En Banc Roundtable
Welcome to the Vanderbilt Law Review En Banc Roundtable. This new feature will host debates among legal academics and practitioners on notable cases pending before the U.S. Supreme Court. The subject of these articles can be on anything related to the selected case, such as the merits of a particular argument, the practical implications of a potential ruling, or the propriety of certiorari in the case. Vanderbilt Law Review believes that Roundtable will uniquely blend the importance of scholarly debate on timely legal issues with the benefit of shorter turnaround time afforded by online publication. These debates will allow for participants to voice their views in a scholarly forum while the law is simultaneously being made at the highest levels.
Our first debate is on Free Enterprise Fund v. Public Company Accounting Oversight Board and features several administrative law scholars. Professor Peter Strauss’s introductory piece lays the foundation for the debate. Professors Steven Calabresi, Gary Lawson, Hal Bruff, Rick Pildes, and Christopher Yoo then provided their “first takes.” Finally, the professors have written responses to each other. We hope you find the Roundtable informative and engaging.
Responses
Our Twenty-First Century Constitution
Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes — whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity for effective presidential oversight of the execution of federal law or not. The Constitution does not require more than this and, Professors Calabresi and Yoo to the contrary notwithstanding, the Court should and surely will avoid a result imperiling the wide range of governmental agencies Congress has created, the President has overseen, and the courts have treated as legitimate wielders of government authority over the many years since the Constitution was written.
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- Peter L. Strauss, Our Twenty-First Century Constitution, 62 Vand. L. Rev. En Banc 121 (2009)
On Hunting Elephants in Mouseholes
This response argues against using the vehicle of the relatively minor PCAOB case to decide large issues about the constitutionality of the independent agencies. It reviews constitutional provisions and history supporting independent functions. It concludes that the Court can invoke the avoidance canon to read the statute to allow appropriate levels of presidential supervision over the PCAOB.
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- Harold H. Bruff, On Hunting Elephants in Mouseholes, 62 Vand. L. Rev. En Banc 127 (2009)
Why Professors Bruff and Pildes are Wrong about the PCAOB Case
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- Steven G. Calabresi & Christopher S. Yoo, Why Professors Bruff and Pildes are Wrong about the PCAOB Case, 62 Vand. L. Rev. En Banc 133 (2009)
It Depends
I suspect that Professors Pildes, Bruff, and I disagree less about the Appointments Clause than about the meaning of the word “unconstitutional.” I use the word as a descriptive fact about semantic meaning, while Professors Pildes and Bruff are more concerned about the operational consequences of constitutional norms for actual governance and judicial decision-making. As a result, the various arguments in this Symposium about the constitutionality of the appointment process for PCAOB members are sailing in somewhat different seas. My semantic arguments are not much threatened by their normative claims, and their normative claims are not much bothered by my semantic arguments. I think we can all be cool with that.
- CITATION
- Gary Lawson, It Depends, 62 Vand. L. Rev. En Banc 139 (2009)
First Takes
Remove Morrison v. Olson
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- Steven G. Calabresi & Christopher S. Yoo, Remove Morrison v. Olson , 62 Vand. L. Rev. En Banc 103 (2009)
Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional
This article has two aims: to explain the historical context and reasons that led Congress to design the administrative structure at issue in Free Enterprise Fund, and to provide a realistic account of how that structure actually functions in practice. The article is, thus, a kind of “Brandeis brief” for this important case concerning the constitutional structure for the administrative state. The article seeks to provide a rich understanding of the unique, long-established structures of financial regulation and an appreciation for how the administrative structures at issue actually work. With a clear understanding of these elements in mind, the article argues that the Court should find the Sarbanes-Oxley Act constitutional.
- CITATION
- Richard H. Pildes, Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L. Rev. En Banc 85 (2009)
The “Principal” Reason Why the PCAOB is Unconstitutional
- CITATION
- Gary Lawson, The “Principal” Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009)
Bringing the Independent Agencies in from the Cold
Invalidating the PCAOB would cause unnecessary disruption to the Federal Government. The supervisory powers of the SEC over the agency justify concluding that its members are inferior officers. The removal provision can be sustained by confirming that the President has constitutional powers of removal that are appropriate to the function involved. The President’s power to remove SEC commissioners can be the tool for implementing his supervisory authority.
- CITATION
- Harold H. Bruff, Bringing the Independent Agencies in from the Cold, 62 Vand. L. Rev. En Banc 63 (2009)
Table Setting Article
Free Enterprise Fund v. Public Company Accounting Oversight Board
This is the introductory essay in an electronically published roundtable sponsored by the Vanderbilt Law Review on the Supreme Court’s forthcoming consideration of Free Enterprise Fund v. Public Company Accounting Oversight Board, a case raising important separation of powers questions and thought by some to foreshadow overruling or limiting of such precedents as Humphrey’s Executor v. United States (sustaining independent regulatory commissions) and Morrison v. Olson (sustaining the independent counsel). The PCAOB is an unusual independent government authority appointed by the Commissioners of the SEC and subject to its oversight; PCAOB members are only by the Commission, and only for one of several defined causes. This essay is intended to “set the table” for competing essays by other scholars, that will appear in November.
- CITATION
- Peter L. Strauss, Free Enterprise Fund v. Public Company Accounting Oversight Board, 62 Vand. L. Rev. En Banc 51 (2009)