Ken Klukowski

The Supreme Court heard arguments in a case over an executive-branch agency that is completely outside presidential control. Team Obama argued that the Court should keep it that way, leaving in place an agency that meddles in business affairs, but cannot be stopped by the public and for which Obama cannot be blamed.

And one other thing: It’s unconstitutional.

On Dec. 7, the Supreme Court heard arguments in Free Enterprise Fund v. Public Co. Accountability Oversight Board (PCAOB, usually called “peek-a-boo”). At issue was the constitutionality of a bureaucratic mess that Congress invented in 2002 as part of the Sarbanes-Oxley federal law that was hastily passed in the aftermath of the corporate scandals involving Enron and Worldcom.

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Sarbanes-Oxley created this oversight board, the members of which are chosen by majority vote of the Securities and Exchange Commission (SEC). PCAOB has intrusive power over public accounting firms, and through them broad regulatory power involving publicly-traded companies.

The lawyer for the challengers, Michael Carvin, summed up his case in his opening argument: “The board is unique among federal regulatory agencies in that the president can neither appoint nor remove its members, nor does he have any ability to designate the chairman or review the work product, so he is stripped of the traditional means of control that he has over the traditional independent agencies.”

Democratic government requires accountability. Those in Congress are accountable to the voters (as some of them will find out in 2010), as is the president.

For maximum accountability, those who first created our government vested all executive power in one person, the president.

The Founding Fathers faced a dilemma, knowing that the president would need many people to serve under him in the executive branch of government, but that “We the People” would need a way to hold them accountable.

The Founding Fathers’ solution was the Appointments Clause. It requires that any official wielding significant power—called “principal officers”—must be nominated by the president, and then confirmed by the U.S. Senate. To avoid flooding this system with countless nominees, the Founders also created an easier system for low-ranking officials. For each of these lower officials, called “inferior officers”—Congress could vest the power to appoint that person in the president alone, or in the courts, or in the heads of the agency or department where they serve.


Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.