The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

Free Enterprise Fund v. Public Co. Accounting Oversight Bd.: Is the President the Decider or an Overseer?
by Karla Hogan

Since the Reagan presidency a growing controversy has plagued courts as to the proper role of the President in the decision making process of administrative agencies.[1] Is he a “decider” or is his role constitutionally limited to that of an “overseer?”[2] Presidential administrations on both sides of the political divide have continued to push the envelope towards the “decider” model, notwithstanding historical support for the more limited “overseer” role.[3]  The Supreme Court has furthered this expansion of power by undermining congressional attempts to impose checks on the executive branch.[4]

Under the Constitution the “necessary and proper” clause gives Congress broad power to structure government agencies as it sees fit.[5]  However, Article II, Section 3 also limits this power by instructing that the “President shall take care that the Laws be faithfully executed.”[6]  The question presented by Free Enterprise Fund v. Public Company Accounting Oversight Board, whether the President’s executive power to remove government officers may be restricted by two layers of protected tenure, pits these two constitutional provisions, at the limits of their reach, against one another.[7]

By applying a very formalistic approach to its analysis,[8] the Court in Free Enterprise Fund continues the fundamental shift in the balance of power from the legislative to the executive branch. The issue in this case arose from a challenged removal provision found in the Sarbanes-Oxley Act of 2002 (“SarbOx”) which states that the Public Company Accounting Oversight Board (PCAOB) members may only be removed for-cause by Securities and Exchange (SEC) Commissioners, and the Commissioners, themselves, may only be removed for-cause by the President.[9] The holding in Free Enterprise Fund not only removed the tenure protection of PCAOB members, but arguably establishes a precedent that calls into question the constitutionality of double tenure protection for all inferior officers of the federal government.[10]  This decision effectively removes an important tool from Congress upon which it relies in structuring government agencies in a manner that greatly enhances the likelihood that the agency employees will be able to carry out their duties free from political pressure.[11]    It also frustrates the ability of Congress to check the power of the executive branch to exploit its authority over the agency officials specifically selected to promulgate sound rules and regulations.[12]

An analysis of Free Enterprise Fund shows that the Court did not fully consider the merits of the case, was overly broad, and was disruptive to the balance of power between the branches as envisioned by the founding fathers.[13] Indeed, the fact that the resolution of Free Enterprise Fund did not effectively address the purported constitutional flaw it was meant to correct, clearly highlights that the formalistic approach employed by the Court was ill-suited for the task.[14]  A call for functional reasoned analysis is, therefore, implicated to ensure that the Court’s analysis focuses on the merits of upholding the challenged provision based upon the proper balance of power between the branches[15] and protecting the rights of the public, instead of focusing on the protection of institutional or personal interests of the affected parties.[16]

The History of the PCAOB. In 2001, Enron, the seventh largest corporation in the United States, filed for bankruptcy and announced it had accrued $1.2 billion in accounting “mistakes.”[17]  The enactment in 2002 of SarbOx was the eventual response to the collapse of both Enron and its auditor, Arthur Anderson.[18] Although Congress acted quickly on SarbOx, this legislation was the culmination of extensive deliberations that had begun in late 2000.[19]

Prior to the collapse of Enron it was evident that the then existing self-regulation of auditing practices was inadequate because accounting firms were able to withhold funding from the industry created regulatory body.[20]  Additionally, meaningful regulatory reforms were impossible because large accounting firms had become “famously aggressive at protecting [their] own interests and those of [their] clients in the corridors of Washington.”[21] Because complete independence between auditors and their corporate clients was not a legal requirement, corporate executives, subjected to constant pressure to meet ever increasing earnings projections, could enlist their auditors in the use of accounting “smoke and mirrors” to artificially inflate corporate earnings and, in turn, the related share prices of their company’s stock.[22] Given the “accounting profession’s capture and domination of [its own] private-sector regulatory regime,” the overriding priority in the design of the new PCAOB was independence from those it was designed to regulate, and their lobbyist.[23]

