(4). Despite the provisions specifying that
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Board members are not Government officials for statutory purposes, the parties agree that the Board is “part of the Government” for constitutional purposes, Lebron v. National Railroad Passenger Corporation,
The Act places the Board under the SEC’s oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). §§ 7217(b)—(c). But the individual members of the Board—like the officers and directors of the self-regulatory organizations— are substantially insulated from the Commission’s control. The Commission cannot remove Board members at will, but only “for good cause shown,” “in accordance with” certain procedures. § 7211(e)(6).
Those procedures require a Commission finding, “on the record” and “after notice and opportunity for a hearing,” that the Board member
“(A) has willfully violated any provision of th [e] Act, the rules of the Board, or the securities laws;
“(B) has willfully abused the authority of that member; or
“(C) without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof.” § 7217(d)(3).
Removal of a Board member requires a formal Commission order and is subject to judicial review. See 5 U.S.C. §§ 554(a), 556(a), 557(a), (c)(B); 15 U.S.C. § 78y(a)(1). Similar
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procedures govern the Commission’s removal of officers and directors of the private self-regulatory organizations. See § 78s(h)(4). The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of “inefficiency, neglect of duty, or malfeasance in office,”
B
Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. App. 71.
Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67-68. Petitioners also challenged the Act under the Appointments Clause, which requires “Officers of the United States” to be appointed by the President with the Senate’s advice and consent. Art. II, § 2, cl. 2. The Clause provides an exception for “inferior Officers,” whose appointment Congress may
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the several Commissioners (as opposed to the Chairman) are not its “Hea[d].” See App. 68-70. The United States intervened to defend the Act’s constitutionality. Both sides moved for summary judgment; the District Court determined that it had jurisdiction and granted summary judgment to respondents. App. to Pet. for Cert. 110a-117a.
A divided Court of Appeals affirmed.
Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that “the double for-cause removal provisions in the [Act] . . . combine to eliminate any meaningful Presidential control over the [Board],” id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709-712.
We granted certiorari.
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II
We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners’ claims.
The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See 15 U.S.C. §§ 7217(b)(2)-(4), (c)(2). Once the Commission has acted, aggrieved parties may challenge “a final order of the Commission” or “a rule of the Commission” in a court of appeals under § 78y, and “[n]o objection . . . may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so.” §§ 78y(a)(1), (b)(1), (c)(1).
The Government reads § 78y as an exclusive route to review. But the text does not expressly limit the jurisdiction that other statutes confer on dis
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omitted). These considerations point against any limitation on review here.
We do not see how petitioners could meaningfully pursue their constitutional claims under the Government’s theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule.
The Government suggests that petitioners could first have sought Commission review of the Board’s “auditing standards, registration requirements, or other rules.” Brief for United States 16. But petitioners object to the Board’s existence, not to any of its auditing standards. Petitioners’ general challenge to the Board is “collateral” to any Commission orders or rules from which review might be sought. Cf. McNary v. Haitian Refugee Center, Inc.,
Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16-17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11, and an uncomplimentary inspection report is not subject to judicial review, see § 7214(h)(2). So the Government proposes that Beckstead and Watts incur a sanction (such as a sizable fine) by ignoring Board requests for documents and testimony. Brief for United States 17. If the Commission then affirms, the firm will win access to a court of appeals—and severe punishment should its challenge fail. We normally do not require plaintiffs to “bet the farm ... by taking the violative action” before “testing the validity of the law,” Med-Immune, Inc. v. Genentech, Inc.,
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“meaningful” avenue of relief, Thunder Basin,
We therefore conclude that § 78y did not strip the District Court of jurisdiction over these claims, which are properly presented for our review.
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III
We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution’s separation of powers.
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. As Madison stated on the floor of the First Congress, “if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong. 463 (1789).
The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that “prevailed, as most consonant to the text of the Constitution” and “to the requisite responsibility and harmony in the Executive Department,” was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not “expressly taken away, it remained with the President.” Letter from James Madison to Thomas Jefferson (June
The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President “the general administrative control of those executing the laws.”
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Nearly a decade later in Humphrey’s Executor, this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of certain independent agencies. That case concerned the members of the Federal Trade Commission, who held 7-year terms and could not be removed by the President except for “ ‘inefficiency, neglect of duty, or malfeasance in office.’ ”
Humphrey’s Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers, supra, at 119, 127,
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In Perkins, a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required.
We again considered the status of inferior officers in Morrison. That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only “ ‘for good cause.’ ”
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good-cause restrictions on her removal.
B
As explained, we have previously upheld limited restrictions on the President’s removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President—or a subordinate he could remove at will— who decided whether the officer’s conduct merited removal under the good-cause standard.
The Act before us does something quite different. It 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 instead in other tenured officers—the Commissioners—none of whom is subject to the President’s direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.
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the same extent that he may hold the Commission to account for everything else it does.
A second level of tenure protection changes the nature of the President’s review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board’s conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board’s actions. They are only responsible for their own determination of whether the Act’s rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene—unless that determination is so unreasonable as to constitute “inefficiency, neglect of duty, or malfeasance in office.” Humphrey’s Executor,
This novel structure does not merely add to the Board’s independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.
That arrangement is contrary to 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 is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member’s breach of faith. This violates the basic principle that the President “cannot delegate ultimate responsibility or the active obligation to supervise that goes with it,” because Article II “makes a single President responsible for the actions
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of the Executive Branch.” Clinton v. Jones,
Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third?
Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner,
The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the
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United States.” Art. II, § 2, cl. 2. They instead look to the President to guide the “assistants or deputies . . . subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot “determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.” Id., No. 70, at 476 (same). That is why the Framers sought to ensure that “those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community.” 1 Annals of Cong., at 499 (J. Madison).
