s ct rep bv 130b - Reuters

3138 130 SUPREME COURT REPORTER 561 U.S. 943

APPENDIX—Continued

Data on Handguns in the Home

Please see the following sources refer-enced in the sentences discussing studiesconcerning handguns in the home, supra,at 3127 – 3127:

1 Brief for American Public Health As-sociation et al. as Amici Curiae 13–16(discussing studies that show handgunownership in the home is associatedwith increased risk of homicide).

S 9441 Wiebe, Firearms in U.S. Homes asa Risk Factor for Unintentional Gun-shot Fatality, 35 Accident Analysis andPrevention 711, 713–714 (2003) (showingthat those who die in firearms accidentsare nearly four times more likely thanaverage to have a gun in their home).

1 Kellermann et al., Suicide in the Homein Relation to Gun Ownership, 327New England J. Medicine 467, 470(1992) (demonstrating that ‘‘homeswith one or more handguns were asso-ciated with a risk of suicide almosttwice as high as that in homes contain-ing only long guns’’).

Data on Regional Views and Conditions

Please see the following sources refer-enced in the section on the diversity ofregional views and conditions, supra, at3128 – 3129:

1 Okoro et al., Prevalence of HouseholdFirearms and Firearm–Storage Prac-tices in the 50 States and the Districtof Columbia: Findings From the Be-havioral Risk Factor Surveillance Sys-tem, 2002, 116 Pediatrics e370, e372(2005) (presenting data on firearmownership by State).

1 Heller, 554 U.S., at 698 – 699, 128S.Ct., at 2856–2857 (BREYER, J., dis-senting) (discussing various sources

APPENDIX—Continued

showing that gun violence varies byState, including Wintemute, supra.

1 Heller, supra, at 698 – 699, 128 S.Ct.,at 2856–2857 (BREYER, J., dissent-ing) (discussing the fact that urbancenters face significantly greater levelsof firearm crime and homicide, whilerural communities have proportionate-ly greater problems with nonhomicidegun deaths, such as suicides and acci-dents (citing Branas, Nance, Elliott,Richmond, & Schwab, Urban–RuralShifts in Intentional Firearm Death,94 Am. J. Public Health 1750, 1752(2004))).

1 Dept. of Justice, Federal Bureau ofInvestigation, 2008 Crime in the Unit-ed States, (Table 6) (noting that mur-der rate is 40 times higher in NewOrleans than it is in Lincoln, Nebras-ka).

,

561 U.S. 477, 177 L.Ed.2d 706

FREE ENTERPRISE FUND andBeckstead and Watts, LLP,

Petitioners,

v.

PUBLIC COMPANY ACCOUNTINGOVERSIGHT BOARD et al.

No. 08–861.

Argued Dec. 7, 2009.

Decided June 28, 2010.

Background: Accounting firm and non-profit organization brought action chal-lenging constitutionality of Sarbanes-OxleyAct’s creation of Public Company Account-ing Oversight Board. The United StatesDistrict Court for the District of Columbia,

3139 FREE ENT. FUND v. PUBLIC CO. ACCTG. OVERSIGHT BD.Cite as 130 S.Ct. 3138 (2010)

561 U.S. 477

James Robertson, J., 2007 WL 891675, en-tered summary judgment for Board. Firmand organization appealed. The UnitedStates Court of Appeals for the District ofColumbia Circuit, Rogers, Circuit Judge,537 F.3d 667, affirmed. Certiorari wasgranted.

Holdings: The Supreme Court, Roberts,Chief Justice, held that:

(1) provision of Securities Exchange Act,allowing aggrieved parties to challengefinal order or rule of Securities andExchange Commission (SEC) in acourt of appeals, did not strip DistrictCourt of jurisdiction;

(2) Sarbanes-Oxley Act’s dual for-causelimitations on removal of members ofBoard contravened Constitution’s sepa-ration of powers;

(3) such limitations were severable; and

(4) appointment of members of Board bySEC did not violate AppointmentsClause.

Affirmed in part, reversed in part, andremanded.

Justice Breyer filed dissenting opinion inwhich Justices Stevens, Ginsburg, and So-tomayor joined.

1. Constitutional Law O2330

The Constitution divided the powersof the new Federal Government into threedefined categories, Legislative, Executive,and Judicial.

2. United States O256

In light of the impossibility that oneman should be able to perform all thegreat business of the State, the Constitu-tion provides for executive officers to as-sist the supreme Magistrate, that is, thePresident, in discharging the duties of histrust. U.S.C.A Const. Art. 2, § 1, cl. 1;U.S.C.A. const. Art. 2, § 3.

3. Public Employment O254

United States O1330(1)

Although the Constitution empowersthe President to keep executive officersaccountable, by removing them from office,if necessary, this authority is not withoutlimit.

4. Federal Courts O2278

Securities Regulation O88

Provision of Securities Exchange Act,allowing aggrieved parties to challenge fi-nal order or rule of Securities and Ex-change Commission (SEC) in a court ofappeals, did not strip district court of fed-eral question jurisdiction over accountingfirm’s claims challenging constitutionalityof Sarbanes-Oxley Act’s creation of PublicCompany Accounting Oversight Board; Se-curities Exchange Act provision did notexpressly or implicitly limit jurisdictionconferred by other statutes on districtcourts, firm’s general challenge to Boardwas collateral to any Commission orders orrules from which review might be sought,firm would not be required to incur sanc-tion from Board in order to gain access toa court of appeals, and firm’s constitutionalclaims were outside Commission’s compe-tence and expertise. Sarbanes-Oxley Actof 2002, § 107(b)(2–4), (c)(2), 15 U.S.C.A.§ 7217(b)(2–4), (c)(2); Securities ExchangeAct of 1934, § 25(a)(1), (b)(1), (c)(1), 15U.S.C.A. § 78y(a)(1), (b)(1), (c)(1); 28U.S.C.A. §§ 1331, 2201.

5. Administrative Law and ProcedureO651

Statutory provisions for agency re-view do not restrict judicial review unlessthe statutory scheme displays a fairly dis-cernible intent to limit jurisdiction, and theclaims at issue are of the type Congressintended to be reviewed within the statuto-ry structure.



Generally, when Congress createsprocedures designed to permit agency ex-pertise to be brought to bear on particularproblems, those procedures are to be ex-clusive, precluding judicial review; but theSupreme Court presumes that Congressdoes not intend to limit jurisdiction if afinding of preclusion could foreclose allmeaningful judicial review, if the suit iswholly collateral to a statute’s review pro-visions, and if the claims are outside theagency’s expertise.


The Supreme Court normally does notrequire plaintiffs to ‘‘bet the farm’’ by tak-ing violative action before testing the valid-ity of agency rule or order through judicialreview.

8. Constitutional Law O2391 Public Employment O254 United States O1330(1)

Sarbanes-Oxley Act’s dual for-causelimitations on removal of members of Pub-lic Company Accounting Oversight Board,under which the President was restrictedin his ability to remove principal officer,who was in turn restricted in his ability toremove inferior officer, even though thatinferior officer determined policy and en-forced laws of the United States, contra-vened Constitution’s separation of powers;the President could not ‘‘take Care thatthe Laws be faithfully executed’’ withinmeaning of Article II if he could not over-see faithfulness of officers who executedthem. U.S.C.A. Const. Art. 2, § 1, cl. 1;U.S.C.A. Const. Art. 2, § 3; Sarbanes-Ox-ley Act of 2002, §§ 101(e)(6), 107(d)(3), 15U.S.C.A. §§ 7211(e)(6), 7217(d)(3).

9. Public Employment 254 United States O1310, 1330(1)

Article II confers on the President thegeneral administrative control of those ex-ecuting the laws, and it is his responsibility

to take care that the laws be faithfullyexecuted; the President therefore musthave some power of removing those forwhom he can not continue to be responsi-ble. U.S.C.A. Const. Art. 2, § 1, cl. 1.


The President cannot delegate ulti-mate responsibility or the active obligationto supervise that goes with it, becauseArticle II makes a single President re-sponsible for the actions of the ExecutiveBranch. U.S.C.A. Const. Art. 2, § 1, cl. 1.

11. Constitutional Law O2330, 2332

The separation of powers does notdepend on the views of individual Presi-dents, nor on whether the encroached-upon branch approves the encroachment.


United States O250

The President can always choose torestrain himself in his dealings with subor-dinates, but, due to the separation of pow-ers, he cannot choose to bind his succes-sors by diminishing their powers, nor canhe escape responsibility for his choices bypretending that they are not his own.


Under the separation of powers, evenwhen a branch does not arrogate power toitself, it must not impair another in theperformance of its constitutional duties.

