July 13, 2010
On June 28, 2010, the Supreme Court announced its decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. The question in this case was whether provisions of the Sarbanes-Oxley Act, which established the Public Company Accounting Oversight Board, violate the separation of powers doctrine, the Appointments Clause, or both.
In a 5-4 opinion delivered by Chief Justice Roberts, the Court, among other things, held that 1) the dual for-cause limitations on the removal of Public Company Accounting Oversight Board members contravene the Constitution's vesting of "the executive power" in the President; 2) the removal provisions are severable from the rest of the statute; and 3) the Board’s appointment is consistent with the Appointments Clause.
To discuss the case, we have Northwestern University George C. Dix Professor of Law Steven G. Calabresi.