Free Enterprise Fund v. Public Company Accounting Oversight Board

OPINION OF THE COURT FREE ENTERPRISE FUND V. PUBLIC COMPANYACCOUNTING OVERSIGHT BD. 561 U. S. ____ (2010) 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
accountable—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 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 principal
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 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?

															   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.” Id., at 693.

															I

															A

															   After a series of celebrated
accounting debacles, Congress 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 Government “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.[ Footnote
1 ]

															   Unlike the self-regulatory
organizations, however, the Board is a Government-created,
Government-appointed entity, with expansive powers to govern an
entire industry. 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 securities 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
accounting firm’s practice, including hiring and professional
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 prescribe.” §7213(a)(2)(B).

															   The Board promulgates auditing and ethics
standards, performs routine inspections of all accounting firms,
demands 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 Exchange Act of 1934, 48
Stat. 881, 15 U. S. C. §78a et seq. —a federal crime
punishable by up to 20 years’ imprisonment or $25 million in fines
($5 million for a natural person). §§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 parties 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
Commission approval and alteration). §§7217(b)–(c). But the
individual members of the Board—like the officers and directors of
the self-regulatory organizations—are substantially 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
member; 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
Commission 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
organizations. See §78s(h)(4). The parties agree that the
Commissioners cannot themselves be removed by the President 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 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 injunction 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 appointment Congress may
choose to vest “in the President alone, in the Courts of Law, or in
the Heads of Departments.” Ibid. Because the Board is
appointed by the SEC, petitioners argued that (1) Board members are
not “inferior Officers” who may be appointed by “Heads of
Departments”; (2) even if they are, the Commission is not a
“Departmen[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
respondents. 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
jurisdiction over petitioners’ claims. Id., at 671. On the
merits, 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 restriction on removal
passes through two levels of control.” Id., at 679. It
ruled that the dual restraints on Board members’ 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 comprehensive control of the Commission,
and thus the President’s influence over the Commission implies a
constitutionally 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 jurisdiction. 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 considered by the court unless it was
urged before the Commission 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
jurisdiction 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
discernible” 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 procedures “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 collateral
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 pursue their constitutional claims under the
Government’s theory. Section 78y provides only for judicial review
of Commission action, and not every Board action is
encapsulated 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. 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 documents 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
challenge 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 “meaningful” 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 “formulated in constitutional terms,”
rested ultimately on “factors that call for [an] understanding of
the milk industry,” 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 administrative law,
which the courts are at no disadvantage in answering.

															   We therefore conclude that §78y did not strip
the District Court of jurisdiction over these claims, which are
properly presented for our review.[ Footnote 2 ]

															III

															   We hold that the dual for-cause
limitations on the removal 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 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 extensively 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
responsibility and harmony in the Executive Department,” was that
the executive power included a power to oversee executive officers
through removal; because that traditional executive power was not
“expressly taken away, it remained with the President.” Letter from
James Madison 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 continue 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 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 attitude 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 discharged 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 misconduct.”
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 inferior 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.[ Footnote
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
investigate 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 Attorney 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 removal. 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 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 restrictions 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 President, 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 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
determination 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 “inefficiency, neglect of duty, or
malfeasance in office.” Humphrey’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 decides
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).[ Footnote 4 ]

															   Indeed, if allowed to stand, this dispersion
of responsibility 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 unwilling to concede
that even five layers between the President 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 exercised 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. 487
(J. Cooke ed. 1961) (A. Hamilton). Without a clear and effective
chain of command, the public cannot “determine on whom the blame or
the punishment of a pernicious 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 Constitution’s separation of
powers.

															C

															   Respondents and the dissent
resist this conclusion, portraying the Board as “the kind of
practical accommodation between the Legislature and the Executive
that should be permitted in a ‘workable government.’ ” Metropolitan Washington Airports Authority v. Citizens
for Abatement of Aircraft Noise, Inc. , 501 U. S. 252 , 276
(1991) ( MWAA ) (quoting Youngstown Sheet & Tube
Co. v. Sawyer , 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 “technical professional experts.” Post, at 18
(internal quotation marks omitted). In this respect the statute
creating the 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, exercising 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
Constitution 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
objectives—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
benefits 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 absent 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
President’s “power to get something done” more often depends on
“who controls the agency’s budget requests and funding, the
relationships between one agency or department and another, …
purely political factors (including Congress’ ability to assert
influence),” and indeed whether particular unelected officials support or “resist” the President’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 exercising executive power is on
good terms with Congress.”

															   In fact, the multilevel protection that the
dissent endorses “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 performance of its
constitutional duties.” Loving v. United States , 517 U. S. 748 ,
757 (1996).[ Footnote 5 ]
Congress has plenary control over the salary, duties, and even
existence of executive 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).[ Footnote 6 ]

															   The Framers created a structure in which “[a]
dependence 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 motives, to resist encroachments
of the others,” id., No. 51, at 349. A key “constitutional
means” vested in the President—perhaps the key means—was
“the power of appointing, 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 problem,” 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 situation, never
before addressed by the Court, of two layers of for-cause tenure.
And though it may be criticized as “elementary 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 Commission’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 Commission,’ ” because
the FTC was designed to be “ ‘independent 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
congressional determination to limit the removal power of the
Attorney General was essential . . . to establish the necessary
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 enforce 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).[ Footnote 7 ]

															   The rigorous standard that must be met before
a Board member may be removed was drawn from statutes concerning
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
Appeals 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 functions 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 sanctions, §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 inferior 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 nowhere gives the
Commission effective power to start, stop, or alter individual
Board investigations, executive activities typically carried out by
officials within the Executive Branch.

															   The Government and the dissent suggest that
the Commission 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.[ Footnote
8 ] So the Government 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 persons) 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 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
constitutional problem with the PCAOB is the lack of historical
precedent for this entity. Neither the majority opinion nor the
PCAOB nor the United States as intervenor has located any
historical analogues for this novel structure. They have not
identified any independent agency other than the PCAOB that is
appointed 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
discourage 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.[ Footnote 9 ] The parties
here concede that Board members are executive “Officers,” as that
term is used in the Constitution. 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 officers 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
Presidential oversight as members of the Board. Senior or
policymaking positions in government may be excepted from the
competitive service to ensure Presidential control, see 5 U.
S. C. §§2302(a)(2)(B), 3302, 7511(b)(2), and members of the
Senior Executive Service may be reassigned 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.[ Footnote 10 ]

															   Finally, the dissent wanders far afield when
it suggests that today’s opinion might increase the President’s
authority 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 Oversight Board. Military officers are
broadly subject to Presidential 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
member’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 Constitution. App. 46. We reject such a broad
holding. Instead, we agree with the Government that the
unconstitutional tenure provisions are severable from the remainder
of the statute.

															   “Generally speaking, when
confronting a constitutional flaw in a statute, we try to limit the
solution to the problem,” severing any “problematic portions while
leaving the remainder intact.” Ayotte v. Planned
Parenthood of Northern New Eng. , 546 U. S. 320 , 328–329
(2006). Because “[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
appointment. 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 actions, 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 Legislature would not have enacted
those provisions … independently of that which is [invalid].” Ibid. (internal quotation marks omitted). Though this
inquiry can sometimes be “elusive,” Chadha , 462 U. S., at
932, the answer here seems clear: The remaining provisions are not
“incapable 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 preferred 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 sufficient 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 holding 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 principal 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
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 officers whose appointment Congress may permissibly vest
in a “Hea[d] of Departmen[t].”