14. Public Employment O64

United States O1325

One may be an agent or employeeworking for the government and paid by itwithout thereby becoming its ‘‘officer,’’ forpurposes of the Appointments Clause,which provides the President with thepower to appoint ‘‘Officers of the UnitedStates.’’ U.S.C.A. Const. Art. 2, § 2, cl. 2.

See publication Words and Phras-es for other judicial constructionsand definitions.


561 U.S. 477

15. Statutes O1535(30)Sarbanes-Oxley Act’s dual for-cause

limitations on removal of members of Pub-lic Company Accounting Oversight Board,under which the President was restrictedin his ability to remove principal officer,who was in turn restricted in his ability toremove inferior officer, which limitationsviolated separation of powers, were severa-ble from remainder of Act; although lan-guage providing for good-cause removalwas only one of a number of statutoryprovisions that, working together, pro-duced the constitutional violation, Act re-mained fully operative as a law with un-constitutional tenure restrictions excised,remaining provisions were not incapable offunctioning independently, and nothing instatute’s text or historical context made itevident that Congress, faced with limita-tions imposed by Constitution, would havepreferred no Board at all to Board whosemembers were removable at will.U.S.C.A. Const. Art. 2, § 1, cl. 1; U.S.C.A.Const. Art. 2, § 3; Sarbanes-Oxley Act of2002, §§ 101(e)(6), 107(d)(3), 15 U.S.C.A.§§ 7211(e)(6), 7217(d)(3).

16. Statutes O1533Generally speaking, when confronting

a constitutional flaw in a statute, the Su-preme Court tries to limit the solution tothe problem, severing any problematicportions while leaving the remainder in-tact.

17. Statutes O1533Because the unconstitutionality of a

part of an act does not necessarily defeator affect the validity of its remaining provi-sions, the normal rule is that partial, rath-er than facial, invalidation is the requiredcourse.

18. Public Employment O254 United States O1330(1)

Under the traditional default rule, re-moval of a federal officer is incident to thepower of appointment.

19. Statutes O1533When a statute remains fully opera-

tive as a law with its unconstitutional re-strictions excised, the Supreme Courtmust sustain its remaining provisions un-less it is evident that the Legislaturewould not have enacted those provisionsindependently of that which is invalid.

20. Public Employment O64 United States O1325

Appointment of members of PublicCompany Accounting Oversight Board bySecurities and Exchange Commission(SEC) did not violate AppointmentsClause, which required the President toappoint ‘‘Officers of the United States’’ butallowed Congress to vest appointment of‘‘inferior officers’’ in ‘‘Heads of Depart-ments’’; Board members were ‘‘inferior of-ficers’’ given that SEC could remove themat will; SEC was ‘‘department’’ in that itwas freestanding component of ExecutiveBranch, not subordinate to or containedwithin any other such component, and, al-though SEC had a chairman, full Commis-sion, as multimember body could be‘‘head’’ of department. U.S.C.A. Const.Art. 2, § 2, cl. 2; Sarbanes-Oxley Act of2002, §§ 101(e)(6), 107(d)(3), 15 U.S.C.A.§§ 7211(e)(6), 7217(d)(3).

See publication Words and Phras-es for other judicial constructionsand definitions.

21. Public Employment O254 United States O1310, 1330(1)

The Constitution that makes the Pres-ident accountable to the people for execut-ing the laws also gives him the power to doso, and that power includes, as a generalmatter, the authority to remove those whoassist him in carrying out his duties.

West Codenotes

Held UnconstitutionalSarbanes-Oxley Act of 2002,

§ 101(e)(6), 15 U.S.C.A. § 7211(e)(6); Sar-


banes-Oxley Act of 2002, § 107(d)(3), 15U.S.C.A. § 7217(d)(3).

Syllabus *

Respondent, the Public Company Ac-counting Oversight Board, was created aspart of a series of accounting reforms inthe Sarbanes–Oxley Act of 2002. TheBoard is composed of five members ap-pointed by the Securities and ExchangeCommission. It was modeled on privateself-regulatory organizations in the securi-ties industry—such as the New York StockExchange—that investigate and disciplinetheir own members subject to Commissionoversight. Unlike these organizations, theBoard is a Government-created entity withexpansive powers to govern an entire in-dustry. Every accounting firm that auditspublic companies under the securities lawsmust register with the Board, pay it anannual fee, and comply with its rules andoversight. The Board may inspect regis-tered firms, initiate formal investigations,and issue severe sanctions in its disciplin-ary proceedings. The parties agree thatthe Board is ‘‘part of the Government’’ forconstitutional purposes, Lebron v. Nation-al Railroad Passenger Corporation, 513U.S. 374, 397, 115 S.Ct. 961, 130 L.Ed.2d902, and that its members are ‘‘ ‘Officers ofthe United States’ ’’ who ‘‘exercis[e] signifi-cant authority pursuant to the laws of theUnited States,’’ Buckley v. Valeo, 424 U.S.1, 125–126, 96 S.Ct. 612, 46 L.Ed.2d 659.While the SEC has oversight of the Board,it cannot remove Board members at will,but only ‘‘for good cause shown,’’ ‘‘in accor-dance with’’ specified procedures. 15U.S.C. §§ 7211(e)(6), 7217(d)(3). The par-ties also agree that the Commissioners, inturn, cannot themselves be removed by the

President except for ‘‘ ‘inefficiency, neglectof duty, or malfeasance in office.’ ’’ Hum-phrey’s Executor v. United States, 295U.S. 602, 620, 55 S.Ct. 869, 79 L.Ed. 1611.

The Board inspected petitioner ac-counting firm, released a report critical ofits auditing procedures, and began a for-mal investigation. The firm and petitionerFree Enterprise Fund, a nonprofit organi-zation of which the firm is a member, suedthe Board and its members, seeking, interalia, a declaratory judgment that theBoard is unconstitutional and an injunctionpreventing the Board from exercising itspowers. Petitioners argued that the Sar-banes–Oxley Act contravened the separa-tion of powers by conferring executivepower on Board members without subject-ing them to Presidential control. The ba-sis for petitioners’ challenge was thatBoard members were insulated from Pres-idential control by two layers of tenureprotection: Board members could only beremoved by the Commission for goodcause, and the Commissioners could inturn only be removed by the President forgood cause. Petitioners also challengedthe Board’s appointment as violating theAppointments Clause, which requires offi-cers to be appointed by the President withthe Senate’s advice and consent, or—in thecase of ‘‘inferior Officers’’—by ‘‘the Presi-dent alone, TTT the Courts of Law, or TTTthe Heads of Departments,’’ Art. II, § 2,cl. 2. The United States intervened to de-fend the statute. The District Court foundit had jurisdiction and granted summaryjudgment to respondents. The Court ofAppeals affirmed. It first agreed that theDistrict Court had jurisdiction. It thenruled that the dual restraints on Boardmembers’ removal are permissible, andthat Board members are inferior officers

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


561 U.S. 477

whose appointment is consistent with theAppointments Clause.

Held:1. The District Court had jurisdic-

tion over these claims. The Commissionmay review any Board rule or sanction,and an aggrieved party may challenge theCommission’s ‘‘final order’’ or ‘‘rule’’ in acourt of appeals under 15 U.S.C. § 78y.The Government reads § 78y as an exclu-sive route to review, but the text does notexpressly or implicitly limit the jurisdictionthat other statutes confer on districtcourts. It is presumed that Congress doesnot intend to limit jurisdiction if ‘‘a findingof preclusion could foreclose all meaningfuljudicial review’’; if the suit is ‘‘ ‘wholly‘‘collateral’’ ’ to a statute’s review provi-sions’’; and if the claims are ‘‘outside theagency’s expertise.’’ Thunder Basin CoalCo. v. Reich, 510 U.S. 200, 212–213, 114S.Ct. 771, 127 L.Ed.2d 29.

These considerations point againstany limitation on review here. Section 78yprovides only for review of Commissionaction, and petitioners’ challenge is ‘‘collat-eral’’ to any Commission orders or rulesfrom which review might be sought. TheGovernment advises petitioners to raisetheir claims by appealing a Board sanction,but petitioners have not been sanctioned,and it is no ‘‘meaningful’’ avenue of relief,id., at 212, 114 S.Ct. 771, to require aplaintiff to incur a sanction in order to testa law’s validity, MedImmune, Inc. v. Gen-entech, Inc., 549 U.S. 118, 129, 127 S.Ct.764, 166 L.Ed.2d 604. Petitioners’ consti-tutional claims are also outside the Com-mission’s competence and expertise, andthe statutory questions involved do notrequire technical considerations of agencypolicy. Pp. 3150 – 3151.

2. The dual for-cause limitations onthe removal of Board members contravenethe Constitution’s separation of powers.Pp. 3151 – 3161.

