More on The Interesting Appointments Clause Issue:

Lawprof Donna Nagy writes:

I’ve been out of town for a few days, so I just saw your post on the PCAOB and the Appointments Clause. I discussed the appointments clause issue extensively in my article, Playing Peekaboo with Constitutional Law: The PCAOB and its Public/Private Status, 80 Notre Dame Law Review 973 (2005) (pages 1049-53). As I point out in the article, the PCAOB also triggers separation of powers questions that are related to the appointments clause issue: whether Congress can shield the PCAOB’s enforcement function from presidential control by placing the responsibility for oversight — including the power to remove the PCAOB’s five members — in a source other than the President. (see pages 1053-57).

A threshold issue to any constitutional challenge under the appointments clause or the doctrine of separation of powers is whether the PCAOB is an entity of the federal government notwithstanding Congress’s pronouncement in the Sarbanes-Oxley Act that the PCAOB is a private nonprofit corporation. Based on the analysis in Lebron v. National Railroad Passenger Corp., I conclude that the PCAOB must be considered the “government itself” for purposes of constitutional law (pp. 1036-44)

Here’s a link to an earlier draft of the article on SSRN.

I see that the Free Enterprise Fund filed a complaint yesterday challenging the constitutionality of the PCAOB.

Given the stakes, litigation over the PCAOB’s constitutional status was inevitable.