															   But, petitioners argue, the Commission is not
a “Departmen[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 question whether a “principal agenc[y], such as … the
Securities 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 consistent with
the common, near-contemporary definition of a “department” as a
“separate allotment or part of business; 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, at all
places where such shall be found necessary,” §3, 1 Stat. 234—thus
treating him as the “Hea[d] of [a] Departmen[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 component of the Executive Branch, not
subordinate to or contained within any other such component, it
constitutes a “Departmen[t]” for the purposes of the Appointments
Clause.[ Footnote 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].”[ Footnote
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 Reorg. Plan No. 10 of 1950, §1(b)(1), 64
Stat. 1265. The Chairman is also appointed from among the
Commissioners 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 commission or board with more
than one member.”)[ Footnote
13 ]

															   As a constitutional matter, we see no reason
why a multimember body may not be the “Hea[d]” of a “Departmen[t]”
that it governs. The Appointments Clause necessarily 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
nomination 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 multimember
bodies. Practice has also sanctioned the appointment 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 … who are not
subordinate or responsible to any other officer 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 enforced only by a constitutional
agency accountable to the Executive. See Bowsher , 478 U.
S., at 727, n. 5 (concluding 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 magistrate 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 reversed in part, and the case is remanded for further
proceedings consistent with this opinion.

															It is so ordered. Footnote 1 The current salary for the Chairman is
$673,000. Other Board members receive $547,000. Brief for
Petitioners 3. Footnote 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 particular 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. Footnote 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. Footnote 4 Contrary to the dissent’s suggestion, post, at 12–14 (opinion of Breyer, J.), the second layer
of tenure protection does compromise the 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
President 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. Footnote 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., at 138–139 (emphasis added). Footnote 6 The dissent attributes to Madison a belief
that some executive officers, such as the Comptroller, could be
made independent of the President. See post, at 17–18. But
Madison’s actual proposal, consistent with his view of the
Constitution, was that the Comptroller hold office 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). Footnote 7 The Government implausibly argues that
§7217(d)(3) “does not expressly 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 members 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). Footnote 8 Contrary to the dissent’s assertions, see post, at 15–16, the Commission’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. Footnote 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 government 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. Footnote 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 members 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 Government 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. Footnote 11 We express no view on whether the Commission
is thus an “executive 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). Footnote 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 traceable 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). Footnote 13 Petitioners contend 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). BREYER, J., DISSENTING FREE ENTERPRISE FUND V. PUBLIC COMPANYACCOUNTING OVERSIGHT BD. 561 U. S. ____ (2010) 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 Accounting 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
consequently 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 constitutional authority. Art. I, §8, cl. 18. As
Chief Justice 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 flexibility to respond
to future “exigencies which, if foreseen at all, must have been
seen dimly.” Ibid. Thus the Necessary 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 response 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. Commissioner , 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
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 Executive Branch officials from dismissal at the will of the
President. Ibid. Nor does the separation-of-powers
principle 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 general
“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
discussed in the Constitutional Convention.” Myers, supra, at 109–110. The First Congress enacted federal statutes 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 Officers 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 disputed” 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.
Goodrich 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 continued 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 question presented. At least it does not clearly invalidate the
provision in dispute. See Part II–C, infra . In Myers,
supra, the Court invalidated—for the first and only time—a
congressional statute on the ground that it unduly limited the
President’s authority to remove an Executive Branch official. But
soon thereafter the Court expressly disapproved most of Myers’ broad reasoning. See Humphrey’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 ‘disapproved’ ”
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 feature 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
(“separation-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). Compare 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 language” of the
Constitution (internal quotation marks omitted)).

															B

															   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. 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 matters 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’ Congress 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 workable 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 governing under our Constitution does not and
cannot conform 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 circumstances 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 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 conditions 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 Constitution 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 founding
consisted of about 2,000 employees and served a population 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
workers 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 instruments, 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 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 commissions 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 governing 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 Government’s work, it is not surprising that administrative
units come in many different shapes and sizes.

															   The functional approach required by our
precedents recognizes this administrative complexity and, more
importantly, 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, sometimes it is necessary to disable oneself
in order to achieve a broader objective. Thus, legally enforceable
commitments—such as contracts, statutes that cannot instantly be
changed, and, as in the case before us, the establishment 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 affected 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
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 especially 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
embodying 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 Statements 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
expertise.

															II

															A

															   To what extent then is the Act’s
“for cause” provision likely, as a practical matter, to limit the
President’s exercise 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 Powers and the Fourth Branch, 84 Colum. L. Rev.
573, 583 (1984) (hereinafter Strauss). Those entities “are all subject 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 actually sought to exercise that power by
testing the scope of a “for cause” provision. See Bruff, Bringing
the Independent 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 & Sunstein 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 President’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 members 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 Commissioners 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 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 determination notwithstanding
the President’s contrary 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 member. 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
depends 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 possibility 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 President 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 overall 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 Commission with full
authority and virtually comprehensive control over all of the
Board’s functions. Those who created the Accounting Board modeled
it, in terms of structure and authority, upon the semiprivate
regulatory bodies 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 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 Accounting 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 engage in other
related activities, such as conducting inspections 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 securities and
accounting-oversight laws, §7217(b)(5);

															•   The Commission may review any sanction the
Board imposes and “enhance, modify, cancel, reduce, 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 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 standards 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 Commission has
general supervisory powers over the Accounting 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 authority over the Board,” §7217(a), including the
authority to inspect the Board’s activities whenever it believes it
“appropriate” 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 “arguable
premis[e]” “that the enumeration of certain specified 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 Constitutional, 62 Vand. L. Rev. En
Banc 85 (2009), online at
http://vanderbiltlawreview.org1/articles/2009/11/Pildes-62-Vand-L-Rev-En-Banc-85.pdf
(explaining further the comprehensive 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 matter? Everyone concedes
that the President’s control over the Commission is
constitutionally sufficient. See Humphrey’s Executor, 295 U. S. 602 ; Wiener, 357 U. S. 349 ; ante, at 1–2.
And if the President’s control over the Commission 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 sufficient 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
appropriateness 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”
executive “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
ultimately 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,” a nte, 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 registered 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 independence upon the need for
technical expertise. See Humphrey’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 administrators with “technical
competence,” “apolitical expertise,” and skill in “scientific
management” led to original creation of independent agencies)
(hereinafter Breger & Edles); 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).

															   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
deliberately 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 … administrative officer representing a great political party …
to hold the power of life and death over the great business
interests of this country… . That is … why I believe in …
taking these business matters out of politics”). And Congress, by,
for example, providing the Board with a revenue stream independent
of the congressional appropriations process, §7219, helped insulate
the Board from congressional, 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 Government 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 experts” 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
constitutionality. 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 accomplishing 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 restrictions are of such a nature that they impede the
President’s ability to perform his constitutional duty, and the
functions 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 restriction 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 repeatedly upheld “for cause” provisions where
they restrict the President’s power to remove an officer with
adjudicatory responsibilities. Compare Humphrey’s Executor, 295 U. S., at 623–628; Wiener , 357 U. S., at 355; Schor, 478 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 importance 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 competently 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 “inferior 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.” Perkins, supra, at 485 (emphasis added;
internal quotation marks omitted).