(a) The Constitution provides that‘‘[t]he executive Power shall be vested in aPresident of the United States of Amer-ica.’’ Art. II, § 1, cl. 1. Since 1789, theConstitution has been understood to em-power the President to keep executive offi-cers accountable—by removing them fromoffice, if necessary. See generally Myersv. United States, 272 U.S. 52, 47 S.Ct. 21,71 L.Ed. 160. This Court has determinedthat this authority is not without limit. InHumphrey’s Executor, supra, this Courtheld that Congress can, under certain cir-cumstances, create independent agenciesrun by principal officers appointed by thePresident, whom the President may notremove at will but only for good cause.And in United States v. Perkins, 116 U.S.483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed.700, and Morrison v. Olson, 487 U.S. 654,108 S.Ct. 2597, 101 L.Ed.2d 569, the Courtsustained similar restrictions on the powerof principal executive officers—themselvesresponsible to the President—to removetheir own inferiors. However, this Courthas not addressed the consequences ofmore than one level of good-cause tenure.Pp. 3151 – 3153.

(b) Where this Court has upheld lim-ited restrictions on the President’s removalpower, only one level of protected tenureseparated the President from an officerexercising executive power. The Presi-dent—or a subordinate he could remove atwill—decided whether the officer’s conductmerited removal under the good-causestandard. Here, the Act not only protectsBoard members from removal except forgood cause, but withdraws from the Presi-dent any decision on whether that goodcause exists. That decision is vested inother tenured officers—the Commission-ers—who are not subject to the Presi-dent’s direct control. Because the Com-mission cannot remove a Board member atwill, the President cannot hold the Com-


mission fully accountable for the Board’sconduct. He can only review the Commis-sioner’s determination of whether the Act’srigorous good-cause standard is met. Andif the President disagrees with that deter-mination, he is powerless to intervene—unless the determination is so unreason-able as to constitute ‘‘ ‘inefficiency, neglectof duty, or malfeasance in office.’ ’’ Hum-phrey’s Executor, supra, at 620, 55 S.Ct.869.

This arrangement contradicts ArticleII’s vesting of the executive power in thePresident. Without the ability to overseethe Board, or to attribute the Board’s fail-ings to those whom he can oversee, thePresident is no longer the judge of theBoard’s conduct. He can neither ensurethat the laws are faithfully executed, norbe held responsible for a Board member’sbreach of faith. If this dispersion of re-sponsibility were allowed to stand, Con-gress could multiply it further by addingstill more layers of good-cause tenure.Such diffusion of power carries with it adiffusion of accountability; without a clearand effective chain of command, the publiccannot determine where the blame for apernicious measure should fall. The Act’srestrictions are therefore incompatiblewith the Constitution’s separation of pow-ers. Pp. 3153 – 3155.

(c) The ‘‘ ‘fact that a given law orprocedure is efficient, convenient, and use-ful in facilitating functions of government,standing alone, will not save it if it iscontrary to the Constitution.’ ’’ Bowsherv. Synar, 478 U.S. 714, 736, 106 S.Ct. 3181,92 L.Ed.2d 583. The Act’s multilevel ten-ure protections provide a blueprint for theextensive expansion of legislative power.Congress controls the salary, duties, andexistence of executive offices, and onlyPresidential oversight can counter its in-fluence. The Framers created a structurein which ‘‘[a] dependence on the people’’would be the ‘‘primary controul on the

government,’’ and that dependence ismaintained by giving each branch ‘‘thenecessary constitutional means, and per-sonal motives, to resist encroachments ofthe others.’’ The Federalist No. 51, p. 349.A key ‘‘constitutional means’’ vested in thePresident was ‘‘the power of appointing,overseeing, and controlling those who exe-cute the laws.’’ 1 Annals of Cong. 463.While a government of ‘‘opposite and rivalinterests’’ may sometimes inhibit thesmooth functioning of administration, TheFederalist No. 51, at 349, ‘‘[t]he Framersrecognized that, in the long term, structur-al protections against abuse of power werecritical to preserving liberty,’’ Bowsher,supra, at 730, 106 S.Ct. 3181. Pp. 3155 –3157.

(d) The Government errs in arguingthat, even if some constraints on the re-moval of inferior executive officers mightviolate the Constitution, the restrictionshere do not. There is no construction ofthe Commission’s good-cause removal pow-er that is broad enough to avoid invalida-tion. Nor is the Commission’s broad pow-er over Board functions the equivalent of apower to remove Board members. Alter-ing the Board’s budget or powers is not ameaningful way to control an inferior offi-cer; the Commission cannot supervise in-dividual Board members if it must destroythe Board in order to fix it. Moreover, theCommission’s power over the Board ishardly plenary, as the Board may takesignificant enforcement actions largely in-dependently of the Commission. Enactingnew SEC rules through the required no-tice and comment procedures would be apoor means of micromanaging the Board,and without certain findings, the Act for-bids any general rule requiring SEC pre-approval of Board actions. Finally, theSarbanes–Oxley Act is highly unusual incommitting substantial executive authority


561 U.S. 477

to officers protected by two layers of good-cause removal. Pp. 3157 – 3161.

3. The unconstitutional tenure provi-sions are severable from the remainder ofthe statute. Because ‘‘[t]he unconstitu-tionality of a part of an Act does notnecessarily defeat or affect the validity ofits remaining provisions,’’ Champlin Re-fining Co. v. Corporation Comm’n ofOkla., 286 U.S. 210, 234, 52 S.Ct. 559, 76L.Ed. 1062, the ‘‘normal rule’’ is ‘‘that par-tial TTT invalidation is the requiredcourse,’’ Brockett v. Spokane Arcades, Inc.,472 U.S. 491, 504, 105 S.Ct. 2794, 86L.Ed.2d 394. The Board’s existence doesnot violate the separation of powers, butthe substantive removal restrictions im-posed by §§ 7211(e)(6) and 7217(d)(3) do.Concluding that the removal restrictionshere are invalid leaves the Board remova-ble by the Commission at will. With thetenure restrictions excised, the Act re-mains ‘‘ ‘fully operative as a law,’ ’’ NewYork v. United States, 505 U.S. 144, 186,112 S.Ct. 2408, 120 L.Ed.2d 120, and noth-ing in the Act’s text or historical contextmakes it ‘‘evident’’ that Congress wouldhave preferred no Board at all to a Boardwhose members are removable at will,Alaska Airlines, Inc. v. Brock, 480 U.S.678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661.The consequence is that the Board maycontinue to function as before, but itsmembers may be removed at will by theCommission. Pp. 3161 – 3162.

4. The Board’s appointment is con-sistent with the Appointments Clause. Pp.3162 – 3164.

(a) The Board members are inferiorofficers whose appointment Congress maypermissibly vest in a ‘‘Hea[d] of Depart-men[t].’’ Inferior officers ‘‘are officerswhose work is directed and supervised atsome level’’ by superiors appointed by thePresident with the Senate’s consent. Ed-mond v. United States, 520 U.S. 651, 662–

663, 117 S.Ct. 1573, 137 L.Ed.2d 917. Be-cause the good-cause restrictions discussedabove are unconstitutional and void, theCommission possesses the power to re-move Board members at will, in addition toits other oversight authority. Board mem-bers are therefore directed and supervisedby the Commission. P. 3162.

(b) The Commission is a ‘‘Depart-men[t]’’ under the Appointments Clause.Freytag v. Commissioner, 501 U.S. 868,887, n. 4, 111 S.Ct. 2631, 115 L.Ed.2d 764,specifically reserved the question whethera ‘‘principal agenc[y], such as’’ the SEC, isa ‘‘Departmen[t].’’ The Court now adoptsthe reasoning of the concurring Justices inFreytag, who would have concluded thatthe SEC is such a ‘‘Departmen[t]’’ becauseit is a freestanding component of the Exec-utive Branch not subordinate to or con-tained within any other such component.This reading is consistent with the com-mon, near-contemporary definition of a‘‘department’’; with the early practice ofCongress, see § 3, 1 Stat. 234; and withthis Court’s cases, which have never invali-dated an appointment made by the head ofsuch an establishment. Pp. 3162 – 3163.

(c) The several Commissioners, andnot the Chairman, are the Commission’s‘‘Hea[d].’’ The Commission’s powers aregenerally vested in the Commissionersjointly, not the Chairman alone. TheCommissioners do not report to theChairman, who exercises administrativefunctions subject to the full Commission’spolicies. There is no reason why a multi-member body may not be the ‘‘Hea[d]’’ ofa ‘‘Departmen[t]’’ that it governs. TheAppointments Clause necessarily contem-plates collective appointments by the‘‘Courts of Law,’’ Art. II, § 2, cl. 2, andeach House of Congress appoints its offi-cers collectively, see, e.g., Art. I, § 2, cl. 5.Practice has also sanctioned the appoint-


ment of inferior officers by multimemberagencies. Pp. 3163 – 3164.