By granting the Board executive power without the Executive’s oversight, this Act subverts the President’s ability to ensure that the laws are faithfully executed—as well as the public’s ability to pass judgment on his efforts. The Act’s restrictions are incompatible with the Constitution’s separation of powers.
C
Respondents and the dissent resist this conclusion, portraying the Board as “the kind of practical accommodation between the Legislature and the Executive that should be permitted in a ‘workable government.’ ” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.,
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quotation marks omitted). In this respect the statute creating the Board
No one doubts Congress’s power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen by the entire Nation oversee the execution of the laws. And the “ Tact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,’” for “‘[c]onve-nience and efficiency are not the primary objectives—or the hallmarks—of democratic government.’ ” Bowsher,
One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people. This concern is largely absent from the dissent’s paean to the administrative state.
For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President’s “power to get something done” more often depends on “who controls the agency’s budget requests and funding, the relationships between one agency or department and another, . . . purely political factors (including Congress’ ability
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to assert influence),” and indeed whether particular unelected officials support or “resist” the President’s policies. Post, at 524, 526,
In fact, the multilevel protection that the dissent endorses “provides a blueprint for extensive expansion of the legislative power.” MWAA, supra, at 277,
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The Framers created a structure in which “[a] dependence on the people” would be the “primary controul on the government.” The Federalist No. 51, at 349 (J. Madison). That dependence is maintained, not just by “parchment barriers,” id., No. 48, at 333 (same), but by letting “[a]mbition . . . counteract ambition,” giving each branch “the necessary constitutional means, and personal motives, to resist encroachments of the others,” id., No. 51, at 349. A key “constitutional means” vested in the President—perhaps the key means—was “the power of appointing, overseeing, and controlling those who execute the laws.” 1 Annals of Cong., at 463. And while a government of “opposite and rival interests” may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Bowsher, supra, at 730,
Calls to abandon those protections in light of “the era’s perceived necessity,” New York,
The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman’s lament, to “persuading]” his un
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they ought to do without persuasion.” Post, at 524,
D
The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution. See Brief for United States 47. It contends, however, that the removal restrictions at issue here do not.
To begin with, the Government argues that the Commission’s removal power over the Board is “broad,” and could be construed as broader still, if necessary to avoid invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB Brief 22-23. But the Government does not contend that simple disagreement with the Board’s policies or priorities could constitute “good cause” for its removal. See Tr. of Oral Arg. 41-43, 45-46. Nor do our precedents suggest as much. Humphrey’s Executor, for example, rejected a removal premised on a lack of agreement “ ‘on either the policies or the administering of the Federal Trade Commission,’ ” because the FTC was designed to be “ ‘independent in character,’ ” “free from ‘political domination or control,’ ” and not “ ‘subject to anybody in the government’ ” or “ ‘to the orders of the President.’ ”
Indeed, this case presents an even more serious threat to executive control than an “ordinary” dual for-cause standard.
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Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing. § 7217(d)(3); see § 78y(a). The Act does not even give the Commission power to fire Board members for violations of other laws that do not relate to the Act, the securities laws, or the Board’s authority. The President might have less than full confidence in, say, a Board member who cheats on his taxes; but that discovery is not listed among the grounds for removal under § 7217(d)(3).
Alternatively, respondents portray the Act’s limitations on removal as irrelevant, because—as the Court of Appeals held—the Commission wields “at-will removal power over Board functions if not Board members.”
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PCAOB Brief 48. The Commission’s general “oversight and enforcement authority over the Board,” § 7217(a), is said to “blun[t] the constitutional impact of for-cause removal,”
Broad power over Board functions is not equivalent to the power to remove Board members. The Commission may, for example, approve the Board’s budget, § 7219(b), issue binding regulations, §§ 7202(a), 7217(b)(5), relieve the Board of authority, § 7217(d)(1), amend Board sanctions, § 7217(c), or enforce Board rules on its own, §§ 7202(b)(1), (c). But altering the budget or powers of an agency as a whole is a problematic way to control an inferior officer. The Commission cannot wield a free hand to supervise individual members if it must destroy the Board in order to fix it.
Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents’ premise that the Commission’s power in this regard is plenary. As described above, the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. See supra, at 485-486,
The Government and the dissent suggest that the Commission could govern and direct the Board’s daily exercise of prosecutorial discretion by promulgating new SEC rules, or by amending those of the Board. Brief for United States 27; post, at 528,
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Brief 24, n. 6.
Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal—including at one level a sharply circumscribed definition of what constitutes “good cause,” and rigorous procedures that must be followed prior to removal.
The parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure. See, e.g., PCAOB Brief 43. As Judge Kavanaugh noted in dissent below:
“Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by
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and removable only for cause by another independent agency.”537 F.3d, at 699 .
The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 536-544,
For example, many civil servants within independent agencies would not qualify as “Officers of the United States,” who “exercis[e] significant authority pursuant to the laws of the United States,” Buckley,
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by the President), see, e.g., §§ 3132(c), 3395(a), 4312(d), 4314(b)(3), (c)(3); cf. § 2302(a)(2)(B)(ii). While the full extent of that authority is not before us, any such authority is of course wholly absent with respect to the Board. Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.
Finally, the dissent wanders far afield when it suggests that today’s opinion might increase the President’s authority to remove military officers. Without expressing any view whatever on the scope of that authority, it is enough to note that we see little analogy between our Nation’s armed services and the Public Company Accounting Oversight Board. Military officers are broadly subject to Presidential control through the chain of command and through the President’s powers as Commander in Chief. Art. II, § 2, cl. 1; see, e.g., 10 U.S.C. §§ 162, 164(g). The President and his subordinates may also convene boards of inquiry or courts-martial to hear claims of misconduct or poor performance by those officers. See, e.g., §§ 822(a)(1), 823(a)(1), 892(3), 933-934, 1181-1185. Here, by contrast, the President has no authority to initiate a Board member’s removal for cause.