															See also Morrison, supra, at 723–724
(Scalia, J., dissenting) (agreeing that the power to remove an
“inferior officer” who is appointed by a department head can be
restricted). Cf. ante, at 30–33 (holding that SEC
Commissioners 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
departments. 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; Morrison , 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 Constitution prevents Congress from ‘draw[ing] to itself … the power to
remove.’ ” Morrison , supra, at 686
(quoting 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 example, 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 constitutional 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]
adjudicative … functions.” Cf. ante, at 26, n. 10.
But the Accounting Board performs adjudicative functions. See
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 important 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 termination 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. Humphrey’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
relationship 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 includes 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 absolute 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 unusually high standard ” of for-cause removal—and does not
otherwise render two layers of “ ‘ordinary’ ” for-cause
removal 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
“rigorous,” “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 inherent 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
appointive 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
confirmation. 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 exclusion would be insufficient. This is because the
Court’s “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 Constitution §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 particularly 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 conclude that the term’s sweep is unusually broad.
Consider the Court’s definitions: Inferior officers are, inter
alia, (1) those charged with “the administration and
enforcement 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
Department 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 opinions,” “conduc[t] civil litigation,” “collec[t] revenue,”
represent “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 responsible 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. Hartwell , 6 Wall. 385, 392
(1868); (4 & 5) an “assistant-surgeon” and a “cadet-engineer”
appointed by the Secretary of the Navy, United States v. Moore , 95 U.
S. 760 , 762 (1878); Perkins , 116 U. S., at 484; (6)
election monitors, Ex parte Siebold , 100 U. S. 371 , 397–399
(1880); (7) United States attorneys, Myers , supra , at 159; (8) federal marshals, 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 Commission’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 commissioned 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, bureaus 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
officials, 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 Regulation and Office of
Enforcement), virtually all of the leadership of the Social
Security Administration, the 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 Management, 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 reassign[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 International Monetary Policy in the Treasury
Department. See Senate Committee on Homeland Security and
Government 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 functions .” §3132(a)(2) (emphasis added). Cf. ante, at 2 (describing 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 not?
The Court, after listing reasons why the SES may be different,
simply says that it will not “addres[s]” the matter. 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,
administrative 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]
officers”). But cf. ante, at 26, n. 10. And ALJs are
each removable “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 Memorandum of Juanita Love, Office of Personnel Management, to
Supreme Court Library (May 28, 2010) (available 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
unconstitutional? 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 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 generally 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 officials. 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” provisions? Cf. Buckley , 424 U.
S., at 142–143. Can the President 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
questions 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 individuals 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 injunction 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
offending 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 Parenthood 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 repeatedly 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
performance rather than political service,” Civil Service
Comm’n , 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 arbitrary. 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 Commissioners cannot themselves
be removed by the President 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 Refining Co. , 322 U. S. 42 , 46 (1944)
(describing parties’ inability to “stipulate away” what “the
legislation declares”).

															   It is certainly not obvious that
the SEC Commissioners enjoy “for cause” protection. Unlike the
statutes establishing the 48 federal agencies listed in Appendix A, infra , the statue 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 remove 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 language.
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 President and Congress, 20 Op. Legal Counsel 124, 170 (1996)
(same).

															   Nor is the absence of a “for cause” provision
in the statute that created the Commission likely to have been
inadvertent. 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 constitutionality of making commissioners of independent
agencies removable only for cause. In other words, Congress 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 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
Commissioners 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 multimember bipartisan
board, the use of the word “independent” 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
‘independent’ 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 without a definition of
an “inferior officer,” but we are also left to guess which
department heads will be deemed by the majority to be subject to
for-cause removal notwithstanding 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 Appendix 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
construction 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
constitutional 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 unconstitutionality 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
contextual 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 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 undermine the President’s authority. And it will
create an obstacle, indeed pose a serious threat, to the proper
functioning of that workable Government that the Constitution seeks
to create—in provisions this Court is sworn to uphold.

															   With respect I dissent.