Analysis of Free Enterprise Fund. The district court in Free Enterprise Fund held that the complained of separation-of-powers provision was not “unduly severe in all circumstances” because it was found that the “SEC may plausibly interpret its removal authority as suggested by the defendants . . . [,]” who had claimed that the President was not unduly limited in his ability to oversee the PCAOB.[24]  To reach this conclusion the court found that the plaintiffs had failed to meet their burden under the Salerno test, which states that “[a] facial challenge to a legislative Act[,] [requires the challenger to] . . . establish that no set of circumstances exists under which the Act would be valid.”[25]  On appeal the District Court decision was upheld by a split court.[26] The Supreme Court, however, found that the President would be unable to “‘take care that the Laws be faithfully executed’” if he was restricted by a double layer of tenure protection in overseeing agency officers.[27]

The primary reason the Court was able to reach this conclusion was the fact that its decision was based upon a preliminary “understanding” that SEC Commissioners may only be removed by the President for “inefficiency, neglect of duty, or malfeasance in office.”[28] This standard of removal was first enunciated in Humphrey’s Executor v. United States.[29] Because there is absolutely no restriction on the President’s removal power in the statutory language that established the SEC,[30] Justice Breyer asserted in his dissent that by allowing this “understanding,” and then equating it to strict for-cause removal without further analysis, the Court, in an unprecedented manner, actually established the defect upon which it then relied to strike down as unconstitutional the tenure protection of the PCAOB .[31]

Based upon the lower court decision, as a “threshold matter,” the plaintiff, Free Enterprise Fund (FEF), should have been forced to demonstrate that there was “no set of circumstances” under which the challenged provision could be constitutionally applied, including the circumstances under which the case was brought.[32] This is especially true since the lower court found that Humphrey’s Executor standard would not be enough to establish strict for-cause tenure protection for SEC Commissioners, because “the restrictions . . . for ‘inefficiency, neglect of duty, or malfeasance in office’ are ‘very broad and . . . could sustain removal . . . for any number of actual or perceived transgressions.’”[33] In this case, however, the FEF was not required to prove that the first level of tenure protection constituted “for-cause” protection under the Humphrey’s Executor standard and that it was equivalent to a strict for-cause removal standard. [34] As a result the facial challenge survived the threshold test.[35] 

After establishing a constitutional obstacle, the majority was able to attack SarbOx by reasoning that the President must be left in charge of the removal decisions in order that functionaries of the executive branch remain answerable to the people,[36] especially in this instance where the Court maintained that the PCAOB exercised expansive powers governing an entire industry.[37] However, this argument, that the electorate holds the President accountable for the actions of the administrative agencies, rings hollow, and has been challenged by several scholars who note that elections are not generally about accountability. Rather elections are about orderly succession and choosing a representative that shares the basic desires and viewpoint of the majority of the voters.[38] Scholars note that accountability plays only a minor role in the choices of voters when compared to the impact of party politics.[39] Additionally, accountability, as a tool used to inform voter choice, suggests an impossible process of ongoing monitoring by the electorate.[40] Thus, striking down the tenure protection for the PCAOB based upon concerns about presidential accountability seems to be thin justification for this result.

 Relying on this rigid standard of proper independent agency structure, the Court did not question the context in which the tenure protection of the inferior officers of the PCAOB operated when coupled with the tenure protection of the superior officers of the SEC. [41] The following Figure 1 depicts what happens to the President’s removal power when confronted with the second layer of protection for inferior officers within an independent agency when the superior officer also enjoys tenure protection. This situation is compared to the President’s removal powers in a purely executive agency that grants tenure protection to an inferior officer, but not for the superior officer.[42] This situation is analogous to Morrison v. Olson, where the Court held that tenure protection for an inferior officer did not violate Article II of the Constitution.[43]

 

Pres. want

 to remove

SEC wants

 to remove

(Independ. Agency)

PCAOB result with tenure

Does Pres.agree with result

PCAOB without tenure

Does Pres.agree with result

Could Pres.

Have / Want

 to chg. the

outcome

1

No

Yes

Removed

NO***

Removed

NO***

NO

2

Yes

No

Protected

NO***

Protected

NO***

NO*

3

Yes

Yes

Protected

NO

Removed

YES

YES**

4

No

No

Protected

YES

Protected

YES

NO

 

 

President Desires to remove

AG

Desires to remove

(Exec.Agy)

Independ. Counsel with tenure

Does Pres.agree with result

IndependCounsel without tenure

Does Pres.agree

 with result

Could Pres.

