Take a look at Tom Shoop's post on Fedblog concerning today's Supreme Court decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. Shoop writes that the Court held:
Remember, this was a dissenting opinion. Justice Breyer was not explaining the majority opinion but giving reasons why he believes the majority opinion is unwise.
Update: Breyer does include Social Security in a list in one of the appendices to his dissent as a possibly affected agency. He specifically mentions Social Security as a possibly affected agency in the body of his dissent at pages 68 and 70 of the PDF.
Social Security would be, by far, the biggest agency possibly affected by this.
Note that there are plenty of people out there who want to litigate the constitutionality of Social Security even though precedent is solidly against them. This decision has nothing to do with the constitutionality of Social Security itself, just the way in which the Social Security Administration is set up to administer Social Security, but that will not stop the litigation. Standing may stop most of the litigation, however.
The majority opinion is a huge win for the "unitary executive" theory espoused by John Yoo and others. I thought that the excesses of the Bush Administration had seriously eroded whatever support there was for this theory but not in the eyes of five members of the Supreme Court.
Further update: I think the only reasonable reading of this opinion is that any statute that would prevent Commissioner Astrue from removing any ALJ or SES employee from his or her position is unconstitutional. This may apply to ANY Social Security employee. Commissioner Astrue may be constrained by union contracts but not by a statute. As the most important Republican holdover in a Democratic Administration and as someone who has publicly expressed frustration over his inability to discipline ALJs, Commissioner Astrue is in a delicate position. Aggressive action on his part could cause him to lose his job as his agency is absorbed back into the Department of Health and Human Services or becomes a cabinet level department.
Elena Kagan's nomination hearing and the gun decision today are getting most of the attention but the Free Enterprise decision may be today's most important judicial development.
... that the way the Public Company Accounting Oversight Board was set up under the 2002 Sarbanes-Oxley Act violates the Constitution. Members of the board get two layers of protection: They can only be removed by the Securities and Exchange Commission for cause, and the SEC's members can only be removed by the president for cause. The court's majority ruled that at least in the case of the board, that's one layer of protection too many.Justice Breyer's dissent includes a list of 48 agencies that may be affected by the majority opinion in Free Enterprise Fund. Social Security is not on Justice Breyer's list but this appears to be an oversight since Social Security qualifies for the list under the criteria given by Justice Breyer based upon the facts that Social Security has independence in submitting budgetary requests to Congress and Social Security is designated as "indepedent" by statute. Following Justice Breyer's logic, the existence of Senior Executive Service and Administrative Law Judge (ALJ) positions at Social Security makes the agency's setup unconstitutional. Indeed, the existence of any civil service position at Social Security could make the agency's setup unconstitutional.
In a dissenting opinion, Justice Stephen Breyer raises an interesting issue: What about the dozens of independent federal agencies who are headed by officials who have some degree of statutory protection from arbitrary removal? If they are, in turn, administered on a day-to-day basis by executives who also get protection from removal under civil service laws, doesn't that violate the two-layers principle?
Remember, this was a dissenting opinion. Justice Breyer was not explaining the majority opinion but giving reasons why he believes the majority opinion is unwise.
Update: Breyer does include Social Security in a list in one of the appendices to his dissent as a possibly affected agency. He specifically mentions Social Security as a possibly affected agency in the body of his dissent at pages 68 and 70 of the PDF.
Social Security would be, by far, the biggest agency possibly affected by this.
Note that there are plenty of people out there who want to litigate the constitutionality of Social Security even though precedent is solidly against them. This decision has nothing to do with the constitutionality of Social Security itself, just the way in which the Social Security Administration is set up to administer Social Security, but that will not stop the litigation. Standing may stop most of the litigation, however.
The majority opinion is a huge win for the "unitary executive" theory espoused by John Yoo and others. I thought that the excesses of the Bush Administration had seriously eroded whatever support there was for this theory but not in the eyes of five members of the Supreme Court.
Further update: I think the only reasonable reading of this opinion is that any statute that would prevent Commissioner Astrue from removing any ALJ or SES employee from his or her position is unconstitutional. This may apply to ANY Social Security employee. Commissioner Astrue may be constrained by union contracts but not by a statute. As the most important Republican holdover in a Democratic Administration and as someone who has publicly expressed frustration over his inability to discipline ALJs, Commissioner Astrue is in a delicate position. Aggressive action on his part could cause him to lose his job as his agency is absorbed back into the Department of Health and Human Services or becomes a cabinet level department.
Elena Kagan's nomination hearing and the gun decision today are getting most of the attention but the Free Enterprise decision may be today's most important judicial development.
1 comment:
Untouchable agency = public problem
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