537 F.3d 667, affirmed in part, re-versed in part, and remanded.

ROBERTS, C.J., delivered the opinionof the Court, in which SCALIA,KENNEDY, THOMAS, and ALITO, JJ.,joined. BREYER, J., filed a dissentingopinion, in which STEVENS, GINSBURG,and SOTOMAYOR, JJ., joined, post, pp.3164 – 3184.

Michael A. Carvin, Washington, DC, forpetitioners.

Solicitor General Elena Kagan, Wash-ington, DC, for respondent United States.

Jeffrey A. Lamken, Washington, DC, forrespondents Public Company AccountingOversight Board.

David M. Becker, General Counsel,Mark D. Cahn, Deputy General Counsel,Jacob H. Stillman, Solicitor, John W.Avery, Senior Litigation Counsel, Securi-ties and Exchange Commission, Washing-ton, D.C., Elena Kagan, Solicitor General,Counsel of Record, Tony West, AssistantAttorney General, Edwin S. Kneedler,Deputy Solicitor General, Curtis E. Gan-non, Assistant to the Solicitor General,Mark B. Stern, Mark R. Freeman, Attor-neys, Department of Justice, Washington,D.C., for respondent.

J. Gordon Seymour, Jacob N. Lesser,Mary I. Peters, Public Company Account-ing Oversight Board, Washington, D.C.,Jeffrey A. Lamken, Counsel of Record,Robert K. Kry, MoloLamken LLP, Wash-ington, D.C., James R. Doty, Baker BottsLLP, Washington, D.C., for RespondentsPublic Company Accounting OversightBoard, Bill Gradison, Daniel L. Goelzer,and Charles D. Niemeier.

Kenneth W. Starr, Malibu, CA, Viet D.Dinh, Bancroft Associates PLLC, Wash-ington, DC, Michael A. Carvin, Counsel of

Record, Noel J. Francisco, Christian A.Vergonis, Jones Day, Washington, DC,Sam Kazman, Hans Bader, CompetitiveEnterprise Institute, Washington, DC, forpetitioners.

For U.S. Supreme Court Briefs, see:

2009 WL 2247130 (Pet.Brief)

2009 WL 3290435 (Resp.Brief)

2009 WL 3327230 (Resp.Brief)

2009 WL 4099526 (Reply.Brief)

Chief Justice ROBERTS delivered theopinion of the Court.

[1, 2] S 483Our Constitution divided the‘‘powers of the new Federal Governmentinto three defined categories, Legislative,Executive, and Judicial.’’ INS v. Chadha,462 U.S. 919, 951, 103 S.Ct. 2764, 77L.Ed.2d 317 (1983). Article II vests ‘‘[t]heexecutive Power TTT in a President of theUnited States of America,’’ who must ‘‘takeCare that the Laws be faithfully executed.’’Art. II, § 1, cl. 1; id., § 3. In light of‘‘[t]he impossibility that one man should beable to perform all the great business ofthe State,’’ the Constitution provides forexecutive officers to ‘‘assist the supremeMagistrate in discharging the duties of histrust.’’ 30 Writings of George Washington334 (J. Fitzpatrick ed.1939).

[3] Since 1789, the Constitution hasbeen understood to empower the Presidentto keep these officers accountable—by re-moving them from office, if necessary.See generally Myers v. United States, 272U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).This Court has determined, however, thatthis authority is not without limit. InHumphrey’s Executor v. United States,295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611(1935), we held that Congress can, undercertain circumstances, create independentagencies run by principal officers appoint-ed by the President, whom the Presidentmay not remove at will but only for good


561 U.S. 485

cause. Likewise, in United States v. Per-kins, 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct.449, 29 L.Ed. 700 (1886), and Morrison v.Olson, 487 U.S. 654, 108 S.Ct. 2597, 101L.Ed.2d 569 (1988), the Court sustainedsimilar restrictions on the power of princi-pal executive officers—themselves respon-sible to the President—to remove theirown inferiors. The parties do not ask usto reexamine any of these precedents, andwe do not do so.

We are asked, however, to consider anew situation not yet encountered by theCourt. The question is whether these sep-arate layers of protection may be com-bined. May the S 484President be restrictedin his ability to remove a principal officer,who is in turn restricted in his ability toremove an inferior officer, even thoughthat inferior officer determines the policyand enforces the laws of the UnitedStates?

We hold that such multilevel protectionfrom removal is contrary to Article II’svesting of the executive power in the Pres-ident. The President cannot ‘‘take Carethat the Laws be faithfully executed’’ if hecannot oversee the faithfulness of the offi-cers who execute them. Here the Presi-dent cannot remove an officer who enjoysmore than one level of good-cause protec-tion, even if the President determines thatthe officer is neglecting his duties or dis-charging them improperly. That judg-ment is instead committed to another offi-cer, who may or may not agree with thePresident’s determination, and whom thePresident cannot remove simply becausethat officer disagrees with him. This con-travenes the President’s ‘‘constitutional ob-ligation to ensure the faithful execution ofthe laws.’’ Id., at 693, 108 S.Ct. 2597.

I

A

After a series of celebrated accountingdebacles, Congress enacted the Sarbanes–Oxley Act of 2002, 116 Stat. 745. Amongother measures, the Act introduced tighterregulation of the accounting industry un-der a new Public Company AccountingOversight Board. The Board is composedof five members, appointed to staggered 5–year terms by the Securities and Ex-change Commission. It was modeled onprivate self-regulatory organizations in thesecurities industry—such as the New YorkStock Exchange—that investigate and dis-cipline their own members subject to Com-mission oversight. Congress created theBoard as a private ‘‘nonprofit corporation,’’and Board members and employees arenot considered Government ‘‘officer[s] oremployee[s]’’ for statutory purposes. 15U.S.C. §§ 7211(a), (b). The Board canthus recruit its members and employeesfrom S 485the private sector by paying sala-ries far above the standard Governmentpay scale. See §§ 7211(f)(4), 7219.1

Unlike the self-regulatory organizations,however, the Board is a Government-creat-ed, Government-appointed entity, with ex-pansive powers to govern an entire indus-try. Every accounting firm—both foreignand domestic—that participates in auditingpublic companies under the securities lawsmust register with the Board, pay it anannual fee, and comply with its rules andoversight. §§ 7211(a), 7212(a), (f), 7213,7216(a)(1). The Board is charged withenforcing the Sarbanes–Oxley Act, the se-curities laws, the Commission’s rules, itsown rules, and professional accountingstandards. §§ 7215(b)(1), (c)(4). To this

1. The current salary for the Chairman is$673,000. Other Board members receive

$547,000. Brief for Petitioners 3.


end, the Board may regulate every detailof an accounting firm’s practice, includinghiring and professional development, pro-motion, supervision of audit work, the ac-ceptance of new business and the continua-tion of old, internal inspection procedures,professional ethics rules, and ‘‘such otherrequirements as the Board may pre-scribe.’’ § 7213(a)(2)(B).

The Board promulgates auditing andethics standards, performs routine inspec-tions of all accounting firms, demands doc-uments and testimony, and initiates formalinvestigations and disciplinary proceed-ings. §§ 7213–7215 (2006 ed. and Supp. II).The willful violation of any Board rule istreated as a willful violation of the Securi-ties Exchange Act of 1934, 48 Stat. 881, 15U.S.C. § 78a et seq.—a federal crime pun-ishable by up to 20 years’ imprisonment or$25 million in fines ($5 million for a naturalperson). §§ 78ff(a), 7202(b)(1) (2006 ed.).And the Board itself can issue severe sanc-tions in its disciplinary proceedings, up toand including the permanent revocation ofa firm’s registration, a permanent ban on aperson’s associating with any registeredfirm, and money penalties of $15 million($750,000 for a natural person).§ 7215(c)(4). Despite the provisions speci-fying that S 486Board members are not Gov-ernment officials for statutory purposes,the parties agree that the Board is ‘‘part ofthe Government’’ for constitutional pur-poses, Lebron v. National Railroad Pas-senger Corporation, 513 U.S. 374, 397, 115S.Ct. 961, 130 L.Ed.2d 902 (1995), and thatits members are ‘‘ ‘Officers of the UnitedStates’ ’’ who ‘‘exercis[e] significant author-ity pursuant to the laws of the UnitedStates,’’ Buckley v. Valeo, 424 U.S. 1, 125–126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(per curiam ) (quoting Art. II, § 2, cl. 2);cf. Brief for Petitioners 9, n. 1; Brief forUnited States 29, n. 8.

