Obama's Equivocal Defense of Agency Independence

Abstract

You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted. President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board' (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of the WorldCom and Enron accounting scandals by the Sarbanes-Oxley Act of 2002.2 The Supreme Court's decision to review the constitutionality of the PCAOB required the Obama Administration, in its first year, to take a stance on several issues that are viewed as litmus tests for theories of Article II, including whether the appointments clause permits the agency's appointment to be vested in the SEC3 and whether the "good cause" restriction on its removal by the SEC4 violates Article II and separation-of-powers principles. At the level of constitutional doctrine, the fact of President Obama's defense of the constitutionality of the PCAOB might suggest his acquiescence in isolating executive officials from presidential supervision. At the very least, it appears to place his Administration at the opposite end of the spectrum on executive power from the Reagan Administration, which actively sought a Supreme Court ruling overturning the removal restrictions on independent agencies as violating the President's power under Article II. But the contrast between President Obama's and President Reagan's constitutional positions on independent agencies is revealing, I shall argue in this early reflection on President Obama's views on executive power, in part because it vastly overstates the differences in the powers these Presidents claimed to possess.