Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 130 S. Ct. 3138 ( 2010 )

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FREE ENTERPRISE FUND ET AL. v. PUBLIC COM-
PANY ACCOUNTING OVERSIGHT BOARD ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 08–861. Argued December 7, 2009—Decided June 28, 2010
Respondent, the Public Company Accounting Oversight Board, was
created as part of a series of accounting reforms in the Sarbanes-
Oxley Act of 2002. The Board is composed of five members appointed
by the Securities and Exchange Commission. It was modeled on pri
vate self-regulatory organizations in the securities industry—such as
the New York Stock Exchange—that investigate and discipline their
own members subject to Commission oversight. Unlike these organi
zations, the Board is a Government-created entity with expansive
powers to govern an entire industry. Every accounting firm that au
dits public companies under the securities laws must register with
the Board, pay it an annual fee, and comply with its rules and over
sight. The Board may inspect registered firms, initiate formal inves
tigations, and issue severe sanctions in its disciplinary proceedings.
The parties agree that the Board is “part of the Government” for con
stitutional purposes, Lebron v. National Railroad Passenger Corpora
tion, 513 U. S. 374, 397, and that its members are “ ‘Officers of the
United States’ ” who “exercis[e] significant authority pursuant to the
laws of the United States,” Buckley v. Valeo, 424 U. S. 1, 125–126.
While the SEC has oversight of the Board, it cannot remove Board
members at will, but only “for good cause shown,” “in accordance
with” specified procedures. §§7211(e)(6), 7217(d)(3). The parties also
agree that the Commissioners, in turn, cannot themselves be re
moved by the President except for “ ‘inefficiency, neglect of duty, or
malfeasance in office.’ ” Humphrey’s Executor v. United States, 295
U. S. 602, 620.
The Board inspected petitioner accounting firm, released a report
critical of its auditing procedures, and began a formal investigation.
2 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Syllabus
The firm and petitioner Free Enterprise Fund, a nonprofit organiza
tion of which the firm is a member, sued the Board and its members,
seeking, inter alia, a declaratory judgment that the Board is uncon
stitutional and an injunction preventing the Board from exercising its
powers. Petitioners argued that the Sarbanes-Oxley Act contravened
the separation of powers by conferring executive power on Board
members without subjecting them to Presidential control. The basis
for petitioners’ challenge was that Board members were insulated
from Presidential control by two layers of tenure protection: Board
members could only be removed by the Commission for good cause,
and the Commissioners could in turn only be removed by the Presi
dent for good cause. Petitioners also challenged the Board’s ap
pointment as violating the Appointments Clause, which requires offi
cers to be appointed by the President with the Senate’s advice and
consent, or—in the case of “inferior Officers”—by “the President
alone, . . . the Courts of Law, or . . . the Heads of Departments,”
Art. II, §2, cl. 2. The United States intervened to defend the statute.
The District Court found it had jurisdiction and granted summary
judgment to respondents. The Court of Appeals affirmed. It first
agreed that the District Court had jurisdiction. It then ruled that the
dual restraints on Board members’ removal are permissible, and that
Board members are inferior officers whose appointment is consistent
with the Appointments Clause.
Held:
1. The District Court had jurisdiction over these claims. The
Commission may review any Board rule or sanction, and an ag
grieved party may challenge the Commission’s “final order” or “rule”
in a court of appeals under 15 U. S. C. §78y. The Government reads
§78y as an exclusive route to review, but the text does not expressly
or implicitly limit the jurisdiction that other statutes confer on dis
trict courts. It is presumed that Congress does not intend to limit ju
risdiction if “a finding of preclusion could foreclose all meaningful ju
dicial review”; if the suit is “ ‘wholly “collateral” ’ to a statute’s review
provisions”; and if the claims are “outside the agency’s expertise.”
Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 212–213.
These considerations point against any limitation on review here.
Section 78y provides only for review of Commission action, and peti
tioners’ challenge is “collateral” to any Commission orders or rules
from which review might be sought. The Government advises peti
tioners to raise their claims by appealing a Board sanction, but peti
tioners have not been sanctioned, and it is no “meaningful” avenue of
relief, Thunder Basin, supra, at 212, to require a plaintiff to incur a
sanction in order to test a law’s validity, MedImmune, Inc. v. Genen
tech, Inc., 549 U. S. 118, 129. Petitioners’ constitutional claims are
Cite as: 561 U. S. ____ (2010) 3
Syllabus
also outside the Commission’s competence and expertise, and the
statutory questions involved do not require technical considerations
of agency policy. Pp. 7–10.
2. The dual for-cause limitations on the removal of Board members
contravene the Constitution’s separation of powers. Pp. 10–27.
(a) The Constitution provides that “[t]he executive Power shall be
vested in a President of the United States of America.” Art. II, §1,
cl. 1. Since 1789, the Constitution has been understood to empower
the President to keep executive officers accountable—by removing
them from office, if necessary. See generally Myers v. United States,
272 U. S. 52. This Court has determined that this authority is not
without limit. In Humphrey’s Executor, supra, this Court held that
Congress can, under certain circumstances, create independent agen
cies run by principal officers appointed by the President, whom the
President may not remove at will but only for good cause. And in
United States v. Perkins, 116 U. S. 483, and Morrison v. Olson, 487
U. S. 654, the Court sustained similar restrictions on the power of
principal executive officers—themselves responsible to the Presi
dent—to remove their own inferiors. However, this Court has not
addressed the consequences of more than one level of good-cause ten
ure. Pp. 10–14.
(b) Where this Court has upheld limited restrictions on the
President’s removal power, only one level of protected tenure sepa
rated the President from an officer exercising executive power. The
President—or a subordinate he could remove at will—decided
whether the officer’s conduct merited removal under the good-cause
standard. Here, the Act not only protects Board members from re
moval except for good cause, but withdraws from the President any
decision on whether that good cause exists. That decision is vested in
other tenured officers—the Commissioners—who are not subject to
the President’s direct control. Because the Commission cannot re
move a Board member at will, the President cannot hold the Com
mission fully accountable for the Board’s conduct. He can only review
the Commissioner’s determination of whether the Act’s rigorous good
cause standard is met. And if the President disagrees with that de
termination, he is powerless to intervene—unless the determination
is so unreasonable as to constitute “ ‘inefficiency, neglect of duty, or
malfeasance in office.’ ” Humphrey’s Executor, supra, at 620.
This arrangement contradicts Article II’s vesting of the executive
power in the President. Without the ability to oversee the Board, or
to attribute the Board’s failings to those whom he can oversee, the
President is no longer the judge of the Board’s conduct. He can nei
ther ensure that the laws are faithfully executed, nor be held respon
sible for a Board member’s breach of faith. If this dispersion of re
4 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Syllabus
sponsibility were allowed to stand, Congress could multiply it further
by adding still more layers of good-cause tenure. Such diffusion of
power carries with it a diffusion of accountability; without a clear and
effective chain of command, the public cannot determine where the
blame for a pernicious measure should fall. The Act’s restrictions are
therefore incompatible with the Constitution’s separation of powers.
Pp. 14–17.
(c) The “ ‘fact that a given law or procedure is efficient, conven
ient, and useful in facilitating functions of government, standing
alone, will not save it if it is contrary to the Constitution. ” Bowsher
v. Synar, 478 U. S. 714, 736. The Act’s multilevel tenure protections
provide a blueprint for the extensive expansion of legislative power.
Congress controls the salary, duties, and existence of executive of
fices, and only Presidential oversight can counter its influence. The
Framers created a structure in which “[a] dependence on the people”
would be the “primary controul on the government,” and that de
pendence is maintained by giving each branch “the necessary consti
tutional means and personal motives to resist encroachments of the
others.” The Federalist No. 51, p. 349. A key “constitutional means”
vested in the President was “the power of appointing, overseeing, and
controlling those who execute the laws.” 1 Annals of Congress 463.
While a government of “opposite and rival interests” may sometimes
inhibit the smooth functioning of administration, The Federalist No.
51, at 349, “[t]he Framers recognized that, in the long term, struc
tural protections against abuse of power were critical to preserving
liberty.” Bowsher, supra, at 730. Pp. 17–21.
(d) The Government errs in arguing that, even if some con
straints on the removal of inferior executive officers might violate the
Constitution, the restrictions here do not. There is no construction of
the Commission’s good-cause removal power that is broad enough to
avoid invalidation. Nor is the Commission’s broad power over Board
functions the equivalent of a power to remove Board members. Alter
ing the Board’s budget or powers is not a meaningful way to control
an inferior officer; the Commission cannot supervise individual Board
members if it must destroy the Board in order to fix it. Moreover, the
Commission’s power over the Board is hardly plenary, as the Board
may take significant enforcement actions largely independently of
the Commission. Enacting new SEC rules through the required no
tice and comment procedures would be a poor means of micro
managing the Board, and without certain findings, the Act forbids
any general rule requiring SEC preapproval of Board actions. Fi
nally, the Sarbanes-Oxley Act is highly unusual in committing sub
stantial executive authority to officers protected by two layers of
good-cause removal. Pp. 21–27.
Cite as: 561 U. S. ____ (2010) 5
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3. The unconstitutional tenure provisions are severable from the
remainder of the statute. Because “[t]he unconstitutionality of a part
of an Act does not necessarily defeat or affect the validity of its re
maining provisions,” Champlin Refining Co. v. Corporation Comm’n
of Okla., 286 U. S. 210, 234, the “normal rule” is “that partial . . . in
validation is the required course,” Brockett v. Spokane Arcades, Inc.,
472 U. S. 491, 504. The Board’s existence does not violate the sepa
ration of powers, but the substantive removal restrictions imposed by
§§7211(e)(6) and 7217(d)(3) do. Concluding that the removal restric
tions here are invalid leaves the Board removable by the Commission
at will. With the tenure restrictions excised, the Act remains “ ‘fully
operative as a law,’ ” New York v. United States, 505 U. S. 144, 186,
and nothing in the Act’s text or historical context makes it “evident”
that Congress would have preferred no Board at all to a Board whose
members are removable at will, Alaska Airlines, Inc. v. Brock, 480
U. S. 678, 684. The consequence is that the Board may continue to
function as before, but its members may be removed at will by the
Commission. Pp. 27–29.
4. The Board’s appointment is consistent with the Appointments
Clause. Pp. 29–33.
(a) The Board members are inferior officers whose appointment
Congress may permissibly vest in a “Hea[d] of Departmen[t].” Infe
rior officers “are officers whose work is directed and supervised at
some level” by superiors appointed by the President with the Senate’s
consent. Edmond v. United States, 520 U. S. 651, 662–663. Because
the good-cause restrictions discussed above are unconstitutional and
void, the Commission possesses the power to remove Board members
at will, in addition to its other oversight authority. Board members
are therefore directed and supervised by the Commission. Pp. 29–30.
(b) The Commission is a “Departmen[t]” under the Appointments
Clause. Freytag v. Commissioner, 501 U. S. 868, 887, n. 4, specifi
cally reserved the question whether a “principal agenc[y], such as”
the SEC, is a “Departmen[t].” The Court now adopts the reasoning of
the concurring Justices in Freytag, who would have concluded that
the SEC is such a “Departmen[t]” because it is a freestanding compo
nent of the Executive Branch not subordinate to or contained within
any other such component. This reading is consistent with the com
mon, near-contemporary definition of a “department”; with the early
practice of Congress, see §3, 1 Stat. 234; and with this Court’s cases,
which have never invalidated an appointment made by the head of
such an establishment. Pp. 30–31.
(c) The several Commissioners, and not the Chairman, are the
Commission’s “Hea[d].” The Commission’s powers are generally
vested in the Commissioners jointly, not the Chairman alone. The
6 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
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Commissioners do not report to the Chairman, who exercises admin
istrative functions subject to the full Commission’s policies. There is
no reason why a multimember body may not be the “Hea[d]” of a
“Departmen[t]” that it governs. The Appointments Clause necessar
ily contemplates collective appointments by the “Courts of Law,”
Art. II, §2, cl. 2, and each House of Congress appoints its officers col
lectively, see, e.g., Art. I, §2, cl. 5. Practice has also sanctioned the
appointment of inferior officers by multimember agencies. Pp. 31–33.
537 F. 3d 667, affirmed in part, reversed in part, and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting
opinion, in which STEVENS, GINSBURG, and SOTOMAYOR, JJ., joined.
Cite as: 561 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–861
_________________
FREE ENTERPRISE FUND AND BECKSTEAD AND
WATTS, LLP, PETITIONERS v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BOARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 28, 2010]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Our Constitution divided the “powers of the new Federal
Government into three defined categories, Legislative,
Executive, and Judicial.” INS v. Chadha, 462 U. S. 919,
951 (1983). Article II vests “[t]he executive Power . . . in a
President of the United States of America,” who must
“take Care that the Laws be faithfully executed.” Art. II,
§1, cl. 1; id., §3. In light of “[t]he impossibility that one
man should be able to perform all the great business of the
State,” the Constitution provides for executive officers to
“assist the supreme Magistrate in discharging the duties
of his trust.” 30 Writings of George Washington 334 (J.
Fitzpatrick ed. 1939).
Since 1789, the Constitution has been understood to
empower the President to keep these officers account­
able—by removing them from office, if necessary. See
generally Myers v. United States, 272 U. S. 52 (1926).
This Court has determined, however, that this authority is
not without limit. In Humphrey’s Executor v. United
2 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Opinion of the Court
States, 295 U. S. 602 (1935), we held that Congress can,
under certain circumstances, create independent agencies
run by principal officers appointed by the President, whom
the President may not remove at will but only for good
cause. Likewise, in United States v. Perkins, 116 U. S. 483(1886), and Morrison v. Olson, 487 U. S. 654 (1988), the
Court sustained similar restrictions on the power of prin­
cipal executive officers—themselves responsible to the
President—to remove their own inferiors. The parties do
not ask us to reexamine any of these precedents, and we
do not do so.
We are asked, however, to consider a new situation not
yet encountered by the Court. The question is whether
these separate layers of protection may be combined. May
the President be restricted in his ability to remove a prin­
cipal officer, who is in turn restricted in his ability to
remove an inferior officer, even though that inferior officer
determines the policy and enforces the laws of the United
States?
We hold that such multilevel protection from removal is
contrary to Article II’s vesting of the executive power in
the President. The President cannot “take Care that the
Laws be faithfully executed” if he cannot oversee the
faithfulness of the officers who execute them. Here the
President cannot remove an officer who enjoys more than
one level of good-cause protection, even if the President
determines that the officer is neglecting his duties or
discharging them improperly. That judgment is instead
committed to another officer, who may or may not agree
with the President’s determination, and whom the Presi­
dent cannot remove simply because that officer disagrees
with him. This contravenes the President’s “constitutional
obligation to ensure the faithful execution of the laws.”
Id., at 693.
Cite as: 561 U. S. ____ (2010) 3
Opinion of the Court
I
A
After a series of celebrated accounting debacles, Con­
gress enacted the Sarbanes-Oxley Act of 2002 (or Act), 116
Stat. 745. Among other measures, the Act introduced
tighter regulation of the accounting industry under a new
Public Company Accounting Oversight Board. The Board
is composed of five members, appointed to staggered 5­
year terms by the Securities and Exchange Commission.
It was modeled on private self-regulatory organizations in
the securities industry—such as the New York Stock
Exchange—that investigate and discipline their own
members subject to Commission oversight. Congress
created the Board as a private “nonprofit corporation,” and
Board members and employees are not considered Gov­
ernment “officer[s] or employee[s]” for statutory purposes.
15 U. S. C. §§7211(a), (b). The Board can thus recruit its
members and employees from the private sector by paying
salaries far above the standard Government pay scale.
See §§7211(f)(4), 7219.1
Unlike the self-regulatory organizations, however, the
Board is a Government-created, Government-appointed
entity, with expansive powers to govern an entire indus­
try. Every accounting firm—both foreign and domestic—
that participates in auditing public companies under the
securities laws must register with the Board, pay it an
annual fee, and comply with its rules and oversight.
§§7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is
charged with enforcing the Sarbanes-Oxley Act, the secu­
rities laws, the Commission’s rules, its own rules, and
professional accounting standards. §§7215(b)(1), (c)(4). To
this end, the Board may regulate every detail of an ac­
counting firm’s practice, including hiring and professional
——————
1 The current salary for the Chairman is $673,000. Other Board
members receive $547,000. Brief for Petitioners 3.
4 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Opinion of the Court
development, promotion, supervision of audit work, the
acceptance of new business and the continuation of old,
internal inspection procedures, professional ethics rules,
and “such other requirements as the Board may pre­
scribe.” §7213(a)(2)(B).
The Board promulgates auditing and ethics standards,
performs routine inspections of all accounting firms, de­
mands documents and testimony, and initiates formal
investigations and disciplinary proceedings. §§7213–7215
(2006 ed. and Supp. II). The willful violation of any Board
rule is treated as a willful violation of the Securities Ex­
change Act of 1934, 48 Stat. 881, 15 U. S. C. §78a et seq.—
a federal crime punishable by up to 20 years’ imprison­
ment or $25 million in fines ($5 million for a natural per­
son). §§78ff(a), 7202(b)(1) (2006 ed.). And the Board itself
can issue severe sanctions in its disciplinary proceedings,
up to and including the permanent revocation of a firm’s
registration, a permanent ban on a person’s associating
with any registered firm, and money penalties of $15
million ($750,000 for a natural person). §7215(c)(4).
Despite the provisions specifying that Board members are
not Government officials for statutory purposes, the par­
ties agree that the Board is “part of the Government” for
constitutional purposes, Lebron v. National Railroad
Passenger Corporation, 513 U. S. 374, 397 (1995), and that
its members are “ ‘Officers of the United States’ ” who
“exercis[e] significant authority pursuant to the laws of
the United States,” Buckley v. Valeo, 424 U. S. 1, 125–126
(1976) (per curiam) (quoting Art. II, §2, cl. 2); cf. Brief for
Petitioners 9, n. 1; Brief for United States 29, n. 8.
The Act places the Board under the SEC’s oversight,
particularly with respect to the issuance of rules or the
imposition of sanctions (both of which are subject to Com­
mission approval and alteration). §§7217(b)–(c). But the
individual members of the Board—like the officers and
directors of the self-regulatory organizations—are sub­
Cite as: 561 U. S. ____ (2010) 5
Opinion of the Court
stantially insulated from the Commission’s control. The
Commission cannot remove Board members at will, but
only “for good cause shown,” “in accordance with” certain
procedures. §7211(e)(6).
Those procedures require a Commission finding, “on the
record” and “after notice and opportunity for a hearing,”
that the Board member
“(A) has willfully violated any provision of th[e] Act,
the rules of the Board, or the securities laws;
“(B) has willfully abused the authority of that mem­
ber; or
“(C) without reasonable justification or excuse, has
failed to enforce compliance with any such provision
or rule, or any professional standard by any registered
public accounting firm or any associated person
thereof.” §7217(d)(3).
Removal of a Board member requires a formal Commis­
sion order and is subject to judicial review. See 5 U. S. C.
§§554(a), 556(a), 557(a), (c)(B); 15 U. S. C. §78y(a)(1).
Similar procedures govern the Commission’s removal of
officers and directors of the private self-regulatory organi­
zations. See §78s(h)(4). The parties agree that the Com­
missioners cannot themselves be removed by the Presi­
dent except under the Humphrey’s Executor standard of
“inefficiency, neglect of duty, or malfeasance in office,” 295
U. S., at 620 (internal quotation marks omitted); see Brief
for Petitioners 31; Brief for United States 43; Brief for
Respondent Public Company Accounting Oversight Board
31 (hereinafter PCAOB Brief); Tr. of Oral Arg. 47, and we
decide the case with that understanding.
B
Beckstead and Watts, LLP, is a Nevada accounting firm
registered with the Board. The Board inspected the firm,
released a report critical of its auditing procedures, and
6 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Opinion of the Court
began a formal investigation. Beckstead and Watts and
the Free Enterprise Fund, a nonprofit organization of
which the firm is a member, then sued the Board and its
members, seeking (among other things) a declaratory
judgment that the Board is unconstitutional and an in­
junction preventing the Board from exercising its powers.
App. 71.
Before the District Court, petitioners argued that the
Sarbanes-Oxley Act contravened the separation of powers
by conferring wide-ranging executive power on Board
members without subjecting them to Presidential control.
Id., at 67–68. Petitioners also challenged the Act under
the Appointments Clause, which requires “Officers of the
United States” to be appointed by the President with the
Senate’s advice and consent. Art. II, §2, cl. 2. The Clause
provides an exception for “inferior Officers,” whose ap­
pointment Congress may choose to vest “in the President
alone, in the Courts of Law, or in the Heads of Depart­
ments.” Ibid. Because the Board is appointed by the SEC,
petitioners argued that (1) Board members are not “infe­
rior Officers” who may be appointed by “Heads of Depart­
ments”; (2) even if they are, the Commission is not a “De­
partmen[t]”; and (3) even if it is, the several
Commissioners (as opposed to the Chairman) are not its
“Hea[d].” See App. 68–70. The United States intervened
to defend the Act’s constitutionality. Both sides moved for
summary judgment; the District Court determined that it
had jurisdiction and granted summary judgment to re­
spondents. App. to Pet. for Cert. 110a–117a.
A divided Court of Appeals affirmed. 537 F. 3d 667(CADC 2008). It agreed that the District Court had juris­
diction over petitioners’ claims. Id., at 671. On the mer­
its, the Court of Appeals recognized that the removal issue
was “a question of first impression,” as neither that court
nor this one “ha[d] considered a situation where a restric­
tion on removal passes through two levels of control.” Id.,Cite as: 561 U. S. ____ (2010) 7
Opinion of the Court
at 679. It ruled that the dual restraints on Board mem­
bers’ removal are permissible because they do not “render
the President unable to perform his constitutional duties.”
Id., at 683. The majority reasoned that although the
President “does not directly select or supervise the Board’s
members,” id., at 681, the Board is subject to the compre­
hensive control of the Commission, and thus the Presi­
dent’s influence over the Commission implies a constitu­
tionally sufficient influence over the Board as well. Id., at
682–683. The majority also held that Board members are
inferior officers subject to the Commission’s direction and
supervision, id., at 672–676, and that their appointment is
otherwise consistent with the Appointments Clause, id., at
676–678.
Judge Kavanaugh dissented. He agreed that the case
was one of first impression, id., at 698, but argued that
“the double for-cause removal provisions in the [Act] . . .
combine to eliminate any meaningful Presidential control
over the [Board],” id., at 697. Judge Kavanaugh also
argued that Board members are not effectively supervised
by the Commission and thus cannot be inferior officers
under the Appointments Clause. Id., at 709–712.