															APPENDIXES

															A

															   There are 24 stand-alone federal
agencies ( i.e., “ departments”) 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 1 Chemical Safety Board “Any member of the Board, including the Chairperson,
may be removed for inefficiency, neglect of duty, or malfeasance in
office.” 42 U. S. C. §7412(r)(6)(B) 2 Commission on Civil Rights “The President may remove a member of the Commission
only for neglect of duty or malfeasance in office.” 42 U.
S. C. §1975(e) 3 Consumer Product Safety Commission “Any member of the Commission may be removed by the
President for neglect of duty or malfeasance in office but for no
other cause.” 15 U. S. C. §2053(a) 4 Federal Energy Regulatory Commission “Members shall hold office for a term of 5 years and
may be removed by the President only for inefficiency, neglect of
duty, or malfeasance in office.” 42 U. S. C.
§7171(b)(1) 5 Federal Labor Relations Authority “Members of the Authority shall be appointed by the
President by and with the advice and consent of the Senate, and may
be removed by the President only upon notice and hearing and only
for inefficiency, neglect of duty, or malfeasance in office.” 5 U.
S. C. §7104(b) 6 Federal Maritime Commission “The President may remove a Commissioner for
inefficiency, neglect of duty, or malfeasance in office.” 46 U.
S. C. §301(b)(3) 7 Federal Mine Safety and Health Review
Commission “Any member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 30 U. S. C. §823(b)(1) 8 Federal Reserve Board “[E]ach member shall hold office for a term of
fourteen years from the expiration of the term of his predecessor,
unless sooner removed for cause by the President.” 12 U. S. C.
§242 9 Federal Trade Commission “Any commissioner may be removed by the President
for inefficiency, neglect of duty, or malfeasance in office.” 15 U.
S. C. §41 10 Independent Medicare Advisory Board “Any appointed member may be removed by the
President for neglect of duty or malfeasance in office, but for no
other cause.” Pub. L. 111–148, §3403. 11 Merit Systems Protection Board “Any member may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office.” 5 U.
S. C. §1202(d) 12 National Labor Relations Board “Any member of the Board may be removed by the
President, upon notice and hearing, for neglect of duty or
malfeasance in office, but for no other cause.” 29 U. S. C.
§153(a) 13 National Mediation Board “A member of the Board may be removed by the
President for inefficiency, neglect of duty, malfeasance in office,
or ineligibility, but for no other cause.” 45 U. S. C.
§154 14 National Transportation Safety Board “The President may remove a member for inefficiency,
neglect of duty, or malfeasance in office.” 49 U. S. C.
§1111(c) 15 Nuclear Regulatory Commission “Any member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 42 U. S. C. §5841(e) 16 Occupational Safety and Health Review
Commission “A member of the Commission may be removed by the
President for inefficiency, neglect of duty, or malfeasance in
office.” 29 U. S. C. §661(b) 17 Office of Special Counsel “The Special Counsel may be removed by the President
only for inefficiency, neglect of duty, or malfeasance in office.”
5 U. S. C. §1211(b) 18 Postal Regulatory Commission “The Commissioners shall be chosen solely on the
basis of their technical qualifications, professional standing, and
demonstrated expertise in economics, accounting, law, or public
administration, and may be removed by the President only for
cause.” 39 U. S. C. §502(a) 19 Postal Service * “The exercise of the power of the
Postal Service shall be directed by a Board of Governors composed
of 11 members … . 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 20 Social Security
Administration “[The] Commissioner may be removed
from office only pursuant to a finding by the President of neglect
of duty or malfeasance in office.” 42 U. S. C.
§902(a)(3) 21 United States Institute of
Peace * “A member of the
Board appointed under subsection (b)(5) … may be removed by the
President . . . in consultation with the Board, for conviction of a
felony, malfeasance in office, persistent neglect of duties, or
inability to discharge duties.” 22 U. S. C.
§4605(f) 22 United States
Sentencing Commission “The Chair, Vice
Chairs, and members of the Commission shall be subject to removal
from the Commission by the President only for neglect of duty or
malfeasance in office or for other good cause shown.” 28 U.
S. C. §991(a) 23 Legal Services
Corporation * “A
member of the Board may be removed by a vote of seven members for
malfeasance in office or for persistent neglect of or inability to
discharge duties, or for offenses involving moral turpitude, and
for no other cause.” 42 U. S. C.
§2996c(e) 24 State Justice Institute * “A member of the Board may be removed by a vote
of seven members for malfeasance in office, persistent neglect of,
or inability to discharge duties, or for any offense involving
moral turpitude, but for no other cause.” 42 U. S. C.
§10703(h) Office Within
Department Statutory Removal
Provision 25 Department of
Agriculture: National Appeals
Division “The Division shall be headed by a
Director, appointed by the Secretary from among persons who have
substantial experience in practicing administrative law. . . . The
Director shall not be subject to removal during the term of office,
except for cause established in accordance with law.” 7 U.
S. C.
§§6992(b)(1)–(2) 26 Department of
Agriculture: Regional Fishery Management
Councils “The Secretary may remove for cause
any member of a Council required to be appointed by the Secretary .
. . .” 16 U. S. C.
§1852(b)(6) 27 Department of
Commerce: Corporation for Travel
Promotion † “The Secretary of
Commerce may remove any member of the board [of the Corporation]
for good cause.” 124 Stat.
57 28 Department of
Defense: Office of Navy
Reserve “The Chief of Navy
Reserve is appointed for a term determined by the Chief of Naval
Operations, normally four years, but may be removed for cause at
any time.” 10 U. S. C.
§5143(c)(1) 29 Department of
Defense: Office of Marine
Forces Reserve “The Commander,
Marine Forces Reserve, is appointed for a term determined by the
Commandant of the Marine Corps, normally four years, but may be
removed for cause at any time.” 10 U. S. C.
§5144(c)(1) 30 Department of
Defense: Office of Air Force
Reserve “The Chief of Air
Force Reserve is appointed for a period of four years, but may be
removed for cause at any time.” 10 U. S. C.
§8038(c)(1) 31 Department of
Defense: Joint Staff of the
National Guard
Bureau “[A]n officer
appointed as Director of the Joint Staff of the National Guard
Bureau serves for a term of four years, but may be removed from
office at any time for cause.” 10 U. S. C.
§10505(a)(3)(A) Office
Within
Department Statutory Removal
Provision 32 Department of
Defense: Board
of
Actuaries “A
member of the Board may be removed by the Secretary of Defense only
for misconduct or failure to perform functions vested in the
Board.” 10 U. S. C. A. §183(b)(3)
(2010) 33 Department of
Defense: Medicare-Eligible Retiree Health Care Board of
Actuaries “A
member of the Board may be removed by the Secretary of Defense for
misconduct or failure to perform functions vested in the Board, and
for no other reason.” 10 U. S. C.
§1114(a)(2)(A) 34 Department of
Education: Performance-Based Organization for the Delivery of Federal
Student Financial
Assistance “The
Chief Operating Officer may be removed by … the President; or … the
Secretary, for misconduct or failure to meet performance goals set
forth in the performance agreement in paragraph (4).” 20 U.
S. C.
§1018(d)(3) 35 Federal Labor Relations
Authority: Foreign
Service Labor Relations Board (see supra, row
5) “The
Chairperson [of the FLRA, who also chairs the Board] may remove any
other Board member … for corruption, neglect of duty, malfeasance,
or demonstrated incapacity to perform his or her functions
… .” 22 U. S. C.
§4106(e) 36 General Services
Administration: Civilian Board of Contract Appeals (see supra, row
11) “Members of the Civilian Board shall be subject to removal in
