28 June 2010

Is the PCAOB A Sleeper Case?

The Freedom Foundation v. PCAOB case decided today is held that a President cannot constitutionally be separated by two layers of tenure from PCAOB board members and ruled that they were employees at will of the SEC, rather than having tenure protections vis the SEC.

The ruling also provided that it does not apply to civil servants, and in traditional executive branch departments it wouldn't, because the line leadership in those departments are removable at will by the President.

But, what about civil servants in independent agencies like the SEC, FBI, NLRB and so on.

The logic of the Court's ruling applies to them, even if its terms do not, and the justification for no applying to two layers of tenure rule to them, that they do not make quasi-legislative rulings, could become a principle of administrative law: that two layers of tenure removed from the President officials of the United States government may not make quasi-legislative rulings without the involvement of a superior.

It could alternately be used to abolish tenure protections for rank and file workers in independent agencies, although this seems a less likely outcome.

Either way, the case could have deep results beyond the very modest actual holding of the case, for the structure of the federal government bureaucracy.

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