Upcoming SCOTUS Case: Major Implications for Obama’s Czars

Posted: Dec 03, 2009 12:22 PM
Guest post from Ken Klukowski with the American Civil Rights Union

The American people are fed up with an out-of-control government, largely run by unaccountable officials like President Obama’s “czars.” The Constitution strictly limits how officials can get their jobs and their power, and the Supreme Court is about to weigh in on one of those cases.

Next Mon. on Dec. 7, the U.S. Supreme Court will hear arguments in Free Enterprise Fund v. Public Company Accountability Oversight Board (PCAOB).

The massive Sarbanes-Oxley law was passed by Congress in 2002 to regulate publicly-traded companies. It created a brand new government agency (because evidently there weren’t enough of those in DC) to regulate these companies. The members of that body, PCAOB, are appointed by a vote of the Securities and Exchange Commission (SEC).

There’s only one problem with that setup: It’s unconstitutional.

Article II of the Constitution says that high-ranking officials in the executive branch must be nominated by the president and confirmed by the Senate. For lower-ranking officials—called “inferior officers” in the Constitution—Congress can choose from three ways for those officers to be appointed. Congress can allow the president to appoint them by himself, or allow the courts to do it, or allow the agency head where those officers serve to appoint them. [# More #]

The problem is that the current setup for PCAOB is none of the above. The petitioners here are arguing two things. First, that the PCAOB members have so much power that they must be considered high-ranking officials, meaning they must be presidential nominees subject to Senate confirmation. Alternatively, even if they’re inferior officers, having the SEC vote them in doesn’t fall into any of the three constitutional options for appointing inferior officers.

Any way you take it, then, these appointments are illegal. That means that PCAOB has no legal authority to regulate anyone, and all their acts to this day should be declared null and void.

The petitioners in this case are being represented by one of the most formidable Supreme Court lawyers in the country—Ken Starr. A former solicitor general and federal appeals judge, Starr will square off against Team Obama before the High Court.

Barack Obama is doing an end-run around the Constitution. No part of this is more blatant than his running a shadow government with his czars. The PCAOB case has major implications for restoring the Constitution and putting “We the People” back in charge of our government, and could lay the groundwork for getting rid of these radicals who operate outside the law.

Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.