The Act places the Board under theSEC’s oversight, particularly with respectto the issuance of rules or the imposition ofsanctions (both of which are subject toCommission approval and alteration).§§ 7217(b)-(c). But the individual mem-bers of the Board—like the officers anddirectors of the self-regulatory organiza-tions—are substantially insulated from theCommission’s control. The Commissioncannot remove Board members at will, butonly ‘‘for good cause shown,’’ ‘‘in accor-dance with’’ certain procedures.§ 7211(e)(6).

Those procedures require a Commissionfinding, ‘‘on the record’’ and ‘‘after noticeand opportunity for a hearing,’’ that theBoard member

¶ ‘‘(A) has willfully violated any provi-sion of th[e] Act, the rules of the Board,or the securities laws;¶ ‘‘(B) has willfully abused the authori-ty of that member; or¶ ‘‘(C) without reasonable justificationor excuse, has failed to enforce compli-ance with any such provision or rule, orany professional standard by any regis-tered public accounting firm or any asso-ciated person thereof.’’ § 7217(d)(3).

Removal of a Board member requires aformal Commission order and is subject tojudicial review. See 5 U.S.C. §§ 554(a),556(a), 557(a), (c)(B); 15 U.S.C.§ 78y(a)(1). Similar S 487procedures governthe Commission’s removal of officers anddirectors of the private self-regulatory or-ganizations. See § 78s(h)(4). The partiesagree that the Commissioners cannotthemselves be removed by the Presidentexcept under the Humphrey’s Executorstandard of ‘‘inefficiency, neglect of duty,or malfeasance in office,’’ 295 U.S., at 620,55 S.Ct. 869 (internal quotation marksomitted); see Brief for Petitioners 31;Brief for United States 43; Brief for Re-spondent Public Company Accounting


561 U.S. 488

Oversight Board 31 (hereinafter PCAOBBrief); Tr. of Oral Arg. 47, and we decidethe case with that understanding.

B

Beckstead and Watts, LLP, is a Nevadaaccounting firm registered with the Board.The Board inspected the firm, released areport critical of its auditing procedures,and began a formal investigation. Beck-stead and Watts and the Free EnterpriseFund, a nonprofit organization of whichthe firm is a member, then sued the Boardand its members, seeking (among otherthings) a declaratory judgment that theBoard is unconstitutional and an injunctionpreventing the Board from exercising itspowers. App. 71.

Before the District Court, petitioners ar-gued that the Sarbanes–Oxley Act contra-vened the separation of powers by confer-ring wide-ranging executive power onBoard members without subjecting themto Presidential control. Id., at 67–68. Pe-titioners also challenged the Act under theAppointments Clause, which requires ‘‘Of-ficers of the United States’’ to be appoint-ed by the President with the Senate’s ad-vice and consent. Art. II, § 2, cl. 2. TheClause provides an exception for ‘‘inferiorOfficers,’’ whose appointment Congressmay choose to vest ‘‘in the President alone,in the Courts of Law, or in the Heads ofDepartments.’’ Ibid. Because the Board isappointed by the SEC, petitioners arguedthat (1) Board members are not ‘‘inferiorOfficers’’ who may be appointed by ‘‘Headsof Departments’’; (2) even if they are, theCommission is not a ‘‘Departmen[t]’’; and(3) even if it is, S 488the several Commission-ers (as opposed to the Chairman) are notits ‘‘Hea[d].’’ See App. 68–70. The UnitedStates intervened to defend the Act’s con-stitutionality. Both sides moved for sum-mary judgment; the District Court deter-mined that it had jurisdiction and granted

summary judgment to respondents. App.to Pet. for Cert. 110a–117a.

A divided Court of Appeals affirmed.537 F.3d 667 (C.A.D.C.2008). It agreedthat the District Court had jurisdictionover petitioners’ claims. Id., at 671. Onthe merits, the Court of Appeals recog-nized that the removal issue was ‘‘a ques-tion of first impression,’’ as neither thatcourt nor this one ‘‘ha[d] considered asituation where a restriction on removalpasses through two levels of control.’’ Id.,at 679. It ruled that the dual restraints onBoard members’ removal are permissiblebecause they do not ‘‘render the Presidentunable to perform his constitutionalduties.’’ Id., at 683. The majority rea-soned that although the President ‘‘doesnot directly select or supervise the Board’smembers,’’ id., at 681, the Board is subjectto the comprehensive control of the Com-mission, and thus the President’s influenceover the Commission implies a constitu-tionally sufficient influence over the Boardas well. Id., at 682–683. The majorityalso held that Board members are inferiorofficers subject to the Commission’s di-rection and supervision, id., at 672–676,and that their appointment is otherwiseconsistent with the Appointments Clause,id., at 676–678.

Judge Kavanaugh dissented. He agreedthat the case was one of first impression,id., at 698, but argued that ‘‘the double for-cause removal provisions in the [Act] TTTcombine to eliminate any meaningful Pres-idential control over the [Board],’’ id., at697. Judge Kavanaugh also argued thatBoard members are not effectively super-vised by the Commission and thus cannotbe inferior officers under the Appoint-ments Clause. Id., at 709–712.

We granted certiorari. 556 U.S. 1234,129 S.Ct. 2378, 173 L.Ed.2d 1291 (2009).


S 489II

[4] We first consider whether the Dis-trict Court had jurisdiction. We agreewith both courts below that the statutesproviding for judicial review of Commis-sion action did not prevent the DistrictCourt from considering petitioners’ claims.

The Sarbanes–Oxley Act empowers theCommission to review any Board rule orsanction. See 15 U.S.C. §§ 7217(b)(2)-(4),(c)(2). Once the Commission has acted,aggrieved parties may challenge ‘‘a finalorder of the Commission’’ or ‘‘a rule of theCommission’’ in a court of appeals under§ 78y, and ‘‘[n]o objection TTT may beconsidered by the court unless it wasurged before the Commission or there wasreasonable ground for failure to do so.’’§§ 78y(a)(1), (b)(1), (c)(1).

[5, 6] The Government reads § 78y asan exclusive route to review. But the textdoes not expressly limit the jurisdictionthat other statutes confer on districtcourts. See, e.g., 28 U.S.C. §§ 1331, 2201.Nor does it do so implicitly. Provisionsfor agency review do not restrict judicialreview unless the ‘‘statutory scheme’’ dis-plays a ‘‘fairly discernible’’ intent to limitjurisdiction, and the claims at issue ‘‘are ofthe type Congress intended to be reviewedwithin th[e] statutory structure.’’ Thun-der Basin Coal Co. v. Reich, 510 U.S. 200,207, 212, 114 S.Ct. 771, 127 L.Ed.2d 29(1994) (internal quotation marks omitted).Generally, when Congress creates proce-dures ‘‘designed to permit agency exper-tise to be brought to bear on particularproblems,’’ those procedures ‘‘are to beexclusive.’’ Whitney Nat. Bank in Jeffer-son Parish v. Bank of New Orleans &Trust Co., 379 U.S. 411, 420, 85 S.Ct. 551,13 L.Ed.2d 386 (1965). But we presumethat Congress does not intend to limitjurisdiction if ‘‘a finding of preclusion couldforeclose all meaningful judicial review’’; ifthe suit is ‘‘wholly collateral to a statute’s

review provisions’’; and if the claims are‘‘outside the agency’s expertise.’’ ThunderBasin, supra, at 212–213, 114 S.Ct. 771(internal quotation marks S 490omitted).These considerations point against anylimitation on review here.

We do not see how petitioners couldmeaningfully pursue their constitutionalclaims under the Government’s theory.Section 78y provides only for judicial re-view of Commission action, and not everyBoard action is encapsulated in a finalCommission order or rule.

The Government suggests that petition-ers could first have sought Commissionreview of the Board’s ‘‘auditing standards,registration requirements, or other rules.’’Brief for United States 16. But petition-ers object to the Board’s existence, not toany of its auditing standards. Petitioners’general challenge to the Board is ‘‘collater-al’’ to any Commission orders or rulesfrom which review might be sought. Cf.McNary v. Haitian Refugee Center, Inc.,498 U.S. 479, 491–492, 111 S.Ct. 888, 112L.Ed.2d 1005 (1991). Requiring petition-ers to select and challenge a Board rule atrandom is an odd procedure for Congressto choose, especially because only newrules, and not existing ones, are subject tochallenge. See 15 U.S.C. §§ 78s(b)(2),78y(a)(1), 7217(b)(4).