Have /Want

 to chg. the

outcome

1

No

Yes

Protected

YES

Protected

YES

NO

2

Yes

No

Protected

NO

Removed

YES

YES*

3

Yes

Yes

Protected

NO

Removed

YES

YES**

4

No

No

Protected

YES

Protected

YES

NO

*The outcome is different                       **The outcome is the same

***The President is barred by the independent status of the SEC. 

Figure 1

As Figure 1 shows, only in Case 2 is the outcome concerning the President’s ability to remove a protected inferior officer different between an independent agency and an executive agency.[44]  In the executive agency, if the tenure protection for the inferior officer is eliminated, the President can override the desire of the superior officer and carry out his will.[45] In the independent agency, on the other hand, the President is still blocked by the independent superior officer from carrying out his choice.[46] 

The second situation where the President’s powers are constricted, Case 3 in Figure 1, describes the situation where both the President and the superior officer wish to dismiss the inferior officer, which brings into play the holding in Morrison.[47] The decision in Morrison provided that an independent inferior officer may be constitutionally protected by a for-cause dismissal provision in situations where the President could dismiss the superior officer at-will and where the superior officer maintained several other means of controlling the independent inferior officer.[48] In the instant case, if the SEC Commissioner is in agreement with the President on the removal decision, it puts the President in no worse position than he would have been in had the Commissioner been an at-will employee, as was the Attorney General in Morrison–in both instances the protected inferior officer would be retained.[49]

  Figure 1 thus demonstrates the argument put forth by Justice Breyer in his dissent, that the second layer of tenure protection that the Court found unconstitutional in Free Enterprise Fund actually had no impact on the President’s ability to remove the inferior officers of the PCAOB, because the President could not remove the inferior officers even if they were at-will employees unless the SEC Commissioners agreed..[50]  Thus, the President’s power is virtually indistinguishable from that which he possessed before SarbOx became law.[51]

Given this result, and the fact that “[t]he President is not required to execute the laws; he is [only] required to take care they be executed faithfully,”[52] begs the question, if the President can take care that the laws are being executed faithfully by the SEC, given the removal protection the Commissioners enjoy, why would the SEC not be able to exercise the same type of control over the Board without restricting presidential oversight?[53]

The Consequences of the Court’s Reasoning. In analyzing this case it is important to note that a silence on the part of Congress as to the removal of SEC Commissioners opened a void of power into which the Court stepped to create a contextual premise on which to ground its decision.[54] Although the Court has used the doctrine of acquiescence in the past to interpret the silence of Congress as an implicit grant of judicial power,[55] when used to “create a constitutional defect”[56] on which to base a holding, such an interpretation of congressional silence must call into question the legitimacy of the subsequent ruling – especially when the holding is enveloped in a “cloak of certainty” through the use of formalist reasoning.[57] Additionally, given the “delicate nature of judicial responsibility in [the area of separation-of-powers], . . . [failure to] refrain whenever possible from giving positive meaning to congressional inaction” heightens the appearance of political bias on the Court.[58]

Had the majority followed a more pragmatic approach the analysis would have shown that the for-cause removal restriction, as applied to the PCAOB, was no more unconstitutional than the for-cause removal restriction enjoyed by the independent counsel in Morrison.[59] In both of these cases, even though the inferior officers enjoyed for-cause tenure protection, they were both still subject to the policy directives and plenary oversight of their superior officers.[60]  Justice Breyer pointed out in Free Enterprise Fund, “ given Morrison, where the Court upheld a restriction that significantly interfered with the President’s important historic powers to control criminal prosecutions, a ‘purely executive function,’ the constitutionality of the present restriction would seem to follow a fortiori.”[61]

Although it has been argued that presidential vigor and action in directing federal agencies should be welcomed, given the ongoing polarization of the political parties and gridlock faced by government in carrying out important policy initiatives,[62] “institutional arrangements promoting . . . [excessive] presidential control of the bureaucracy, pose a risk of both tyranny and instability that should not be tolerated.”[63]  The power of the legislative branch to insulate agency officers from at-will dismissal protects the decisions of expert agency officials who could otherwise be easily overshadowed and compromised by a President using the “decider” model, “creat[ing] an environment in which loyalty to the President trumps the rule of law.”[64]

