The D.C. Circuit on the President's Authority Over the SEC Chair:

Given the little dust-up over the Senator McCain's comment that he would remove Christopher Cox as Chair of the Securities and Exchange Commission, and questions as to whether the President has such authority, I thought it would be interesting to quote portions of the D.C. Circuit's majority opinion in Free Enterprise Fund v. PCAOB on the subject:

Members of the Commission, in turn, are appointed by the President with the advice and consent of the Senate and subject to removal by the President for cause; its chairman is selected by and serves at the pleasure of the President. (p. 3)

independent agencies such as the Commission by definition enjoy a degree of autonomy in conducting their affairs, including staffing and operations. Yet this independence is not without limits. In addition to the ability to appoint Commissioners, 15 U.S.C. § 78d(a), and remove them for cause, . . . which removal power the Supreme Court has interpreted broadly,[FN8] the President possesses significant additional levers of influence. Most obviously, by appointment of the Commission chairman, who serves at the pleasure of the President and often “dominate[s] commission policymaking,” the President can influence Commission policy and control who directs “the administrative side of commission business, select[s] most staff, set[s] budgetary policy, and as a consequence command[s] staff loyalties.” (pp.23-24)

FN8 The Supreme Court has held that the restrictions on the President’s removal of Commissioners for “inefficiency, neglect of duty, or malfeasance in office” are “very broad and . . . could sustain removal . . . for any number of actual or perceived transgressions.” (p. 24)

Related Posts (on one page):

  1. The D.C. Circuit on the President's Authority Over the SEC Chair:
  2. Keith Olbermann:
Nate in Alice:
Sigh.

It's disheartening that some blowhards jumped on McCain for supposedly being mistaken about the President's ability to fire the SEC chair.

What still stands is that when faced with a crisis, McCain calls for heads to roll and points the finger at someone, who most agree, is quite capable and not the cause of these problems. That's what had George Will in a tizzy.
9.22.2008 9:45pm
RSF677:
I think that characterizing the accused parties as some blowhards minimizes their status within the media.
9.22.2008 10:10pm
Nate in Alice:
I'm a liberal, and Keith Olbermann is quite a blowhard.
9.22.2008 10:16pm
David M. Nieporent (www):
Can someone, such as Prof. Adler, answer me this about the relevant law: the president can remove for cause, which includes inefficiency, etc. But who decides on whether the president's cause is sufficient? Would courts second guess such an assessment by the president, or would they hold that it's nonjusticiable?
9.23.2008 12:31am
Jiffy:
Well, if the President can't fire the SEC Chair, McCain doesn't know that. He said in his 60 Minutes interview Sunday: "By the way I know he can't be technically 'fired,' but when I'm president, if I want someone to resign, he resigns."
9.23.2008 12:52am
PLR:
That footnote 8 appears to be a non sequitur, unless the ellipses changed its intended meaning. It's not the restrictions that are broad, but the powers, yes?
9.23.2008 1:00am
Alexia:
I seem to recall the SEC saying that the fail-to-deliver violations were much too wide spread, and that's why they weren't going to enforce that law.

So he's actually not blameless in this. He was too friendly with the hedge funds.
9.23.2008 1:24am
Sam H (mail):
"I seem to recall the SEC saying that the fail-to-deliver violations were much too wide spread, and that's why they weren't going to enforce that law."

Naked short selling has been a problem for years and the SEC hasn't done a thing to stop it until now.
9.23.2008 6:01am
A.S.:
I cited the PCAOB case in the original thread. I agree with PLR, above at 12:00 am, that footnote 8 is poorly drafted. I believe what it is trying to say is that the Presidents powers of removal are broad, not that the restrictions on his power of removal are broad.
9.23.2008 1:16pm