the same manner as administrative law judges, [i.e., ‘only
for good cause established and determined by the Merit Systems
Protection Board.’] ” 41 U. S. C. §438(b)(2)
(emphasis
added) 37 Department of Health and Human
Services: National Advisory Council on National Health Service
Corps “No
member shall be removed, except for cause.” 42 U. S. C.
§254j(b) 38 Department of Health and Human
Services: Medicare & Medicaid Office of the Chief
Actuary “The
Chief Actuary may be removed only for cause.” 42 U. S. C.
§1317(b)(1) 39 Department of Homeland
Security: Office
of the Coast Guard
Reserve “An
officer may be removed from the position of Director for cause at
any time.” 14 U. S. C.
§53(c)(1) 40 Department of the
Interior: National Indian Gaming
Commission “A
Commissioner may only be removed from office before the expiration
of the term of office of the member by the President (or, in the
case of associate member, by the Secretary) for neglect of duty, or
malfeasance in office, or for other good cause shown.” 25 U.
S. C.
§2704(b)(6) 41 Library of
Congress: Copyright Royalty
Judgeships “The
Librarian of Congress may sanction or remove a Copyright Royalty
Judge for violation of the standards of conduct adopted under
subsection (h), misconduct, neglect of duty, or any disqualifying
physical or mental disability.” 17 U. S. C.
§802(i) 42 Postal
Service: Inspector General (see supra, row
19) “The
Inspector General may at any time be removed upon the written
concurrence of at least 7 Governors, but only for cause.” 39 U.
S. C.
§202(e)(3) 43 Securities and Exchange
Commission: Public
Company Accounting Oversight
Board “A
member of the Board may be removed by the Commission from office …
for good cause shown . . . .” 15 U. S. C.
§7211(e)(6) 44 Social Security
Administration: Office
of the Chief Actuary (see supra, row
20) “The
Chief Actuary may be removed only for cause.” 42 U. S. C.
§902(c)(1) 45 Department of
State: Foreign
Service Grievance
Board “The
Secretary of State may, upon written notice, remove a Board member
for corruption, neglect of duty, malfeasance, or demonstrated
incapacity to perform his or her functions, established at a
hearing (unless the right to a hearing is waived in writing by the
Board member).” 22 U. S. C.
§4135(d) 46 Department of
Transportation: Air
Traffic Services
Committee “Any
member of the Committee may be removed for cause by the Secretary.”
49 U. S. C.
§106(p)(6)(G) 47 Department of
Transportation: Surface
Transportation
Board “The
President may remove a member for inefficiency, neglect of duty, or
malfeasance in office.” 49 U. S. C.
§701(b)(3) 48 Department of Veterans
Affairs: Board
of Veterans
Appeals “The
Chairman may be removed by the President for misconduct,
inefficiency, neglect of duty, or engaging in the practice of law
or for physical or mental disability which, in the opinion of the
President, prevents the proper execution 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) 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 available, the provision of law establishing that
office. Cf. supra, at 27 (citing Mouat , 124 U.
S., at 307–308; Germaine , 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
“general” 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 positions 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
quadrennial 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 Management and
last published in 2006. See 72 Fed. Reg. 16154–16251 (2007);
§3132(b)(4). Given the Federal Government’s size and the temporal
lag between the underlying sources, the list that follows is
intended to be illustrative, not
exact. Nuclear Regulatory Commission
(192) Office General
Position Reserved
Position Office of the Executive Director for Operations 10
CFR §1.32
(2009) Executive
Director Director of Nuclear Security
Projects Deputy Executive Director for Reactor and
Preparedness
Programs Deputy Executive Director for Materials, Waste,
Research, State, Tribal, and Compliance,
Programs Deputy Executive Director for Corporate
Management Assistant for
Operations Director for Strategic Organizational Planning and
Optimization Office of the Secretary 10 CFR
§1.25 Secretary Office of the Chief Financial Officer 10 CFR
§1.31 Chief Financial
Officer Director, Division of Planning, Budget and
Analysis Director, Division of Financial
Services Deputy Chief Financial
Officer Director, Division of Financial
Management Office of the Inspector General 10 CFR
§1.12 Deputy Inspector
General Assistant Inspector General for
Audits Assistant Inspector General for
Investigations Office of the General Counsel 10 CFR
§1.23 General
Counsel Director, Commission Adjudicatory Technical
Support Deputy General
Counsel Deputy Assistant General Counsel for Rulemaking and
Fuel
Cycle Solicitor Deputy Assistant General Counsel for
Administration Associate General Counsel for Licensing and
Regulation Assistant General Counsel for Operating
Reactors Assistant General Counsel for Rulemaking and Fuel
Cycle Office General
Position Reserved
Position Office of the General
Counsel (Continued) Assistant General Counsel for Legal Counsel,
Legislation, and Special
Projects Associate General Counsel for Hearings,
Enforcement, and
Administration Assistant General Counsel for New Reactor
Programs Assistant General Counsel for Operating
Reactors Assistant General Counsel for the High-Level Waste
Repository
Programs Office of Commission Appellate Adjudication 10 CFR
§1.24 Director Office of Congressional Affairs 10 CFR
§1.27 Director Office of Public Affairs 10 CFR
§1.28 Director Office of International Programs 10 CFR
§1.29 Director Deputy
Director Office of Investigations 10 CFR
§1.36 Director Deputy
Director Office of Enforcement 10 CFR
§1.33 Director Office of Administration 10 CFR
§1.34 Director Deputy
Director Director, Division of
Contracts Director, Division of Administrative
Services Director, Division of Facilities and
Security Office of Human Resources 10 CFR
§1.39 Director Deputy
Director Associate Director for Training and
Development Office General
Position Reserved
Position Office of Information Services 10 CFR
§1.35 Director Deputy
Director Director, Information and Records Services
Division Director, High-Level Waste Business and Program
Integration
Staff Director, Business Process Improvement and
Applications Director, Program Management, Policy Development
and Analysis
Staff Director, Infrastructure and Computer
Operations Office of Nuclear Security and Incident Response 10
CFR
§1.46 Director Deputy Director
(2) Director, Program Management, Policy
Development (Division of Security
Policy) Director Deputy
Director Project Director, Nuclear Security
Policy Project Director, Nuclear Security
Operations Deputy Director for Material
Security Deputy Director for Reactor Security and
Rulemaking (Division of Preparedness and
Response) Director Deputy Director
(2) Deputy Director for Emergency
Preparedness (Division of Security
Operations) Director Deputy Director for Security
Oversight Deputy Director for Security
Programs Office of Nuclear Reactor Regulation 10 CFR
§1.43 Director Director, Program Management,
etc. Deputy
Director Deputy Director, Program Management,
etc. Office General
Position Reserved
Position Office of Nuclear Reactor
Regulation (Continued) Associate Director, Operating Reactor Oversight and
Licensing Associate Director, Risk Assessment and New
Projects Associate Director, Engineering and Safety
Systems (Division of Safety
Systems) Director Deputy Director
(2) (Division of License
Renewal) Director Deputy
Director (Division of Operating Reactor
Licensing) Director Deputy Director
(2) (Division of Inspection and Regional
Support) Director Deputy Director
(2) (Division of New Reactor
Licensing) Director Deputy Director
(2) (Division of
Engineering) Director Deputy Director
(3) (Division of Risk
Assessment) Director Deputy Director
(2) (Division of Policy and
Rulemaking) Director Deputy Director
(2) (Division of Component
Integrity) Director Deputy
Director Office of New Reactors 10 CFR
§1.44 Director Assistant to the Director for Transition
Management Office of Nuclear Material Safety and Safeguards 10