We granted certiorari. 556 U. S. ___ (2009).
II
We first consider whether the District Court had juris­
diction. We agree with both courts below that the statutes
providing for judicial review of Commission action did not
prevent the District Court from considering petitioners’
claims.
The Sarbanes-Oxley Act empowers the Commission to
review any Board rule or sanction. See 15 U. S. C.
§§7217(b)(2)–(4), (c)(2). Once the Commission has acted,
aggrieved parties may challenge “a final order of the
Commission” or “a rule of the Commission” in a court of
appeals under §78y, and “[n]o objection . . . may be consid­
8 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Opinion of the Court
ered by the court unless it was urged before the Commis­
sion or there was reasonable ground for failure to do so.”
§§78y(a)(1), (b)(1), (c)(1).
The Government reads §78y as an exclusive route to
review. But the text does not expressly limit the jurisdic­
tion that other statutes confer on district courts. See, e.g.,
28 U. S. C. §§1331, 2201. Nor does it do so implicitly.
Provisions for agency review do not restrict judicial review
unless the “statutory scheme” displays a “fairly discerni­
ble” intent to limit jurisdiction, and the claims at issue
“are of the type Congress intended to be reviewed within
th[e] statutory structure.” Thunder Basin Coal Co. v.
Reich, 510 U. S. 200, 207, 212 (1994) (internal quotation
marks omitted). Generally, when Congress creates proce­
dures “designed to permit agency expertise to be brought
to bear on particular problems,” those procedures “are to
be exclusive.” Whitney Nat. Bank in Jefferson Parish v.
Bank of New Orleans & Trust Co., 379 U. S. 411, 420
(1965). But we presume that Congress does not intend to
limit jurisdiction if “a finding of preclusion could foreclose
all meaningful judicial review”; if the suit is “wholly col­
lateral to a statute’s review provisions”; and if the claims
are “outside the agency’s expertise.” Thunder Basin,
supra, at 212–213 (internal quotation marks omitted).
These considerations point against any limitation on
review here.
We do not see how petitioners could meaningfully pur­
sue their constitutional claims under the Government’s
theory. Section 78y provides only for judicial review of
Commission action, and not every Board action is encapsu­
lated in a final Commission order or rule.
The Government suggests that petitioners could first
have sought Commission review of the Board’s “auditing
standards, registration requirements, or other rules.”
Brief for United States 16. But petitioners object to the
Board’s existence, not to any of its auditing standards.
Cite as: 561 U. S. ____ (2010) 9
Opinion of the Court
Petitioners’ general challenge to the Board is “collateral”
to any Commission orders or rules from which review
might be sought. Cf. McNary v. Haitian Refugee Center,
Inc., 498 U. S. 479, 491–492 (1991). Requiring petitioners
to select and challenge a Board rule at random is an odd
procedure for Congress to choose, especially because only
new rules, and not existing ones, are subject to challenge.
See 15 U. S. C. §§78s(b)(2), 78y(a)(1), 7217(b)(4).
Alternatively, the Government advises petitioners to
raise their claims by appealing a Board sanction. Brief for
United States 16–17. But the investigation of Beckstead
and Watts produced no sanction, see id., at 7, n. 5; Reply
Brief for Petitioners 29, n. 11 (hereinafter Reply Brief),
and an uncomplimentary inspection report is not subject
to judicial review, see §7214(h)(2). So the Government
proposes that Beckstead and Watts incur a sanction (such
as a sizable fine) by ignoring Board requests for docu­
ments and testimony. Brief for United States 17. If the
Commission then affirms, the firm will win access to a
court of appeals—and severe punishment should its chal­
lenge fail. We normally do not require plaintiffs to “bet
the farm . . . by taking the violative action” before “testing
the validity of the law,” MedImmune, Inc. v. Genentech,
Inc., 549 U. S. 118, 129 (2007); accord, Ex parte Young,
209 U. S. 123 (1908), and we do not consider this a “mean­
ingful” avenue of relief. Thunder Basin, 510 U. S., at 212.
Petitioners’ constitutional claims are also outside the
Commission’s competence and expertise. In Thunder
Basin, the petitioner’s primary claims were statutory; “at
root . . . [they] ar[o]se under the Mine Act and f[e]ll
squarely within the [agency’s] expertise,” given that the
agency had “extensive experience” on the issue and had
“recently addressed the precise . . . claims presented.” Id.,at 214–215. Likewise, in United States v. Ruzicka, 329
U. S. 287 (1946), on which the Government relies, we
reserved for the agency fact-bound inquiries that, even if
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“formulated in constitutional terms,” rested ultimately on
“factors that call for [an] understanding of the milk indus­
try,” to which the Court made no pretensions. Id., at 294.
No similar expertise is required here, and the statutory
questions involved do not require “technical considerations
of [agency] policy.” Johnson v. Robison, 415 U. S. 361, 373
(1974). They are instead standard questions of adminis­
trative law, which the courts are at no disadvantage in
answering.
We therefore conclude that §78y did not strip the Dis­
trict Court of jurisdiction over these claims, which are
properly presented for our review.2
III
We hold that the dual for-cause limitations on the re­
moval of Board members contravene the Constitution’s
separation of powers.
A
The Constitution provides that “[t]he executive Power
shall be vested in a President of the United States of
——————
2 The Government asserts that “petitioners have not pointed to any
case in which this Court has recognized an implied private right of
action directly under the Constitution to challenge governmental action
under the Appointments Clause or separation-of-powers principles.”
Brief for United States 22. The Government does not appear to dispute
such a right to relief as a general matter, without regard to the particu­
lar constitutional provisions at issue here. See, e.g., Correctional
Services Corp. v. Malesko, 534 U. S. 61, 74 (2001) (equitable relief “has
long been recognized as the proper means for preventing entities from
acting unconstitutionally”); Bell v. Hood, 327 U. S. 678, 684 (1946) (“[I]t
is established practice for this Court to sustain the jurisdiction of
federal courts to issue injunctions to protect rights safeguarded by the
Constitution”); see also Ex parte Young, 209 U. S. 123, 149, 165, 167
(1908). If the Government’s point is that an Appointments Clause or
separation-of-powers claim should be treated differently than every
other constitutional claim, it offers no reason and cites no authority
why that might be so.
Cite as: 561 U. S. ____ (2010) 11
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America.” Art. II, §1, cl. 1. As Madison stated on the floor
of the First Congress, “if any power whatsoever is in its
nature Executive, it is the power of appointing, overseeing,
and controlling those who execute the laws.” 1 Annals of
Cong. 463 (1789).
The removal of executive officers was discussed exten­
sively in Congress when the first executive departments
were created. The view that “prevailed, as most consonant
to the text of the Constitution” and “to the requisite re­
sponsibility and harmony in the Executive Department,”
was that the executive power included a power to oversee
executive officers through removal; because that tradi­
tional executive power was not “expressly taken away, it
remained with the President.” Letter from James Madi­
son to Thomas Jefferson (June 30, 1789), 16 Documentary
History of the First Federal Congress 893 (2004). “This
Decision of 1789 provides contemporaneous and weighty
evidence of the Constitution’s meaning since many of the
Members of the First Congress had taken part in framing
that instrument.” Bowsher v. Synar, 478 U. S. 714, 723–
724 (1986) (internal quotation marks omitted). And it
soon became the “settled and well understood construction
of the Constitution.” Ex parte Hennen, 13 Pet. 230, 259
(1839).
The landmark case of Myers v. United States reaffirmed
the principle that Article II confers on the President “the
general administrative control of those executing the
laws.” 272 U. S., at 164. It is his responsibility to take
care that the laws be faithfully executed. The buck stops
with the President, in Harry Truman’s famous phrase. As
we explained in Myers, the President therefore must have
some “power of removing those for whom he can not con­
tinue to be responsible.” Id., at 117.
Nearly a decade later in Humphrey’s Executor, this
Court held that Myers did not prevent Congress from
conferring good-cause tenure on the principal officers of
12 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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certain independent agencies. That case concerned the
members of the Federal Trade Commission, who held 7­
year terms and could not be removed by the President
except for “ ‘inefficiency, neglect of duty, or malfeasance in
office.’ ” 295 U. S., at 620 (quoting 15 U. S. C. §41). The
Court distinguished Myers on the ground that Myers
concerned “an officer [who] is merely one of the units in
the executive department and, hence, inherently subject to
the exclusive and illimitable power of removal by the Chief
Executive, whose subordinate and aid he is.” 295 U. S., at
627. By contrast, the Court characterized the FTC as
“quasi-legislative and quasi-judicial” rather than “purely
executive,” and held that Congress could require it “to act
. . . independently of executive control.” Id., at 627–629.
Because “one who holds his office only during the pleasure
of another, cannot be depended upon to maintain an atti­
tude of independence against the latter’s will,” the Court
held that Congress had power to “fix the period during
which [the Commissioners] shall continue in office, and to
forbid their removal except for cause in the meantime.”
Id., at 629.
Humphrey’s Executor did not address the removal of
inferior officers, whose appointment Congress may vest in
heads of departments. If Congress does so, it is ordinarily
the department head, rather than the President, who
enjoys the power of removal. See Myers, supra, at 119,
127; Hennen, supra, at 259–260. This Court has upheld
for-cause limitations on that power as well.
In Perkins, a naval cadet-engineer was honorably dis­
charged from the Navy because his services were no longer
required. 116 U. S. 483. He brought a claim for his salary
under statutes barring his peacetime discharge except by
a court-martial or by the Secretary of the Navy “for mis­
conduct.” Rev. Stat. §§1229, 1525. This Court adopted
verbatim the reasoning of the Court of Claims, which had
held that when Congress “ ‘vests the appointment of infe­
Cite as: 561 U. S. ____ (2010) 13
Opinion of the Court
rior officers in the heads of Departments[,] it may limit
and restrict the power of removal as it deems best for the
public interest.’ ” 116 U. S., at 485. Because Perkins had
not been “ ‘dismissed for misconduct . . . [or upon] the
sentence of a court-martial,’ ” the Court agreed that he was
“ ‘still in office and . . . entitled to [his] pay.’ ” Ibid.3
We again considered the status of inferior officers in
Morrison. That case concerned the Ethics in Government
Act, which provided for an independent counsel to investi­
gate allegations of crime by high executive officers. The
counsel was appointed by a special court, wielded the full
powers of a prosecutor, and was removable by the Attor­
ney General only “ ‘for good cause.’ ” 487 U. S., at 663(quoting 28 U. S. C. §596(a)(1)). We recognized that the
independent counsel was undoubtedly an executive officer,
rather than “ ‘quasi-legislative’ ” or “ ‘quasi-judicial,’ ” but
we stated as “our present considered view” that Congress
had power to impose good-cause restrictions on her re­
moval. 487 U. S., at 689–691. The Court noted that the
statute “g[a]ve the Attorney General,” an officer directly
responsible to the President and “through [whom]” the
President could act, “several means of supervising or
controlling” the independent counsel—“[m]ost importantly
. . . the power to remove the counsel for good cause.” Id.,at 695–696 (internal quotation marks omitted). Under
——————
3 When Perkins was decided in 1886, the Secretary of the Navy was a
principal officer and the head of a department, see Rev. Stat. §415, and
the Tenure of Office Act purported to require Senate consent for his
removal. Ch. 154, 14 Stat. 430, Rev. Stat. §1767. This requirement
was widely regarded as unconstitutional and void (as it is universally
regarded today), and it was repealed the next year. See Act of Mar. 3,
1887, ch. 353, 24 Stat. 500; Myers v. United States, 272 U. S. 52, 167–
168 (1926); see also Bowsher v. Synar, 478 U. S. 714, 726 (1986).
Perkins cannot be read to endorse any such restriction, much less in
combination with further restrictions on the removal of inferiors. The
Court of Claims opinion adopted verbatim by this Court addressed only
the authority of the Secretary of the Navy to remove inferior officers.
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those circumstances, the Court sustained the statute.
Morrison did not, however, address the consequences of
more than one level of good-cause tenure—leaving the
issue, as both the court and dissent below recognized, “a
question of first impression” in this Court. 537 F. 3d, at
679; see id., at 698 (dissenting opinion).
B
As explained, we have previously upheld limited restric­
tions on the President’s removal power. In those cases,
however, only one level of protected tenure separated the
President from an officer exercising executive power. It
was the President—or a subordinate he could remove at
will—who decided whether the officer’s conduct merited
removal under the good-cause standard.
The Act before us does something quite different. It not
only protects Board members from removal except for good
cause, but withdraws from the President any decision on
whether that good cause exists. That decision is vested
instead in other tenured officers—the Commissioners—
none of whom is subject to the President’s direct control.
The result is a Board that is not accountable to the Presi­
dent, and a President who is not responsible for the Board.
The added layer of tenure protection makes a difference.
Without a layer of insulation between the Commission and
the Board, the Commission could remove a Board member
at any time, and therefore would be fully responsible for
what the Board does. The President could then hold the
Commission to account for its supervision of the Board, to
the same extent that he may hold the Commission to
account for everything else it does.
A second level of tenure protection changes the nature of
the President’s review. Now the Commission cannot
remove a Board member at will. The President therefore
cannot hold the Commission fully accountable for the
Board’s conduct, to the same extent that he may hold the
Cite as: 561 U. S. ____ (2010) 15
Opinion of the Court
Commission accountable for everything else that it does.
The Commissioners are not responsible for the Board’s
actions. They are only responsible for their own determi­
nation of whether the Act’s rigorous good-cause standard
is met. And even if the President disagrees with their
determination, he is powerless to intervene—unless that
determination is so unreasonable as to constitute “ineffi­
ciency, neglect of duty, or malfeasance in office.” Hum
phrey’s Executor, 295 U. S., at 620 (internal quotation
marks omitted).
This novel structure does not merely add to the Board’s
independence, but transforms it. Neither the President,
nor anyone directly responsible to him, nor even an officer
whose conduct he may review only for good cause, has full
control over the Board. The President is stripped of the
power our precedents have preserved, and his ability to
execute the laws—by holding his subordinates accountable
for their conduct—is impaired.
That arrangement is contrary to Article II’s vesting of
the executive power in the President. Without the ability
to oversee the Board, or to attribute the Board’s failings to
those whom he can oversee, the President is no longer the
judge of the Board’s conduct. He is not the one who de­
cides whether Board members are abusing their offices or
neglecting their duties. He can neither ensure that the
laws are faithfully executed, nor be held responsible for a
Board member’s breach of faith. This violates the basic
principle that the President “cannot delegate ultimate
responsibility or the active obligation to supervise that
goes with it,” because Article II “makes a single President
responsible for the actions of the Executive Branch.”
Clinton v. Jones, 520 U. S. 681, 712–713 (1997) (BREYER,
J., concurring in judgment).4
——————
4 Contrary to the dissent’s suggestion, post, at 12–14 (opinion of
BREYER, J.), the second layer of tenure protection does compromise the
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Indeed, if allowed to stand, this dispersion of responsi­
bility could be multiplied. If Congress can shelter the
bureaucracy behind two layers of good-cause tenure, why
not a third? At oral argument, the Government was un­
willing to concede that even five layers between the Presi­
dent and the Board would be too many. Tr. of Oral Arg.
47–48. The officers of such an agency—safely encased
within a Matryoshka doll of tenure protections—would be
immune from Presidential oversight, even as they exer­
cised power in the people’s name.
Perhaps an individual President might find advantages
in tying his own hands. But the separation of powers does
not depend on the views of individual Presidents, see
Freytag v. Commissioner, 501 U. S. 868, 879–880 (1991),
nor on whether “the encroached-upon branch approves the
encroachment,” New York v. United States, 505 U. S. 144,
182 (1992). The President can always choose to restrain
himself in his dealings with subordinates. He cannot,
however, choose to bind his successors by diminishing
their powers, nor can he escape responsibility for his
choices by pretending that they are not his own.
The diffusion of power carries with it a diffusion of
accountability. The people do not vote for the “Officers of
the United States.” Art. II, §2, cl. 2. They instead look to
the President to guide the “assistants or deputies . . .
subject to his superintendence.” The Federalist No. 72, p.
——————
President’s ability to remove a Board member the Commission wants to
retain. Without a second layer of protection, the Commission has no
excuse for retaining an officer who is not faithfully executing the law.
With the second layer in place, the Commission can shield its decision
from Presidential review by finding that good cause is absent—a
finding that, given the Commission’s own protected tenure, the Presi­
dent cannot easily overturn. The dissent describes this conflict merely
as one of four possible “scenarios,” see post, at 12–13, but it is the
central issue in this case: The second layer matters precisely when the
President finds it necessary to have a subordinate officer removed, and
a statute prevents him from doing so.
Cite as: 561 U. S. ____ (2010) 17
Opinion of the Court
487 (J. Cooke ed. 1961) (A. Hamilton). Without a clear
and effective chain of command, the public cannot “deter­
mine on whom the blame or the punishment of a perni­
cious measure, or series of pernicious measures ought
really to fall.” Id., No. 70, at 476 (same). That is why the
Framers sought to ensure that “those who are employed in
the execution of the law will be in their proper situation,
and the chain of dependence be preserved; the lowest
officers, the middle grade, and the highest, will depend, as
they ought, on the President, and the President on the
community.” 1 Annals of Cong., at 499 (J. Madison).
By granting the Board executive power without the
Executive’s oversight, this Act subverts the President’s
ability to ensure that the laws are faithfully executed—as
well as the public’s ability to pass judgment on his efforts.
The Act’s restrictions are incompatible with the Constitu­
tion’s separation of powers.
C
Respondents and the dissent resist this conclusion,
portraying the Board as “the kind of practical accommoda­
tion between the Legislature and the Executive that
should be permitted in a ‘workable government.’ ” Metro
politan Washington Airports Authority v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276 (1991)
(MWAA) (quoting Youngstown Sheet & Tube Co. v. Saw
yer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring));
see, e.g., post, at 6 (opinion of BREYER, J.). According to
the dissent, Congress may impose multiple levels of for­
cause tenure between the President and his subordinates
when it “rests agency independence upon the need for
technical expertise.” Post, at 18. The Board’s mission is
said to demand both “technical competence” and “apolitical
expertise,” and its powers may only be exercised by “tech­
nical professional experts.” Post, at 18 (internal quotation
marks omitted). In this respect the statute creating the
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Board is, we are told, simply one example of the “vast
numbers of statutes governing vast numbers of subjects,
concerned with vast numbers of different problems, [that]
provide for, or foresee, their execution or administration
through the work of administrators organized within
many different kinds of administrative structures, exercis­
ing different kinds of administrative authority, to achieve
their legislatively mandated objectives.” Post, at 8.
No one doubts Congress’s power to create a vast and
varied federal bureaucracy. But where, in all this, is the
role for oversight by an elected President? The Constitu­
tion requires that a President chosen by the entire Nation
oversee the execution of the laws. And the “ ‘fact that a
given law or procedure is efficient, convenient, and useful
in facilitating functions of government, standing alone,
will not save it if it is contrary to the Constitution,’ ” for
“ ‘[c]onvenience and efficiency are not the primary objec­
tives—or the hallmarks—of democratic government.’ ”
Bowsher, 478 U. S., at 736 (quoting Chadha, 462 U. S., at
944).
One can have a government that functions without
being ruled by functionaries, and a government that bene­
fits from expertise without being ruled by experts. Our
Constitution was adopted to enable the people to govern
themselves, through their elected leaders. The growth of
the Executive Branch, which now wields vast power and
touches almost every aspect of daily life, heightens the
concern that it may slip from the Executive’s control, and
thus from that of the people. This concern is largely ab­
sent from the dissent’s paean to the administrative state.
For example, the dissent dismisses the importance of
removal as a tool of supervision, concluding that the Presi­
dent’s “power to get something done” more often depends
on “who controls the agency’s budget requests and fund­
ing, the relationships between one agency or department
and another, . . . purely political factors (including Con­
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Opinion of the Court
gress’ ability to assert influence),” and indeed whether
particular unelected officials support or “resist” the Presi­
dent’s policies. Post, at 11, 13 (emphasis deleted). The
Framers did not rest our liberties on such bureaucratic
minutiae. As we said in Bowsher, supra, at 730, “[t]he
separated powers of our Government cannot be permitted
to turn on judicial assessment of whether an officer exer­
cising executive power is on good terms with Congress.”
In fact, the multilevel protection that the dissent en­
dorses “provides a blueprint for extensive expansion of the
legislative power.” MWAA, supra, at 277. In a system of
checks and balances, “[p]ower abhors a vacuum,” and one
branch’s handicap is another’s strength. 537 F. 3d, at 695,
n. 4 (Kavanaugh, J., dissenting) (internal quotation marks
omitted). “Even when a branch does not arrogate power to
itself,” therefore, it must not “impair another in the per­
formance of its constitutional duties.” Loving v. United
States, 517 U. S. 748, 757 (1996).5 Congress has plenary
control over the salary, duties, and even existence of ex­
ecutive offices. Only Presidential oversight can counter its
influence. That is why the Constitution vests certain
powers in the President that “the Legislature has no right
to diminish or modify.” 1 Annals of Cong., at 463 (J.
Madison).6
——————
5 The dissent quotes Buckley v. Valeo, 424 U. S. 1, 138 (1976) (per
curiam), for the proposition that Congress has “broad authority to
‘create’ governmental ‘ “offices” ’ and to structure those offices ‘as it
chooses.’ ” Post, at 2. The Buckley Court put “ ‘offices’ ” in quotes
because it was actually describing legislative positions that are not
really offices at all (at least not under Article II). That is why the very
next sentence of Buckley said, “But Congress’ power . . . is inevitably
bounded by the express language” of the Constitution. 424 U. S., at138–139 (emphasis added).
6 The dissent attributes to Madison a belief that some executive offi­
cers, such as the Comptroller, could be made independent of the Presi­
dent. See post, at 17–18. But Madison’s actual proposal, consistent
with his view of the Constitution, was that the Comptroller hold office
20 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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The Framers created a structure in which “[a] depend­
ence on the people” would be the “primary controul on the
government.” The Federalist No. 51, at 349 (J. Madison).
That dependence is maintained, not just by “parchment
barriers,” id., No. 48, at 333 (same), but by letting
“[a]mbition . . . counteract ambition,” giving each branch
“the necessary constitutional means, and personal mo­
tives, to resist encroachments of the others,” id., No. 51, at
349. A key “constitutional means” vested in the Presi­
dent—perhaps the key means—was “the power of appoint­
ing, overseeing, and controlling those who execute the
laws.” 1 Annals of Cong., at 463. And while a government
of “opposite and rival interests” may sometimes inhibit the
smooth functioning of administration, The Federalist No.
