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Who Wrote Synar? A Judge Who Types and Why It’s Important

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4 Responses

  1. Justice Scalia (all praise be unto him) has always been rather firm on his reading of what a separation of powers entails and I honestly don’t see your example as disproving of that. I think the Court found that the removal scenarios of “malfeasance, neglect of duty, and inefficiency” were hardly of the “only” variety – the “inefficiency” reason alone could justify almost any removal. Indeed as the Court mentions in its very next sentence:

    “These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will.”

    Meanwhile, in Morrison, Justice Scalia again finds fault with a regime that disperses executive powers and functions into the legislative branch:

    “As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control.”

    In both cases, leakage of powers was understandably and consistently subject to Justice Scalia’s disfavor. The problem in both instances was that subservience could be inferred to two branches – Justice Scalia reads the Constition as not allowing that.

  2. T Samahon says:

    MD Conservatarian: The statutory terms of removal at issue in Bowsher appear no less potentially broad than those in Morrison. The AG could have removed Alexia Morrison “for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel’s duties.” What counts as “good cause” strikes me as highly elastic, at least as elastic as malfeasance, inefficiency, or neglect of duty. A colorable argument could be made that “good cause” means failure to abide by an executive superior’s orders. Assuming, arguendo, SEC commissioners are removable for inefficiency, neglect of duty, or malfeasance (note that no statute grants such tenure, it’s just been assumed — or in other words, the grounds for removal could potentially be very, very broad), I doubt very much that we would hear Justice Scalia say that such officers are “here-and-now subservient” to the President.

    Again he has not necessarily painted himself into a corner, but we do need a reconciliation, or at least a clarification. If a qualified removal power grants control in one context but not control in the other, there are ways to harmonize that apparent inconsistency (my brief attempt in the post above), but I don’t think they involve the particulars of the statutory terms of removal.

  3. Okay , now I’m not sure how much we disagree. The issue in PCAOB seems to be the level of control the President has over the Board. Does he still have sufficient Executive Powers over the Board? This isn’t a case of executive powers leaking into Congress or the Courts so I suspect Justice Scalia just has to be convinced that the presidential authority over the SEC is sufficient to control PCAOB.
    This is a tough case for me – tainted as I am by my absolute loathing for SOX (and, as a Marylander, I continue to apologize for my state’s role in sending Mr. Sarbanes to the Senate). I believe a strong, confident president – at ease with the concept of a unitary executive – could probably bring the PCAOB under his thumb (should he so desire)…but if that president had an R after his name, I suspect that would merely serve to unleash a wave of pundits and law professors out for the scalp of whatever counsel told the president that the arguments made for the PCAOB in this case were applicable in real life.

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