In enacting SarbOx, the intention of Congress to protect the PCAOB from the direct political or corporate interference was based in the very real economic dangers posed by past corporate fraud and industry capture of regulatory agencies.[65]  The Court, nowhere in its opinion addressed these concerns.[66]  By ignoring the underlying basis for enacting SarbOx and effectively granting excessive power of a sole political actor, i.e. the President, the Court has further enhanced the dangers to our economy and democratic system. This is especially true in light of the recent holding in Citizens United v. United States,[67] which greatly increased the likelihood of corporate capture of political actors by unlimited and anonymous campaign contributions.[68]

Conclusion.Although political stalemate in Congress may leave the executive branch little room for carrying forward its agenda, the role of the President as “decider” should not be encouraged and promoted by the Court through separation-of-powers jurisprudence. The dangers of corporate capture of agencies and political actors require that the Supreme Court weigh thoroughly and pragmatically every separation-of-powers controversy and to keep in mind the far-reaching conflicts of interest that underlie these struggles for power.[69] 

[1] See Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 699 (2007).

[2] See   id. at 697.

[3]  See   id. at 705-06.

[4]  See, e.g., Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. Rev. 1217, 1222 (2006) (challenging the “uncritical manner in which . . . contemporary jurisprudence has embraced the notion that the president has a broader or more national mandate than that of Congress”).

[5] U.S. Const. art. I, § 8, cl. 13.

[6] U.S. Const. art. II, § 3.

[7] Free Enter. Fund v. Pub. Co. Accct. Oversight Bd., 130 S. Ct. 3138, 3165 (2010)(Breyer, J., dissenting).

[8]  See id. at 3177-78 (pointing to the “broad” and “mechanical” nature of the majority’s opinion).

[9]  Free Enter. Fund., 130 S. Ct. at 3148.

[10]  Id. at 3178-79, 3181;see also Peter M. Shane, Madison’s Nightmare: How Executive Power Threatens American Democracy, 32-42 (2009).

[11]  See  Free Enter. Fund., 130 S. Ct. at 3182 (Breyer, J., dissenting) (pointing out that freedom from politically motivated dismissal of government employees is viewed as “essential” to the best interests of the country).

[12]  See David Orentlicher, Conflict of Interest and the Constitution, 8 available at

http://www.ksl.edu.np/cpanel/pics/Conflict_of_Interest_and_Constitution.pdf (noting the importance of structuring government so that officials who exercise power do so in the best interest of the public, rather than as a means to expand institutional or personal power); Shane, supra note 10, at 32-42.

[13]   See, e.g. Free Enter. Fund., 130 S. Ct. at 3171-72 (Breyer, J., dissenting).

[14]  See Free Enter. Fund., 130 S. Ct. at 3171-72 (Breyer, J., dissenting).

[15]  See Orentlicher, supra note 12, at 2.

[16]  See id. at 10 (pointing out that the importance of constitutional structure of government is to ensure that officials exercise their power in the public interest and not for institutional or personal gain).

[17]   Linda O. Smiddy & Melissa Ihnat, Introduction: Conference on Enron, Worldcom, and Their Aftermath, 27 Vt. L. Rev. 817, 822 (2003).

[18]   See Donna M. Nagy, Is the PCAOB a “Heavily Controlled Component” of the SEC?: An Essential Question in the Constitutional Controversy, 71 U. Pitt. L. Rev. 361, 362 (2010).  The collapse of “WorldCom, and numerous other public companies in the period leading up to the passage of the Act” also provided impetus for legislators to come up with a plan to effectively regulate the accounting industry in their role as auditors of publicly traded corporations.

[19]  Id. at 3169 (Breyer, J., dissenting) (noting that the bill passed in the House 423 to 3 in favor, and 99 to 0 in favor of passage in the Senate); Brief of the  Former Chairmen of the SEC, as Amici Curiae Supporting Respondent, Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138 (2010) (No. 08-861) at *9.

[20]  See Donna M. Nagy, Playing Peekaboo With Constitutional Law: The PCAOB and its Public/Private Status, 80 Notre Dame L. Rev. 975, 994.

[21]  Id. at 996 n.98 (citing William W. Bratton, Enron, Sarbanes-Oxley and Accounting; Rules Versus Principles Versus Rents, 48 Vill. L. Rev. 1023, 1033 (2003)).  The reason for the aggressive lobbying, of course, was the protection of a corporate culture that allowed accounting misrepresentations to occur. See John W. Schoen, Corporate  Fraud Alive and Well in U.S. Despite Enron Verdict, Accounting Reforms, White-Collar Crime Thriving, MSNBC.com (May. 25, 2006) http://www.msnbc.msn.com/id/12762573/page/2/.

