Patricia L. Bellia · July 2012
80 GEO. WASH. L. REV. 1371 (2012)
In Free Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), the Supreme Court invalidated a statutory provision protecting the tenure of members of the PCAOB, a board created to oversee the auditing of public companies subject to the securities laws. The case carried the potential for a major shift in the Court’s approach to separation of powers disputes. Although the Court delivered no such result, the PCAOB case provides a fascinating window on the removal puzzle. The case reflects an entanglement of multiple textually derived and nontextual separation of powers principles. One of the central principles on which the Court appeared to rely in invalidating the PCAOB’s tenure protection provision—that the “executive Power” Article II vests in the President encompasses a power of removal— cannot account for the Court’s ultimate holding. Disentangling the threads of the PCAOB Court’s reasoning, and tracing those threads back to prior removal disputes, exposes both how the PCAOB Court sought to refocus assessment of removal questions on the specific obligations that faithful execution of the laws entails and the ways in which the PCAOB Court’s own assessment fell short.