[7] Alternatively, the Government ad-vises petitioners to raise their claims byappealing a Board sanction. Brief forUnited States 16–17. But the investiga-tion of Beckstead and Watts produced nosanction, see id., at 7, n. 5; Reply Brief forPetitioners 29, n. 11, and an uncomplimen-tary inspection report is not subject tojudicial review, see § 7214(h)(2). So theGovernment proposes that Beckstead andWatts incur a sanction (such as a sizablefine) by ignoring Board requests for docu-


561 U.S. 492

ments and testimony. Brief for UnitedStates 17. If the Commission then af-firms, the firm will win access to a court ofappeals—and severe punishment should itschallenge fail. We normally do not re-quire plaintiffs to ‘‘bet the farm TTT bytaking the violative action’’ before ‘‘testingthe validity of the law,’’ MedImmune, Inc.v. Genentech, Inc., 549 U.S. 118, 129, 127S.Ct. 764, 166 L.Ed.2d 604 (2007); accord,Ex parte Young, 209 U.S. 123, 28 S.Ct.441, 52 L.Ed. 714 (1908), and we do notconsider this a S 491‘‘meaningful’’ avenue ofrelief, Thunder Basin, 510 U.S., at 212,114 S.Ct. 771.

Petitioners’ constitutional claims are alsooutside the Commission’s competence andexpertise. In Thunder Basin, the peti-tioner’s primary claims were statutory;‘‘at root TTT [they] ar[o]se under the MineAct and f[e]ll squarely within the [agen-cy’s] expertise,’’ given that the agency had‘‘extensive experience’’ on the issue andhad ‘‘recently addressed the precise TTTclaims presented.’’ Id., at 214–215, 114S.Ct. 771. Likewise, in United States v.Ruzicka, 329 U.S. 287, 67 S.Ct. 207, 91L.Ed. 290 (1946), on which the Govern-ment relies, we reserved for the agencyfact-bound inquiries that, even if ‘‘formu-lated in constitutional terms,’’ rested ulti-mately on ‘‘factors that call for [an] under-standing of the milk industry,’’ to whichthe Court made no pretensions. Id., at294, 67 S.Ct. 207. No similar expertise is

required here, and the statutory questionsinvolved do not require ‘‘technical consid-erations of [agency] policy.’’ Johnson v.Robison, 415 U.S. 361, 373, 94 S.Ct. 1160,39 L.Ed.2d 389 (1974). They are insteadstandard questions of administrative law,which the courts are at no disadvantage inanswering.

We therefore conclude that § 78y didnot strip the District Court of jurisdictionover these claims, which are properly pre-sented for our review.2

S 492III

[8] We hold that the dual for-causelimitations on the removal of Board mem-bers contravene the Constitution’s separa-tion of powers.

A

The Constitution provides that ‘‘[t]he ex-ecutive Power shall be vested in a Presi-dent of the United States of America.’’Art. II, § 1, cl. 1. As Madison stated onthe floor of the First Congress, ‘‘if anypower whatsoever is in its nature Execu-tive, it is the power of appointing, oversee-ing, and controlling those who execute thelaws.’’ 1 Annals of Cong. 463 (1789).

The removal of executive officers wasdiscussed extensively in Congress whenthe first executive departments were cre-ated. The view that ‘‘prevailed, as most

2. The Government asserts that ‘‘petitionershave not pointed to any case in which thisCourt has recognized an implied private rightof action directly under the Constitution tochallenge governmental action under the Ap-pointments Clause or separation-of-powersprinciples.’’ Brief for United States 22. TheGovernment does not appear to dispute sucha right to relief as a general matter, withoutregard to the particular constitutional provi-sions at issue here. See, e.g., CorrectionalServices Corp. v. Malesko, 534 U.S. 61, 74, 122S.Ct. 515, 151 L.Ed.2d 456 (2001) (equitablerelief ‘‘has long been recognized as the proper

means for preventing entities from acting un-constitutionally’’); Bell v. Hood, 327 U.S. 678,684, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (‘‘[I]tis established practice for this Court to sus-tain the jurisdiction of federal courts to issueinjunctions to protect rights safeguarded bythe Constitution’’); see also Ex parte Young,209 U.S. 123, 149, 165, 167, 28 S.Ct. 441, 52L.Ed. 714 (1908). If the Government’s pointis that an Appointments Clause or separation-of-powers claim should be treated differentlythan every other constitutional claim, it offersno reason and cites no authority why thatmight be so.


consonant to the text of the Constitution’’and ‘‘to the requisite responsibility andharmony in the Executive Department,’’was that the executive power included apower to oversee executive officersthrough removal; because that traditionalexecutive power was not ‘‘expressly takenaway, it remained with the President.’’Letter from James Madison to ThomasJefferson (June 30, 1789), 16 DocumentaryHistory of the First Federal Congress 893(2004). ‘‘This Decision of 1789 providescontemporaneous and weighty evidence ofthe Constitution’s meaning since many ofthe Members of the First Congress hadtaken part in framing that instrument.’’Bowsher v. Synar, 478 U.S. 714, 723–724,106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (in-ternal quotation marks omitted). And itsoon became the ‘‘settled and well under-stood construction of the Constitution.’’Ex parte Hennen, 38 U.S. 230, 13 Pet. 230,259, 10 L.Ed. 138 (1839).

[9] The landmark case of Myers v.United States reaffirmed the principle thatArticle II confers on the President ‘‘thegeneral administrative control of those ex-ecuting the laws.’’ S 493272 U.S., at 164, 47S.Ct. 21. It is his responsibility to takecare that the laws be faithfully executed.The buck stops with the President, in Har-ry Truman’s famous phrase. As we ex-plained in Myers, the President thereforemust have some ‘‘power of removing thosefor whom he can not continue to be re-sponsible.’’ Id., at 117, 47 S.Ct. 21.

Nearly a decade later in Humphrey’sExecutor, this Court held that Myers didnot prevent Congress from conferringgood-cause tenure on the principal officersof certain independent agencies. Thatcase concerned the members of the Feder-al Trade Commission, who held 7–yearterms and could not be removed by thePresident except for ‘‘ ‘inefficiency, neglectof duty, or malfeasance in office.’ ’’ 295

U.S., at 620, 55 S.Ct. 869 (quoting 15U.S.C. § 41). The Court distinguishedMyers on the ground that Myers con-cerned ‘‘an officer [who] is merely one ofthe units in the executive department and,hence, inherently subject to the exclusiveand illimitable power of removal by theChief Executive, whose subordinate andaid he is.’’ 295 U.S., at 627, 55 S.Ct. 869.By contrast, the Court characterized theFTC as ‘‘quasi-legislative and quasi-judi-cial’’ rather than ‘‘purely executive,’’ andheld that Congress could require it ‘‘to actTTT independently of executive control.’’Id., at 627–629, 55 S.Ct. 869. Because‘‘one who holds his office only during thepleasure of another, cannot be dependedupon to maintain an attitude of indepen-dence against the latter’s will,’’ the Courtheld that Congress had power to ‘‘fix theperiod during which [the Commissioners]shall continue in office, and to forbid theirremoval except for cause in the mean-time.’’ Id., at 629, 55 S.Ct. 869.

Humphrey’s Executor did not addressthe removal of inferior officers, whose ap-pointment Congress may vest in heads ofdepartments. If Congress does so, it isordinarily the department head, ratherthan the President, who enjoys the powerof removal. See Myers, supra, at 119, 127,47 S.Ct. 21; Hennen, supra, at 259–260, 38U.S. 230. This Court has upheld for-causelimitations on that power as well.

In S 494Perkins, a naval cadet-engineerwas honorably discharged from the Navybecause his services were no longer re-quired. 116 U.S. 483, 21 Ct.Cl. 499, 6S.Ct. 449, 29 L.Ed. 700. He brought aclaim for his salary under statutes barringhis peacetime discharge except by a court-martial or by the Secretary of the Navy‘‘for misconduct.’’ Rev. Stat. §§ 1229,1525. This Court adopted verbatim thereasoning of the Court of Claims, whichhad held that when Congress ‘‘ ‘vests the


561 U.S. 495

appointment of inferior officers in theheads of Departments[,] it may limit andrestrict the power of removal as it deemsbest for the public interest.’ ’’ 116 U.S., at485, 6 S.Ct. 449. Because Perkins had notbeen ‘‘ ‘dismissed for misconduct TTT [orupon] the sentence of a court-martial,’ ’’the Court agreed that he was ‘‘ ‘still inoffice and TTT entitled to [his] pay.’ ’’Ibid.3

We again considered the status of infe-rior officers in Morrison. That case con-cerned the Ethics in Government Act,which provided for an independent counselto investigate allegations of crime by highexecutive officers. The counsel was ap-pointed by a special court, wielded the fullpowers of a prosecutor, and was removableby the Attorney General only ‘‘ ‘for goodcause.’ ’’ 487 U.S., at 663, 108 S.Ct. 2597(quoting 28 U.S.C. § 596(a)(1)). We rec-ognized that the independent counsel wasundoubtedly an executive officer, ratherthan ‘‘ ‘quasi-legislative’ ’’ or ‘‘ ‘quasi-judi-cial,’ ’’ but we stated as ‘‘our present con-sidered view’’ that Congress had power toimpose S 495good-cause restrictions on herremoval. 487 U.S., at 689–691, 108 S.Ct.2597. The Court noted that the statute‘‘g[a]ve the Attorney General,’’ an officerdirectly responsible to the President and‘‘through [whom]’’ the President could act,‘‘several means of supervising or control-ling’’ the independent counsel—‘‘[m]ost im-portantly TTT the power to remove thecounsel for good cause.’’ Id., at 695–696,108 S.Ct. 2597 (internal quotation marksomitted). Under those circumstances, the

Court sustained the statute. Morrison didnot, however, address the consequences ofmore than one level of good-cause ten-ure—leaving the issue, as both the courtand dissent below recognized, ‘‘a questionof first impression’’ in this Court. 537F.3d, at 679; see id., at 698, 108 S.Ct. 2597(dissenting opinion).