There is no reason for us to address whether these positions identified by the dissent, or any others not at issue in this case, are so structured as to infringe the President’s
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constitutional authority. Nor is there any substance to the dissent’s concern that the “work of all these various officials” will “be put on hold.” Post, at 544,
IV
Petitioners’ complaint argued that the Board’s “freedom from Presidential oversight and control” rendered it
“Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,” severing any “problematic portions while leaving the remainder intact.” Ayotte v. Planned Parenthood of Northern New Eng.,
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restrictions imposed by 15 U.S.C. §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. See, e.g., Sampson v. Murray,
The Sarbanes-Oxley Act remains “ ‘fully operative as a law’ ” with these tenure restrictions excised. New York,
It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board’s responsibilities so that its members would no longer be “Officers of the United States.” Or we could restrict the Board’s enforcement powers, so that it would be a purely recommendatory panel. Or the Board
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members could in future be made removable by
V
Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit.
First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate’s advice and consent. We held in Edmond v. United States,
But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” (e.g., State, Treasury, Defense) listed in 5 U.S.C. § 101. In Freytag,
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the Commission is indeed such a “Department,” see id., at 918,
Respondents urge us to adopt this reasoning as to those entities not addressed by our opinion in Freytag, see Brief for United States 37-39; PCAOB Brief 30-33, and we do. Respondents’ reading of the Appointments Clause is consistent with the common, near-contemporary definition of a “department” as a “separate allotment or part of business; a distinct province, in which a class of duties are allotted to a particular person.” 1 N. Webster, American Dictionary of the English Language (1828) (def. 2) (1995 facsimile ed.). It is also consistent with the early practice of Congress, which in 1792 authorized the Postmaster General to appoint “an assistant, and deputy postmasters, at all places where such shall be found necessary,” § 3, 1 Stat. 234— thus treating him as the “Hea[d] of [a] Departmen[t]” without the title of Secretary or any role in the President’s Cabinet. And it is consistent with our prior cases, which have never invalidated an appointment made by the head of such an establishment. See Freytag, supra, at 917,
But petitioners are not done yet. They argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission’s
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“Hea[d].”
As a constitutional matter, we see no reason why a multimember body may not be the “Hea[d]” of a “Depart-men [t] ”
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that it governs. The Appointments Clause necessarily contemplates collective appointments by the “Courts of Law,” Art. II, § 2, cl. 2, and each House of Congress, too, appoints its officers collectively, see Art. I, § 2, cl. 5; id., § 3, cl. 5. Petitioners argue that the Framers vested the nomination of principal officers in the President to avoid the perceived evils of collective appointments, but they reveal no similar concern with respect to inferior officers, whose appointments may be vested elsewhere, including in multimember bodies. Practice has also sanctioned the appointment of inferior officers by multimember agencies. See Freytag,
In light of the foregoing, petitioners are not entitled to broad injunctive relief against the Board’s continued operations. But they are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive. See Bowsher,
The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his
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duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority “would greatly diminish the intended and necessary responsibility of the chief magistrate himself.” The Federalist No. 70, at 478.
While we have sustained in certain cases limits on the President’s removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President’s authority in this way.
The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
SEPARATE OPINION
Notes
. The current salary for the Chairman is $673,000. Other Board members receive $547,000. Brief for Petitioners 3.
. The Government asserts that “petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of-powers principles.’’ Brief for United States 22. The Government does not appear to dispute such a right to relief as a general matter, without regard to the particular constitutional provisions at issue here. See, e.g., Correctional Services Corp. v. Malesko,
. When Perkins was decided in 1886, the Secretary of the Navy was a principal officer and the head of a department, see Rev. Stat. § 415, and the Tenure of Office Act purported to require Senate consent for his removal. Ch. 154, 14 Stat. 430, Rev. Stat. § 1767. This requirement was widely regarded as unconstitutional and void (as it is universally regarded today), and it was repealed the next year. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500; Myers v. United States,
. Contrary to the dissent’s suggestion, post, at 525-527,
. The dissent quotes Buckley v. Valeo,
. The dissent attributes to Madison a belief that some executive officers, such as the Comptroller, could be made independent of the President. See post, at 530,
. The Government implausibly argues that § 7217(d)(3) “does not expressly make its three specified grounds of removal exclusive,’’ and that “the Act could be construed to permit other grounds.’’ Brief for United States 51, n. 19. But having provided in § 7211(e)(6) that Board members are to be removed “in accordance with [ § 7217(d)(3)], for good cause shown,’’ Congress would not have specified the necessary Commission finding in § 7217(d)(3)—including formal
. Contrary to the dissent’s assertions, see post, at 528-529,
. One “may be an agent or employé working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its office[r].” United States v. Germaine,
. For similar reasons, our holding also does not address that subset of independent agency employees who serve as administrative law judges. See, e.g., 5 U.S.C. §§ 556(c), 3105. Whether administrative law judges are necessarily “Officers of the United States’’ is disputed. See, e.g., Landry v. FDIC,
. We express no view on whether the Commission is thus an “executive Departmen[t]’’ under the Opinions Clause, Art. II, § 2, cl. 1, or under Section 4 of the Twenty-Fifth Amendment. See Freytag v. Commissioner,
. The Board argued below that petitioners lack standing to raise this claim, because no member of the Board has been appointed over the Chairman’s objection, and so petitioners’ injuries are not fairly traceable to an invalid appointment. See Defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss the Complaint in Civil Action No. 1:06-cv-00217-JR (DC), Doc. 17, pp. 42-43; Brief for Appellees PCAOB et al. in No. 07-5127 (CADC), pp. 32-33. We cannot assume, however, that the Chairman would have made the same appointments acting alone; and petitioners’ standing does not require precise proof of what the Board’s policies might have been in that counterfactual world. See Glidden Co. v. Zdanok,
. Petitioners contend that finding the Commission to be the head will invalidate numerous appointments made directly by the Chairman, such as those of the ‘Reads of major [SEC] administrative units.’’ Reorg. Plan No. 10, § 1(b)(2), at 1266. Assuming, however, that these individuals are officers of the United States, their appointment is still made “subject to the approval of the Commission.’’ Ibid. We have previously found that the department head’s approval satisfies the Appointments Clause, in precedents that petitioners do not ask us to revisit. See, e.g., United States v. Smith,
See Lebron v. National Railroad Passenger Corporation,
See Lebron v. National Railroad Passenger Corporation,
See Lebron, supra.