[22]  Jeremy S. Blocher, Inspection and Investigation of Public Accounting Firms Under the Sarbanes-Oxley Act: Real Reform?, 110 Penn St. L. R. 741, 762 n.161 (2000). Since the passage of SarbOx there has been constant pressure by lobbying organization representing large corporate interests to ease accounting restrictions that affect the way earnings are reported.

[23]  Brief of the Former Chairmen of the SEC, supra note 19, at *9.

[24]  Brief of the United States at *15, Free Enter. Fund V. Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138 (2010) (No. 08-861). (citing Steffan v. Perry, 41 F.3d 677, 693 (D.C. Cir. 1994) (en banc) (stating that “if a statute's provisions may be constitutionally applied in some circumstances, a plaintiff must demonstrate that the statute is unconstitutional as applied.”)).

[25]  United States v. Salerno, 481 U.S. 739, 745 (1987).

[26]  Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d 667 (D.C. Dist. 2008).

[27]  Free Enter. Fund, 130 S. Ct. at 3147.

[28]  Id. at 3149.

[29]  295 U.S. 602, 620 (1935).

[30]  Free Enter. Fund, 130 S. Ct. at 3182 (Breyer, J. dissenting) (noting that the statute that established the SEC is silent about removal).  Breyer also notes in his dissent that statute supports the position that “[t]o take away th[e] power of removal . . . would require very clear and explicit language.  It should not be held to be taken away by mere inference or implication.” Id. at 3183 (citing Shurtleff v. United States, 189 U.S. 311, 315 (1903)).

[31]  Free Enter. Fund, 130 S. Ct. at 3182 (Breyer, J., dissenting).

[32]  Thalheim v. Town of Greenwich, 775 A.2d 947, 956 (Conn. 2001) (finding that when  “no fundamental constitutional right is implicated[,] in order to challenge successfully the facial validity of a statute, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of his case.”) (citations omitted).

[33]  Free Enter. Fund, 537 F.3d at 680 (D.C. 2008) (quoting Bowsher v. Synar, 478 U.S.714, 729 (1986)).

[34]  See Free Enter. Fund, 130 S. Ct. at 3182 (Breyer, J., dissenting).

[35]  See Thalheim, 775 A.2d at 956.

[36]  See Free Enter. Fund, 130 S. Ct. at 3156.

[37]  Id. at 3147.

[38]  See, e.g., Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 Mich. L. Rev. 2073, 2077-78 (2005). The myth that sound public rulemaking by administrative agencies requires direct presidential accountability rests on the flawed assumption that the median legislative viewpoint is less representative of the national electorate as a whole than the viewpoint of the President who can win election by focusing on just eleven of the most populous states. Nzelibe, supra note 4, at1264.

[39]  Id. at 2079.

[40]  Id.at 2078.

[41]  Free Enter. Fund, 130 S. Ct. at 3152-63.

[42]  See id.

[43]  Morrison v. Olson, 487 U.S. 654, 683 (1988).

[44]  See Free Enter. Fund, 130 S. Ct. at 3171 (Breyer, J., dissenting).

[45]  See generally Free Enter. Fund, 130 S. Ct. at 3171 (Breyer, J., dissenting); Morrison, 487 U.S. at 654 (describing generally the terms under which inferior officers may be dismissed when they enjoy for-cause tenure protection and when they do not).

[46]  See generally Free Enter. Fund, 130 S. Ct. at 3171 (Breyer, J., dissenting); Morrison, 487 U.S. at 654.

[47]  See Morrison, 487 U.S. at 654.

[48]  Morrison v. Olson, 487 U.S. 654, 695-96 (1988).

[49]  See generally Free Enter. Fund, 130 S. Ct. at 3171 (Breyer, J., dissenting); Morrison, 487 U.S. at 654 (describing generally the terms under which inferior officers may be dismissed when they enjoy for-cause tenure protection and when they do not).

[50]  See Free Enter. Fund, 130 S. Ct. at 3171 (Breyer, J., dissenting).