51, at 349, “[t]he Framers recognized that, in the long
term, structural protections against abuse of power were
critical to preserving liberty.” Bowsher, supra, at 730.
Calls to abandon those protections in light of “the era’s
perceived necessity,” New York, 505 U. S., at 187, are not
unusual. Nor is the argument from bureaucratic expertise
limited only to the field of accounting. The failures of
accounting regulation may be a “pressing national prob­
lem,” but “a judiciary that licensed extraconstitutional
government with each issue of comparable gravity would,
in the long run, be far worse.” Id., at 187–188. Neither
respondents nor the dissent explains why the Board’s
task, unlike so many others, requires more than one layer
of insulation from the President—or, for that matter, why
only two. The point is not to take issue with for-cause
limitations in general; we do not do that. The question
here is far more modest. We deal with the unusual situa­
——————
for a term of “years, unless sooner removed by the President”; he would
thus be “dependent upon the President, because he can be removed by
him,” and also “dependent upon the Senate, because they must consent
to his [reappointment] for every term of years.” 1 Annals of Cong. 612
(1789).
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Opinion of the Court
tion, never before addressed by the Court, of two layers of
for-cause tenure. And though it may be criticized as “ele­
mentary arithmetical logic,” post, at 23, two layers are not
the same as one.
The President has been given the power to oversee
executive officers; he is not limited, as in Harry Truman’s
lament, to “persuad[ing]” his unelected subordinates “to do
what they ought to do without persuasion.” Post, at 11
(internal quotation marks omitted). In its pursuit of a
“workable government,” Congress cannot reduce the Chief
Magistrate to a cajoler-in-chief.
D
The United States concedes that some constraints on
the removal of inferior executive officers might violate the
Constitution. See Brief for United States 47. It contends,
however, that the removal restrictions at issue here do
not.
To begin with, the Government argues that the Com­
mission’s removal power over the Board is “broad,” and
could be construed as broader still, if necessary to avoid
invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB
Brief 22–23. But the Government does not contend that
simple disagreement with the Board’s policies or priorities
could constitute “good cause” for its removal. See Tr. of
Oral Arg. 41–43, 45–46. Nor do our precedents suggest as
much. Humphrey’s Executor, for example, rejected a
removal premised on a lack of agreement “ ‘on either the
policies or the administering of the Federal Trade Com­
mission,’ ” because the FTC was designed to be “ ‘inde­
pendent in character,’ ” “free from ‘political domination or
control,’ ” and not “ ‘subject to anybody in the government’ ”
or “ ‘to the orders of the President.’ ” 295 U. S., at 619, 625.
Accord, Morrison, 487 U. S., at 693 (noting that “the con­
gressional determination to limit the removal power of the
Attorney General was essential . . . to establish the neces­
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Opinion of the Court
sary independence of the office”); Wiener v. United States,
357 U. S. 349, 356 (1958) (describing for-cause removal as
“involving the rectitude” of an officer). And here there is
judicial review of any effort to remove Board members, see
15 U. S. C. §78y(a)(1), so the Commission will not have the
final word on the propriety of its own removal orders. The
removal restrictions set forth in the statute mean what
they say.
Indeed, this case presents an even more serious threat
to executive control than an “ordinary” dual for-cause
standard. Congress enacted an unusually high standard
that must be met before Board members may be removed.
A Board member cannot be removed except for willful
violations of the Act, Board rules, or the securities laws;
willful abuse of authority; or unreasonable failure to en­
force compliance—as determined in a formal Commission
order, rendered on the record and after notice and an
opportunity for a hearing. §7217(d)(3); see §78y(a). The
Act does not even give the Commission power to fire Board
members for violations of other laws that do not relate to
the Act, the securities laws, or the Board’s authority. The
President might have less than full confidence in, say, a
Board member who cheats on his taxes; but that discovery
is not listed among the grounds for removal under
§7217(d)(3).7
The rigorous standard that must be met before a Board
member may be removed was drawn from statutes con­
——————
7 The Government implausibly argues that §7217(d)(3) “does not ex­
pressly make its three specified grounds of removal exclusive,” and that
“the Act could be construed to permit other grounds.” Brief for United
States 51, n. 19. But having provided in §7211(e)(6) that Board mem­
bers are to be removed “in accordance with [§7217(d)(3)], for good cause
shown,” Congress would not have specified the necessary Commission
finding in §7217(d)(3)—including formal procedures and detailed
conditions—if Board members could also be removed without any
finding at all. Cf. PCAOB Brief 6 (“Cause exists where” the §7217(d)(3)
conditions are met).
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cerning private organizations like the New York Stock
Exchange. Cf. §§78s(h)(4), 7217(d)(3). While we need not
decide the question here, a removal standard appropriate
for limiting Government control over private bodies may
be inappropriate for officers wielding the executive power
of the United States.
Alternatively, respondents portray the Act’s limitations
on removal as irrelevant, because—as the Court of Ap­
peals held—the Commission wields “at-will removal power
over Board functions if not Board members.” 537 F. 3d, at
683 (emphasis added); accord, Brief for United States 27–
28; PCAOB Brief 48. The Commission’s general “oversight
and enforcement authority over the Board,” §7217(a), is
said to “blun[t] the constitutional impact of for-cause
removal,” 537 F. 3d, at 683, and to leave the President no
worse off than “if Congress had lodged the Board’s func­
tions in the SEC’s own staff,” PCAOB Brief 15.
Broad power over Board functions is not equivalent to
the power to remove Board members. The Commission
may, for example, approve the Board’s budget, §7219(b),
issue binding regulations, §§7202(a), 7217(b)(5), relieve
the Board of authority, §7217(d)(1), amend Board sanc­
tions, §7217(c), or enforce Board rules on its own,
§§7202(b)(1), (c). But altering the budget or powers of an
agency as a whole is a problematic way to control an infe­
rior officer. The Commission cannot wield a free hand to
supervise individual members if it must destroy the Board
in order to fix it.
Even if Commission power over Board activities could
substitute for authority over its members, we would still
reject respondents’ premise that the Commission’s power
in this regard is plenary. As described above, the Board is
empowered to take significant enforcement actions, and
does so largely independently of the Commission. See
supra, at 3–4. Its powers are, of course, subject to some
latent Commission control. See supra, at 4–5. But the Act
24 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
nowhere gives the Commission effective power to start,
stop, or alter individual Board investigations, executive
activities typically carried out by officials within the Ex­
ecutive Branch.
The Government and the dissent suggest that the Com­
mission could govern and direct the Board’s daily exercise
of prosecutorial discretion by promulgating new SEC
rules, or by amending those of the Board. Brief for United
States 27; post, at 15. Enacting general rules through the
required notice and comment procedures is obviously a
poor means of micromanaging the Board’s affairs. See
§§78s(c), 7215(b)(1), 7217(b)(5); cf. 5 U. S. C. §553, 15
U. S. C. §7202(a), PCAOB Brief 24, n. 6.8 So the Govern­
ment offers another proposal, that the Commission require
the Board by rule to “secure SEC approval for any actions
that it now may take itself.” Brief for United States 27.
That would surely constitute one of the “limitations upon
the activities, functions, and operations of the Board” that
the Act forbids, at least without Commission findings
equivalent to those required to fire the Board instead.
§7217(d)(2). The Board thus has significant independence
in determining its priorities and intervening in the affairs
of regulated firms (and the lives of their associated per­
sons) without Commission preapproval or direction.
Finally, respondents suggest that our conclusion is
contradicted by the past practice of Congress. But the
Sarbanes-Oxley Act is highly unusual in committing
substantial executive authority to officers protected by two
layers of for-cause removal—including at one level a
sharply circumscribed definition of what constitutes “good
——————
8 Contrary to the dissent’s assertions, see post, at 15–16, the Commis­
sion’s powers to conduct its own investigations (with its own resources),
to remove particular provisions of law from the Board’s bailiwick, or to
require the Board to perform functions “other” than inspections and
investigations, §7211(c)(5), are no more useful in directing individual
enforcement actions.
Cite as: 561 U. S. ____ (2010) 25
Opinion of the Court
cause,” and rigorous procedures that must be followed
prior to removal.
The parties have identified only a handful of isolated
positions in which inferior officers might be protected by
two levels of good-cause tenure. See, e.g., PCAOB Brief
43. As Judge Kavanaugh noted in dissent below:
“Perhaps the most telling indication of the severe con­
stitutional problem with the PCAOB is the lack of his­
torical precedent for this entity. Neither the majority
opinion nor the PCAOB nor the United States as in­
tervenor has located any historical analogues for this
novel structure. They have not identified any inde­
pendent agency other than the PCAOB that is ap­
pointed by and removable only for cause by another
independent agency.” 537 F. 3d, at 669.
The dissent here suggests that other such positions
might exist, and complains that we do not resolve their
status in this opinion. Post, at 23–31. The dissent itself,
however, stresses the very size and variety of the Federal
Government, see post, at 7–8, and those features discour­
age general pronouncements on matters neither briefed
nor argued here. In any event, the dissent fails to support
its premonitions of doom; none of the positions it identifies
are similarly situated to the Board. See post, at 28–31.
For example, many civil servants within independent
agencies would not qualify as “Officers of the United
States,” who “exercis[e] significant authority pursuant to
the laws of the United States,” Buckley, 424 U. S., at 126.9
The parties here concede that Board members are execu­
tive “Officers,” as that term is used in the Constitution.
——————
9 One “may be an agent or employé working for the government and
paid by it, as nine-tenths of the persons rendering service to the gov­
ernment undoubtedly are, without thereby becoming its office[r].”
United States v. Germaine, 99 U. S. 508, 509 (1879). The applicable
proportion has of course increased dramatically since 1879.
26 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
See supra, at 4; see also Art. II, §2, cl. 2. We do not decide
the status of other Government employees, nor do we
decide whether “lesser functionaries subordinate to offi­
cers of the United States” must be subject to the same sort
of control as those who exercise “significant authority
pursuant to the laws.” Buckley, supra, at 126, and n. 162.
Nor do the employees referenced by the dissent enjoy
the same significant and unusual protections from Presi­
dential oversight as members of the Board. Senior or
policymaking positions in government may be excepted
from the competitive service to ensure Presidential con­
trol, see 5 U. S. C. §§2302(a)(2)(B), 3302, 7511(b)(2), and
members of the Senior Executive Service may be reas­
signed or reviewed by agency heads (and entire agencies
may be excluded from that Service by the President), see,
e.g., §§3132(c), 3395(a), 4312(d), 4314(b)(3), (c)(3); cf.
§2302(a)(2)(B)(ii). While the full extent of that authority
is not before us, any such authority is of course wholly
absent with respect to the Board. Nothing in our opinion,
therefore, should be read to cast doubt on the use of what
is colloquially known as the civil service system within
independent agencies.10
Finally, the dissent wanders far afield when it suggests
that today’s opinion might increase the President’s author­
——————
10 For similar reasons, our holding also does not address that subset
of independent agency employees who serve as administrative law
judges. See, e.g., 5 U. S. C. §§556(c), 3105. Whether administrative law
judges are necessarily “Officers of the United States” is disputed. See,
e.g., Landry v. FDIC, 204 F. 3d 1125 (CADC 2000). And unlike mem­
bers of the Board, many administrative law judges of course perform
adjudicative rather than enforcement or policymaking functions, see
§§554(d), 3105, or possess purely recommendatory powers. The Gov­
ernment below refused to identify either “civil service tenure-protected
employees in independent agencies” or administrative law judges as
“precedent for the PCAOB.” 537 F. 3d 667, 699, n. 8 (CADC 2008)
(Kavanaugh, J., dissenting); see Tr. of Oral Arg. in No. 07–5127
(CADC), pp. 32, 37–38, 42.
Cite as: 561 U. S. ____ (2010) 27
Opinion of the Court
ity to remove military officers. Without expressing any
view whatever on the scope of that authority, it is enough
to note that we see little analogy between our Nation’s
armed services and the Public Company Accounting Over­
sight Board. Military officers are broadly subject to Presi­
dential control through the chain of command and through
the President’s powers as Commander in Chief. Art. II,
§2, cl. 1; see, e.g., 10 U. S. C. §§162, 164(g). The President
and his subordinates may also convene boards of inquiry
or courts-martial to hear claims of misconduct or poor
performance by those officers. See, e.g., §§822(a)(1),
823(a)(1), 892(3), 933–934, 1181–1185. Here, by contrast,
the President has no authority to initiate a Board mem­
ber’s removal for cause.
There is no reason for us to address whether these
positions identified by the dissent, or any others not at
issue in this case, are so structured as to infringe the
President’s constitutional authority. Nor is there any
substance to the dissent’s concern that the “work of all
these various officials” will “be put on hold.” Post, at 31.
As the judgment in this case demonstrates, restricting
certain officers to a single level of insulation from the
President affects the conditions under which those officers
might some day be removed, and would have no effect,
absent a congressional determination to the contrary, on
the validity of any officer’s continuance in office. The only
issue in this case is whether Congress may deprive the
President of adequate control over the Board, which is the
regulator of first resort and the primary law enforcement
authority for a vital sector of our economy. We hold that it
cannot.
IV
Petitioners’ complaint argued that the Board’s “freedom
from Presidential oversight and control” rendered it “and
all power and authority exercised by it” in violation of the
28 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
Constitution. App. 46. We reject such a broad holding.
Instead, we agree with the Government that the unconsti­
tutional tenure provisions are severable from the remain­
der of the statute.
“Generally speaking, when confronting a constitutional
flaw in a statute, we try to limit the solution to the prob­
lem,” severing any “problematic portions while leaving the
remainder intact.” Ayotte v. Planned Parenthood of
Northern New Eng., 546 U. S. 320, 328–329 (2006). Be­
cause “[t]he unconstitutionality of a part of an Act does not
necessarily defeat or affect the validity of its remaining
provisions,” Champlin Refining Co. v. Corporation
Comm’n of Okla., 286 U. S. 210, 234 (1932), the “normal
rule” is “that partial, rather than facial, invalidation is the
required course,” Brockett v. Spokane Arcades, Inc., 472
U. S. 491, 504 (1985). Putting to one side petitioners’
Appointments Clause challenges (addressed below), the
existence of the Board does not violate the separation of
powers, but the substantive removal restrictions imposed
by §§7211(e)(6) and 7217(d)(3) do. Under the traditional
default rule, removal is incident to the power of appoint­
ment. See, e.g., Sampson v. Murray, 415 U. S. 61, 70,
n. 17 (1974); Myers, 272 U. S., at 119; Ex parte Hennen, 13
Pet., at 259–260. Concluding that the removal restrictions
are invalid leaves the Board removable by the Commission
at will, and leaves the President separated from Board
members by only a single level of good-cause tenure. The
Commission is then fully responsible for the Board’s ac­
tions, which are no less subject than the Commission’s
own functions to Presidential oversight.
The Sarbanes-Oxley Act remains “ ‘fully operative as a
law’ ” with these tenure restrictions excised. New York,
505 U. S., at 186 (quoting Alaska Airlines, Inc. v. Brock,
480 U. S. 678, 684 (1987)). We therefore must sustain its
remaining provisions “[u]nless it is evident that the Legis­
lature would not have enacted those provisions . . . inde­
Cite as: 561 U. S. ____ (2010) 29
Opinion of the Court
pendently of that which is [invalid].” Ibid. (internal quo­
tation marks omitted). Though this inquiry can some­
times be “elusive,” Chadha, 462 U. S., at 932, the answer
here seems clear: The remaining provisions are not “inca­
pable of functioning independently,” Alaska Airlines, 480
U. S., at 684, and nothing in the statute’s text or historical
context makes it “evident” that Congress, faced with the
limitations imposed by the Constitution, would have pre­
ferred no Board at all to a Board whose members are
removable at will. Ibid.; see also Ayotte, supra, at 330.
It is true that the language providing for good-cause
removal is only one of a number of statutory provisions
that, working together, produce a constitutional violation.
In theory, perhaps, the Court might blue-pencil a suffi­
cient number of the Board’s responsibilities so that its
members would no longer be “Officers of the United
States.” Or we could restrict the Board’s enforcement
powers, so that it would be a purely recommendatory
panel. Or the Board members could in future be made
removable by the President, for good cause or at will. But
such editorial freedom—far more extensive than our hold­
ing today—belongs to the Legislature, not the Judiciary.
Congress of course remains free to pursue any of these
options going forward.
V
Petitioners raise three more challenges to the Board
under the Appointments Clause. None has merit.
First, petitioners argue that Board members are princi­
pal officers requiring Presidential appointment with the
Senate’s advice and consent. We held in Edmond v.
United States, 520 U. S. 651, 662–663 (1997), that
“[w]hether one is an ‘inferior’ officer depends on whether
he has a superior,” and that “ ‘inferior officers’ are officers
whose work is directed and supervised at some level” by
other officers appointed by the President with the Senate’s
30 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
consent. In particular, we noted that “[t]he power to
remove officers” at will and without cause “is a powerful
tool for control” of an inferior. Id., at 664. As explained
above, the statutory restrictions on the Commission’s
power to remove Board members are unconstitutional and
void. Given that the Commission is properly viewed,
under the Constitution, as possessing the power to remove
Board members at will, and given the Commission’s other
oversight authority, we have no hesitation in concluding
that under Edmond the Board members are inferior offi­
cers whose appointment Congress may permissibly vest in
a “Hea[d] of Departmen[t].”
But, petitioners argue, the Commission is not a “De­
partmen[t]” like the “Executive departments” (e.g., State,
Treasury, Defense) listed in 5 U. S. C. §101. In Freytag,
501 U. S., at 887, n. 4, we specifically reserved the ques­
tion whether a “principal agenc[y], such as . . . the Securi­
ties and Exchange Commission,” is a “Departmen[t]”
under the Appointments Clause. Four Justices, however,
would have concluded that the Commission is indeed such
a “Departmen[t],” see id., at 918 (SCALIA, J., concurring in
part and concurring in judgment), because it is a “free­
standing, self-contained entity in the Executive Branch,”
id., at 915.
Respondents urge us to adopt this reasoning as to those
entities not addressed by our opinion in Freytag, see Brief
for United States 37–39; PCAOB Brief 30–33, and we do.
Respondents’ reading of the Appointments Clause is con­
sistent with the common, near-contemporary definition of
a “department” as a “separate allotment or part of busi­
ness; a distinct province, in which a class of duties are
allotted to a particular person.” 1 N. Webster, American
Dictionary of the English Language (1828) (def. 2) (1995
facsimile ed.). It is also consistent with the early practice
of Congress, which in 1792 authorized the Postmaster
General to appoint “an assistant, and deputy postmasters,
Cite as: 561 U. S. ____ (2010) 31
Opinion of the Court
at all places where such shall be found necessary,” §3, 1
Stat. 234—thus treating him as the “Hea[d] of [a] De­
partmen[t]” without the title of Secretary or any role in
the President’s Cabinet. And it is consistent with our
prior cases, which have never invalidated an appointment
made by the head of such an establishment. See Freytag,
supra, at 917; cf. Burnap v. United States, 252 U. S. 512,
515 (1920); United States v. Germaine, 99 U. S. 508, 511
(1879). Because the Commission is a freestanding compo­
nent of the Executive Branch, not subordinate to or con­
tained within any other such component, it constitutes a
“Departmen[t]” for the purposes of the Appointments
Clause.11
But petitioners are not done yet. They argue that the
full Commission cannot constitutionally appoint Board
members, because only the Chairman of the Commission
is the Commission’s “Hea[d].”12 The Commission’s powers,
however, are generally vested in the Commissioners
jointly, not the Chairman alone. See, e.g., 15 U. S. C.
§§77s, 77t, 78u, 78w. The Commissioners do not report to
the Chairman, who exercises administrative and executive
functions subject to the full Commission’s policies. See
——————
11 We express no view on whether the Commission is thus an “execu­
tive Departmen[t]” under the Opinions Clause, Art. II, §2, cl. 1, or
under Section 4 of the Twenty-Fifth Amendment. See Freytag v.
Commissioner, 501 U. S. 868, 886–887 (1991).
12 The Board argued below that petitioners lack standing to raise this
claim, because no member of the Board has been appointed over the
Chairman’s objection, and so petitioners’ injuries are not fairly trace­
able to an invalid appointment. See Defendants’ Memorandum of
Points and Authorities in Support of Motion to Dismiss the Complaint
in Civil Action No. 1:06–cv–00217–JR (DC), Doc. 17, pp. 42–43; Brief
for Appellees PCAOB et al. in No. 07–5127 (CADC), pp. 32–33. We
cannot assume, however, that the Chairman would have made the
same appointments acting alone; and petitioners’ standing does not
require precise proof of what the Board’s policies might have been in
that counterfactual world. See Glidden Co. v. Zdanok, 370 U. S. 530,
533 (1962) (plurality opinion).
32 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
Reorg. Plan No. 10 of 1950, §1(b)(1), 64 Stat. 1265. The
Chairman is also appointed from among the Commission­
ers by the President alone, id., §3, at 1266, which means
that he cannot be regarded as “the head of an agency” for
purposes of the Reorganization Act. See 5 U. S. C. §904.
(The Commission as a whole, on the other hand, does meet
the requirements of the Act, including its provision that
“the head of an agency [may] be an individual or a com­
mission or board with more than one member.”)13
As a constitutional matter, we see no reason why a
multimember body may not be the “Hea[d]” of a “Depart­
men[t]” that it governs. The Appointments Clause neces­
sarily contemplates collective appointments by the “Courts
of Law,” Art. II, §2, cl. 2, and each House of Congress, too,
appoints its officers collectively, see Art. I, §2, cl. 5; id., §3,
cl. 5. Petitioners argue that the Framers vested the nomi­
nation of principal officers in the President to avoid the
perceived evils of collective appointments, but they reveal
no similar concern with respect to inferior officers, whose
appointments may be vested elsewhere, including in mul­
timember bodies. Practice has also sanctioned the ap­
pointment of inferior officers by multimember agencies.
See Freytag, supra, at 918 (SCALIA, J., concurring in part
and concurring in judgment); see also Classification Act of
1923, ch. 265, §2, 42 Stat. 1488 (defining “the head of the
department” to mean “the officer or group of officers . . .
——————
13 Petitionerscontend that finding the Commission to be the head will
invalidate numerous appointments made directly by the Chairman,
such as those of the “heads of major [SEC] administrative units.”