The officers in this agency are part of the “excepted service,” but enjoy tenure protection similar to that enjoyed by career SES appointees. See 5 U.S.C. § 2302(a)(2)(B); Plum Book, p. v (distinguishing “excepted service” from “Schedule C”); id., at 202 (describing schedule C positions).
See Lebron,
See Lebron, supra.
See Lebron, supra.
Dissenting Opinion
with whom Justice Stevens, Justice Ginsburg, and Justice Sotomayor join, dissenting.
The Court holds unconstitutional a statute providing that the Securities and Exchange Commission (SEC or Commission) can remove members of the Public Company Accounting Oversight Board from office only for cause. It argues that granting the “inferior officer [s]” on the Accounting Board “more than one level of good-cause protection . . . contravenes the President’s ‘constitutional obligation to ensure the faithful execution of the laws.’ ” Ante, at 484,
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I
A
The legal question before us arises at the intersection of two general constitutional principles. On the one hand, Congress has broad power to enact statutes “necessary and proper” to the exercise of its specifically enumerated constitutional authority. Art. I, § 8, cl. 18. As Chief Justice Marshall wrote for the Court nearly 200 years ago, the Necessary and Proper Clause reflects the Framers’ efforts to create a Constitution that would “endure for ages to come.” McCulloch v. Maryland,
On the other hand, the opening sections of Articles I, II, and III of the Constitution separately and respectively vest “ [a]ll legislative Powers” in Congress, the “executive Power” in the President, and the “judicial Power” in the Supreme Court (and such “inferior Courts as Congress may from time to time ordain and establish”). In doing so, these provisions imply a structural separation-of-powers principle. See, e.g., Miller v. French,
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principle, along with the instruction in Article II, § 3, that the President “shall take Care that the Laws be faithfully executed,” limits Congress’ power to structure the Federal Government. See, e.g., INS v. Chadha,
But neither of these two principles is absolute in its application to removal cases. The Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the will of the President. Ibid. Nor does the separation-of-powers principle grant the President an absolute authority to remove any and. all Executive Branch officials at will. Rather, depending on, say, the nature of the
In answering the question presented, we cannot look to more specific constitutional text, such as the text of the Appointments Clause or the Presentment Clause, upon which the Court has relied in other separation-of-powers cases. See, e.g., Chadha, supra, at 946,
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supra, at 723,
Nor does history offer significant help. The President’s power to remove Executive Branch officers “was not discussed in the Constitutional Convention.” Myers, supra, at 109-110,
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and the Administration, 94 Colum. L. Rev. 1, 25-26 (1994) (hereinafter Lessig &
Nor does this Court’s precedent fully answer the question presented. At least it does not clearly invalidate the provision in dispute. See Part II-C, infra. In Myers, supra, the Court invalidated—for the first and only time—a congressional statute on the ground that it unduly limited the President’s authority to remove an Executive Branch official. But soon thereafter the Court expressly disapproved most of Myers’ broad reasoning. See Humphrey’s Executor, supra, at 626-627,
In short, the question presented lies at the intersection of two sets of conflicting, broadly framed constitutional principles. And no text, no history, perhaps no precedent provides
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any clear answer. Cf. Chicago v. Morales,
B
When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function. Thus, in Crowell v. Benson,
It is not surprising that the Court in these circumstances has looked to function and context, and not to bright-line
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rules. For one thing, that approach embodies the intent of the Framers. As Chief Justice Marshall long ago observed, our Constitution is fashioned so as to allow the three coordinate branches, including this Court, to exercise practical judgment in response to changing conditions and “exigencies,” which at the time of the founding could be seen only “dimly,” and perhaps not at all. McCulloch,
For another, a functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances. That is why the “powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role” over time. New York v. United States,
Federal statutes now require or permit Government officials to provide, regulate, or otherwise administer, not only foreign affairs and defense, but also a wide variety of such subjects as taxes, welfare, social security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, nuclear power, financial instruments, banking, medical care, public health and safety, the environment, fair employment practices, consumer protection, and much else besides. Those statutes create a host of different organizational
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structures. Sometimes they delegate administrative authority to the President directly, e.g., 10 U.S.C. § 2031(a)(1); 42 U.S.C. § 5192(c); sometimes they place authority in a long-established Cabinet department,
The upshot is that today vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives. And, given the nature of the Government’s work, it is not surprising that administrative units come in many different shapes and sizes.
