Obama's Equivocal Defense of Agency Independence

By Stack, Kevin M. | Constitutional Commentary, Summer 2010 | Go to article overview

Obama's Equivocal Defense of Agency Independence


Stack, Kevin M., Constitutional Commentary


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 (1) (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEE), 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 SEC (3) and whether the "good cause" restriction on its removal by the SEC (4) 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.

A deeper look at President Obama's defense of the PCAOB, as reflected in his Solicitor General Elena Kagan's arguments to the Supreme Court, shows that it is premised on an assertion of a level of control over the agency, despite its independent status, that is roughly equivalent to what President Reagan's lawyers sought to achieve through a constitutional decision striking down congressionally-imposed good cause restrictions on the removal of independent agency officials. Presidents Obama and Reagan, in other words, claim a similar level of control over independent agencies, just on different legal grounds. For President Reagan, this control was warranted by Article II, and achievable only through constitutional invalidation of removal restrictions; for President Obama, the statutory good cause removal protections do not impede near-plenary presidential supervision of the agency.

What explains both this shift from constitutional to statutory ground--and basic convergence on the level of control these President's viewed as warranted? To be sure, Presidents face tremendous incentives to assert control over the federal bureaucracy. (5) As Congress delegates more and more power to federal agencies, including independent agencies, control over the federal bureaucracy is vital to a President's capacity to implement his policies. (6) That shared interest might help explain the rough convergence between President Obama's and President Reagan's views on the level of control they assert. It does not explain, however, the shift in the legal grounds on which that control is asserted. The way in which President Reagan's lawyers litigated these issues, I argue, set in motion that shift in legal grounds; in particular, their litigation opening the door to the broad interpretation of good cause provisions that President Obama adopts. The shift might be seen as the Obama Administration capitalizing on the precedent created during the Reagan era.

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