CFR
§1.42 Director Director, Program Planning,
etc. Deputy
Director (Division of Fuel Cycle Safety and
Safeguards) Chief, Special Projects
Branch Chief, Safety and Safeguards Support
Branch Chief, Fuel Cycle Facilities
Branch Office General
Position Reserved
Position (Division of Industrial and Medical Nuclear
Safety) Chief, Rulemaking and Guidance
Branch Chief, Materials Safety and Inspection
Branch (Division of High Level Waste Repository
Safety) Deputy Director, Licensing and
Inspection Deputy Director, Technical Review Directorate
(2) (Spent Fuel Project
Office) Deputy Director, Technical Review
Directorate Deputy Director, Licensing and
Inspection Office of Federal and State Materials and
Environmental Management Programs 10 CFR
§1.41 Director Deputy
Director Director, Program Planning,
etc. (Division of Waste Management and Environmental
Protection) Director Deputy Director, Decommissioning
(2) Deputy Director, Environmental Protection
(2) Chief, Environmental and Performance
Assessment (Division of Materials Safety and State
Agreements) Director Deputy
Director (Division of Intergovernmental Liaison and
Rulemaking) Director Deputy
Director Office of Nuclear Regulatory Research 10 CFR
§1.45 Director Director, Program Management,
etc. Deputy
Director Deputy Director for Materials
Engineering Regional Administrator
(4) Deputy Director for Engineering Research
Applications Deputy Director for New Reactors and Computational
Analysis Deputy Director for Probabilistic Risk and
Applications Office General
Position Reserved
Position Office of Nuclear Regulatory Research
( Continued) Deputy Director for Operating Experience and Risk
Analysis Deputy Director for Radiation Protection,
Environmental Risk and Waste
Management (Division of Engineering
Technology) Chief, Generic Safety Issues
Branch Chief, Electrical, Mechanical, and Materials
Branch Chief, Structural and Geological Engineering
Branch Chief, Materials Engineering
Branch Chief, Engineering Research Applications
Branch (Division of Systems Analysis and Regulatory
Effectiveness) Deputy
Director Chief, Advanced Reactors and Regulatory
Effectiveness Chief, Safety Margins and Systems Analysis
Branch Chief, Radiation Protection,
etc. (Division of Risk Analysis and
Application) Deputy
Director Chief, Operating Experience Risk Analysis
Branch Chief, Probabilistic Risk Analysis
Branch (Division of Risk Assessment and Special
Projects) Director Assistant
Director(2) (Division of Fuel, Engineering and Radiological
Research) Director Assistant
Director Office of Small Business and Civil Rights 10 CFR
§1.37 Director Advisory Committee on Reactor Safeguards 10 CFR
§1.13 Executive
Director Deputy Executive
Director Office General
Position Reserved
Position Regional Offices 10 CFR
§1.47 Deputy Regional Administrator
(5) Director, Division of Fuel Facility Inspection
(1) Director, Division of Reactor Projects
(4) Deputy Director, Division of Reactor Projects
(5) Director, Division of Reactor 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 Office of the Commissioner 33 Fed. Reg. 5828
(1968) Executive Counselor to the
Commissioner Deputy Chief of
Staff Director for
Regulations Senior Advisor to the Deputy
Commissioner Senior Advisor to the
Commissioner Office of International Programs 63 Fed. Reg. 41888
(1998) Associate Commissioner for International
Programs Office of Executive Operations 56 Fed. Reg. 15888
(1991) Assistant Inspector
General Office of the Chief Actuary 42 U. S. C. §902(c)(1)
33 Fed. Reg.
5828 Chief
Actuary Deputy Chief Actuary,
Long-Range Deputy Chief Actuary,
Short-Range Office General
Position Reserved
Position Office of the Chief Information Officer 33 Fed.
Reg.
5829 Deputy Chief Information
Officer Director, Office of Information Technology Systems
Review Office of Information Technology Investment
Management Associate Chief Information
Officer Office of Budget, Finance and Management 60 Fed.
Reg. 22099
(1995) Deputy
Commissioner Assistant Deputy
Commissioner Office of Acquisition and Grants 60 Fed. Reg.
22099 Associate
Commissioner Office of Budget 60 Fed. Reg.
22099 Associate
Commissioner Deputy Associate
Commissioner Office of Facilities Management 60 Fed. Reg.
22099 Associate
Commissioner Deputy Associate
Commissioner Office of Financial Policy and Operations 56 Fed.
Reg.
15888 Associate
Commissioner Deputy Associate
Commissioner Office of Publications and Logistics Management 60
Fed. Reg.
22099 Associate
Commissioner Deputy Associate
Commissioner Office of Communications 62 Fed. Reg. 9476
(1997) Assistant Deputy
Commissioner Press
Officer Office of Communications Planning and Technology 63
Fed. Reg.
15476 Associate
Commissioner Office of Public Inquiries 62 Fed. Reg.
9477 Associate
Commissioner Office General
Position Reserved
Position Office of Disability Adjudication and
Review Deputy
Commissioner Assistant Deputy
Commissioner Office of Appellate Operations 53 Fed. Reg. 29778
(1988) Executive
Director Office of the General Counsel 65 Fed. Reg. 39218
(2000) Deputy General
Counsel Office of General Law 65 Fed. Reg.
39218 Associate General
Counsel Office of Public Disclosure 67 Fed. Reg. 63186
(2002) Executive
Director Office of Regional Chief Counsels 65 Fed. Reg.
39219 Regional Chief Counsel
(7) Office of Human Resources 60 Fed. Reg.
22128 Deputy
Commissioner Assistant Deputy
Commissioner Office of Civil Rights and Equal Opportunity 60
Fed. Reg.
22128 Associate
Commissioner Office of Labor Management and Employee
Relations Associate
Commissioner Deputy Associate
Commissioner Office of Personnel 60 Fed. Reg.
22128 Associate
Commissioner Deputy Associate
Commissioner Office of Training 60 Fed. Reg.
22128 Associate
Commissioner Office of the Inspector General 42 U. S. C.
§902(e) 60 Fed. Reg.
22133 Deputy Inspector
General Counsel to the Inspector
General Office General
Position Reserved
Position Office of Audits 60 Fed. Reg.
22133 Assistant Inspector General for
Audit Deputy Assistant Inspector General for
Audit Office of Investigations 60 Fed. Reg.
22133 Assistant Inspector
General Deputy Assistant Inspector General for Field
Investigations Deputy Assistant Inspector General for National
Investigative
Operations Office of Legislation and Congressional Affairs 60
Fed. Reg.
22152 Senior Advisor to the Deputy
Commissioner Office of Legislative Development 65 Fed. Reg.
10846 Associate
Commissioner Office of Operations 60 Fed. Reg.
22107 Deputy
Commissioner Assistant Deputy
Commissioner Office of Automation Support 60 Fed. Reg.
22108 Associate
Commissioner Office of Central Operations 63 Fed. Reg.
32275 Associate
Commissioner Deputy Associate
Commissioner Assistant Associate
Commissioner Assistant Associate Commissioner for Management and
Operations
Support Office of Disability Determinations 67 Fed. Reg.
69288 Associate
Commissioner Deputy Associate
Commissioner Office of Electronic Services 66 Fed. Reg. 29618
(2001) Associate
Commissioner Office of Public Service and Operations Support 59
Fed. Reg. 56511
(1994) Associate
Commissioner Deputy Associate
Commissioner Office General
Position Reserved
Position Office of Telephone Services 60 Fed. Reg.
22108 Associate
Commissioner Deputy Associate
Commissioner Office of Regional Commissioners 60 Fed. Reg.
22108 Regional Commissioners
(10) Deputy Regional Commissioner
(10) Assistant Regional Commissioner
(15) Office of Retirement and Disability
Policy Deputy
Commissioner Assistant Deputy Commissioner
(2) Senior Advisor for Program
Outreach Office of Disability Programs 67 Fed. Reg.
69289 Associate
Commissioner Office of Employment Support Programs 64 Fed. Reg.
19397
(1999) Associate
Commissioner Office of Income Security Programs 67 Fed. Reg.
69288 Associate
Commissioner Deputy Associate
Commissioner Office of Medical and Vocational
Expertise Associate
Commissioner Office of Research, Evaluation and Statistics 61
Fed. Reg. 35847
(1996) Associate
Commissioner Office of Systems 60 Fed. Reg.
22116 Deputy
Commissioner Assistant Deputy
Commissioner Office of Disability Systems 61 Fed. Reg.
35849 Associate
Commissioner Deputy Associate
Commissioner Office of Supplemental Security Income
Systems 67 Fed. Reg.