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The functional approach required by our precedents recognizes this administrative complexity and, more importantly, recognizes the various ways Presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens’ song, sometimes it is necessary to disable oneself in order to achieve a broader objective. Thus, legally enforceable commitments— such as contracts, statutes that cannot instantly be changed, and, as in the case before us, the establishment of independent administrative institutions—hold the potential to empower precisely because of their ability to constrain. If the President seeks to regulate through impartial adjudication, then insulation of the adjudicator from removal at will can help him achieve that goal. And to free a technical decisionmaker from the fear of removal without cause can similarly help create legitimacy with respect to that official’s regulatory actions by helping to insulate his technical decisions from nontechnical political pressure.
Neither is power always susceptible to the equations of elementary arithmetic. A rule that takes power from a President’s friends and allies may weaken him. But a rule that takes power from the President’s opponents may strengthen him. And what if the rule takes power from a functionally neutral independent authority? In
These practical reasons not only support our precedents’ determination that cases such as this should examine the specific functions and context at issue; they also indicate that judges should hesitate before second-guessing a “for cause” decision made by the other branches. See, e.g., Chadha,
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concurring in judgment). Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration, and the manner in which power, including and most especially political power, operates in context.
There is no indication that the two comparatively more expert branches were divided in their support for the “for cause” provision at issue here. In this case, the Act embodying the provision was passed by a vote of 423 to 3 in the House of Representatives and by a vote of 99 to 0 in the Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting Board was discussed at great length in both bodies without anyone finding in its structure any constitutional problem. See id., at 12035-12037, 12112-12132, 12315-12323, 12372-12377, 12488-12508, 12529-12534, 12612-12618, 12673-12680, 12734-12751, 12915-12960, 13347-13354, 14439-14458, 14487-14506. The President signed the Act. And, when he did so, he issued a signing statement that critiqued multiple provisions of the Act but did not express any separation-of-powers concerns. See President’s Statement on Signing the Sarbanes-Oxley Act of 2002, 38 Weekly Comp, of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on Presidential Signing Statements and the Separation of Powers Doctrine 15 (2006), online at http://www. abanet.org./op/signingstatements/aba_ final_signing_statements_recommenda tion-report_7-24-06.pdf (all Internet materials as visited June 24, 2010, and available in Clerk of Court’s case file) (noting that President Bush asserted “over 500” “constitutional objections” through signing statements “in his first term,” including 82 “related to his theory of the ‘unitary executive’ ”).
Thus, here, as in similar cases, we should decide the constitutional question in light of the provision’s practical functioning in context. And our decision should take account of the Judiciary’s comparative lack of institutional expertise.
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II
A
To what extent then is the Act’s “for cause” provision likely, as a practical matter, to limit the President’s exercise of executive authority? In practical terms no “for cause” provision can, in isolation, define the full measure of executive power. This is because a legislative decision to place ultimate administrative authority in, say, the Secretary of Agriculture rather than the President, the way in which the statute defines the scope of the power the relevant administrator can exercise, the decision as to who controls the agency’s budget requests and funding, the relationships between one agency or department and another, as well as more purely political factors (including Congress’ ability to assert influence) are more likely to
Indeed, notwithstanding the majority’s assertion that the removal authority is “the key” mechanism by which the President oversees inferior officers in the independent agencies, ante, at 501,
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Agencies in From the Cold, 62 Vand. L. Rev. En Banc 63, 68 (2009), online at http://vanderbiltlaw review.org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf (noting that “Presidents do not test the limits of their power by removing commissioners . . .”); Lessig & Sunstein 110-112 (noting that courts have not had occasion to define what constitutes “cause” because Presidents rarely test removal provisions).
But even if we put all these other matters to the side, we should still conclude that the “for cause” restriction before us will not restrict Presidential power significantly. For one thing, the restriction directly limits, not the President’s power, but the power of an already independent agency. The Court seems to have forgotten that fact when it identifies its central constitutional problem: According to the Court, the President “is powerless to intervene” if he has determined that the Board members’ “conduct merit[s] removal” because “[t]hat decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President’s direct control.” Ante, at 495-496,
In other words, the Court fails to show why two layers of “for cause” protection—layer 1 insulating the Commissioners from the President, and layer 2 insulating the Board from the Commissioners—impose any more serious limitation upon the President’s powers than one layer. Consider the four scenarios that might arise:
1. The President and the Commission both want to keep a Board member in office. Neither layer is relevant.
2. The President and the Commission both want to dismiss a Board member. Layer 2 stops them both
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so without cause. The President’s ability to remove the Commission (layer 1) is irrelevant, for he and the Commission are in agreement.
3. The President wants to dismiss a Board member, but the Commission wants to keep the member. Layer 1 allows the Commission to make that determination notwithstanding the President’s contrary view. Layer 2 is irrelevant because the Commission does not seek to remove the Board member.
4. The President wants to keep a Board member, but the Commission wants to dismiss the Board member. Here, layer 2 helps the President, for it hinders the Commission’s ability to dismiss a Board member whom the President wants to keep in place.
Thus, the majority’s decision to eliminate only layer 2 accomplishes virtually nothing. And that is because a removal restriction’s effect upon Presidential power depends not on the presence of a “double-layer” of for-cause removal, as the majority pretends, but rather on the real-world nature of the President’s relationship with the Commission. If the President confronts a Commission that seeks to resist his policy preferences—a distinct possibility when, as here, a Commission’s membership must reflect both political parties, 15 U.S.C. § 78d(a)—the restriction on the Commission’s ability to remove a Board member is either irrelevant (as in scenario 3) or may actually help the President (as in scenario 4). And if the President faces a Commission that seeks to implement his policy preferences, layer 1 is irrelevant, for the President and Commission see eye to eye.