B

As explained, we have previously upheldlimited restrictions on the President’s re-moval power. In those cases, however,only one level of protected tenure separat-ed the President from an officer exercisingexecutive power. It was the President—or a subordinate he could remove at will—who decided whether the officer’s conductmerited removal under the good-causestandard.

The Act before us does something quitedifferent. It not only protects Boardmembers from removal except for goodcause, but withdraws from the Presidentany decision on whether that good causeexists. That decision is vested instead inother tenured officers—the Commission-ers—none of whom is subject to the Presi-dent’s direct control. The result is aBoard that is not accountable to the Presi-dent, and a President who is not responsi-ble for the Board.

The added layer of tenure protectionmakes a difference. Without a layer ofinsulation between the Commission andthe Board, the Commission could remove a

3. When Perkins was decided in 1886, the Sec-retary of the Navy was a principal officer andthe head of a department, see Rev. Stat.§ 415, and the Tenure of Office Act purportedto require Senate consent for his removal.Ch. 154, 14 Stat. 430, Rev. Stat. § 1767. Thisrequirement was widely regarded as unconsti-tutional and void (as it is universally regardedtoday), and it was repealed the next year.See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500;Myers v. United States, 272 U.S. 52, 167–168,

47 S.Ct. 21, 71 L.Ed. 160 (1926); see alsoBowsher v. Synar, 478 U.S. 714, 726, 106S.Ct. 3181, 92 L.Ed.2d 583 (1986). Perkinscannot be read to endorse any such restric-tion, much less in combination with furtherrestrictions on the removal of inferiors. TheCourt of Claims opinion adopted verbatim bythis Court addressed only the authority of theSecretary of the Navy to remove inferior offi-cers.


Board member at any time, and thereforewould be fully responsible for what theBoard does. The President could thenhold the Commission to account for itssupervision of the Board, to S 496the sameextent that he may hold the Commission toaccount for everything else it does.

A second level of tenure protectionchanges the nature of the President’s re-view. Now the Commission cannot re-move a Board member at will. The Presi-dent therefore cannot hold the Commissionfully accountable for the Board’s conduct,to the same extent that he may hold theCommission accountable for everythingelse that it does. The Commissioners arenot responsible for the Board’s actions.They are only responsible for their owndetermination of whether the Act’s rigor-ous good-cause standard is met. And evenif the President disagrees with their deter-mination, he is powerless to intervene—unless that determination is so unreason-able as to constitute ‘‘inefficiency, neglectof duty, or malfeasance in office.’’ Hum-phrey’s Executor, 295 U.S., at 620, 55 S.Ct.869 (internal quotation marks omitted).

This novel structure does not merelyadd to the Board’s independence, buttransforms it. Neither the President, noranyone directly responsible to him, noreven an officer whose conduct he mayreview only for good cause, has full controlover the Board. The President is strippedof the power our precedents have pre-served, and his ability to execute the

laws—by holding his subordinates account-able for their conduct—is impaired.

[10] That arrangement is contrary toArticle II’s vesting of the executive powerin the President. Without the ability tooversee the Board, or to attribute theBoard’s failings to those whom he canoversee, the President is no longer thejudge of the Board’s conduct. He is notthe one who decides whether Board mem-bers are abusing their offices or neglectingtheir duties. He can neither ensure thatthe laws are faithfully executed, nor beheld responsible for a Board member’sbreach of faith. This violates the basicprinciple that the President ‘‘cannot dele-gate ultimate responsibility or the activeobligation to supervise that goes with it,’’because Article II ‘‘makes a single Presi-dent responsible for the actions S 497of theExecutive Branch.’’ Clinton v. Jones, 520U.S. 681, 712–713, 117 S.Ct. 1636, 137L.Ed.2d 945 (1997) (BREYER, J., concur-ring in judgment).4

Indeed, if allowed to stand, this disper-sion of responsibility could be multiplied.If Congress can shelter the bureaucracybehind two layers of good-cause tenure,why not a third? At oral argument, theGovernment was unwilling to concede thateven five layers between the President andthe Board would be too many. Tr. of OralArg. 47–48. The officers of such an agen-cy—safely encased within a Matryoshkadoll of tenure protections—would be im-mune from Presidential oversight, even asthey exercised power in the people’s name.

4. Contrary to the dissent’s suggestion, post, at3170 – 3172 (opinion of BREYER, J.), the sec-ond layer of tenure protection does compro-mise the President’s ability to remove a Boardmember the Commission wants to retain.Without a second layer of protection, theCommission has no excuse for retaining anofficer who is not faithfully executing the law.With the second layer in place, the Commis-sion can shield its decision from Presidential

review by finding that good cause is absent—a finding that, given the Commission’s ownprotected tenure, the President cannot easilyoverturn. The dissent describes this conflictmerely as one of four possible ‘‘scenarios,’’see post, at 3170 – 3172, but it is the centralissue in this case: The second layer mattersprecisely when the President finds it neces-sary to have a subordinate officer removed,and a statute prevents him from doing so.


561 U.S. 499

[11, 12] Perhaps an individual Presi-dent might find advantages in tying hisown hands. But the separation of powersdoes not depend on the views of individualPresidents, see Freytag v. Commissioner,501 U.S. 868, 879–880, 111 S.Ct. 2631, 115L.Ed.2d 764 (1991), nor on whether ‘‘theencroached-upon branch approves the en-croachment,’’ New York v. United States,505 U.S. 144, 182, 112 S.Ct. 2408, 120L.Ed.2d 120 (1992). The President canalways choose to restrain himself in hisdealings with subordinates. He cannot,however, choose to bind his successors bydiminishing their powers, nor can he es-cape responsibility for his choices by pre-tending that they are not his own.

The diffusion of power carries with it adiffusion of accountability. The people donot vote for the ‘‘Officers of the S 498UnitedStates.’’ Art. II, § 2, cl. 2. They insteadlook to the President to guide the ‘‘assis-tants or deputies TTT subject to his super-intendence.’’ The Federalist No. 72, p.487 (J. Cooke ed.1961) (A. Hamilton).Without a clear and effective chain of com-mand, the public cannot ‘‘determine onwhom the blame or the punishment of apernicious measure, or series of perniciousmeasures ought really to fall.’’ Id., No. 70,at 476 (same). That is why the Framerssought to ensure that ‘‘those who are em-ployed in the execution of the law will bein their proper situation, and the chain ofdependence be preserved; the lowest offi-cers, the middle grade, and the highest,will depend, as they ought, on the Presi-dent, and the President on the communi-ty.’’ 1 Annals of Cong., at 499 (J. Madi-son).

By granting the Board executive powerwithout the Executive’s oversight, this Actsubverts the President’s ability to ensurethat the laws are faithfully executed—aswell as the public’s ability to pass judg-ment on his efforts. The Act’s restrictions

are incompatible with the Constitution’sseparation of powers.