[51]  See id.; Kevin M. Stack, Symposium: Presidential Power in the Obama Administration: Early Reflections, Obama’s Equivocal Defense of Agency Independence, 26 Const. Comment. 583, at 584 (suggesting the President Obama does not perceive for-cause removal restrictions as impeding “near-plenary presidential supervision” of the PCAOB).

[52]  S.E.C. v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988).

[53]  See Free Enter. Fund, 130 S. Ct. at 3173 (Breyer, J., dissenting). The Morrison holding supports the Government’s position in Free Enterprise Fund that considering the level of effective oversight supplied by a superior institution is a valid test for determining whether a double layer of for-cause removal restriction is constitutional. See Strauss, supra note 1, 717 n. 100 (2007).

[54]  See Matthew Baker, The Sound of Congressional Silence: Judicial Distortion of the Legislative – Executive Balance of Power, 2009 B.Y.U. L. Rev. 225, 226 (2009) (noting that “the judiciary alone decides whether congress has spoken through silence” and uses the power thus gained under the doctrine of acquiescence to interpret the meaning of such silence).

[55]  See, e.g., United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915) (treating President Taft's withdrawal of public lands contrary to the intent of Congress as impliedly authorized by a long history of congressional acquiescence to such actions).

[56]  Free Enterprise Fund 130 S. Ct. at 3182 (Breyer, J., dissenting).

[57]  See Baker, supra note 54, at 251 (suggesting that judicial interpretation of congressional silence, when cloaked in certainty, does not mitigate the dangers posed by separation-of-powers). See also Citizens United v. United States, 130 S. Ct. 876, 930-34 (2010) (Stevens, J., dissenting) (suggesting that use of formalist reasoning to cloak a decision in certainty does not add to its legitimacy, especially when the Court takes it upon itself to create the context necessary for the decision they ultimately hand down).

[58]  See Baker, supra note 54, at 251.

[59]  See William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers Cases, 22 Harv. J.L. & Pub. Pol’y 21, 26 (1998) (noting that the Morrison opinion can be read to ‘support[] the proposition that when key constitutional terms (such as ‘inferior officer’ and ‘executive power’) are formally undefined . . . the constitutional interpreter should consider pragmatic, consequentialist arguments.”).

[60]  See id.

[61]  Free Enter. Fund, 130 S. Ct. at 3175 (Breyer, J., dissenting) (citation omitted). A fortiori is defined as “by even greater force of logic.” Black’s Law Dictionary (9th ed. 2009).

[62]  See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2344 (2001).

[63]  Id. at 2347 (noting that “because Congress’ most potent tools of oversight require collective action (and presidential agreement), its capacity to control agency discretion [and, therefore presidential interference with agency policy making] is restricted [to a large degree].”).

[64]  Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263, 322, (2006).

[65]  Brief of the  former Chairmen of the SEC, supra note 19, at *24 (quoting statement be Senator Levin that ‘one of the most important changes’ SarbOx was designed to introduce was an accounting oversight board that would be ‘free of domination by either accounting or corporate interests.’) (citation omitted).

[66]  See Free Enter. Fund v. United States, 130 S. Ct. 3138, 3138-64 (2010). The fact that the Justices did not consider Congress’ rationale for structuring the PCAOB as it did, reinforces the observation of Peter Strauss, who notes that “Justices who are most enthusiastic about executive authority . . . are the same ones who insist most strenuously that legislative history is inappropriate for judges to consider when interpreting statutory text.” Strauss, supra note 1, at 755.

[67]  Citizens United v. United States, 130 S. Ct. 876 (2010).

[68]  Doug Kendall, Citizens United: The Problem Isn’t the Law, It’s the Court, Huffington Post, Jan. 21, 2010 (reporting on the contents of the “breathtaking dissent” of Justice Stevens: “Corporations cannot vote in elections, stand for election, or serve as elected officials, but the Court today ruled they can overwhelm the political process using profits generated by the special privileges granted to corporations alone. In a profoundly wrong interpretation of the First Amendment, the Court granted corporations the right to drown out the voices of individual Americans in our Nation's elections.”), available at http://www.huffingtonpost.com/doug-kendall/citizens-united-the-probl_b_431989.html.

[69]  See Orentlicher, supra note 12, at 40.

Karla Hogan is currently a third year law student at Northern Illinois University College of Law.  She graduated from Wartburg College, Waverly, IA, with a double major in Business Administration and Spanish.

 
 
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