In order to avoid this elementary logic, the Court creates two alternative scenarios. In the first, the Commission and the President both want to remove a Board member, but have varying judgments as to whether they have good “cause” to do so—i.e., the President and the Commission both conclude that a Board member should be removed, but
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disagree as to whether that conclusion (which they have both reached) is reasonable. Ante, at 496,
Both of these circumstances seem unusual. I do not know if they have ever occurred. But I do not deny their logical possibility. I simply doubt their importance. And the fact that, with respect to the President’s power, the double layer of for-cause removal sometimes might help, sometimes might hurt, leads me to conclude that its overall effect is at most indeterminate.
But once we leave the realm of hypothetical logic and view the removal provision at issue in the context of the entire Act, its lack of practical effect becomes readily apparent. That is because the statute provides the Commission with full authority and virtually comprehensive control over all of the Board’s functions. Those who created the Accounting Board modeled it, in terms of struc
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Adhering to that model, the statute here gives the Accounting Board the power to adopt rules and standards “relating to the preparation of audit reports”; to adjudicate disciplinary proceedings involving accounting firms that fail to follow these rules; to impose sanctions; and to engage in other related activities, such as conducting inspections of accounting firms registered as the law requires and investigations to monitor compliance with the rules and related legal obligations. See 15 U.S.C. §§ 7211-7216. But, at the same time:
• No Accounting Board rule takes effect unless and until the Commission approves it, § 7217(b)(2);
• The Commission may “abrogate], delet[e] or ad[d] to” any rule or any portion of a rule promulgated by the Accounting Board whenever, in the Commission’s view, doing so “further[s] the purposes” of the securities and accounting-oversight laws, § 7217(b)(5);
• The Commission may review any sanction the Board imposes and “enhance, modify, cancel, reduce, or require the remission of’ that sanction if it finds the Board’s action not “appropriate,” §§ 7215(e), 7217(c)(3);
• The Commission may promulgate rules restricting or directing the Accounting Board’s conduct of all inspections and. investigations, §§ 7211(c)(3), 7214(h), 7215(b)( 1)—(4);
• The Commission may itself initiate any investigation or promulgate any rule within the Accounting Board’s purview, § 7202, and may also remove any Accounting Board member who has unreasonably “failed to enforce compliance with” the relevant “rulefs], or any professional standard,” § 7217(d)(3)(C) (emphasis added);
• The Commission may at any time “relieve the Board of any responsibility to enforce compliance with any provision” of the Act, the rules, or professional standards
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if, in the Commission’s view, doing so is in “the public interest,” §§ 7217(d)(1)-(2) (emphasis added).
As these statutory provisions make clear, the Court is simply wrong when it says that “the Act nowhere gives the Commission effective power to start, stop, or alter” Board investigations. Ante, at 504,
What is left? The Commission’s inability to remove a Board member whose perfectly reasonable actions cause the Commission to overrule him with great frequency? What is the practical likelihood of that occurring, or, if it does, of
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the President’s serious concern about such a matter? Everyone concedes that the President’s control over the Commission is constitutionally sufficient. See Humphrey’s Executor,
B
At the same time, Congress and the President had good reason for enacting the challenged “for cause” provision. First and foremost, the Board adjudicates cases. See 15 U.S.C. § 7215. This Court has long recognized the appropriateness of using “for cause” provisions to protect the personal independence of those who even only sometimes engage in adjudicatory functions. Humphrey’s Executor, supra, at 623-628,
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registered public accounting firm, or an associated person thereof, should be disciplined”).
Moreover, in addition to their adjudicative functions, the Accounting Board members supervise, and are themselves, technical professional experts. See § 7211(e)(1) (requiring that Board members “have a demonstrated” technical “understanding of the responsibilities” and “obligations of accountants with respect to the preparation and issuance of audit reports”). This Court has recognized that the “difficulties involved in the preparation of’ sound auditing reports require the application of “scientific accounting principles.” United States v. Anderson,
Here, the justification for insulating the “technical experts” on the Board from fear of losing their jobs due to political influence is particularly strong. Congress deliberately sought to provide that kind of protection. See, e.g., 148 Cong. Rec. 12036, 12115, 13352-13355. It did so for good reason. See ante, at 484,
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e.g., 51 Cong. Rec. 8857 (1914) (remarks of Sen. Morgan upon creation of the Federal Trade Commission) (“[I]t is unsafe for an . . . administrative officer representing a great political party ... to hold the power of life and death over the great business interests of this country. . . . That is . . . why I believe in . . . taking these business matters out of politics”). And Congress, by, for example, providing the Board with a revenue stream independent of the congressional appropriations process, § 7219, helped insulate the Board from congressional, as well as other, political influences. See, e.g., 148 Cong. Rec. 12036 (statement of Sen. Stabenow).
In sum, Congress and the President could reasonably have thought it prudent to insulate the adjudicative Board members from fear of purely politically based removal. Cf. Civil Service Comm’n v. Letter Carriers,
C
Where a “for cause” provision is so unlikely to restrict Presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality. First, in considering a related issue in Nixon v. Administrator of General Services,
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assigned functions.” Id., at 443,
Second, as previously pointed out, this Court has repeatedly upheld “for cause” provisions where they restrict the President’s power to remove an officer with adjudicatory responsibilities. Compare Humphrey’s Executor,
Third, consider how several cases fit together in a way that logically compels a holding of constitutionality here. In United States v. Perkins,
“We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.” Perkins, supra, at 485,6 S. Ct. 449 ,29 L. Ed. 700 (emphasis added; internal quotation marks omitted).
See also Morrison, supra, at 723-724,
In Humphrey’s Executor, the Court held that Congress may constitutionally limit the President’s authority to remove certain principal officers, including heads of departments.