Reorg. Plan No. 10, §1(b)(2), at 1266. Assuming, however, that these
individuals are officers of the United States, their appointment is still
made “subject to the approval of the Commission.” Ibid. We have
previously found that the department head’s approval satisfies the
Appointments Clause, in precedents that petitioners do not ask us to
revisit. See, e.g., United States v. Smith, 124 U. S. 525, 532 (1888);
Germaine, 99 U. S., at 511; United States v. Hartwell, 6 Wall. 385, 393–
394 (1868).
Cite as: 561 U. S. ____ (2010) 33
Opinion of the Court
who are not subordinate or responsible to any other offi­
cer of the department” (emphasis added)); 37 Op. Atty.
Gen. 227, 231 (1933) (endorsing collective appointment by
the Civil Service Commission). We conclude that the
Board members have been validly appointed by the full
Commission.
In light of the foregoing, petitioners are not entitled to
broad injunctive relief against the Board’s continued
operations. But they are entitled to declaratory relief
sufficient to ensure that the reporting requirements and
auditing standards to which they are subject will be en­
forced only by a constitutional agency accountable to the
Executive. See Bowsher, 478 U. S., at 727, n. 5 (conclud­
ing that a separation of powers violation may create a
“here-and-now” injury that can be remedied by a court
(internal quotation marks omitted)).
* * *
The Constitution that makes the President accountable
to the people for executing the laws also gives him the
power to do so. That power includes, as a general matter,
the authority to remove those who assist him in carrying
out his duties. Without such power, the President could
not be held fully accountable for discharging his own
responsibilities; the buck would stop somewhere else.
Such diffusion of authority “would greatly diminish the
intended and necessary responsibility of the chief magis­
trate himself.” The Federalist No. 70, at 478.
While we have sustained in certain cases limits on the
President’s removal power, the Act before us imposes a
new type of restriction—two levels of protection from
removal for those who nonetheless exercise significant
executive power. Congress cannot limit the President’s
authority in this way.
The judgment of the United States Court of Appeals for
the District of Columbia Circuit is affirmed in part and
34 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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Opinion of the Court
reversed in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 561 U. S. ____ (2010) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–861
_________________
FREE ENTERPRISE FUND AND BECKSTEAD AND
WATTS, LLP, PETITIONERS v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BOARD ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 28, 2010]
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE
GINSBURG, and JUSTICE SOTOMAYOR join, dissenting.
The Court holds unconstitutional a statute providing
that the Securities and Exchange Commission can remove
members of the Public Company Accounting Oversight
Board from office only for cause. It argues that granting
the “inferior officer[s]” on the Accounting Board “more
than one level of good-cause protection . . . contravenes the
President’s ‘constitutional obligation to ensure the faithful
execution of the laws.’ ” Ante, at 2. I agree that the Ac
counting Board members are inferior officers. See ante, at
28–29. But in my view the statute does not significantly
interfere with the President’s “executive Power.” Art. II,
§1. It violates no separation-of-powers principle. And the
Court’s contrary holding threatens to disrupt severely the
fair and efficient administration of the laws. I conse
quently dissent.
I
A
The legal question before us arises at the intersection of
two general constitutional principles. On the one hand,
Congress has broad power to enact statutes “necessary
and proper” to the exercise of its specifically enumerated
2 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
BREYER, J., dissenting
constitutional authority. Art. I, §8, cl. 18. As Chief Jus
tice Marshall wrote for the Court nearly 200 years ago, the
Necessary and Proper Clause reflects the Framers’ efforts
to create a Constitution that would “endure for ages to
come.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
It embodies their recognition that it would be “unwise” to
prescribe “the means by which government should, in all
future time, execute its powers.” Ibid. Such “immutable
rules” would deprive the Government of the needed flexi
bility to respond to future “exigencies which, if foreseen at
all, must have been seen dimly.” Ibid. Thus the Neces
sary and Proper Clause affords Congress broad authority
to “create” governmental “ ‘offices’ ” and to structure those
offices “as it chooses.” Buckley v. Valeo, 424 U. S. 1, 138
(1976) (per curiam); cf. Lottery Case, 188 U. S. 321, 355
(1903). And Congress has drawn on that power over the
past century to create numerous federal agencies in re
sponse to “various crises of human affairs” as they have
arisen. McCulloch, supra, at 415 (emphasis deleted). Cf.
Wong Yang Sung v. McGrath, 339 U. S. 33, 36–37 (1950).
On the other hand, the opening sections of Articles I, II,
and III of the Constitution separately and respectively
vest “all legislative Powers” in Congress, the “executive
Power” in the President, and the “judicial Power” in the
Supreme Court (and such “inferior Courts as Congress
may from time to time ordain and establish”). In doing so,
these provisions imply a structural separation-of-powers
principle. See, e.g., Miller v. French, 530 U. S. 327, 341–
342 (2000). And that principle, along with the instruction
in Article II, §3 that the President “shall take Care that
the Laws be faithfully executed,” limits Congress’ power to
structure the Federal Government. See, e.g., INS v.
Chadha, 462 U. S. 919, 946 (1983); Freytag v. Commis
sioner, 501 U. S. 868, 878 (1991); Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 64
(1982); Commodity Futures Trading Comm’n v. Schor, 478
Cite as: 561 U. S. ____ (2010) 3
BREYER, J., dissenting
U. S. 833, 859–860 (1986). Indeed, this Court has held
that the separation-of-powers principle guarantees the
President the authority to dismiss certain Executive
Branch officials at will. Myers v. United States, 272 U. S.
52 (1926).
But neither of these two principles is absolute in its
application to removal cases. The Necessary and Proper
Clause does not grant Congress power to free all Execu
tive Branch officials from dismissal at the will of the
President. Ibid. Nor does the separation-of-powers prin
ciple grant the President an absolute authority to remove
any and all Executive Branch officials at will. Rather,
depending on, say, the nature of the office, its function, or
its subject matter, Congress sometimes may, consistent
with the Constitution, limit the President’s authority to
remove an officer from his post. See Humphrey’s Executor
v. United States, 295 U. S. 602 (1935), overruling in part
Myers, supra; Morrison v. Olson, 487 U. S. 654 (1988).
And we must here decide whether the circumstances
surrounding the statute at issue justify such a limitation.
In answering the question presented, we cannot look to
more specific constitutional text, such as the text of the
Appointments Clause or the Presentment Clause, upon
which the Court has relied in other separation-of-powers
cases. See, e.g., Chadha, supra, at 946; Buckley, supra, at
124–125. That is because, with the exception of the gen
eral “vesting” and “take care” language, the Constitution
is completely “silent with respect to the power of removal
from office.” Ex parte Hennen, 13 Pet. 230, 258 (1839); see
also Morrison, supra, at 723 (SCALIA, J., dissenting)
(“There is, of course, no provision in the Constitution
stating who may remove executive officers . . . ”).
Nor does history offer significant help. The President’s
power to remove Executive Branch officers “was not dis
cussed in the Constitutional Convention.” Myers, supra,
at 109–110. The First Congress enacted federal statutes
4 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
that limited the President’s ability to oversee Executive
Branch officials, including the Comptroller of the United
States, federal district attorneys (precursors to today’s
United States Attorneys), and, to a lesser extent, the
Secretary of the Treasury. See, e.g., Lessig, Readings By
Our Unitary Executive, 15 Cardozo L. Rev. 175, 183–184
(1993); Teifer, The Constitutionality of Independent Offi
cers as Checks on Abuses of Executive Power, 63 B. U. L.
Rev. 59, 74–75 (1983); Casper, An Essay in Separation of
Powers: Some Early Versions and Practices, 30 Wm. &
Mary L. Rev. 211, 240–241 (1989) (hereinafter Casper); H.
Bruff, Balance of Forces: Separation of Powers in the
Administrative State 414–417 (2006). But those statutes
did not directly limit the President’s authority to remove
any of those officials—“a subject” that was “much dis
puted” during “the early history of this government,” “and
upon which a great diversity of opinion was entertained.”
Hennen, supra, at 259; see also United States ex rel. Good
rich v. Guthrie, 17 How. 284, 306 (1855) (McLean, J.,
dissenting); Casper 233–237 (recounting the Debate of
1789). Scholars, like Members of this Court, have contin
ued to disagree, not only about the inferences that should
be drawn from the inconclusive historical record, but also
about the nature of the original disagreement. Compare
ante, at 11; Myers, supra, at 114 (majority opinion of Taft,
C. J.); and Prakash, New Light on the Decision of 1789, 91
Cornell L. Rev. 1021 (2006), with, e.g., Myers, supra, at
194 (McReynolds, J., dissenting); Corwin, Tenure of Office
and the Removal Power Under the Constitution, 27 Colum.
L. Rev. 353, 369 (1927); Lessig & Sunstein, The President
and the Administration, 94 Colum. L. Rev. 1, 25–26 (1994)
(hereinafter Lessig & Sunstein); and L. Fisher, President
and Congress: Power and Policy 86–89 (1972).
Nor does this Court’s precedent fully answer the ques
tion presented. At least it does not clearly invalidate the
provision in dispute. See Part II–C, infra. In Myers,
Cite as: 561 U. S. ____ (2010) 5
BREYER, J., dissenting
supra, the Court invalidated—for the first and only time—
a congressional statute on the ground that it unduly lim
ited the President’s authority to remove an Executive
Branch official. But soon thereafter the Court expressly
disapproved most of Myers’ broad reasoning. See Hum
phrey’s Executor, 295 U. S., at 626–627, overruling in part
Myers, supra; Wiener v. United States, 357 U. S. 349, 352
(1958) (stating that Humphrey’s Executor “explicitly ‘dis
approved’ ” of much of the reasoning in Myers). Moreover,
the Court has since said that “the essence of the decision
in Myers was the judgment that the Constitution prevents
Congress from ‘draw[ing] to itself . . . the power to remove
or the right to participate in the exercise of that power.’ ”
Morrison, supra, at 686 (emphasis added). And that fea
ture of the statute—a feature that would aggrandize the
power of Congress—is not present here. Congress has not
granted itself any role in removing the members of the
Accounting Board. Cf. Freytag, 501 U. S., at 878 (“separa
tion-of-powers jurisprudence generally focuses on the
danger of one branch’s aggrandizing its power at the
expense of another branch” (emphasis added)); Buckley,
424 U. S., at 129 (same); Schor, 478 U. S., at 856 (same);
Bowsher v. Synar, 478 U. S. 714, 727 (1986) (same). Com
pare Myers, supra, (striking down statute where Congress
granted itself removal authority over Executive Branch
official), with Humphrey’s Executor, supra, (upholding
statute where such aggrandizing was absent); Wiener,
supra (same); Morrison, supra (same).
In short, the question presented lies at the intersection
of two sets of conflicting, broadly framed constitutional
principles. And no text, no history, perhaps no precedent
provides any clear answer. Cf. Chicago v. Morales, 527
U. S. 41, 106 (1999) (THOMAS, J., joined by Rehnquist,
C. J., and SCALIA, J., dissenting) (expressing the view that
“this Court” is “most vulnerable” when “it deals with
judge-made constitutional law” that lacks “roots in the
6 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
language” of the Constitution (internal quotation marks
omitted)).
B
When previously deciding this kind of nontextual ques
tion, the Court has emphasized the importance of examin
ing how a particular provision, taken in context, is likely
to function. Thus, in Crowell v. Benson, 285 U. S. 22, 53
(1932), a foundational separation-of-powers case, the
Court said that “regard must be had, as in other cases
where constitutional limits are invoked, not to mere mat
ters of form, but to the substance of what is required.”
The Court repeated this injunction in Schor and again in
Morrison. See Schor, supra, at 854 (stating that the Court
must look “ ‘beyond form to the substance of what’ Con
gress has done”); Morrison, 487 U. S., at 689–690 (“The
analysis contained in our removal cases is designed not to
define rigid categories of those officials who may or may
not be removed at will by the President,” but rather asks
whether, given the “functions of the officials in question,”
a removal provision “interfere[s] with the President’s
exercise of the ‘executive power’ ” (emphasis added)). The
Court has thereby written into law Justice Jackson’s wise
perception that “the Constitution . . . contemplates that
practice will integrate the dispersed powers into a worka
ble government.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, 635 (1952) (opinion concurring in judgment)
(emphasis added). See also ibid. (“The actual art of gov
erning under our Constitution does not and cannot con
form to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles
torn from context”).
It is not surprising that the Court in these circum
stances has looked to function and context, and not to
bright-line rules. For one thing, that approach embodies
the intent of the Framers. As Chief Justice Marshall long
Cite as: 561 U. S. ____ (2010) 7
BREYER, J., dissenting
ago observed, our Constitution is fashioned so as to allow
the three coordinate branches, including this Court, to
exercise practical judgment in response to changing condi
tions and “exigencies,” which at the time of the founding
could be seen only “dimly,” and perhaps not at all.
McCulloch, 4 Wheat., at 415.
For another, a functional approach permits Congress
and the President the flexibility needed to adapt statutory
law to changing circumstances. That is why the “powers
conferred upon the Federal Government by the Constitu
tion were phrased in language broad enough to allow for
the expansion of the Federal Government’s role” over time.
New York v. United States, 505 U. S. 144, 157 (1992).
Indeed, the Federal Government at the time of the found
ing consisted of about 2,000 employees and served a popu
lation of about 4 million. See Kaufman, The Growth of the
Federal Personnel System, in The Federal Government
Service 7, 8 (W. Sayre 2d ed. 1965); Dept. of Commerce,
Census Bureau, Historical Statistics of the United States:
Colonial Times to 1970, pt. 1, p. 8 (1975). Today, however,
the Federal Government employs about 4.4 million work
ers who serve a Nation of more than 310 million people
living in a society characterized by rapid technological,
economic, and social change. See Office of Management
and Budget, Analytical Perspectives, Budget of the U. S.
Government, Fiscal Year 2010, p. 368 (2009).
Federal statutes now require or permit Government
officials to provide, regulate, or otherwise administer, not
only foreign affairs and defense, but also a wide variety of
such subjects as taxes, welfare, social security, medicine,
pharmaceutical drugs, education, highways, railroads,
electricity, natural gas, nuclear power, financial instru
ments, banking, medical care, public health and safety,
the environment, fair employment practices, consumer
protection and much else besides. Those statutes create a
host of different organizational structures. Sometimes
8 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
they delegate administrative authority to the President
directly, e.g., 10 U. S. C. §2031(a)(1); 42 U. S. C. §5192(c);
sometimes they place authority in a long-established
Cabinet department, e.g., 7 U. S. C. §1637b(c)(1); 12
U. S. C. §5221(b)(2) (2006 ed., Supp. II); sometimes they
delegate authority to an independent commission or board,
e.g., 15 U. S. C. §4404(b); 28 U. S. C. §994; sometimes they
place authority directly in the hands of a single senior
administrator, e.g., 15 U. S. C. §657d(c)(4); 42 U. S. C.
§421; sometimes they place it in a sub-cabinet bureau,
office, division or other agency, e.g., 18 U. S. C. §4048;
sometimes they vest it in multimember or multiagency
task groups, e.g. 5 U. S. C. §§593–594; 50 U. S. C. §402(2006 ed. and Supp. II); sometimes they vest it in commis
sions or advisory committees made up of members of more
than one branch, e.g., 20 U. S. C. §42(a); 28 U. S. C.
§991(a) (2006 ed., Supp. II); 42 U. S. C. §1975; sometimes
they divide it among groups of departments, commissions,
bureaus, divisions, and administrators, e.g., 5 U. S. C.
§9902(a) (2006 ed., Supp. II); 7 U. S. C. §136i–1(g); and
sometimes they permit state or local governments to
participate as well, e.g., 7 U. S. C. §2009aa–1(a). Statutes
similarly grant administrators a wide variety of powers—
for example, the power to make rules, develop informal
practices, investigate, adjudicate, impose sanctions, grant
licenses, and provide goods, services, advice, and so forth.
See generally 5 U. S. C. §500 et seq.
The upshot is that today vast numbers of statutes gov
erning vast numbers of subjects, concerned with vast
numbers of different problems, provide for, or foresee,
their execution or administration through the work of
administrators organized within many different kinds of
administrative structures, exercising different kinds of
administrative authority, to achieve their legislatively
mandated objectives. And, given the nature of the Gov
ernment’s work, it is not surprising that administrative
Cite as: 561 U. S. ____ (2010) 9
BREYER, J., dissenting
units come in many different shapes and sizes.
The functional approach required by our precedents
recognizes this administrative complexity and, more im
portantly, recognizes the various ways presidential power
operates within this context—and the various ways in
which a removal provision might affect that power. As
human beings have known ever since Ulysses tied himself
to the mast so as safely to hear the Sirens’ song, some
times it is necessary to disable oneself in order to achieve
a broader objective. Thus, legally enforceable commit
ments—such as contracts, statutes that cannot instantly
be changed, and, as in the case before us, the establish
ment of independent administrative institutions—hold the
potential to empower precisely because of their ability to
constrain. If the President seeks to regulate through
impartial adjudication, then insulation of the adjudicator
from removal at will can help him achieve that goal. And
to free a technical decisionmaker from the fear of removal
without cause can similarly help create legitimacy with
respect to that official’s regulatory actions by helping to
insulate his technical decisions from nontechnical political
pressure.
Neither is power always susceptible to the equations of
elementary arithmetic. A rule that takes power from a
President’s friends and allies may weaken him. But a rule
that takes power from the President’s opponents may
strengthen him. And what if the rule takes power from a
functionally neutral independent authority? In that case,
it is difficult to predict how the President’s power is af
fected in the abstract.
These practical reasons not only support our precedents’
determination that cases such as this should examine the
specific functions and context at issue; they also indicate
that judges should hesitate before second-guessing a “for
cause” decision made by the other branches. See, e.g.,
Chadha, 462 U. S., at 944 (applying a “presumption that
10 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
the challenged statute is valid”); Bowsher, 478 U. S., at
736 (STEVENS, J., concurring in judgment). Compared to
Congress and the President, the Judiciary possesses an
inferior understanding of the realities of administration,
and the manner in which power, including and most espe
cially political power, operates in context.
There is no indication that the two comparatively more
expert branches were divided in their support for the “for
cause” provision at issue here. In this case, the Act em
bodying the provision was passed by a vote of 423 to 3 in
the House of Representatives and a by vote of 99 to 0 in the
Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation
of the Accounting Board was discussed at great length in
both bodies without anyone finding in its structure any
constitutional problem. See id., at 12035–12037, 12112–
12132, 12315–12323, 12372–12377, 12488–12508, 12529–
12534, 12612–12618, 12673–12680, 12734–12751, 12915–
12960, 13347–13354, 14439–14458, 14487–14506. The
President signed the Act. And, when he did so, he issued a
signing statement that critiqued multiple provisions of the
Act but did not express any separation-of-powers concerns.
See President’s Statement on Signing the Sarbanes-Oxley
Act of 2002, 30 Weekly Comp. of Pres. Doc. 1286 (2002). Cf.
ABA, Report of Task Force on Presidential Signing State
ments and the Separation of Powers Doctrine 15 (2006),
online at http://www.signingstatementsaba_final_signing_
statements_recommendations-report_7-24-06.pdf (all Inter-
net materials as visited June 24, 2010, and available in
Clerk of Court’s case file) (noting that President Bush
asserted “over 500” “constitutional objections” through
signing statements “in his first term,” including 82 “related
to his theory of the ‘unitary executive’ ”).
Thus, here, as in similar cases, we should decide the
constitutional question in light of the provision’s practical
functioning in context. And our decision should take
account of the Judiciary’s comparative lack of institutional
Cite as: 561 U. S. ____ (2010) 11
BREYER, J., dissenting
expertise.
II
A
To what extent then is the Act’s “for cause” provision
likely, as a practical matter, to limit the President’s exer
cise of executive authority? In practical terms no “for
cause” provision can, in isolation, define the full measure
of executive power. This is because a legislative decision
to place ultimate administrative authority in, say, the
Secretary of Agriculture rather than the President, the
way in which the statute defines the scope of the power
the relevant administrator can exercise, the decision as to
who controls the agency’s budget requests and funding,
the relationships between one agency or department and
another, as well as more purely political factors (including
Congress’ ability to assert influence) are more likely to
affect the President’s power to get something done. That
is why President Truman complained that “ ‘the powers of
the President amount to’ ” bringing “ ‘people in and try[ing]
to persuade them to do what they ought to do without
persuasion.’ ” C. Rossiter, The American Presidency 154
(2d rev. ed. 1960). And that is why scholars have written
that the President “is neither dominant nor powerless” in
his relationships with many Government entities,
“whether denominated executive or independent.” Strauss,
The Place of Agencies in Government: Separation of Pow
ers and the Fourth Branch, 84 Colum. L. Rev. 573, 583
(1984) (hereinafter Strauss). Those entities “are all sub
ject to presidential direction in significant aspects of their
functioning, and [are each] able to resist presidential
direction in others.” Ibid. (emphasis added).
Indeed, notwithstanding the majority’s assertion that
the removal authority is “the key” mechanism by which
the President oversees inferior officers in the independent
agencies, ante, at 20, it appears that no President has ever
12 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
actually sought to exercise that power by testing the scope
of a “for cause” provision. See Bruff, Bringing the Inde
pendent Agencies in from the Cold, 62 Vanderbilt L. Rev.
En Banc 63, 68 (2009), online at http://vanderbiltlawreview.
org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf
(noting that “Presidents do not test the limits of their
power by removing commissioners . . . ”); Lessig & Sun
stein 110–112 (noting that courts have not had occasion to
define what constitutes “cause” because Presidents rarely
test removal provisions).
But even if we put all these other matters to the side, we
should still conclude that the “for cause” restriction before
us will not restrict presidential power significantly. For
one thing, the restriction directly limits, not the Presi
dent’s power, but the power of an already independent
agency. The Court seems to have forgotten that fact when
it identifies its central constitutional problem: According
to the Court, the President “is powerless to intervene” if he
has determined that the Board members’ “conduct merit[s]
removal” because “[t]hat decision is vested instead in other
tenured officers—the Commissioners—none of whom is
subject to the President’s direct control.” Ante, at 14–15.
But so long as the President is legitimately foreclosed from
removing the Commissioners except for cause (as the
majority assumes), nullifying the Commission’s power to
remove Board members only for cause will not resolve the
problem the Court has identified: The President will still
be “powerless to intervene” by removing the Board mem
bers if the Commission reasonably decides not to do so.
In other words, the Court fails to show why two layers of
“for cause” protection—Layer One insulating the Commis
sioners from the President, and Layer Two insulating the
Board from the Commissioners—impose any more serious
limitation upon the President’s powers than one layer.
