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The Court's new separation of powers opinion.

Here's the opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, in which the conservative Justices ? Roberts, Scalia, Kennedy, Thomas, and Alito ? take the strong position on enforcing the constitutional principles of separation of powers, and the liberal Justices ? Breyer, Stevens, Ginsburg, and Sotomayor ? take the position of judicial restraint.

It's a question of restricting the President's power "to remove a prin­cipal 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." (The law that sets up this new structure, the Public Company Accounting Oversight Board, is the Sarbanes-Oxley Act of 2002, which regulates the accounting industry.)



Chief Justice Roberts writes:

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 Presi­dent cannot remove simply because that officer disagrees with him. This contravenes the President?s ?constitutional obligation to ensure the faithful execution of the laws.?

Dissenting, Justice Breyer writes:

[T]he 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....

When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function....

[A] functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances....

[T[he 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....

Thus, the majority?s decision to eliminate only Layer Two accomplishes virtually nothing.

Full post as published by Althouse on June 28, 2010 (boomark / email).