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And in Freytag,
Fourth, the Court has said that “[o]ur separation-of-powers jurisprudence generally focuses on the danger of one branch’s aggrandizing its power at the expense of another branch.” Freytag, supra, at 878,
In sum, the Court’s prior cases impose functional criteria that are readily met here. Once one goes beyond the Court’s elementary arithmetical logic (i.e., “one plus one is
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greater than one”) our precedent virtually dictates a holding that the challenged “for cause” provision is constitutional.
D
We should ask one further question. Even if the “for cause” provision before us does not itself significantly interfere with the President’s authority or aggrandize Congress’ power, is it nonetheless necessary to adopt a bright-line rule forbidding the provision lest, through a series of such provisions, each itself upheld as reasonable, Congress might undercut the President’s central constitutional role? Cf. Strauss 625-626. The answer to this question is that no such need has been shown. Moreover, insofar as the Court seeks to create such a rule, it fails. And in failing it threatens a harm that is far more serious than any imaginable harm this “for cause” provision might bring about.
The Court fails to create a bright-line rule because of considerable uncertainty about the scope of its holding—an uncertainty that the Court’s opinion both reflects and generates. The Court suggests, for example, that its rule may not apply where an inferior officer “perform [s] adjudicative . . . functions.” Cf. ante, at 507, n. 10,
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419, 425,
The Court further seems to suggest that its holding may not apply to inferior officers who have a different relationship to their appointing agents than the relationship between the Commission and the Board. See ante, at 502-503, 506-507,
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for” one “day and train only.” Smith v. Allwright,
The Court begins to reveal the practical problems inherent in its double for-cause rule when it suggests that its rule may not apply to “the civil service.” Ante, at 507,
But even if I assume that the majority categorically excludes the competitive service from the scope of its new rule, cf. ante, at 506,
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at http://www.justice.gov/ olc/2007/appointmentsclausev10.pdf (“[T]he Supreme Court has not articulated the precise scope and application of the [Inferior Officer] Clause’s requirements”); Konecke, The Appointments Clause and Military Judges: Inferior Appointment to a Principal Office, 5 Seton Hall Const. L. J. 489, 492 (1995) (same); Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L. Rev. 1335, 1347, 1364 (1976) (describing our early precedent as “circular” and our later law as “not particularly useful”). The Court does not clarify the concept. But without defining who is an inferior officer, to whom the majority’s new rule applies, we cannot know the scope or the coherence of the legal rule that the Court creates. I understand the virtues of a common-law case-by-case approach. But here that kind of approach (when applied without more specificity than I can find in the Court’s opinion) threatens serious harm.
The problem is not simply that the term “inferior officer” is indefinite but also that efforts to define it inevitably conclude that the term’s sweep is unusually broad. Consider the Court’s definitions: Inferior officers are, inter alia, (1) those charged with “the administration and enforcement of the public law,” Buckley,
Consider the definitional conclusion that the Department of Justice more recently reached: An “inferior officer” is anyone who holds a “continuing” position and who is “invested by legal authority with a portion of the sovereign powers of the federal Government,” including, inter alia, the power to “arrest criminals,” “seize persons or property,” “issue regulations,”
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“issue . .. authoritative legal opinions,” “con-ducft] civil litigation,” “collec[t] revenue,” represent “the United States to foreign nations,” “command” military force, or enter into “contracts” on behalf “of the nation.” OLC Memo 1, 4, 12-13, 15-16 (internal quotation marks omitted; emphasis added).
And consider the fact that those whom this Court has held, to be “offi
Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high-level Government officials within the scope of the
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Court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus, and other agencies whose heads are by statute removable only “for cause.” I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves are removable only “for cause.” I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency’s executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board.
This list is a conservative estimate because it consists only of career appointees in the Senior Executive Service (SES), see 5 U.S.C. §§ 2101a, 3132(a)(2), a group of high-ranking officials distinct from the “competitive service,” see § 2102(a)(1)(C), who
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and Governmental Affairs, United States Government Policy and Supporting Positions 99, 103, 129 (2008) (hereinafter Plum Book). And by virtually any definition, essentially all SES officials qualify as “inferior officers,” for their duties, as defined by statute, require them to “direc[t] the work of an organizational unit,” carry out high-level managerial functions, or “otherwise exercis[e] important policy-making, policy-determining, or other executive functions.” § 3132(a)(2) (emphasis added). Cf. ante, at 484,
The potential list of those whom today’s decision affects is yet larger. As Justice Scalia has observed, administrative law judges (ALJs) “are all executive officers.” Freytag,
My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over
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25 agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court’s case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 507,
And what about the military? Commissioned military officers “are ‘inferior officers.’ ” Weiss,
The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military’s “commander-in-chief,” Art. II, § 2, cl. 1, with less authority to remove “inferior” military “officers” than to remove comparable civil officials. See Barron & Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L. Rev. 941, 1102-1106 (2008) (describing President’s “superintendence prerogative” over the military). Cf. ante, at 507,
The majority sees “no reason ... to address whether” any of “these positions,” “or any others,” might be deemed unconstitutional
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under its new rule, preferring instead to leave these matters for a future case. Ante, at 507,
The majority asserts that its opinion will not affect the Government’s ability to function while these many questions are litigated in the lower courts because the Court’s holding concerns only “the conditions under which th[e]se officers might someday be removed.” Ante, at 508,
Nor is it clear that courts will always be able to cure such a constitutional defect merely by severing an offending removal provision. For a court’s “ability to devise [such] a judicial
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remedy . . . often depends on how clearly” the “background constitutional rules at issue” have been “articulated”; severance will be unavailable “in a murky constitutional context,” which is precisely the context that the Court’s new rule creates. Ayotte v. Planned Parenthood of Northern New Eng.,
Thus, notwithstanding the majority’s assertions to the contrary, the potential consequences of today’s holding are worrying. The upshot, I believe, is a legal dilemma. To interpret the Court’s decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive.