Consider the four scenarios that might arise:
1. The President and the Commission both want to
Cite as: 561 U. S. ____ (2010) 13
BREYER, J., dissenting
keep a Board member in office. Neither layer is
relevant.
2. The President and the Commission both want to
dismiss a Board member. Layer Two stops them
both from doing so without cause. The President’s
ability to remove the Commission (Layer One) is
irrelevant, for he and the Commission are in
agreement.
3. The President wants to dismiss a Board member,
but the Commission wants to keep the member.
Layer One allows the Commission to make that de
termination notwithstanding the President’s con
trary view. Layer Two is irrelevant because the
Commission does not seek to remove the Board
member.
4. The President wants to keep a Board member, but
the Commission wants to dismiss the Board mem
ber. Here, Layer Two helps the President, for it
hinders the Commission’s ability to dismiss a Board
member whom the President wants to keep in
place.
Thus, the majority’s decision to eliminate only Layer
Two accomplishes virtually nothing. And that is because a
removal restriction’s effect upon presidential power de
pends not on the presence of a “double-layer” of for-cause
removal, as the majority pretends, but rather on the real
world nature of the President’s relationship with the
Commission. If the President confronts a Commission
that seeks to resist his policy preferences—a distinct pos
sibility when, as here, a Commission’s membership must
reflect both political parties, 15 U. S. C. §78d(a)—the
restriction on the Commission’s ability to remove a Board
member is either irrelevant (as in scenario 3) or may
actually help the President (as in scenario 4). And if the
President faces a Commission that seeks to implement his
policy preferences, Layer One is irrelevant, for the Presi
14 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
dent and Commission see eye to eye.
In order to avoid this elementary logic, the Court creates
two alternative scenarios. In the first, the Commission
and the President both want to remove a Board member,
but have varying judgments as to whether they have good
“cause” to do so—i.e., the President and the Commission
both conclude that a Board member should be removed,
but disagree as to whether that conclusion (which they
have both reached) is reasonable. Ante, at 14–15. In the
second, the President wants to remove a Board member
and the Commission disagrees; but, notwithstanding its
freedom to make reasonable decisions independent of the
President (afforded by Layer One), the Commission (while
apparently telling the President that it agrees with him
and would like to remove the Board member) uses Layer
Two as an “excuse” to pursue its actual aims—an excuse
which, given Layer One, it does not need. Ante, at 15, n. 4.
Both of these circumstances seem unusual. I do not
know if they have ever occurred. But I do not deny their
logical possibility. I simply doubt their importance. And
the fact that, with respect to the President’s power, the
double layer of for-cause removal sometimes might help,
sometimes might hurt, leads me to conclude that its over
all effect is at most indeterminate.
But once we leave the realm of hypothetical logic and
view the removal provision at issue in the context of the
entire Act, its lack of practical effect becomes readily
apparent. That is because the statute provides the Com
mission with full authority and virtually comprehensive
control over all of the Board’s functions. Those who cre
ated the Accounting Board modeled it, in terms of struc
ture and authority, upon the semiprivate regulatory bod
ies prevalent in the area of financial regulation, such as
the New York Stock Exchange and other similar self
regulating organizations. See generally Brief for Former
Chairmen of the SEC as Amici Curiae (hereinafter Brief
Cite as: 561 U. S. ____ (2010) 15
BREYER, J., dissenting
for Former SEC Chairmen). And those organizations—
which rely on private financing and on officers drawn from
the private sector—exercise rulemaking and adjudicatory
authority that is pervasively controlled by, and is indeed
“entirely derivative” of, the SEC. See National Assn. of
Securities Dealers, Inc. v. SEC, 431 F. 3d 803, 806 (CADC
2005).
Adhering to that model, the statute here gives the Ac
counting Board the power to adopt rules and standards
“relating to the preparation of audit reports”; to adjudicate
disciplinary proceedings involving accounting firms that
fail to follow these rules; to impose sanctions; and to en
gage in other related activities, such as conducting inspec
tions of accounting firms registered as the law requires
and investigations to monitor compliance with the rules
and related legal obligations. See 15 U. S. C. §§7211–
7216. But, at the same time,
• No Accounting Board rule takes effect unless and
until the Commission approves it, §7217(b)(2);
• The Commission may “abrogat[e], delet[e] or ad[d] to”
any rule or any portion of a rule promulgated by the
Accounting Board whenever, in the Commission’s
view, doing so “further[s] the purposes” of the securi
ties and accounting-oversight laws, §7217(b)(5);
• The Commission may review any sanction the
Board imposes and “enhance, modify, cancel, re
duce, or require the remission of” that sanction if it
find’s the Board’s action not “appropriate,”
§§7215(e), 7217(c)(3);
• The Commission may promulgate rules restricting
or directing the Accounting Board’s conduct of all
inspections and investigations, §§7211(c)(3),
7214(h), 7215(b)(1)–(4);
• The Commission may itself initiate any investigation
or promulgate any rule within the Accounting
Board’s purview, §7202, and may also remove any
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BREYER, J., dissenting
Accounting Board member who has unreasonably
“failed to enforce compliance with” the relevant
“rule[s], or any professional standard,” §7217(d)(3)(C)
(emphasis added);
• The Commission may at any time “relieve the Board
of any responsibility to enforce compliance with any
provision” of the Act, the rules, or professional stan
dards if, in the Commission’s view, doing so is in
“the public interest,” §7217(d)(1) (emphasis added).
As these statutory provisions make clear, the Court is
simply wrong when it says that “the Act nowhere gives the
Commission effective power to start, stop, or alter” Board
investigations. Ante, at 23–24. On the contrary, the
Commission’s control over the Board’s investigatory and
legal functions is virtually absolute. Moreover, the Com
mission has general supervisory powers over the Account
ing Board itself: It controls the Board’s budget, §§7219(b),
(d)(1); it can assign to the Board any “duties or functions”
that it “determines are necessary or appropriate,”
§7211(c)(5); it has full “oversight and enforcement author
ity over the Board,” §7217(a), including the authority to
inspect the Board’s activities whenever it believes it “ap
propriate” to do so, §7217(d)(2) (emphasis added). And it
can censure the Board or its members, as well as remove
the members from office, if the members, for example, fail
to enforce the Act, violate any provisions of the Act, or
abuse the authority granted to them under the Act,
§7217(d)(3). Cf. Shurtleff v. United States, 189 U. S. 311,
314–319 (1903) (holding that removal authority is not
always “restricted to a removal for th[e] causes” set forth
by statute); Bowsher, 478 U. S., at 729 (rejecting the “ar
guable premis[e]” “that the enumeration of certain speci
fied causes of removal excludes the possibility of removal
for other causes”). Contra, ante, at 22, n. 7. See generally
Pildes, Putting Power Back into Separation of Powers
Analysis: Why the SEC-PCAOB Structure is Constitu
Cite as: 561 U. S. ____ (2010) 17
BREYER, J., dissenting
tional, 62 Vand. L. Rev. En Banc 85 (2009), online at
http://vanderbiltlawreview.org /articles/2009/11/Pildes-62-
1
Vand-L-Rev-En-Banc-85.pdf (explaining further the com
prehensive nature of the Commission’s powers).
What is left? The Commission’s inability to remove a
Board member whose perfectly reasonable actions cause
the Commission to overrule him with great frequency?
What is the practical likelihood of that occurring, or, if it
does, of the President’s serious concern about such a mat
ter? Everyone concedes that the President’s control over
the Commission is constitutionally sufficient. See Hum
phrey’s Executor, 295 U. S. 602; Wiener, 357 U. S. 349;
ante, at 1–2. And if the President’s control over the Com
mission is sufficient, and the Commission’s control over
the Board is virtually absolute, then, as a practical matter,
the President’s control over the Board should prove suffi
cient as well.
B
At the same time, Congress and the President had good
reason for enacting the challenged “for cause” provision.
First and foremost, the Board adjudicates cases. See 15
U. S. C. §7215. This Court has long recognized the appro
priateness of using “for cause” provisions to protect the
personal independence of those who even only sometimes
engage in adjudicatory functions. Humphrey’s Executor,
supra, at 623–628; see also Wiener, supra, at 355–356;
Morrison, 487 U. S., at 690–691, and n. 30; McAllister v.
United States, 141 U. S. 174, 191–201 (1891) (Field, J.,
dissenting). Indeed, as early as 1789 James Madison
stated that “there may be strong reasons why an” execu
tive “officer” such as the Comptroller of the United States
“should not hold his office at the pleasure of the Executive
branch” if one of his “principal dut[ies]” “partakes strongly
of the judicial character.” 1 Annals of Congress 611–612;
cf. ante, at 19, n. 6 (noting that the statute Congress ulti
18 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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BREYER, J., dissenting
mately enacted limited Presidential control over the
Comptroller in a different fashion); see supra, at 4. The
Court, however, all but ignores the Board’s adjudicatory
functions when conducting its analysis. See, e.g., ante, at
17–18. And when it finally does address that central
function (in a footnote), it simply asserts that the Board
does not “perform adjudicative . . . functions,” ante, at 26,
n. 10 (emphasis added), an assertion that is inconsistent
with the terms of the statute. See §7215(c)(1) (governing
“proceeding[s] by the Board to determine whether a regis
tered public accounting firm, or an associated person
thereof, should be disciplined”).
Moreover, in addition to their adjudicative functions, the
Accounting Board members supervise, and are themselves,
technical professional experts. See §7211(e)(1) (requiring
that Board members “have a demonstrated” technical
“understanding of the responsibilities” and “obligations of
accountants with respect to the preparation and issuance
of audit reports”). This Court has recognized that the
“difficulties involved in the preparation of” sound auditing
reports require the application of “scientific accounting
principles.” United States v. Anderson, 269 U. S. 422, 440
(1926). And this Court has recognized the constitutional
legitimacy of a justification that rests agency independ
ence upon the need for technical expertise. See Hum
phrey’s Executor, supra, at 624–626; see also Breger &
Edles, Established by Practice: The Theory and Operation
of Independent Federal Agencies, 52 Admin. L. Rev. 1111,
1131–1133 (2000) (explaining how the need for adminis
trators with “technical competence,” “apolitical expertise,”
and skill in “scientific management” led to original crea
tion of independent agencies) (hereinafter Breger & Ed
les); J. Landis, The Administrative Process 23 (1938)
(similar); Woodrow Wilson, Democracy and Efficiency, 87
Atlantic Monthly 289, 299 (1901) (describing need for
insulation of experts from political influences).
Cite as: 561 U. S. ____ (2010) 19
BREYER, J., dissenting
Here, the justification for insulating the “technical
experts” on the Board from fear of losing their jobs due to
political influence is particularly strong. Congress delib
erately sought to provide that kind of protection. See, e.g.,
148 Cong. Rec. 12036, 12115, 13352–13355. It did so for
good reason. See ante, at 3 (noting that the Accounting
Board was created in response to “a series of celebrated
accounting debacles”); H. R. Rep. No. 107–414, pp. 18–19
(2002) (same); Brief for Former SEC Chairmen 8–9. And
historically, this regulatory subject matter—financial
regulation—has been thought to exhibit a particular need
for independence. See e.g., 51 Cong. Rec. 8857 (1914)
(remarks of Sen. Morgan upon creation of the Federal
Trade Commission) (“[I]t is unsafe for an . . . administra
tive officer representing a great political party . . . to hold
the power of life and death over the great business inter
ests of this country. . . . That is . . . why I believe in . . .
taking these business matters out of politics”). And Con
gress, by, for example, providing the Board with a revenue
stream independent of the congressional appropriations
process, §7219, helped insulate the Board from congres
sional, as well as other, political influences. See, e.g., 148
Cong. Rec. 12036 (statement of Sen. Stabenow).
In sum, Congress and the President could reasonably
have thought it prudent to insulate the adjudicative Board
members from fear of purely politically based removal. Cf.
Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 565
(1973) (“[I]t is not only important that the Government
and its employees in fact avoid practicing political justice,
but it is also critical that they appear to the public to be
avoiding it, if confidence in the system of representative
Government is not to be eroded to a disastrous extent”).
And in a world in which we count on the Federal Govern
ment to regulate matters as complex as, say, nuclear
power production, the Court’s assertion that we should
simply learn to get by “without being” regulated “by ex
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perts” is, at best, unrealistic—at worst, dangerously so.
Ante, at 18.
C
Where a “for cause” provision is so unlikely to restrict
presidential power and so likely to further a legitimate
institutional need, precedent strongly supports its consti
tutionality. First, in considering a related issue in Nixon
v. Administrator of General Services, 433 U. S. 425 (1977),
the Court made clear that when “determining whether the
Act disrupts the proper balance between the coordinate
branches, the proper inquiry focuses on the extent to
which it prevents the Executive Branch from accomplish
ing its constitutionally assigned functions.” Id., at 443.
The Court said the same in Morrison, where it upheld a
restriction on the President’s removal power. 487 U. S., at
691 (“[T]he real question is whether the removal restric
tions are of such a nature that they impede the President’s
ability to perform his constitutional duty, and the func
tions of the officials in question must be analyzed in that
light”). Here, the removal restriction may somewhat
diminish the Commission’s ability to control the Board,
but it will have little, if any, negative effect in respect to
the President’s ability to control the Board, let alone to
coordinate the Executive Branch. See Part II–A, supra.
Indeed, given Morrison, where the Court upheld a restric
tion that significantly interfered with the President’s
important historic power to control criminal prosecutions,
a “ ‘purely executive’ ” function, 487 U. S., at 687–689, the
constitutionality of the present restriction would seem to
follow a fortiori.
Second, as previously pointed out, this Court has re
peatedly upheld “for cause” provisions where they restrict
the President’s power to remove an officer with adjudica
tory responsibilities. Compare Humphrey’s Executor, 295
U. S., at 623–628; Wiener, 357 U. S., at 355; Schor, 478
Cite as: 561 U. S. ____ (2010) 21
BREYER, J., dissenting
U. S., at 854; Morrison, supra, at 691, n. 30, with ante, at
17–18 (ignoring these precedents). And we have also
upheld such restrictions when they relate to officials with
technical responsibilities that warrant a degree of special
independence. E.g., Humphrey’s Executor, supra, at 624.
The Accounting Board’s functions involve both kinds of
responsibility. And, accordingly, the Accounting Board’s
adjudicatory responsibilities, the technical nature of its
job, the need to attract experts to that job, and the impor
tance of demonstrating the nonpolitical nature of the job
to the public strongly justify a statute that assures that
Board members need not fear for their jobs when compe
tently carrying out their tasks, while still maintaining the
Commission as the ultimate authority over Board policies
and actions. See Part II–B, supra.
Third, consider how several cases fit together in a way
that logically compels a holding of constitutionality here.
In Perkins, 116 U. S., at 483, 484—which was reaffirmed
in Myers, 272 U. S., at 127 and in Morrison, supra, at 689,
n. 27—the Court upheld a removal restriction limiting the
authority of the Secretary of the Navy to remove a “cadet
engineer,” whom the Court explicitly defined as an “infe
rior officer.” The Court said,
“We have no doubt that when Congress, by law,
vests the appointment of inferior officers in the heads
of Departments it may limit and restrict the power of
removal as it deems best for the public interest. The
constitutional authority in Congress to thus vest the
appointment implies authority to limit, restrict, and
regulate the removal by such laws as Congress may
enact in relation to the officers so appointed.” Per
kins, supra, at 485 (emphasis added; internal quota
tion marks omitted).
See also Morrison, supra, at 723–724 (SCALIA, J., dissent
ing) (agreeing that the power to remove an “inferior offi
22 FREE ENTERPRISE FUND v. PUBLIC COMPANY
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cer” who is appointed by a department head can be re
stricted). Cf. ante, at 30–33 (holding that SEC Commis
sioners are “Heads of Departments”).
In Humphrey’s Executor, the Court held that Congress
may constitutionally limit the President’s authority to
remove certain principal officers, including heads of de
partments. 295 U. S., at 627–629. And the Court has
consistently recognized the validity of that holding. See
Wiener, supra; United States v. Nixon, 418 U. S. 683, 706
(1974); Buckley, 424 U. S., at 133–136; Chadha, 462 U. S.,
at 953, n. 16; Bowsher, 478 U. S., at 725–726; Morrison,
supra, at 686–693; Mistretta v. United States, 488 U. S.
361, 410–411 (1989).
And in Freytag, 501 U. S., at 921, JUSTICE SCALIA stated
in a concurring opinion written for four Justices, including
JUSTICE KENNEDY, that “adjusting the remainder of the
Constitution to compensate for Humphrey’s Executor is a
fruitless endeavor.” In these Justices’ view, the Court
should not create a separate constitutional jurisprudence
for the “independent agencies.” That being so, the law
should treat their heads as it treats other Executive
Branch heads of departments. Consequently, as the Court
held in Perkins, Congress may constitutionally “limit and
restrict” the Commission’s power to remove those whom
they appoint (e.g, the Accounting Board members).
Fourth, the Court has said that “[o]ur separation-of
powers jurisprudence generally focuses on the danger of
one branch’s aggrandizing its power at the expense of
another branch.” Freytag, supra, at 878 (emphasis added);
accord, Buckley, supra, at 129; Schor, supra, at 856; Mor
rison, supra, at 686; cf. Bowsher, supra. Indeed, it has
added that “the essence of the decision in Myers,” which is
the only one of our cases to have struck down a “for cause”
removal restriction, “was the judgment that the Constitu
tion prevents Congress from ‘draw[ing] to itself . . . the
power to remove.’ ” Morrison, supra, at 686 (quoting
Cite as: 561 U. S. ____ (2010) 23
BREYER, J., dissenting
Myers, supra, at 161; emphasis added). Congress here has
“drawn” no power to itself to remove the Board members.
It has instead sought to limit its own power, by, for exam
ple, providing the Accounting Board with a revenue
stream independent of the congressional appropriations
process. See supra, at 19; see also Brief for Former SEC
Chairmen 16. And this case thereby falls outside the
ambit of the Court’s most serious constitutional concern.
In sum, the Court’s prior cases impose functional
criteria that are readily met here. Once one goes beyond
the Court’s elementary arithmetical logic (i.e., “one plus
one is greater than one”) our precedent virtually dictates
a holding that the challenged “for cause” provision is
constitutional.
D
We should ask one further question. Even if the “for
cause” provision before us does not itself significantly
interfere with the President’s authority or aggrandize
Congress’ power, is it nonetheless necessary to adopt a
bright-line rule forbidding the provision lest, through a
series of such provisions, each itself upheld as reasonable,
Congress might undercut the President’s central constitu
tional role? Cf. Strauss 625–626. The answer to this
question is that no such need has been shown. Moreover,
insofar as the Court seeks to create such a rule, it fails.
And in failing it threatens a harm that is far more serious
than any imaginable harm this “for cause” provision might
bring about.
The Court fails to create a bright-line rule because of
considerable uncertainty about the scope of its holding—
an uncertainty that the Court’s opinion both reflects and
generates. The Court suggests, for example, that its rule
may not apply where an inferior officer “perform[s] adjudi
cative . . . functions.” Cf. ante, at 26, n. 10. But the Ac
counting Board performs adjudicative functions. See
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supra, at 17–18. What, then, are we to make of the
Court’s potential exception? And would such an exception
apply to an administrative law judge who also has impor
tant administrative duties beyond pure adjudication? See,
e.g., 8 CFR §1003.9, 34 CFR §81.4 (2009). The Court
elsewhere suggests that its rule may be limited to removal
statutes that provide for “judicial review of a[n] effort to
remove” an official for cause. Ante, at 22; ante, at 25. But
we have previously stated that all officers protected by a
for-cause removal provision and later subject to termina
tion are entitled to “notice and [a] hearing” in the “courts,”
as without such review “the appointing power” otherwise
“could remove at pleasure or for such cause as [only] it
deemed sufficient.” Reagan v. United States, 182 U. S.
419, 425 (1901); Shurtleff, 189 U. S., at 314; cf. Hum
phrey’s Executor, supra (entertaining civil suit challenging
removal). But cf. Bowsher, supra, at 729. What weight,
then, should be given to this hint of an exception?
The Court further seems to suggest that its holding may
not apply to inferior officers who have a different relation
ship to their appointing agents than the relationship
between the Commission and the Board. See ante, at 22,
24–26. But the only characteristic of the “relationship”
between the Commission and the Board that the Court
apparently deems relevant is that the relationship in
cludes two layers of for-cause removal. See, e.g., ante, at
23 (“Broad power over Board functions is not equivalent to
the power to remove Board members”). Why then would
any different relationship that also includes two layers of
for-cause removal survive where this one has not? Cf.
Part II–A, supra (describing the Commission’s near abso
lute control over the Board). In a word, what differences
are relevant? If the Court means to state that its holding
in fact applies only where Congress has “enacted an un
usually high standard” of for-cause removal—and does not
otherwise render two layers of “ ‘ordinary’ ” for-cause re
Cite as: 561 U. S. ____ (2010) 25
BREYER, J., dissenting
moval unconstitutional—I should welcome the statement.
Ante, at 22 (emphasis added); see also ante, at 24–25, 15,
22, (underscoring this statute’s “sharply circumscribed
definition of what constitutes ‘good cause’ ” and its “rigor
ous,” “significant and unusual [removal] protections”).