37892 Associate
Commissioner Deputy Associate
Commissioner Office General
Position Reserved
Position Office of Earnings, Enumeration and Administrative
Systems 67 Fed. Reg.
37892 Associate
Commissioner Deputy Associate
Commissioner Office of Enterprise Support, Architecture and
Engineering 67 Fed. Reg.
37892 Associate
Commissioner Deputy Associate Commissioner
(2) Office of Retirement and Survivors Insurance
Systems 67 Fed. Reg.
37892 Associate
Commissioner Deputy Associate
Commissioner Office of Systems Electronic Services 66 Fed. Reg.
10766
(2001) Associate
Commissioner Deputy Associate
Commissioner Office of Quality Performance 63 Fed. Reg.
32035 Deputy
Commissioner Chief Quality
Officer Assistant Deputy
Commissioner Deputy Chief Quality
Officer Deputy Associate
Commissioner Office of Quality Data
Management Associate
Commissioner Office of Quality
Improvement Associate
Commissioner Deputy Associate
Commissioner Office of Quality
Review Associate
Commissioner Deputy Associate
Commissioner Office of the Chief Strategic Officer 67 Fed. Reg.
79950 Chief Strategic
Officer National Labor Relations Board
(60) Office General
Position Reserved
Position Office of the Board 29 U. S. C.
§153(a) Director, Office of Representation
Appeals and
Advice Executive
Secretary Solicitor Deputy Executive
Secretary Deputy Chief Counsel to Board Member
(4) Inspector
General Chief Information
Officer Office General
Position Reserved
Position Office of the General Counsel 29 U.
S. C.
§153(d) Deputy General
Counsel (Division of Enforcement
Litigation) Associate General
Counsel Deputy Associate General
Counsel Deputy Associate General Counsel,
Appellate Court
Branch Director, Office of
Appeals (Division of
Advice) Associate General
Counsel Deputy Associate General
Counsel (Division of
Administration) Director Deputy
Director (Division of Operations
Management) Associate General
Counsel Deputy Associate
General Assistant General Counsel
(6) Regional Offices 29 U. S. C.
§153(b) Regional Director
(33) Federal Energy Regulatory
Commission
(44) Office General
Position Reserved
Position Office of the Executive
Director 18 CFR §1.101(e)
(2009) Executive
Director Deputy Executive
Director Deputy Chief Information
Officer Office of General Counsel
18 CFR
§1.101(f) General
Counsel Deputy General
Counsel Associate General Counsel
(3) Deputy Associate General
Counsel
(4) Solicitor Office of Energy Market
Regulation 18 CFR
§376.204(b)(2)(ii) Director Deputy
Director Director, Tariffs and
Market Development
(3) Director, Policy Analysis
and
Rulemaking Director, Administration,
Case Management, and Strategic
Planning Office General
Position Reserved
Position Office of Energy Projects
18 CFR
§376.204(b)(2)(iii) Director Director, Dam Safety and
Inspections Principal Deputy
Director Deputy
Director Director, Hydropower
Licensing Director, Pipeline
Certificates Director, Gas Environment
and
Engineering Director, Hydropower
Administration and
Compliance Office of Enforcement 18
CFR
§376.204(b)(2)(vi) Director Chief Accountant and
Director, Division of Financial
Regulations Deputy
Director Chief, Regulatory
Accounting
Branch Director,
Investigations Deputy Director,
Investigations Director,
Audits Director, Energy Market
Oversight Office of Electric
Reliability 18 CFR
§376.204(b)(2)(iv) Director Deputy
Director Director,
Compliance Director, Logistics and
Security Office of Administrative
Litigation 64 Fed. Reg. 51226
(1999) 68 Fed. Reg. 27056
(2003) Director Director, Technical
Division Director, Legal
Division Senior Counsel for
Litigation Federal Trade
Commission
(31) Office General
Position Reserved
Position Office of the
Chairman 16 CFR §0.8
(2010) Secretary Office of the
Executive Director 16 CFR
§0.10 Executive
Director Deputy
Executive
Director Chief Financial
Officer Chief
Information
Officer Office General
Position Reserved
Position Office of the
General Counsel 16 CFR
§0.11 Principal
Deputy General
Counsel Deputy General
Counsel for Policy
Studies Deputy General
Counsel for
Litigation Deputy General
Counsel for Legal
Counsel Office of
International Affairs 16 CFR
§0.20 Director Deputy
Director Bureau of
Competition 16 CFR
§0.16 Associate
Director Associate
Director,
Policy Assistant
Director, Mergers
(2) Assistant
Director,
Compliance Bureau of
Consumer Protection 16 CFR
§0.17 Director Associate
Director for International
Division Deputy Director
(2) Associate
Director for Privacy and Identity
Protection Associate
Director for Advertising
Practices Associate
Director for Marketing
Practices Associate
Director for Financial
Practices Associate
Director for Consumer and Business
Education Associate
Director for Planning and
Information Associate
Director for
Enforcement Bureau of
Economics 16 CFR
§0.18 Deputy Director
for Research and Development and
Operations Deputy Director
for
Antitrust Associate
Director for Consumer Protection and
Research Office of the
Inspector General 16 CFR
§0.13 Inspector
General Consumer Product Safety Commission
(16) Office General
Position Reserved
Position Office of the Executive Director 16 CFR §1000.18
(2010) Deputy Executive
Director Assistant Executive Director for Compliance and Administrative
Litigation Chief Financial
Officer Associate Executive Director for Field
Operations Executive
Assistant Office of Compliance and Field Operations 16 CFR
§1000.21 Deputy
Director Office of Hazard Identification and Reduction 16 CFR
§1000.25 Assistant Executive
Director Deputy Assistant Executive
Director Associate Executive Director for Economic
Analysis Associate Executive Director for Engineering
Sciences Associate Executive Director for
Epidemiology Directorate for Health
Sciences 16
CFR
§1000.27 Associate Executive
Director Directorate for Laboratory
Sciences 16
CFR
§1000.30 Associate Executive
Director Office of International Programs and Intergovernmental
Affairs 16
CFR
§1000.24 Director Office of Information and Technology
Services 16
CFR
§1000.23 Assistant Executive
Director Office of the General Counsel 16 CFR
§1000.14 General
Counsel Federal Labor Relations Authority
(14) Office General
Position Reserved
Position Office of the Chairman 5 CFR §2411.10(a)
(2010) Director, Human Resources, Policy and Performance
Management Chief
Counsel Senior
Advisor Office General
Position Reserved
Position Office of the Solicitor 5 CFR
§2417.203(a) Solicitor Offices of Members 5 U. S. C.
§7104(b) Chief Counsel
(2) Office of the Executive
Director 5 U. S. C.
§7105(d) 5 CFR
§2421.7 Executive
Director Federal Services Impasses Panel 5 U. S. C.
§7119(c) Executive
Director Office of the General Counsel 5 U. S. C.
§7104(f) Deputy General
Counsel Regional Offices 5 U. S. C.
§7105(d) 5 CFR
§2421.6 Regional Director
(5) National Transportation Safety Board
(14) Office General
Position Reserved
Position Office of the Managing Director 49 CFR
§800.2(c)
(2009) Managing
Director Associate Managing Director for Quality
Assurance Office of the General Counsel 49 CFR
§800.2(c) General
Counsel Office of Administration 60 Fed. Reg.
61488 Director Director, Bureau of Accident
Investigation Office of Aviation Safety 49 CFR
§800.2(e) Deputy Director, Technology and
Investment
Operations Deputy Director, Regional
Operations Office of Research and Engineering 49
CFR
§800.2(j) Director Deputy
Director Office of Chief Financial Officer 49 U.
S. C.
§1111(h) 49 CFR
§800.28 Chief Financial
Officer Office of Safety Recommendations and
Accomplishments 49 CFR
§800.2(k) Director Office General
Position Reserved
Position Office of Railroad, Pipeline and
Hazardous Materials Investigations 49 CFR §§800.2(f),
(i) Director National Transportation Safety Board
Academy 49 U. S. C.
§1117 Director President and Academic
Dean Performance-Based
Organization for the Delivery of Federal Student Financial
Assistance
(13) Office General
Position Reserved
Position Office of the Chief
Operating Officer 20 U. S. C.
§§1018(d)–(e) Deputy Chief Operating
Officer Director, Student Aid
Awareness Chief Financial
Officer Chief Compliance
Officer Director, Policy Liaison
and Implementation
Staff Audit
Officer Director, Financial
Management
Group Director, Budget