Ill
One last question: How can the Court simply assume without deciding that the SEC Commissioners themselves are removable only “for cause?” See ante, at 487,
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is not constitutionally defective. I am not aware of any other instance in which the Court has similarly (on its own or through stipulation) created a constitutional defect in a statute and then relied on that defect to strike a statute down as unconstitutional. Cf. Alabama v. North Carolina,
It is certainly not obvious that the SEC Commissioners enjoy “for cause” protection. Unlike the statutes establishing the 48 federal agencies listed in Appendix A, infra, the statue that established the Commission says nothing about removal. It is silent on the question. As far as its text is concerned, the President’s authority to remove the Commissioners is no different from his authority to remove the Secretary of State or the Attorney General. See Shurtleff,
Nor is the absence of a “for cause” provision in the statute that created the Commission likely to have been inadvertent. Congress created the Commission during the 9-year period after this Court decided Myers, and thereby cast serious
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doubt on the constitutionality of all “for cause” removal provisions, but before it decided Humphrey’s Executor, which removed any doubt in respect to the constitutionality of making commissioners of independent agencies removable only for cause. In other words, Congress created the SEC at a time when, under this Court’s precedents, it would have been unconstitutional to make the Commissioners removable only for cause. And, during that 9-year period, Congress created at least three major federal agencies without making any of their officers removable for cause. See 48 Stat. 885, 15 U.S.C. § 78d (SEC); 48 Stat. 1066, 47 U.S.C. § 154 (Federal Communications Commission); 46 Stat. 797 (Federal Power Commission) (reformed post-Humphrey’s Executor as the Federal Energy Regulatory Commission with “for cause” protection, 91 Stat. 582, 42 U.S.C. § 7171). By way of contrast, only one month after Humphrey’s Executor was decided, Congress returned to its pre-Myers practice of including such provisions in statutes creating independent commissions. See § 3, 49 Stat. 451, 29 U.S.C. § 153 (establishing National Labor Relations Board with an explicit removal limitation).
The fact that Congress did not make the SEC Commissioners removable “for cause” does not mean it intended to create a dependent, rather than an independent agency. Agency independence is a function of several different factors, of which “for cause” protection is only one. Those factors include, inter alia, an agency’s separate (rather than presidentially dependent) budgeting authority, its separate litigating authority, its composition as a multimember bipartisan board, the use of the word “independent” in its authorizing statute, and, above all, a political environment, re-
The absence of a “for cause” provision is thus not fatal to agency independence. Indeed, a “Congressional Research
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Service official suggests that there are at least 13 ‘independent’ agencies without a removal provision in their statutes.” Id., at 1143, n. 161 (emphasis added) (citing congressional testimony). But it does draw the majority’s rule into further confusion. For not only are we left without a definition of an “inferior officer,” but we are also left to guess which department heads will be deemed by the majority to be subject to for-cause removal notwithstanding statutes containing no such provision. If any agency deemed “independent” will be similarly treated, the scope of the majority’s holding is even broader still. See Appendix D, infra (listing agencies potentially affected).
The Court then, by assumption, reads into the statute books a “for cause removal” phrase that does not appear in the relevant statute and which Congress probably did not intend to write. And it does so in order to strike down, not to uphold, another statute. This is not a statutory construction that seeks to avoid a constitutional question, but its opposite. See Ashwander v. TVA,
I do not need to decide whether the Commissioners are in fact removable only “for cause” because I would uphold the Accounting Board’s removal provision as constitutional regardless. But were that not so, a determination that the silent SEC statute means no more than it says would properly avoid the determination of unconstitutionality that the Court now makes.
In my view the Court’s decision is wrong—very wrong. As Parts II-A, II-B, and II-C of this opinion make clear, if
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the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional. As Part II-D shows, insofar as the Court instead tries to create a bright-line rule, it fails to do so. Its rule of decision is both imprecise and overly broad. In light of the present imprecision, it must either narrow its rule arbitrarily, leaving it to apply virtually alone to the Accounting Board, or it will have to leave in place a broader rule of decision applicable to many other “inferior officers” as well. In doing the latter, it will undermine the President’s authority. And it will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create—in provisions this Court is sworn to uphold.
With respect I dissent.
APPENDIXES
A
There are 24 stand-alone federal agencies (i.e., “departments”) whose
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B
The table that follows lists the 573 career appointees in the SES who constitute the upper level management of the independent agencies listed in Appendix A, supra. Each
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of these officials is, under any definition—including the Court’s—an inferior officer, and is, by statute, subject to two layers of for-cause removal. See supra, at 539-543,
The data are organized into three columns: The first column lists the “office” to which the corresponding official is assigned within the respective agency and, where available, the provision of law establishing that office. Cf. supra, at 539,
According to data provided by the Office of Personnel Management, reprinted below, there are 1,584 ALJs in the Federal Government. Each of these ALJs is an inferior officer and each is subject, by statute, to two layers of for-cause removal. See supra, at 542-543,
The table below lists 27 departments and other agencies the heads of which are not subject to any statutory for-cause removal provision, but that do bear certain other indicia of independence.
The table identifies six criteria that may suggest independence: (1) whether the agency consists of a multimember commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency’s head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice, cf. 28 U.S.C. §§ 516-519; and (6) whether the agency is explicitly classified as “independent” by statute. See generally Breger & Edles 1135-1155; supra, at 546-548,