But much of the majority’s opinion appears to avoid so
narrow a holding in favor of a broad, basically mechanical
rule—a rule that, as I have said, is divorced from the
context of the case at hand. Compare Parts III–A, III–B,
III–C, ante, with Parts II–A, II–B, II–C, supra. And such
a mechanical rule cannot be cabined simply by saying
that, perhaps, the rule does not apply to instances that, at
least at first blush, seem highly similar. A judicial holding
by its very nature is not “a restricted railroad ticket, good
for” one “day and train only.” Smith v. Allwright, 321
U. S. 649, 669 (1944) (Roberts, J., dissenting).
The Court begins to reveal the practical problems inher
ent in its double for-cause rule when it suggests that its
rule may not apply to “the civil service.” Ante, at 26. The
“civil service” is defined by statute to include “all appoint
ive positions in . . . the Government of the United States,”
excluding the military, but including all civil “officer[s]” up
to and including those who are subject to Senate confirma
tion. 5 U. S. C. §§2101, 2102(a)(1)(B), 2104. The civil
service thus includes many officers indistinguishable from
the members of both the Commission and the Accounting
Board. Indeed, as this Court recognized in Myers, the
“competitive service”—the class within the broader civil
service that enjoys the most robust career protection—
“includes a vast majority of all the civil officers” in the
United States. 272 U. S., at 173 (emphasis added); 5
U. S. C. §2102(c).
But even if I assume that the majority categorically
excludes the competitive service from the scope of its new
rule, cf. ante, at 26 (leaving this question open), the exclu
sion would be insufficient. This is because the Court’s
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“double for-cause” rule applies to appointees who are
“inferior officer[s].” Ante, at 2. And who are they? Courts
and scholars have struggled for more than a century to
define the constitutional term “inferior officers,” without
much success. See 2 J. Story, Commentaries on the Con
stitution §1536, pp. 397–398 (3d ed. 1858) (“[T]here does
not seem to have been any exact line drawn, who are and
who are not to be deemed inferior officers, in the sense of
the constitution”); Edmond v. United States, 520 U. S. 651,
661 (1997) (“Our cases have not set forth an exclusive
criterion for [defining] inferior officers”); Memorandum
from Steven G. Bradbury, Acting Assistant Attorney
General, Office of Legal Counsel, to the General Counsels
of the Executive Branch: Officers of the United States
Within the Meaning of the Appointments Clause, p. 3
(Apr. 16, 2007) (hereinafter OLC Memo), online at
http://www.justice.gov/olc/2007/appointmentsclausev10.pdf
(“[T]he Supreme Court has not articulated the precise
scope and application of the [Inferior Officer] Clause’s
requirements”); Konecke, The Appointments Clause and
Military Judges: Inferior Appointment to a Principal
Office, 5 Seton Hall Const. L. J. 489, 492 (1995) (same);
Burkoff, Appointment and Removal Under the Federal
Constitution: The Impact of Buckley v. Valeo, 22 Wayne
L. Rev. 1335, 1347, 1364 (1976) (describing our early
precedent as “circular” and our later law as “not particu
larly useful”). The Court does not clarify the concept. But
without defining who is an inferior officer, to whom the
majority’s new rule applies, we cannot know the scope or
the coherence of the legal rule that the Court creates. I
understand the virtues of a common-law case-by-case
approach. But here that kind of approach (when applied
without more specificity than I can find in the Court’s
opinion) threatens serious harm.
The problem is not simply that the term “inferior officer”
is indefinite but also that efforts to define it inevitably
Cite as: 561 U. S. ____ (2010) 27
BREYER, J., dissenting
conclude that the term’s sweep is unusually broad. Con
sider the Court’s definitions: Inferior officers are, inter
alia, (1) those charged with “the administration and en
forcement of the public law,” Buckley, 424 U. S., at 139;
ante, at 2; (2) those granted “significant authority,” 424
U. S., at 126; ante, at 25; (3) those with “responsibility for
conducting civil litigation in the courts of the United
States,” 424 U. S., at 140; and (4) those “who can be said to
hold an office,” United States v. Germaine, 99 U. S. 508,
510 (1879), that has been created either by “regulations”
or by “statute,” United States v. Mouat, 124 U. S. 303,
307–308 (1888).
Consider the definitional conclusion that the Depart
ment of Justice more recently reached: An “inferior officer”
is anyone who holds a “continuing” position and who is
“invested by legal authority with a portion of the sovereign
powers of the federal Government,” including, inter alia,
the power to “arrest criminals,” “seize persons or property,”
“issue regulations,” “issue . . . authoritative legal opin
ions,” “conduc[t] civil litigation,” “collec[t] revenue,” repre
sent “the United States to foreign nations,” “command”
military force, or enter into “contracts” on behalf “of the
nation.” OLC Memo 1, 4, 12–13, 15–16 (internal quotation
marks omitted; emphasis added).
And consider the fact that those whom this Court has
held to be “officers” include: (1) a district court clerk,
Hennen, 13 Pet., at 258; (2) “thousands of clerks in the
Departments of the Treasury, Interior and the othe[r]”
departments, Germaine, supra, at 511, who are responsi
ble for “the records, books, and papers appertaining to the
office,” Hennen, supra, at 259; (3) a clerk to “the assistant
treasurer” stationed “at Boston,” United States v. Hart
well, 6 Wall. 385, 392 (1868); (4 & 5) an “assistant
surgeon” and a “cadet-engineer” appointed by the Secre
tary of the Navy, United States v. Moore, 95 U. S. 760, 762
(1878); Perkins, 116 U. S., at 484; (6) election monitors, Ex
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parte Siebold, 100 U. S. 371, 397–399 (1880); (7) United
States attorneys, Myers, supra, at 159; (8) federal mar
shals, Sieblod, supra, at 397; Morrison, 487 U. S., at 676;
(9) military judges, Weiss v. United States, 510 U. S., 163,
170 (1994); (10) judges in Article I courts, Freytag, 501
U. S., at 880–881; and (11) the general counsel of the
Department of Transportation, Edmond v. United States,
520 U. S. 651 (1997). Individual Members of the Court
would add to the list the Federal Communication Commis
sion’s managing director, the Federal Trade Commission’s
“secretary,” the general counsel of the Commodity Futures
Trading Commission, and more generally, bureau chiefs,
general counsels, and administrative law judges, see
Freytag, supra, at 918–920 (SCALIA, J., concurring in part
and concurring in judgment), as well as “ordinary commis
sioned military officers,” Weiss, supra, at 182 (Souter, J.,
concurring).
Reading the criteria above as stringently as possible, I
still see no way to avoid sweeping hundreds, perhaps
thousands of high level government officials within the
scope of the Court’s holding, putting their job security and
their administrative actions and decisions constitutionally
at risk. To make even a conservative estimate, one would
have to begin by listing federal departments, offices, bu
reaus and other agencies whose heads are by statute
removable only “for cause.” I have found 48 such agencies,
which I have listed in Appendix A, infra. Then it would be
necessary to identify the senior officials in those agencies
(just below the top) who themselves are removable only
“for cause.” I have identified 573 such high-ranking offi
cials, whom I have listed in Appendix B, infra. They
include most of the leadership of the Nuclear Regulatory
Commission (including that agency’s executive director as
well as the directors of its Office of Nuclear Reactor Regu
lation and Office of Enforcement), virtually all of the
leadership of the Social Security Administration, the
Cite as: 561 U. S. ____ (2010) 29
BREYER, J., dissenting
executive directors of the Federal Energy Regulatory
Commission and the Federal Trade Commission, as well
as the general counsels of the Chemical Safety Board, the
Federal Mine Safety and Health Review Commission, and
the National Mediation Board.
This list is a conservative estimate because it consists
only of career appointees in the Senior Executive Service
(SES), see 5 U. S. C. §§2101a, 3132(a)(2), a group of high
ranking officials distinct from the “competitive service,” see
§2101(a)(1)(C), who “serve in the key positions just below
the top Presidential appointees,” Office of Personnel Man
agement, About the Senior Executive Service, online at
http://www.opm.gov/ses/about_ses/index.asp; §2102(a)(1)(C),
and who are, without exception, subject to “removal” only for
cause. §§7542–7543; see also §2302(a)(2) (substantially
limiting conditions under which “a career appointee in the
Senior Executive Service” may be “transfer[red], or reas
sign[ed]”). SES officials include, for example, the Director
of the Bureau of Prisons, the Director of the National Drug
Intelligence Center, and the Director of the Office of In
ternational Monetary Policy in the Treasury Department.
See Senate Committee on Homeland Security and Gov
ernment Affairs, United States Government Policy and
Supporting Positions (2008), pp. 99, 103, 129 (hereinafter
Plum Book). And by virtually any definition, essentially
all SES officials qualify as “inferior officers,” for their
duties, as defined by statute, require them to “direc[t] the
work of an organizational unit,” carry out high-level
managerial functions, or “otherwise exercis[e] important
policy-making, policy-determining, or other executive func
tions.” §3132(a)(2) (emphasis added). Cf. ante, at 2 (de
scribing an “inferior officer” as someone who “determines
the policy and enforces the laws of the United States”);
ante, at 26 (acknowledging that career SES appointees in
independent agencies may be rendered unconstitutional in
future cases). Is the SES exempt from today’s rule or is it
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not? The Court, after listing reasons why the SES may be
different, simply says that it will not “addres[s]” the mat
ter. Ante, at 27. Perhaps it does not do so because it cannot
do so without revealing the difficulty of distinguishing the
SES from the Accounting Board and thereby also revealing
the inherent instability of the legal rule it creates.
The potential list of those whom today’s decision affects
is yet larger. As JUSTICE SCALIA has observed, adminis
trative law judges (ALJs) “are all executive officers.”
Freytag, 501 U. S., at 910 (opinion concurring in part and
concurring in judgment) (emphasis deleted); see also, e.g.,
id., at 881 (majority opinion) (“[A] [tax-court] special trial
judge is an ‘inferior Officer’ ”); Edmond, supra, at 654(“[M]ilitary trial and appellate judges are [inferior] offi
cers”). But cf. ante, at 26, n. 10. And ALJs are each re
movable “only for good cause established and determined
by the Merit Systems Protection Board,” 5 U. S. C.
§§7521(a)–(b). But the members of the Merit Systems
Protection Board are themselves protected from removal
by the President absent good cause. §1202(d).
My research reflects that the Federal Government relies
on 1,584 ALJs to adjudicate administrative matters in
over 25 agencies. See Appendix C, infra; see also Memo
randum of Juanita Love, Office of Personnel Manage
ment, to Supreme Court Library (May 28, 2010) (avail
able in Clerk of Court’s case file). These ALJs adjudicate
Social Security benefits, employment disputes, and other
matters highly important to individuals. Does every
losing party before an ALJ now have grounds to appeal on
the basis that the decision entered against him is uncon
stitutional? Cf. ante, at 26, n. 10 (“[O]ur holding also does
not address” this question).
And what about the military? Commissioned military
officers “are ‘inferior officers.’ ” Weiss, 510 U. S., at 182(Souter, J., concurring); id., at 169–170 (majority opinion).
There are over 210,000 active-duty commissioned officers
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BREYER, J., dissenting
currently serving in the armed forces. See Dept. of Defense,
Active Duty Military Personnel by Rank (Apr. 30, 2010),
online at http://siadapp.dmdc.osd.mil/personnel/MILITARY/
rg1004.pdf. Numerous statutory provisions provide that
such officers may not be removed from office except for
cause (at least in peacetime). See, e.g., 10 U. S. C. §§629–
632, 804, 1161, 1181–1185. And such officers can gener
ally be so removed only by other commissioned officers, see
§§612, 825, 1187, who themselves enjoy the same career
protections.
The majority might simply say that the military is
different. But it will have to explain how it is different. It
is difficult to see why the Constitution would provide a
President who is the military’s “commander-in-chief,”
Art. II, §2, cl. 1, with less authority to remove “inferior”
military “officers” than to remove comparable civil offi
cials. See Barron & Lederman, The Commander in Chief
at the Lowest Ebb—A Constitutional History, 121 Harv.
L. Rev. 941, 1102–1106 (2008) (describing President’s
“superintendence prerogative” over the military). Cf. ante,
at 26–27 (not “expressing any view whatever” as to
whether military officers’ authority is now unconstitutional).
The majority sees “no reason . . . to address whether”
any of “these positions,” “or any others,” might be deemed
unconstitutional under its new rule, preferring instead to
leave these matters for a future case. Ante, at 27. But
what is to happen in the meantime? Is the work of all
these various officials to be put on hold while the courts of
appeals determine whether today’s ruling applies to them?
Will Congress have to act to remove the “for cause” provi
sions? Cf. Buckley, 424 U. S., at 142–143. Can the Presi
dent then restore them via executive order? And, still,
what about the military? A clearer line would help avoid
these practical difficulties.
The majority asserts that its opinion will not affect the
Government’s ability to function while these many ques
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tions are litigated in the lower courts because the Court’s
holding concerns only “the conditions under which th[e]se
officers might some day be removed.” Ante, at 27. But
this case was not brought by federal officials challenging
their potential removal. It was brought by private indi
viduals who were subject to regulation “ ‘here-and-now’ ”
and who “object to the” very “existence” of the regulators
themselves. Ante, at 33, 8 (emphasis added). And those
private individuals have prevailed. Thus, any person
similarly regulated by a federal official who is potentially
subject to the Court’s amorphous new rule will be able to
bring an “implied private right of action directly under the
Constitution” “seeking . . . a declaratory judgment that”
the official’s actions are “unconstitutional and an injunc
tion preventing the” official “from exercising [his] powers.”
Ante, at 10, n. 2, 6; cf., e.g., Legal Services Corporation v.
Velazquez, 531 U. S. 533, 546 (2001) (affirming grant of
preliminary injunction to cure, inter alia, a separation-of
powers violation); Youngstown Sheet & Tube Co., 343 U. S.
579 (same). Such a plaintiff need not even first exhaust
his administrative remedies. Ante, at 7–10.
Nor is it clear that courts will always be able to cure
such a constitutional defect merely by severing an offend
ing removal provision. For a court’s “ability to devise
[such] a judicial remedy . . . often depends on how clearly”
the “background constitutional rules at issue” have been
“articulated”; severance will be unavailable “in a murky
constitutional context,” which is precisely the context that
the Court’s new rule creates. Ayotte v. Planned Parent
hood of Northern New Eng., 546 U. S. 320, 329, 330 (2006).
Moreover, “the touchstone” of the severability analysis “is
legislative intent,” id., at 330, and Congress has repeat
edly expressed its judgment “over the last century that it
is in the best interest of the country, indeed essential, that
federal service should depend upon meritorious perform
ance rather than political service,” Civil Service Comm’n,
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BREYER, J., dissenting
413 U. S., at 557; see also Bush v. Lucas, 462 U. S. 367,
380–388 (1983) (describing the history of “Congressional
attention to the problem of politically-motivated removals”).
And so it may well be that courts called upon to resolve the
many questions the majority’s opinion raises will not only
apply the Court’s new rule to its logical conclusion, but will
also determine that the only available remedy to certain
double for-cause problems is to invalidate entire agencies.
Thus, notwithstanding the majority’s assertions to the
contrary, the potential consequences of today’s holding are
worrying. The upshot, I believe, is a legal dilemma. To
interpret the Court’s decision as applicable only in a few
circumstances will make the rule less harmful but arbi-
trary. To interpret the rule more broadly will make the
rule more rational, but destructive.
III
One last question: How can the Court simply assume
without deciding that the SEC Commissioners themselves
are removable only “for cause”? See ante, at 5 (“[W]e
decide the case with th[e] understanding” “that the Com-
missioners cannot themselves be removed by the Presi-
dent except” for cause (emphasis added)). Unless the
Commissioners themselves are in fact protected by a “for
cause” requirement, the Accounting Board statute, on the
Court’s own reasoning, is not constitutionally defective. I
am not aware of any other instance in which the Court has
similarly (on its own or through stipulation) created a
constitutional defect in a statute and then relied on that
defect to strike a statute down as unconstitutional. Cf.
Alabama v. North Carolina, 560 U. S. ___, ___ (2010)
(opinion for the Court by SCALIA, J.) (slip op., at 20) (“We
do not—we cannot—add provisions to a federal statute . . .
especially [if] . . . separation-of-powers concerns . . . would
[thereby] arise”); The Anaconda v. American Sugar Refin-
ing Co., 322 U. S. 42, 46 (1944) (describing parties’ inabil-
34 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
BREYER, J., dissenting
ity to “stipulate away” what “the legislation declares”).
It is certainly not obvious that the SEC Commissioners
enjoy “for cause” protection. Unlike the statutes establish-
ing the 48 federal agencies listed in Appendix A, infra, the
statute that established the Commission says nothing
about removal. It is silent on the question. As far as its
text is concerned, the President’s authority to remove the
Commissioners is no different from his authority to re-
move the Secretary of State or the Attorney General. See
Shurtleff, 189 U. S., at 315 (“To take away th[e] power of
removal . . . would require very clear and explicit lan-
guage. It should not be held to be taken away by mere
inference or implication”); see also Memorandum from
David J. Barron, Acting Assistant Attorney General,
Office of Legal Counsel, to the Principal Deputy Counsel
to the President: Removability of the Federal Coordinator
for Alaska Natural Gas Transportation Projects, p. 2 (Oct.
23, 2009), online at http://justice.gov/olc/2009/gas-transport-
project.pdf (“[Where] Congress did not explicitly provide
tenure protection . . . the President, consistent with . . .
settled principles, may remove . . . without cause”); The
Constitutional Separation of Powers Between the Presi-
dent and Congress, 20 Op. Legal Counsel 124, 170 (1996)
(same).
Nor is the absence of a “for cause” provision in the stat-
ute that created the Commission likely to have been inad-
vertent. Congress created the Commission during the 9-
year period after this Court decided Myers, and thereby
cast serious doubt on the constitutionality of all “for cause”
removal provisions, but before it decided Humphrey’s
Executor, which removed any doubt in respect to the con-
stitutionality of making commissioners of independent
agencies removable only for cause. In other words, Con-
gress created the SEC at a time when, under this Court’s
precedents, it would have been unconstitutional to make
the Commissioners removable only for cause. And, during
Cite as: 561 U. S. ____ (2010) 35
BREYER, J., dissenting
that 9-year period, Congress created at least three major
federal agencies without making any of their officers
removable for cause. See 48 Stat. 885, 15 U. S. C. §78d
(Securities and Exchange Commission), 48 Stat. 1066, 47
U. S. C. §154 (Federal Communications Commission); 46
Stat. 797 (Federal Power Commission) (reformed post-
Humphrey’s Executor as the Federal Energy Regulatory
Commission with “for cause” protection, 91 Stat. 582, 42
U. S. C. §7171). By way of contrast, only one month after
Humphrey’s Executor was decided, Congress returned to
its pre-Myers practice of including such provisions in
statutes creating independent commissions. See §3, 49
Stat. 451, 29 U. S. C. §153 (establishing National Labor
Relations Board with an explicit removal limitation).
The fact that Congress did not make the SEC Commis
sioners removable “for cause” does not mean it intended to
create a dependent, rather than an independent agency.
Agency independence is a function of several different
factors, of which “for cause” protection is only one. Those
factors include, inter alia, an agency’s separate (rather
than presidentially dependent) budgeting authority, its
separate litigating authority, its composition as a multi
member bipartisan board, the use of the word “independ
ent” in its authorizing statute, and, above all, a political
environment, reflecting tradition and function, that would
impose a heavy political cost upon any President who tried
to remove a commissioner of the agency without cause.
See generally Breger & Edles 1135–1155.
The absence of a “for cause” provision is thus not fatal to
agency independence. Indeed, a “Congressional Research
Service official suggests that there are at least 13 ‘inde
pendent’ agencies without a removal provision in their
statutes.” Id., at 1143, n. 161 (emphasis added) (citing
congressional testimony). But it does draw the majority’s
rule into further confusion. For not only are we left with
out a definition of an “inferior officer,” but we are also left
36 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
BREYER, J., dissenting
to guess which department heads will be deemed by the
majority to be subject to for-cause removal notwithstand
ing statutes containing no such provision. If any agency
deemed “independent” will be similarly treated, the scope
of the majority’s holding is even broader still. See Appen
dix D, infra (listing agencies potentially affected).
The Court then, by assumption, reads into the statute
books a “for cause removal” phrase that does not appear in
the relevant statute and which Congress probably did not
intend to write. And it does so in order to strike down, not
to uphold, another statute. This is not a statutory con
struction that seeks to avoid a constitutional question, but
its opposite. See Ashwander v. TVA, 297 U. S. 288, 347
(1936) (Brandeis, J., concurring) (“It is not the habit of the
Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case” (internal
quotation marks omitted)); NLRB v. Catholic Bishop of
Chicago, 440 U. S. 490, 500 (1979) (“[A]n Act of Congress
ought not to be construed to violate the Constitution if any
other possible construction remains available”).
I do not need to decide whether the Commissioners are
in fact removable only “for cause” because I would uphold
the Accounting Board’s removal provision as constitu
tional regardless. But were that not so, a determination
that the silent SEC statute means no more than it says
would properly avoid the determination of unconstitution
ality that the Court now makes.
* * *
In my view the Court’s decision is wrong—very wrong.
As Parts II–A, II–B, and II–C of this opinion make clear, if
the Court were to look to the proper functional and contex
tual considerations, it would find the Accounting Board
provision constitutional. As Part II–D shows, insofar as
the Court instead tries to create a bright-line rule, it fails
to do so. Its rule of decision is both imprecise and overly
Cite as: 561 U. S. ____ (2010) 37
BREYER, J., dissenting
broad. In light of the present imprecision, it must either
narrow its rule arbitrarily, leaving it to apply virtually
alone to the Accounting Board, or it will have to leave in
place a broader rule of decision applicable to many other
“inferior officers” as well. In doing the latter, it will un
dermine the President’s authority. And it will create an
obstacle, indeed pose a serious threat, to the proper func
tioning of that workable Government that the Constitu
tion seeks to create—in provisions this Court is sworn to
uphold.
With respect I dissent.
38 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
APPENDIXES
A
There are 24 stand-alone federal agencies (i.e., “depart
ments”) whose heads are, by statute, removable by the
President only “for cause.” Moreover, there are at least 24
additional offices, boards, or bureaus situated within
departments that are similarly subject, by statute, to for
cause removal provisions. The chart below first lists the
24 departments and then lists the 24 additional offices,
boards, and bureaus. I have highlighted those instances
in which a “for-cause” office is situated within a “for
cause” department—i.e., instances of “double for-cause”
removal that are essentially indistinguishable from this
case (with the notable exception that the Accounting
Board may not be statutorily subject to two layers of for
cause removal, cf. Part III, supra). This list does not
include instances of “double for-cause” removal that arise
in Article I courts, although such instances might also be
affected by the majority’s holding, cf. ante, at 26, n. 10.
Compare 48 U. S. C. §§1424(a), 1614(a), with 28 U. S. C.
§§631(a), (i), and 18 U. S. C. §§23, 3602(a).
Department Statutory Removal Provision
“Any member of the Board, including the
Chemical Safety Chairperson, may be removed for
1
Board inefficiency, neglect of duty, or malfeasance
in office.” 42 U. S. C. §7412(r)(6)(B)
“The President may remove a member of
Commission on Civil
2 the Commission only for neglect of duty or
Rights
malfeasance in office.” 42 U. S. C. §1975(e)
“Any member of the Commission may be
Consumer Product removed by the President for neglect of
3
Safety Commission duty or malfeasance in office but for no
other cause.” 15 U. S. C. §2053(a)
Cite as: 561 U. S. ____ (2010) 39
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Department Statutory Removal Provision
“Members shall hold office for a term of
Federal Energy 5 years and may be removed by the
4 Regulatory President only for inefficiency, neglect
Commission of duty, or malfeasance in office.” 42
U. S. C. §7171(b)(1)
“Members of the Authority shall be
appointed by the President by and with the
advice and consent of the Senate, and may
Federal Labor
5 be removed by the President only upon
Relations Authority
notice and hearing and only for
inefficiency, neglect of duty, or malfeasance
in office.” 5 U. S. C. §7104(b)
“The President may remove a Commissioner
Federal Maritime
6 for inefficiency, neglect of duty, or
Commission
malfeasance in office.” 46 U. S. C. §301(b)(3)
“Any member of the Commission may be
Federal Mine Safety
removed by the President for inefficiency,
7 and Health Review
neglect of duty, or malfeasance in office.”
