Keith Olbermann:

I happend to catch the very beginning of "Countdown" with Keith Olbermann. His lead story was on John McCain's statement that if he were President he would "fire" Chris Cox as Chairman of the SEC, explaining that the Chairman of the SEC is appointed by and serves at the will of the President.

Olbermann sarcastically commented that McCain needs to learn about constitutional law and that it would be "unconstitutional" to try to fire the head of the SEC. He says that MSNBC's legal advisor (I missed his first name and I don't really watch NBC or MSNBC but I think it is somebody named Williams) told him this, referring to a "1935 case where the Supreme Court held that it would be unconstitutional to fire a member of an independent agency."

Well, no. Actually, he's not even close.

First, of course, the case he is referring to is Humphrey's Executor v. United States, which was triggered when FDR tried to remove a sitting member of the FTC. The Supreme Court did not hold that removing a Commissioner was unconstitutional; it held that Congress could provide for limitations on the President's removal power over members of independent agencies. So this is just intellectual confusion on Olbermann's part. I had a quote from Humphrey's Executor as my screensaver when I was at the FTC (how's that for nerdy?).

Second, there is a more practical confusion. Olbermann, and perhaps Williams too, are confused as to what McCain said and what the President can do. True, the President cannot fire a member of an independent agency. But the Chairman does serve as Chairman at the discretion of the President. The President can designate any of the 5 members of the Commission as Chairman. Or change the designation. Confirmation to be a Commissioner requires Senate confirmation; confirmation to be Chair does not. The Chairmanship of independent agencies does not operate the same way as the Supreme Court. For the Supreme Court, a sitting Justice who is elevated to Chief must be reconfirmed for the new post. But a sitting Commissioner who is designated Chair does not need a separate confirmation. Thus, the President can "fire" Cox by removing him as Chair but cannot fire him as a Commissioner.

So, for instance, when Bill Kovacic was elevated to Chairman of the FTC this spring, he became Chairman, not Acting Chairman. Because he was already confirmed as a Commissioner. Similarly, Janet Steiger was Chairman of the FTC under Bush I. When Clinton was elected, he appointed Bob Pitofsky to the Commission and made him Chair. Steiger stayed on as a non-Chairman Commissioner.

A quick search of the history of the SEC rules and regs indicates that the President was given the power to name the Chairman from the group of confirmed Commissioners in a set of regulations adopted during the Truman Administration.

As to the first point, my guess is that the error is probably Olbermann's in misunderstanding what the network legal correspondent was saying. As for the second, it seems quite plausible that the legal correspondent was simply unaware of how a Chairman of an independent agency is appointed. But then again, that's a good reason to be a little more humble and a bit less sarcastic in challenging someone else's knowledge. Regardless, both of these errors are pretty inexcusable, it seems to me.


Here's McCain's comment:

The chairman of the SEC serves at the appointment of the president and, in my view, has betrayed the public's trust," McCain told a rally in this battleground state. "If I were president today, I would fire him."


The clip from Countdown is here (it is #5 on the Countdown). "Maybe you can brief the Senator on constitutional law while you are at it." Olbermann says that the person he talked to is Pete Williams and he is a political correspondent, not a legal correspondent.


Steve Bainbridge has more, including some of the caselaw and commentary.