Group 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 5 CFR
§1200.10(a)(4) (2010) Clerk of the
Board Office of
Financial and Administrative Management 5 CFR
§1200.10(a)(8) Director Office of
Policy and Evaluation 5 CFR
§1200.10(a)(6) Director Office General
Position Reserved
Position Office of
Information Resources Management 5 CFR
§1200.10(a)(9) Director Office of
Regional Operations 5 CFR
§1200.10(a)(1) Director Regional
Director
(6) Office of Special Counsel
(8) Office General
Position Reserved
Position Office of Special Counsel 5 U. S. C.
§1211 Deputy Special
Counsel Associate Special Counsel for Investigation and Prosecution
(3) Senior Associate Special Counsel for Investigation and
Prosecution 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 Counsel 39 CFR §3002.13
(2009) General
Counsel Assistant General
Counsel Office of Accountability and
Compliance Director Assistant Director, Analysis and Pricing
Division Assistant Director, Auditing and Costing
Division Office of Public Affairs and Governmental Relations
39 CFR
§3002.15 Director Office General
Position Reserved
Position Office of the Secretary and Administration 48 Fed.
Reg.
13167 (1983) Secretary and
Director Assistant Director, Human Resources and
Infrastructure Assistant Director, Strategic Planning,
etc. Office of the Inspector General 39 CFR
§3002.16 Inspector
General Federal Maritime Commission
(8) Office General
Position Reserved
Position Office of the Managing Director 46 CFR
§501.3(h)
(2010) 75 Fed. Reg.
29452 Director Office of the Secretary 46 CFR
§501.3(c) Secretary Office of the General Counsel 46 CFR
§501.3(d) Deputy General Counsel for Reports,
Opinions and
Decisions Bureau of Certification and Licensing
46 CFR
§501.3(h)(5) Director Bureau of Trade Analysis 46 CFR
§501.3(h)(6) Director Bureau of Enforcement 46 CFR
§501.3(h)(7) Director Deputy
Director Office of Administration 70 Fed. Reg.
7660 (2005) Director Surface Transportation
Board
(4) Office General
Position Reserved
Position Office of the Chairman 49
CFR
§1011.3 (2009) Director of Public
Assistance, Governmental Affairs and
Compliance Office of the General
Counsel 49 CFR
§1011.6(c)(3) General
Counsel Deputy General
Counsel Office of Proceedings 49
CFR
§1011.6(h) Director Federal Mine
Safety and Health Review Commission
(1) Office General
Position Reserved
Position Office of the
General Counsel 29 CFR
§2706.170(c) (2009) General
Counsel Chemical Safety and Hazard Investigation Board
(1) Office General
Position Reserved
Position Office of the General Counsel 40 CFR §1600.2
(b)(3) (2009) General
Counsel National Mediation Board
(1) Office General
Position Reserved
Position Office of the General Counsel 29 CFR
§1209.06(e) (2009) General
Counsel Commission on Civil Rights
(1) Office General
Position Reserved
Position Office of the Staff Director 42 U.
S. C.
§1975b(a)(2)(A) Associate Deputy Staff
Director Board of Veterans Appeals
(1) Office General
Position Reserved
Position Office of the Vice Chairman
38 U. S. C.
§7101(a) Vice
Chairman C According to data provided by the Office of
Personnel Management, reprinted below, there are 1,584
administrative law judges (ALJs) in the Federal Government. Each of
these ALJs is an inferior officer and each is subject, 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 . AGENCY TOTAL NUMBER OF
ALJs Commodity
Futures Trading
Commission 2 Department of
Agriculture 4 Department of
Education 1 Department of
Health and Human Services (Departmental Appeals
Board) 7 Department of
Health and Human Services (Food and Drug
Administration) 1 Department of
Health and Human Services (Office of Medicare Hearings and
Appeals) 65 Department of
Homeland Security (United States Coast
Guard) 6 Department of
Housing and Urban
Development 2 Department of
the
Interior 9 Department of
Justice (Drug Enforcement
Administration) 3 Department of
Justice (Executive Office for Immigration
Review) 1 Department of
Labor (Office of the
Secretary) 44 Department of
Transportation 3 Environmental
Protection
Agency 4 Federal
Communications
Commission 1 Federal Energy
Regulatory
Commission 14 Federal Labor
Relations
Authority 3 Federal
Maritime
Commission 1 Federal Mine
Safety and Health Review
Commission 11 Federal Trade
Commission 1 International
Trade
Commission 6 National Labor
Relations
Board 39 National
Transportation Safety
Board 4 Occupational
Safety and Health Review
Commission 12 Office of
Financial Institution
Adjudication 1 Securities and
Exchange
Commission 4 Social Security
Administration 1,334 United States
Postal
Service 1 TOTAL 1,584 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 independence: (1) whether the agency consists of a
multi-member commission; (2) whether its members are required, 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
Department 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. Department or
Agency Multi-Member Bi-partisan Statutory Eligibility
Criteria OMB Bypass Litigation
Authority Explicit Statement Securities and Exchange Commission 15 U. S. C.
§78d Yes Yes Yes
12 U. S. C.
§250 Yes
15 U. S. C.
§78u Architectural and Transportation Barriers Compliance Board 29
U. S. C.
§792 Yes Yes
(related
experience) Yes Arctic Research Commission 15 U. S. C.
§4102 Yes Yes
(related knowledge,
experience) Department or
Agency Multi-Member Bi-partisan Statutory Eligibility
Criteria OMB Bypass Litigation
Authority Explicit Statement Broadcasting Board of Governors 22 U. S. C.
§6203 Yes Yes Yes
(citizenship; related
knowledge) Yes Central Intelligence Agency 50 U. S. C.
§403–4 Cf. Freytag, 501 U. S., at
887,n. 4 Commission of Fine Arts 40 U. S. C.
§9101 Yes Yes
(related
knowledge) Commodity Futures Trading Commission 7 U. S. C.
§2(a)(2) Yes Yes Yes
(related
knowledge) Yes
§2(a)(4) Yes Defense Nuclear Facilities Safety Board 42 U. S. C.
§2286 Yes Yes Yes
(citizenship; expert
knowledge) Yes Equal Employment Opportunity Commission 42 U. S. C.
§2000e–4 Yes Yes Yes
§2000e–5(f) Export-Import Bank of the United States*12 U. S. C.
§635a Yes Yes Yes
§635(a)(1) Yes Farm Credit Administration 12 U. S. C. §§2241,
2242 Yes Yes Yes
(citizenship) Yes
§2244(c) Yes Federal Communications Commission 47 U. S. C. §§151,
154 Yes Yes Yes
(citizenship) Yes §401(b) Federal Deposit Insurance Corporation 12 U. S. C. §§1811,
1812 Yes Yes Yes (citizenship; related
experience) Yes
§250 Yes
§1819(a) Department or
Agency Multi-Member Bi-partisan Statutory Eligibility
Criteria OMB Bypass Litigation
Authority Explicit Statement Federal Election Commission 2 U. S. C.
§437c Yes Yes Yes
(general) Yes
§437d(d) Yes
§437d
(a)(6) Federal Housing Finance Agency 12 U. S. C. A. §4511
(Supp.
2010) Yes
§250 Yes Federal Retirement Thrift Investment Board 5 U. S. C.
§8472 Yes Cf.
§8472(b)(2) Yes
(related
knowledge) International Trade Commission 19 U. S. C.
§1330 Yes Yes Yes
(citizenship; expert
knowledge) Yes
§2232 Yes
§1333(g) Yes Marine Mammal Commission 16 U. S. C.
§1401 Yes Yes
(related
knowledge) Millennium Challenge Corporation†22 U. S. C.
§7703 Yes Cf. §7703(c)
(3)(B) Yes (related
experience) National Credit Union Administration 12 U. S. C.
§1752a Yes Yes Yes
(related
experience) Yes
§250 Yes National Archives and Records Administration 44 U. S. C.
§§2102,
2103 Yes Yes
(related
knowledge) Yes National Council on Disability 29 U. S. C.
§780 Yes Yes
(related
experience) National Labor-Management Panel 29 U. S. C.
§175 Yes Yes
(related
knowledge) Department or
Agency Multi-Member Bi-partisan Statutory Eligibility
Criteria OMB Bypass Litigation
Authority Explicit Statement National Science Foundation 42 U. S. C. §§1861, 1863,
1864 Yes Yes
(related
expertise) Yes Peace Corps 22 U. S. C.
§2501–1 Yes Pension Benefit Guaranty Corporation ‡29 U. S. C.
§1302 Yes Yes Railroad Retirement Board 45 U. S. C.
§231f Yes Yes Yes * See Lebron v. National Railroad Passenger
Corporation , 513 U. S. 374 (1995). †See Lebron,
supra . * The officers in this agency are part of the “excepted
service,” but enjoy tenure protection similar to that enjoyed by
career SES appointees. 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). * See Lebron, 513 U. S.
374 . † See Lebron,
supra . ‡  See Lebron,
supra .