Commission
30 U. S. C. §823(b)(1)
“[E]ach member shall hold office for a
term of fourteen years from the
Federal Reserve expiration of the term of his
8
Board predecessor, unless sooner removed for
cause by the President.” 12 U. S. C.
§242“Any commissioner may be removed by the
Federal Trade
9 President for inefficiency, neglect of duty, or
Commission
malfeasance in office.” 15 U. S. C. §41“Any appointed member may be removed
Independent
by the President for neglect of duty or
10 Medicare Advisory
malfeasance in office, but for no other
Board
cause.” Pub. L. 111–148, §3403.
“Any member may be removed by the
Merit Systems President only for inefficiency, neglect
11
Protection Board of duty, or malfeasance in office.” 5
U. S. C. §1202(d)
40 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Department Statutory Removal Provision
“Any member of the Board may be
removed by the President, upon notice
National Labor
12 and hearing, for neglect of duty or
Relations Board
malfeasance in office, but for no other
cause.” 29 U. S. C. §153(a)
“A member of the Board may be
removed by the President for
National Mediation
13 inefficiency, neglect of duty,
Board
malfeasance in office, or ineligibility,
but for no other cause.” 45 U. S. C. §154National “The President may remove a member for
14 Transportation inefficiency, neglect of duty, or malfeasance
Safety Board in office.” 49 U. S. C. §1111(c)
“Any member of the Commission may be
Nuclear removed by the President for
15 Regulatory inefficiency, neglect of duty, or
Commission malfeasance in office.” 42 U. S. C.
§5841(e)
“A member of the Commission may be
Occupational Safety removed by the President for
16 and Health Review inefficiency, neglect of duty, or
Commission malfeasance in office.” 29 U. S. C.
§661(b)
“The Special Counsel may be removed
Office of Special by the President only for inefficiency,
17
Counsel neglect of duty, or malfeasance in
office.” 5 U. S. C. §1211(b)
“The Commissioners shall be chosen
solely on the basis of their technical
qualifications, professional standing, and
Postal Regulatory
18 demonstrated expertise in economics,
Commission
accounting, law, or public administration,
and may be removed by the President
only for cause.” 39 U. S. C. §502(a)
Cite as: 561 U. S. ____ (2010) 41
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Department Statutory Removal Provision
“The exercise of the power of the Postal
Service shall be directed by a Board of
Governors composed of 11 members . . . .
19 Postal Service* The Governors shall not be
representatives of specific interests using
the Postal Service, and may be removed
only for cause.” 39 U. S. C. §202“[The] Commissioner may be removed from
Social Security office only pursuant to a finding by the
20
Administration President of neglect of duty or malfeasance
in office.” 42 U. S. C. §902(a)(3)
“A member of the Board appointed under
subsection (b)(5) . . . may be removed by
the President . . . in consultation with
United States
21 the Board, for conviction of a felony,
Institute of Peace*
malfeasance in office, persistent neglect
of duties, or inability to discharge
duties.” 22 U. S. C. §4605(f)
“The Chair, Vice Chairs, and members
of the Commission shall be subject to
United States
removal from the Commission by the
22 Sentencing
President only for neglect of duty or
Commission
malfeasance in office or for other good
cause shown.” 28 U. S. C. §991(a)
“A member of the Board may be removed
by a vote of seven members for
malfeasance in office or for persistent
Legal Services
23 neglect of or inability to discharge duties,
Corporation*
or for offenses involving moral turpitude,
and for no other cause.” 42 U. S. C.
§2996c(e)
“A member of the Board may be removed
by a vote of seven members for
State Justice malfeasance in office, persistent neglect of,
24
Institute* or inability to discharge duties, or for any
offense involving moral turpitude, but for
no other cause.” 42 U. S. C. §10703(h)
——————
* See Lebron v. National Railroad Passenger Corporation, 513 U. S.
374 (1995).
42 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Office Within
Statutory Removal Provision
Department
“The Division shall be headed by a
Director, appointed by the Secretary
Department of from among persons who have substan
Agriculture: tial experience in practicing administra
25 tive law. . . . The Director shall not be
National Appeals
subject to removal during the term of
Division
office, except for cause established in
accordance with law.” 7 U. S. C.
§§6992(b)(1)–(2)
Department of “The Secretary may remove for cause
Agriculture: any member of a Council required to be
26
Regional Fishery appointed by the Secretary . . . .” 16
Management Councils U. S. C. §1852(b)(6)
Department of “The Secretary of Commerce may
Commerce: remove any member of the board [of the
27
Corporation for Travel Corporation] for good cause.” 124 Stat.
Promotion† 57
Department of “The Chief of Navy Reserve is appointed
Defense: for a term determined by the Chief of
28 Naval Operations, normally four years,
Office of but may be removed for cause at any
Navy Reserve time.” 10 U. S. C. §5143(c)(1)
“The Commander, Marine Forces
Department of Reserve, is appointed for a term deter
Defense: mined by the Commandant of the
29
Office of Marine Marine Corps, normally four years, but
Forces Reserve may be removed for cause at any time.”
10 U. S. C. §5144(c)(1)
Department of “The Chief of Air Force Reserve is
Defense: appointed for a period of four years, but
30
Office of Air Force may be removed for cause at any time.”
Reserve 10 U. S. C. §8038(c)(1)
Department of “[A]n officer appointed as Director of the
Defense: Joint Staff of the National Guard Bureau
31 Joint Staff of the serves for a term of four years, but may
National Guard be removed from office at any time for
Bureau cause.” 10 U. S. C. §10505(a)(3)(A)
——————
†See Lebron, supra.Cite as: 561 U. S. ____ (2010) 43
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Office Within
Statutory Removal Provision
Department
“A member of the Board may be re
Department of moved by the Secretary of Defense only
32 Defense: for misconduct or failure to perform
Board of Actuaries functions vested in the Board.” 10
U. S. C. A. §183(b)(3) (2010)
Department of “A member of the Board may be removed
Defense: by the Secretary of Defense for miscon
33 Medicare-Eligible duct or failure to perform functions
Retiree Health Care vested in the Board, and for no other
Board of Actuaries reason.” 10 U. S. C. §1114(a)(2)(A)
Department of
Education: “The Chief Operating Officer may be
removed by . . . the President; or . . . the
Performance-Based Secretary, for misconduct or failure to
34 Organization for the meet performance goals set forth in the
Delivery of Federal performance agreement in paragraph
Student Financial (4).” 20 U. S. C. §1018(d)(3)
Assistance
Federal Labor “The Chairperson [of the FLRA, who
Relations Authority: also chairs the Board] may remove any
other Board member . . . for corruption,
35 Foreign Service Labor neglect of duty, malfeasance, or demon
Relations Board strated incapacity to perform his or her
(see supra, row 5) functions . . . .” 22 U. S. C. §4106(e)
General Services “Members of the Civilian Board shall be
Administration: subject to removal in the same manner as
administrative law judges, [i.e., ‘only for
36 Civilian Board of good cause established and determined by
Contract Appeals the Merit Systems Protection Board.’] ” 41
(see supra, row 11) U. S. C. §438(b)(2) (emphasis added)
Department of Health
and Human Services:
National Advisory “No member shall be removed, except
37
Council on for cause.” 42 U. S. C. §254j(b)
National Health
Service Corps
44 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Office Within
Statutory Removal Provision
Department
Department of Health
and Human Services:
“The Chief Actuary may be removed
38 Medicare & Medicaid
only for cause.” 42 U. S. C. §1317(b)(1)
Office of the Chief
Actuary
Department of
Homeland Security: “An officer may be removed from the
39 position of Director for cause at any
Office of the Coast
time.” 14 U. S. C. §53(c)(1)
Guard Reserve
“A Commissioner may only be removed from
Department of the office before the expiration of the term of
Interior: office of the member by the President (or, in
40 the case of associate member, by the Secre
National Indian
tary) for neglect of duty, or malfeasance in
Gaming Commission
office, or for other good cause shown.” 25
U. S. C. §2704(b)(6)
“The Librarian of Congress may sanc
Library of Congress: tion or remove a Copyright Royalty
Judge for violation of the standards of
Copyright Royalty
41 conduct adopted under subsection (h),
Judgeships
misconduct, neglect of duty, or any
disqualifying physical or mental disabil
ity.” 17 U. S. C. §802(i)
Postal Service: “The Inspector General may at any time
be removed upon the written concur
42 Inspector General
rence of at least 7 Governors, but only
(see supra, row 19)
for cause.” 39 U. S. C. §202(e)(3)
Securities
and Exchange “A member of the Board may be removed
Commission: by the Commission from office . . . for
43
Public Company good cause shown . . . .” 15 U. S. C.
Accounting Oversight §7211(e)(6)
Board
Social Security
Administration:
“The Chief Actuary may be removed
44 Office of the Chief
only for cause.” 42 U. S. C. §902(c)(1)
Actuary
(see supra, row 20)
Cite as: 561 U. S. ____ (2010) 45
Appendix A to ,opinion of BREYER, J.
BREYER J., dissenting
Office Within
Statutory Removal Provision
Department
“The Secretary of State may, upon
written notice, remove a Board member
Department of State: for corruption, neglect of duty, malfea
sance, or demonstrated incapacity to
45 Foreign Service perform his or her functions, established
Grievance Board at a hearing (unless the right to a
hearing is waived in writing by the
Board member).” 22 U. S. C. §4135(d)
Department of
Transportation: “Any member of the Committee may be
46 removed for cause by the Secretary.” 49
Air Traffic Services U. S. C. §106(p)(6)(G)
Committee
Department of
Transportation: “The President may remove a member for
47 inefficiency, neglect of duty, or malfeasance
Surface in office.” 49 U. S. C. §701(b)(3)
Transportation Board
“The Chairman may be removed by the
President for misconduct, inefficiency,
neglect of duty, or engaging in the
Department of practice of law or for physical or mental
Veterans Affairs: disability which, in the opinion of the
48
Board of President, prevents the proper execu
Veterans Appeals tion of the Chairman’s duties. The
Chairman may not be removed from
office by the President on any other
grounds.” 38 U. S. C. §7101(b)(2)
46 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
B
The table that follows lists the 573 career appointees in
the Senior Executive Service (SES) who constitute the
upper level management of the independent agencies
listed in Appendix A, supra. Each of these officials is,
under any definition—including the Court’s—an inferior
officer, and is, by statute, subject to two layers of for-cause
removal. See supra, at 25–30.
The data are organized into three columns: The first
column lists the “office” to which the corresponding official
is assigned within the respective agency and, where avail
able, the provision of law establishing that office. Cf.
supra, at 27 (citing Mouat, 124 U. S., at 307–308; Ger
maine, 99 U. S., at 510). The second and third columns
respectively list the career appointees in each agency who
occupy “general” and “reserved” SES positions. A “gen
eral” position is one that could be filled by either a career
appointee or by a noncareer appointee were the current
(career) occupant to be replaced. See 5 U. S. C.
§3132(b)(1). Because 90% of all SES positions must be
filled by career appointees, §3134(b), “most General posi
tions are filled by career appointees,” Plum Book 200. A
“reserved” position, by contrast, must always be filled by a
career appointee. §3132(b)(1). The data for the “general
position” column come from the 2008 Plum Book, a quad
rennial manual prepared by the congressional committees
responsible for government oversight. See supra, at 29.
Positions listed as vacant in that source are not included.
The data for the “reserved position” column come from a
list periodically published by the Office of Personnel Man
agement and last published in 2006. See 72 Fed. Reg.
16154–16251 (2007); §3132(b)(4). Given the Federal Gov
ernment’s size and the temporal lag between the underly
ing sources, the list that follows is intended to be illustra
tive, not exact.
Cite as: 561 U. S. ____ (2010) 47
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Nuclear Regulatory Commission (192)
Office General Position Reserved Position
Director of Nuclear Security
Executive Director
Projects
Deputy Executive Director for
Reactor and Preparedness
Programs
Deputy Executive Director for
Office of the Materials, Waste, Research,
Executive Director for State, Tribal, and
Operations Compliance, Programs
10 CFR §1.32 (2009)
Deputy Executive Director for
Corporate Management
Assistant for Operations
Director for Strategic
Organizational Planning and
Optimization
Office of the
Secretary Secretary
10 CFR §1.25Director, Division of Planning,
Chief Financial Officer
Budget and Analysis
Office of the Chief Director, Division of Financial
Financial Officer Services
10 CFR §1.31 Deputy Chief Financial
Officer
Director, Division of Financial
Management
Deputy Inspector General
Office of the Inspector Assistant Inspector General
General for Audits
10 CFR §1.12 Assistant Inspector General
for Investigations
Director, Commission
General Counsel Adjudicatory Technical
Support
Deputy Assistant General
Office of the General Deputy General Counsel Counsel for Rulemaking and
Counsel Fuel Cycle
10 CFR §1.23 Deputy Assistant General
Solicitor
Counsel for Administration
Associate General Counsel for Assistant General Counsel for
Licensing and Regulation Operating Reactors
Assistant General Counsel for
Rulemaking and Fuel Cycle
48 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Assistant General Counsel for
Legal Counsel, Legislation,
and Special Projects
Associate General Counsel for
Hearings, Enforcement, and
Office of the General Administration
Counsel Assistant General Counsel for
(Continued) New Reactor Programs
Assistant General Counsel for
Operating Reactors
Assistant General Counsel for
the High-Level Waste
Repository Programs
Office of Commission
Appellate
Director
Adjudication
10 CFR §1.24Office of
Congressional Affairs Director
10 CFR §1.27Office of Public
Affairs Director
10 CFR §1.28Office of
International Director
Programs
10 CFR §1.29 Deputy Director
Office of
Investigations Director Deputy Director
10 CFR §1.36Office of Enforcement
Director
10 CFR §1.33Director Deputy Director
Office of Director, Division of Contracts
Administration Director, Division of
10 CFR §1.34 Administrative Services
Director, Division of Facilities
and Security
Director
Office of Human
Resources Deputy Director
10 CFR §1.39 Associate Director for
Training and Development
Cite as: 561 U. S. ____ (2010) 49
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Director Deputy Director
Director, Information and
Records Services Division
Director, High-Level Waste
Business and Program
Integration Staff
Office of Information Director, Business Process
Services Improvement and
10 CFR §1.35 Applications
Director, Program
Management, Policy
Development and Analysis
Staff
Director, Infrastructure and
Computer Operations
Office of Nuclear Director Deputy Director (2)
Security and Incident Director, Program
Response Management, Policy
10 CFR §1.46 Development
Director
Deputy Director
Project Director, Nuclear
Security Policy
(Division of Security Project Director, Nuclear
Policy) Security Operations
Deputy Director for Material
Security
Deputy Director for Reactor
Security and Rulemaking
Director
(Division of
Preparedness and Deputy Director (2)
Response) Deputy Director for
Emergency Preparedness
Director
(Division of Security Deputy Director for Security
Operations) Oversight
Deputy Director for Security
Programs
Office of Nuclear Director, Program
Director
Reactor Regulation Management, etc.
10 CFR §1.43 Deputy Director, Program
Deputy Director
Management, etc.
50 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Associate Director, Operating
Reactor Oversight and
Licensing
Office of Nuclear
Reactor Regulation Associate Director, Risk
(Continued) Assessment and New Projects
Associate Director,
Engineering and Safety
Systems
(Division of Safety Director
Systems) Deputy Director (2)
(Division of License Director
Renewal) Deputy Director
(Division of Director
Operating Reactor
Licensing) Deputy Director (2)
(Division of Director
Inspection and
Regional Support) Deputy Director (2)
(Division of New Director
Reactor Licensing) Deputy Director (2)
(Division of Director
Engineering) Deputy Director (3)
(Division of Risk Director
Assessment) Deputy Director (2)
(Division of Policy Director
and Rulemaking) Deputy Director (2)
(Division of Director
Component Integrity) Deputy Director
Office of New
Assistant to the Director for
Reactors Director
Transition Management
10 CFR §1.44Office of Nuclear Director, Program Planning,
Director
Material Safety and etc.
Safeguards
Deputy Director
10 CFR §1.42Chief, Special Projects Branch
(Division of Fuel Chief, Safety and Safeguards
Cycle Safety and Support Branch
Safeguards) Chief, Fuel Cycle Facilities
Branch
Cite as: 561 U. S. ____ (2010) 51
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Chief, Rulemaking and
(Division of Industrial
Guidance Branch
and Medical Nuclear
Safety) Chief, Materials Safety and
Inspection Branch
Deputy Director, Licensing
(Division of High
and Inspection
Level Waste
Deputy Director, Technical
Repository Safety)
Review Directorate (2)
Deputy Director, Technical
(Spent Fuel Project Review Directorate
Office) Deputy Director, Licensing
and Inspection
Office of Federal and Director Deputy Director
State Materials and
Environmental
Management Director, Program Planning,
Programs etc.
10 CFR §1.41Director
Deputy Director,
(Division of Waste Decommissioning (2)
Management and
Deputy Director,
Environmental
Environmental Protection (2)
Protection)
Chief, Environmental and
Performance Assessment
(Division of Materials Director
Safety and State
Agreements) Deputy Director
(Division of
Intergovernmental Director
Liaison and
Rulemaking) Deputy Director
Director, Program
Director
Management, etc.
Deputy Director for Materials
Deputy Director
Engineering
Deputy Director for
Office of Nuclear Regional Administrator (4) Engineering Research
Regulatory Research Applications
10 CFR §1.45 Deputy Director for New
Reactors and Computational
Analysis
Deputy Director for
Probabilistic Risk and
Applications
52 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Deputy Director for
Operating Experience and
Office of Nuclear Risk Analysis
Regulatory Research Deputy Director for
(Continued) Radiation Protection,
Environmental Risk and
Waste Management
Chief, Generic Safety Issues
Branch
Chief, Electrical, Mechanical,
and Materials Branch
(Division of Chief, Structural and
Engineering Geological Engineering
Technology) Branch
Chief, Materials Engineering
Branch
Chief, Engineering Research
Applications Branch
Deputy Director
Chief, Advanced Reactors
(Division of Systems and Regulatory Effectiveness
Analysis and
Chief, Safety Margins and
Regulatory
Systems Analysis Branch
Effectiveness)
Chief, Radiation Protection,
etc.
Deputy Director
(Division of Risk Chief, Operating Experience
Analysis and Risk Analysis Branch
Application) Chief, Probabilistic Risk
Analysis Branch
(Division of Risk Director
Assessment and
Special Projects) Assistant Director(2)
(Division of Fuel,
Engineering and Director
Radiological
Assistant Director
Research)
Office of Small
Business and Civil
Director
Rights
10 CFR §1.37Advisory Committee
on Reactor
Executive Director Deputy Executive Director
Safeguards
10 CFR §1.13Cite as: 561 U. S. ____ (2010) 53
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Deputy Regional
Administrator (5)
Director, Division of Fuel
Facility Inspection (1)
Director, Division of Reactor
Projects (4)
Deputy Director, Division of
Reactor Projects (5)
Regional Offices Director, Division of Reactor
10 CFR §1.47 Safety (4)
Deputy Director, Division of
Reactor Safety (4)
Director, Division of Nuclear
Materials Safety (3)
Deputy Director, Division of
Nuclear Materials Safety
Deputy Director, Division of
Radiation Safety, etc.
Social Security Administration (143)
Office General Position Reserved Position
Executive Counselor to the
Commissioner
Office of the Deputy Chief of Staff
Commissioner Director for Regulations
33 Fed. Reg. 5828 Senior Advisor to the Deputy
(1968) Commissioner
Senior Advisor to the
Commissioner
Office of
International
Associate Commissioner for
Programs
International Programs
63 Fed. Reg. 41888(1998)
Office of Executive
Operations
Assistant Inspector General
56 Fed. Reg. 15888(1991)
Office of the Chief Chief Actuary
Actuary Deputy Chief Actuary, Long-
42 U. S. C. §902(c)(1) Range
33 Fed. Reg. 5828 Deputy Chief Actuary, Short-
Range
54 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of the Chief Director, Office of
Deputy Chief Information
Information Officer Information Technology
Officer
33 Fed. Reg. 5829 Systems Review
Office of Information
Technology Associate Chief Information
Investment Officer
Management
Office of Budget, Deputy Commissioner
Finance and
Management Assistant Deputy
60 Fed. Reg. 22099 Commissioner
(1995)
Office of Acquisition
and Grants Associate Commissioner
60 Fed. Reg. 22099Office of Budget Associate Commissioner
60 Fed. Reg. 22099 Deputy Associate
Commissioner
Office of Facilities Associate Commissioner
Management Deputy Associate
60 Fed. Reg. 22099 Commissioner
Office of Financial Associate Commissioner
Policy and Operations Deputy Associate
56 Fed. Reg. 15888 Commissioner
Office of Publications Associate Commissioner
and Logistics
Management Deputy Associate
60 Fed. Reg. 22099 Commissioner
Office of Assistant Deputy
Communications Commissioner
62 Fed. Reg. 9476Press Officer
(1997)
Office of
Communications
Planning and Associate Commissioner
Technology
63 Fed. Reg. 15476Office of Public
Inquiries Associate Commissioner
62 Fed. Reg. 9477Cite as: 561 U. S. ____ (2010) 55
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of Disability Deputy Commissioner
Adjudication and Assistant Deputy
Review Commissioner
Office of Appellate
Operations
Executive Director
53 Fed. Reg. 29778(1988)
Office of the General
Counsel 65 Fed. Reg. Deputy General Counsel
39218 (2000)
Office of General Law
Associate General Counsel
65 Fed. Reg. 39218Office of Public
Disclosure
Executive Director
67 Fed. Reg. 63186(2002)
Office of Regional
Chief Counsels Regional Chief Counsel (7)
65 Fed. Reg. 39219Office of Human Deputy Commissioner
Resources Assistant Deputy
60 Fed. Reg. 22128 Commissioner
Office of Civil Rights
and Equal
Associate Commissioner
Opportunity
60 Fed. Reg. 22128Office of Labor Associate Commissioner
Management and Deputy Associate
Employee Relations Commissioner
Office of Personnel Associate Commissioner
60 Fed. Reg. 22128 Deputy Associate
Commissioner
Office of Training
Associate Commissioner
60 Fed. Reg. 22128Office of the Inspector Deputy Inspector General
General
42 U. S. C. §902(e) Counsel to the Inspector
60 Fed. Reg. 22133 General
56 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Assistant Inspector General
Office of Audits for Audit
60 Fed. Reg. 22133 Deputy Assistant Inspector
General for Audit
Assistant Inspector General
Deputy Assistant Inspector
Office of General for Field
Investigations Investigations
60 Fed. Reg. 22133 Deputy Assistant Inspector
General for National
Investigative Operations
Office of Legislation
and Congressional Senior Advisor to the Deputy
Affairs Commissioner
60 Fed. Reg. 22152Office of Legislative
Development Associate Commissioner
65 Fed. Reg. 10846Office of Operations Deputy Commissioner
60 Fed. Reg. 22107 Assistant Deputy
Commissioner
Office of Automation
Support Associate Commissioner
60 Fed. Reg. 22108Associate Commissioner
Deputy Associate
Commissioner
Office of Central Assistant Associate
Operations Commissioner
63 Fed. Reg. 32275 Assistant Associate
Commissioner for
Management and Operations
Support
Office of Disability Associate Commissioner
Determinations Deputy Associate
67 Fed. Reg. 69288 Commissioner
Office of Electronic
Services
Associate Commissioner
66 Fed. Reg. 29618(2001)
Office of Public Associate Commissioner
Service and
Operations Support Deputy Associate
59 Fed. Reg. 56511 Commissioner
(1994)
Cite as: 561 U. S. ____ (2010) 57
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of Telephone Associate Commissioner
Services Deputy Associate
60 Fed. Reg. 22108 Commissioner
Regional Commissioners (10)
Office of Regional Deputy Regional
Commissioners Commissioner (10)
60 Fed. Reg. 22108 Assistant Regional
Commissioner (15)
Deputy Commissioner
Office of Retirement Assistant Deputy
and Disability Policy Commissioner (2)
Senior Advisor for Program
Outreach
Office of Disability
Programs Associate Commissioner
67 Fed. Reg. 69289Office of Employment
Support Programs
Associate Commissioner
64 Fed. Reg. 19397(1999)
Office of Income Associate Commissioner
Security Programs Deputy Associate
67 Fed. Reg. 69288 Commissioner
Office of Medical and
Associate Commissioner
Vocational Expertise
Office of Research,
Evaluation and
Statistics Associate Commissioner
61 Fed. Reg. 35847(1996)
Office of Systems Deputy Commissioner
60 Fed. Reg. 22116 Assistant Deputy
Commissioner
Office of Disability Associate Commissioner
Systems Deputy Associate
61 Fed. Reg. 35849 Commissioner
Office of
Supplemental Associate Commissioner
Security Income
Systems Deputy Associate
67 Fed. Reg. 37892 Commissioner
58 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of Earnings,
Enumeration and Associate Commissioner
Administrative
Systems Deputy Associate
67 Fed. Reg. 37892 Commissioner
Office of Enterprise Associate Commissioner
Support, Architecture
and Engineering Deputy Associate
67 Fed. Reg. 37892 Commissioner (2)
Office of Retirement Associate Commissioner
and Survivors
Insurance Systems Deputy Associate
67 Fed. Reg. 37892 Commissioner
Office of Systems Associate Commissioner
Electronic Services
66 Fed. Reg. 10766 Deputy Associate
(2001) Commissioner
Deputy Commissioner Chief Quality Officer
Office of Quality Assistant Deputy
Performance Deputy Chief Quality Officer
Commissioner
63 Fed. Reg. 32035 Deputy Associate
Commissioner
Office of Quality Data
Associate Commissioner
Management
Office of Quality Associate Commissioner
Improvement Deputy Associate
Commissioner
Office of Quality Associate Commissioner
Review Deputy Associate
Commissioner
Office of the Chief
Strategic Officer Chief Strategic Officer
67 Fed. Reg. 79950National Labor Relations Board (60)
Office General Position Reserved Position
Director, Office of
Representation Appeals and Executive Secretary
Advice
Office of the Board Solicitor Deputy Executive Secretary
29 U. S. C. §153(a)
Deputy Chief Counsel to
Inspector General
Board Member (4)
Chief Information Officer
Cite as: 561 U. S. ____ (2010) 59
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of the General
Counsel Deputy General Counsel
29 U. S. C. §153(d)
Deputy Associate General
Associate General Counsel
Counsel
(Division of Deputy Associate General
Enforcement Counsel, Appellate Court
Litigation) Branch
Director, Office of Appeals
Associate General Counsel
(Division of Advice) Deputy Associate General
Counsel
(Division of Director
Administration) Deputy Director
(Division of Associate General Counsel
Operations Deputy Associate General
Management) Assistant General Counsel (6)
Regional Offices
Regional Director (33)
29 U. S. C. §153(b)
Federal Energy Regulatory Commission (44)
Office General Position Reserved Position
Executive Director
Office of the Deputy Executive Director
Executive Director
18 CFR §1.101(e) Deputy Chief Information
(2009) Officer
General Counsel
Deputy General Counsel
Office of General
Counsel Associate General Counsel (3)
18 CFR §1.101(f) Deputy Associate General
Counsel (4)
Solicitor
Director
Deputy Director
Office of Energy Director, Tariffs and Market
Market Regulation Development (3)
18 CFR Director, Policy Analysis and
§376.204(b)(2)(ii) Rulemaking
Director, Administration,
Case Management, and
Strategic Planning
60 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Director, Dam Safety and
Director
Inspections
Principal Deputy Director
Deputy Director
Office of Energy Director, Hydropower
Projects Licensing
18 CFR Director, Pipeline Certificates
§376.204(b)(2)(iii)
Director, Gas Environment
and Engineering
Director, Hydropower
Administration and
Compliance
Chief Accountant and
Director Director, Division of
Financial Regulations
Chief, Regulatory
Deputy Director
Office of Enforcement Accounting Branch
18 CFR Director, Investigations
§376.204(b)(2)(vi) Deputy Director,
Investigations
Director, Audits
Director, Energy Market
Oversight
Director
Office of Electric
Reliability Deputy Director
18 CFR Director, Compliance
§376.204(b)(2)(iv) Director, Logistics and
Security
Office of Director
Administrative
Litigation Director, Technical Division
64 Fed. Reg. 51226 Director, Legal Division
(1999)
68 Fed. Reg. 27056 Senior Counsel for Litigation
(2003)
Federal Trade Commission (31)
Office General Position Reserved Position
Office of the
Chairman Secretary
16 CFR §0.8 (2010)
Office of the Executive Director Deputy Executive Director
Executive Director
16 CFR §0.10 Chief Financial Officer Chief Information Officer
Cite as: 561 U. S. ____ (2010) 61
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Principal Deputy General Deputy General Counsel for
Counsel Policy Studies
Office of the General
Counsel Deputy General Counsel for
16 CFR §0.11 Litigation
Deputy General Counsel for
Legal Counsel
Office of Director
International Affairs
16 CFR §0.20 Deputy Director
Associate Director
Bureau of Associate Director, Policy
Competition Assistant Director, Mergers
16 CFR §0.16 (2)
Assistant Director,
Compliance
Associate Director for
Director
International Division
Deputy Director (2)
Associate Director for Privacy
and Identity Protection
Associate Director for
Advertising Practices
Bureau of Consumer Associate Director for
Protection Marketing Practices
16 CFR §0.17 Associate Director for
Financial Practices
Associate Director for
Consumer and Business
Education
Associate Director for
Planning and Information
Associate Director for
Enforcement
Deputy Director for Research
and Development and
Operations
Bureau of Economics
16 CFR §0.18 Deputy Director for Antitrust
Associate Director for
Consumer Protection and
Research
Office of the Inspector
General Inspector General
16 CFR §0.1362 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Consumer Product Safety Commission (16)
Office General Position Reserved Position
Assistant Executive Director
Office of the Deputy Executive Director for Compliance and
Executive Director Administrative Litigation
16 CFR §1000.18 Associate Executive Director
Chief Financial Officer
(2010) for Field Operations
Executive Assistant
Office of Compliance
and Field Operations Deputy Director
16 CFR §1000.21Assistant Executive Director
Deputy Assistant Executive
Office of Hazard Director
Identification and Associate Executive Director
Reduction for Economic Analysis
16 CFR §1000.25 Associate Executive Director
for Engineering Sciences
Associate Executive Director
for Epidemiology
Directorate for Health
Sciences Associate Executive Director
16 CFR §1000.27Directorate for
Laboratory Sciences Associate Executive Director
16 CFR §1000.30Office of International
Programs and
Intergovernmental Director
Affairs
16 CFR §1000.24Office of Information
and Technology
Assistant Executive Director
Services
16 CFR §1000.23Office of the General
Counsel General Counsel
16 CFR §1000.14Federal Labor Relations Authority (14)
Office General Position Reserved Position
Director, Human Resources,
Office of the Policy and Performance
Chairman Management
5 CFR §2411.10(a) Chief Counsel
(2010)
Senior Advisor
Cite as: 561 U. S. ____ (2010) 63
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of the Solicitor
Solicitor
5 CFR §2417.203(a)
Offices of Members
Chief Counsel (2)
5 U. S. C. §7104(b)
Office of the
Executive Director
Executive Director
5 U. S. C. §7105(d)
5 CFR §2421.7Federal Services
Impasses Panel Executive Director
5 U. S. C. §7119(c)
Office of the General
Counsel Deputy General Counsel
5 U. S. C. §7104(f)
Regional Offices
5 U. S. C. §7105(d) Regional Director (5)
5 CFR §2421.6National Transportation Safety Board (14)
Office General Position Reserved Position
Office of the Managing Director
Managing Director
49 CFR §800.2(c) Associate Managing Director
(2009) for Quality Assurance
Office of the General
Counsel General Counsel
49 CFR §800.2(c)
Office of Director
Administration Director, Bureau of Accident
60 Fed. Reg. 61488 Investigation
Office of Aviation Deputy Director, Technology
Safety and Investment Operations
49 CFR §800.2(e) Deputy Director, Regional
Operations
Office of Research Director
and Engineering
49 CFR §800.2(j) Deputy Director
Office of Chief
Financial Officer
Chief Financial Officer
49 U. S. C. §1111(h)
49 CFR §800.28Office of Safety
Recommendations
Director
and Accomplishments
49 CFR §800.2(k)
64 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of Railroad,
Pipeline and
Hazardous Materials Director
Investigations
49 CFR §§800.2(f), (i)
National Director
Transportation Safety
Board Academy President and Academic
49 U. S. C. §1117 Dean
Performance-Based Organization for the Delivery of Federal Student
Financial Assistance (13)
Office General Position Reserved Position
Deputy Chief Operating Director, Student Aid
Officer Awareness
Chief Financial Officer
Chief Compliance Officer
Director, Policy Liaison and
Implementation Staff
Audit Officer
Office of the Chief Director, Financial
Operating Officer Management Group
20 U. S. C. Director, Budget Group
§§1018(d)–(e)
Deputy Chief Information
Officer
Director, Application
Development Group
Internal Review Officer
Director, Strategic Planning
and Reporting Group
Senior Adviser
Merit Systems Protection Board (11)
Office General Position Reserved Position
Office of the Clerk of
the Board
Clerk of the Board
5 CFR §1200.10(a)(4)
(2010)
Office of Financial
and Administrative
Director
Management
5 CFR §1200.10(a)(8)
Office of Policy and
Evaluation Director
5 CFR §1200.10(a)(6)
Cite as: 561 U. S. ____ (2010) 65
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of Information
Resources
Director
Management
5 CFR §1200.10(a)(9)
Office of Regional Director
Operations
5 CFR §1200.10(a)(1) Regional Director (6)
Office of Special Counsel (8)
Office General Position Reserved Position
Associate Special Counsel for
Deputy Special Counsel Investigation and
Prosecution (3)
Senior Associate Special
Counsel for Investigation
Office of Special
and Prosecution
Counsel
5 U. S. C. §1211 Associate Special Counsel,
Planning and Oversight
Associate Special Counsel for
Legal Counsel and Policy.
Director of Management and
Budget
Postal Regulatory Commission (10)*
Office General Position Reserved Position
Office of the General General Counsel
Counsel
39 CFR §3002.13 Assistant General Counsel
(2009)
Director
Office of Assistant Director, Analysis
Accountability and and Pricing Division
Compliance Assistant Director, Auditing
and Costing Division
Office of Public
Affairs and
Governmental Director
Relations
39 CFR §3002.15——————
* The officers in this agency are part of the “excepted service,” but
enjoy tenure protection similar to that enjoyed by career SES appoint
ees. See 5 U. S. C. §2302(a)(2)(B); Plum Book, p. v (distinguishing
“excepted service” from “Schedule C”); id., at 202 (describing schedule C
positions).
66 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Office General Position Reserved Position
Office of the Secretary Secretary and Director
and Administration Assistant Director, Human
48 Fed. Reg. 13167 Resources and Infrastructure
(1983) Assistant Director, Strategic
Planning, etc.
Office of the Inspector
General Inspector General
39 CFR §3002.16Federal Maritime Commission (8)
Office General Position Reserved Position
Office of the
Managing Director
46 CFR §501.3(h) Director
(2010)
75 Fed. Reg. 29452Office of the Secretary
Secretary
46 CFR §501.3(c)
Office of the General Deputy General Counsel for
Counsel Reports, Opinions and
46 CFR §501.3(d) Decisions
Bureau of
Certification and
Director
Licensing
46 CFR §501.3(h)(5)
Bureau of Trade
Analysis Director
46 CFR §501.3(h)(6)
Bureau of Director
Enforcement
46 CFR §501.3(h)(7) Deputy Director
Office of
Administration
Director
70 Fed. Reg. 7660(2005)
Surface Transportation Board (4)
Office General Position Reserved Position
Office of the Chairman Director of Public Assistance,
49 CFR §1011.3 Governmental Affairs and
(2009) Compliance
Office of the General General Counsel
Counsel
49 CFR §1011.6(c)(3) Deputy General Counsel
Office of Proceedings
Director
49 CFR §1011.6(h)
Cite as: 561 U. S. ____ (2010) 67
Appendix B to ,opinion of BREYER, J.
BREYER J., dissenting
Federal Mine Safety and Health Review Commission (1)
Office General Position Reserved Position
Office of the General
Counsel 29 CFR
General Counsel
§2706.170(c)
(2009)
Chemical Safety and Hazard Investigation Board (1)
Office General Position Reserved Position
Office of the General
Counsel
General Counsel
40 CFR §1600.2 (b)(3)
(2009)
National Mediation Board (1)
Office General Position Reserved Position
Office of the General
Counsel
General Counsel
29 CFR §1209.06(e)
(2009)
Commission on Civil Rights (1)
Office General Position Reserved Position
Office of the Staff
Director Associate Deputy Staff
42 U. S. C. Director
§1975b(a)(2)(A)
Board of Veterans Appeals (1)
Office General Position Reserved Position
Office of the Vice
Chairman Vice Chairman
38 U. S. C. §7101(a)
68 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix C to ,opinion of BREYER, J.
BREYER J., dissenting
C
According to data provided by the Office of Personnel
Management, reprinted below, there are 1,584 adminis
trative law judges (ALJs) in the Federal Government.
Each of these ALJs is an inferior officer and each is sub
ject, by statute, to two layers of for-cause removal. See
supra, at 30. The table below lists the 28 federal agencies
that rely on ALJs to adjudicate individual administrative
cases. The source is available in the Clerk of Court’s case
file. See ibid.
TOTAL NUMBER
AGENCY
OF ALJs
Commodity Futures Trading Commission 2
Department of Agriculture 4
Department of Education 1
Department of Health and Human Services
7
(Departmental Appeals Board)
Department of Health and Human Services
1
(Food and Drug Administration)
Department of Health and Human Services
65
(Office of Medicare Hearings and Appeals)
Department of Homeland Security
6
(United States Coast Guard)
Department of Housing and
2
Urban Development
Department of the Interior 9
Department of Justice
3
(Drug Enforcement Administration)
Department of Justice
1
(Executive Office for Immigration Review)
Department of Labor
44
(Office of the Secretary)
Department of Transportation 3
Environmental Protection Agency 4
Federal Communications Commission 1
Cite as: 561 U. S. ____ (2010) 69
Appendix C to ,opinion of BREYER, J.
BREYER J., dissenting
TOTAL NUMBER
AGENCY
OF ALJs
Federal Energy Regulatory Commission 14
Federal Labor Relations Authority 3
Federal Maritime Commission 1
Federal Mine Safety and
11
Health Review Commission
Federal Trade Commission 1
International Trade Commission 6
National Labor Relations Board 39
National Transportation Safety Board 4
Occupational Safety and Health
12
Review Commission
Office of Financial Institution Adjudication 1
Securities and Exchange Commission 4
Social Security Administration 1,334
United States Postal Service 1
TOTAL 1,584
70 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix D to ,opinion of BREYER, J.
BREYER J., dissenting
D
The table below lists 29 departments and other agencies
the heads of which are not subject to any statutory for
cause removal provision, but that do bear certain other
indicia of independence.
The table identifies six criteria that may suggest inde
pendence: (1) whether the agency consists of a multi
member commission; (2) whether its members are re
quired, by statute, to be bipartisan (or nonpartisan); (3)
whether eligibility to serve as the agency’s head depends
on statutorily defined qualifications; (4) whether the
agency has independence in submitting budgetary and
other proposals to Congress (thereby bypassing the Office
of Management and Budget); (5) whether the agency has
authority to appear in court independent of the Depart
ment of Justice, cf. 28 U. S. C. §§516–519; and (6) whether
the agency is explicitly classified as “independent” by
statute. See generally Breger & Edles 1135–1155; supra,
at 35–36. Unless otherwise noted, all information refers
to the relevant agency’s organic statute, which is cited in
the first column. The list of agencies is nonexhaustive.
Statutory
Department Multi- Bi- OMB Litigation Explicit
Eligibility
or Agency Member partisan Bypass Authority Statement
Criteria
Securities and Yes
Yes
Exchange 12
Commission
Yes Yes 15 U. S. C.
U. S. C.
15 U. S. C. §78d §78u
§250
Architectural
and Transpor- Yes
tation Barriers
Compliance
Yes (related Yes
Board experience)
29 U. S. C. §792Arctic Research Yes
Commission (related
15 U. S. C.
Yes
knowledge,
§4102 experience)
Cite as: 561 U. S. ____ (2010) 71
Appendix D to ,opinion of BREYER, J.
BREYER J., dissenting
Statutory
Department Multi- Bi OMB Litigation Explicit
Eligibility
or Agency Member partisan Bypass Authority Statement
Criteria
Broadcasting Yes
Board of
(citizenship;
Governors Yes Yes Yes
22 U. S. C. related
§6203 knowledge)
Central Cf.
Intelligence
Freytag,
Agency
50 U. S. C. 501 U. S.,
§403–4 at 887,n. 4
Commission of Yes
Fine Arts
40 U. S. C.
Yes (related
§9101 knowledge)
Commodity
Futures Trading Yes
Yes
Commission Yes Yes (related Yes
7 U. S. C. §2(a)(4)
knowledge)
§2(a)(2)
Defense Nuclear Yes
Facilities Safety
(citizenship;
Board Yes Yes Yes
42 U. S. C. expert
§2286 knowledge)
Equal Employ
ment Opportu Yes
nity Commission Yes Yes §2000e–
42 U. S. C. 5(f)
§2000e–4
Export-Import
Bank of the
Yes
United States* Yes Yes Yes
12 U. S. C. §635(a)(1)
§635a
Farm Credit
Administration Yes Yes
Yes Yes Yes
12 U. S. C. (citizenship) §2244(c)
§§2241, 2242
Federal
Communications
Yes Yes
Commission Yes Yes
47 U. S. C. (citizenship) §401(b)
§§151, 154
Federal Deposit Yes
Insurance
(citizenship; Yes Yes
Corporation Yes Yes
12 U. S. C. related §250 §1819(a)
§§1811, 1812 experience)
——————
* See Lebron, 513 U. S. 374.
72 FREE ENTERPRISE FUND v. PUBLIC COMPANY
ACCOUNTING OVERSIGHT BD.
Appendix D to ,opinion of BREYER, J.
BREYER J., dissenting
Statutory
Department Multi- Bi OMB Litigation Explicit
Eligibility
or Agency Member partisan Bypass Authority Statement
Criteria
Federal Election Yes
Yes Yes
Commission Yes Yes §437d
2 U. S. C. §437c (general) §437d(d)
(a)(6)
Federal Housing
Finance Agency
Yes
12 U. S. C. A. Yes
§4511 (Supp. §250
2010)
Federal
Retirement Cf. Yes
Thrift Invest Yes §8472(b) (related
ment Board (2) knowledge)
5 U. S. C. §8472International Yes
Trade
(citizenship; Yes Yes
Commission Yes Yes Yes
19 U. S. C. expert §2232 §1333(g)
§1330 knowledge)
Marine Mammal Yes
Commission
16 U. S. C.
Yes (related
§1401 knowledge)
Millennium
Challenge Cf. Yes
Corporation† Yes §7703(c) (related
22 U. S. C. (3)(B) experience)
§7703
National
Credit Union Yes
Yes
Administration Yes Yes (related Yes
12 U. S. C. §250experience)
§1752a
National
Archives and Yes
Records
Administration
Yes (related Yes
44 U. S. C. knowledge)
§§2102, 2103
National Yes
Council on
Disability
Yes (related
29 U. S. C. §780 experience)
National Labor- Yes
Management
Panel
Yes (related
29 U. S. C. §175 knowledge)
——————
† See Lebron, supra.Cite as: 561 U. S. ____ (2010) 73
Appendix D to ,opinion of BREYER, J.
BREYER J., dissenting
Statutory
Department Multi- Bi OMB Litigation Explicit
Eligibility
or Agency Member partisan Bypass Authority Statement
Criteria
National Science
Foundation Yes
42 U. S. C. Yes (related Yes
§§1861, 1863, expertise)
1864
Peace Corps
22 U. S. C. Yes
§2501–1
Pension Benefit
Guaranty
Corporation‡ Yes Yes
29 U. S. C.
§1302Railroad
Retirement
Board
Yes Yes Yes
45 U. S. C. §231f
——————
‡ See Lebron, supra.