C

Respondents and the dissent resist thisconclusion, portraying the Board as ‘‘thekind of practical accommodation betweenthe Legislature and the Executive thatshould be permitted in a ‘workable govern-ment.’ ’’ Metropolitan Washington Air-ports Authority v. Citizens for Abatementof Aircraft Noise, Inc., 501 U.S. 252, 276,111 S.Ct. 2298, 115 L.Ed.2d 236 (1991)(MWAA ) (quoting Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. 579, 635, 72S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson,J., concurring)); see, e.g., post, at 3167(opinion of BREYER, J.). According tothe dissent, Congress may impose multiplelevels of for-cause tenure between thePresident and his subordinates when it‘‘rests agency independence upon the needfor technical expertise.’’ Post, at 18. TheBoard’s mission is said to demand both‘‘technical competence’’ and ‘‘apolitical ex-pertise,’’ and its powers may only be exer-cised by ‘‘technical experts.’’ Ibid. (inter-nal S 499quotation marks omitted). In thisrespect the statute creating the Board is,we are told, simply one example of the‘‘vast numbers of statutes governing vastnumbers of subjects, concerned with vastnumbers of different problems, [that] pro-vide for, or foresee, their execution oradministration through the work of admin-istrators organized within many differentkinds of administrative structures, exercis-ing different kinds of administrative au-thority, to achieve their legislatively man-dated objectives.’’ Post, at 3169.

No one doubts Congress’s power to cre-ate a vast and varied federal bureaucracy.But where, in all this, is the role for over-sight by an elected President? The Con-stitution requires that a President chosen


by the entire Nation oversee the executionof the laws. And the ‘‘ ‘fact that a givenlaw or procedure is efficient, convenient,and useful in facilitating functions of gov-ernment, standing alone, will not save it ifit is contrary to the Constitution,’ ’’ for‘‘ ‘[c]onvenience and efficiency are not theprimary objectives—or the hallmarks—ofdemocratic government.’ ’’ Bowsher, 478U.S., at 736, 106 S.Ct. 3181 (quoting Cha-dha, 462 U.S., at 944, 103 S.Ct. 2764).

One can have a government that func-tions without being ruled by functionaries,and a government that benefits from ex-pertise without being ruled by experts.Our Constitution was adopted to enablethe people to govern themselves, throughtheir elected leaders. The growth of theExecutive Branch, which now wields vastpower and touches almost every aspect ofdaily life, heightens the concern that itmay slip from the Executive’s control, andthus from that of the people. This concernis largely absent from the dissent’s paeanto the administrative state.

For example, the dissent dismisses theimportance of removal as a tool of super-vision, concluding that the President’s‘‘power to get something done’’ more oftendepends on ‘‘who controls the agency’sbudget requests and funding, the relation-ships between one agency or departmentand another, TTT purely political factors(including Congress’ ability S 500to assert in-

fluence),’’ and indeed whether particularunelected officials support or ‘‘resist’’ thePresident’s policies. Post, at 3170, 3171(emphasis deleted). The Framers did notrest our liberties on such bureaucratic mi-nutiae. As we said in Bowsher, supra, at730, 106 S.Ct. 3181, ‘‘[t]he separated pow-ers of our Government cannot be permit-ted to turn on judicial assessment ofwhether an officer exercising executivepower is on good terms with Congress.’’

[13] In fact, the multilevel protectionthat the dissent endorses ‘‘provides a blue-print for extensive expansion of the legisla-tive power.’’ MWAA, supra, at 277, 111S.Ct. 2298. In a system of checks andbalances, ‘‘[p]ower abhors a vacuum,’’ andone branch’s handicap is another’sstrength. 537 F.3d, at 695, n. 4 (Kava-naugh, J., dissenting) (internal quotationmarks omitted). ‘‘Even when a branchdoes not arrogate power to itself,’’ there-fore, it must not ‘‘impair another in theperformance of its constitutional duties.’’Loving v. United States, 517 U.S. 748, 757,116 S.Ct. 1737, 135 L.Ed.2d 36 (1996).5

Congress has plenary control over the sal-ary, duties, and even existence of executiveoffices. Only Presidential oversight cancounter its influence. That is why theConstitution vests certain powers in thePresident that ‘‘the Legislature has noright to diminish or modify.’’ 1 Annals ofCong., at 463 (J. Madison).6

5. The dissent quotes Buckley v. Valeo, 424U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659(1976) (per curiam ), for the proposition thatCongress has ‘‘broad authority to ‘create’ gov-ernmental ‘ ‘‘offices’’ ’ and to structure thoseoffices ‘as it chooses.’ ’’ Post, at 3165. TheBuckley Court put ‘‘ ‘offices’ ’’ in quotes be-cause it was actually describing legislativepositions that are not really offices at all (atleast not under Article II). That is why thevery next sentence of Buckley said, ‘‘But Con-gress’ power TTT is inevitably bounded by theexpress language’’ of the Constitution. 424

U.S., at 138–139, 96 S.Ct. 612 (emphasis add-ed).

6. The dissent attributes to Madison a beliefthat some executive officers, such as theComptroller, could be made independent ofthe President. See post, at 3173 – 3174. ButMadison’s actual proposal, consistent with hisview of the Constitution, was that the Comp-troller hold office for a term of ‘‘years, unlesssooner removed by the President’’; he wouldthus be ‘‘dependent upon the President, be-cause he can be removed by him,’’ and also‘‘dependent upon the Senate, because they


561 U.S. 502

S 501The Framers created a structure inwhich ‘‘[a] dependence on the people’’would be the ‘‘primary control on the gov-ernment.’’ The Federalist No. 51, at 349(J. Madison). That dependence is main-tained, not just by ‘‘parchment barriers,’’id., No. 48, at 333 (same), but by letting‘‘[a]mbition TTT counteract ambition,’’ giv-ing each branch ‘‘the necessary constitu-tional means, and personal motives, to re-sist encroachments of the others,’’ id., No.51, at 349. A key ‘‘constitutional means’’vested in the President—perhaps the keymeans—was ‘‘the power of appointing,overseeing, and controlling those who exe-cute the laws.’’ 1 Annals of Cong., at 463.And while a government of ‘‘opposite andrival interests’’ may sometimes inhibit thesmooth functioning of administration, TheFederalist No. 51, at 349, ‘‘[t]he Framersrecognized that, in the long term, structur-al protections against abuse of power werecritical to preserving liberty.’’ Bowsher,supra, at 730, 106 S.Ct. 3181.

Calls to abandon those protections inlight of ‘‘the era’s perceived necessity,’’New York, 505 U.S., at 187, 112 S.Ct. 2408,are not unusual. Nor is the argumentfrom bureaucratic expertise limited only tothe field of accounting. The failures ofaccounting regulation may be a ‘‘pressingnational problem,’’ but ‘‘a judiciary thatlicensed extraconstitutional governmentwith each issue of comparable gravitywould, in the long run, be far worse.’’ Id.,at 187–188, 112 S.Ct. 2408. Neither re-spondents nor the dissent explains why theBoard’s task, unlike so many others, re-quires more than one layer of insulationfrom the President—or, for that matter,why only two. The point is not to takeissue with for-cause limitations in general;we do not do that. The question here is

far more modest. We deal with the un-usual situation, never before addressed bythe Court, of two layers of for-cause ten-ure. And though it may be criticized as‘‘elementary arithmetical logic,’’ post, at3176, two layers are not the same as one.

The President has been given the powerto oversee executive officers; he is notlimited, as in Harry Truman’s lament, to‘‘persuad[ing]’’ his unelected subordinates‘‘to do what S 502they ought to do withoutpersuasion.’’ Post, at 3170 (internal quota-tion marks omitted). In its pursuit of a‘‘workable government,’’ Congress cannotreduce the Chief Magistrate to a cajoler-in-chief.

D

The United States concedes that someconstraints on the removal of inferior exec-utive officers might violate the Constitu-tion. See Brief for United States 47. Itcontends, however, that the removal re-strictions at issue here do not.

To begin with, the Government arguesthat the Commission’s removal power overthe Board is ‘‘broad,’’ and could be con-strued as broader still, if necessary toavoid invalidation. See, e.g., id., at 51, andn. 19; cf. PCAOB Brief 22–23. But theGovernment does not contend that simpledisagreement with the Board’s policies orpriorities could constitute ‘‘good cause’’ forits removal. See Tr. of Oral Arg. 41–43,45–46. Nor do our precedents suggest asmuch. Humphrey’s Executor, for exam-ple, rejected a removal premised on a lackof agreement ‘‘ ‘on either the policies orthe administering of the Federal TradeCommission,’ ’’ because the FTC was de-signed to be ‘‘ ‘independent in character,’ ’’‘‘free from ‘political domination or con-trol,’ ’’ and not ‘‘ ‘subject to anybody in the

must consent to his [reappointment] for everyterm of years.’’ 1 Annals of Cong. 612

(1789).


government’ ’’ or ‘‘ ‘to the orders of thePresident.’ ’’ 295 U.S., at 619, 625, 55 S.Ct.869. Accord, Morrison, 487 U.S., at 693,108 S.Ct. 2597 (noting that ‘‘the congres-sional determination to limit the removalpower of the Attorney General was essen-tial TTT to establish the necessary indepen-dence of the office’’); Wiener v. UnitedStates, 357 U.S. 349, 356, 78 S.Ct. 1275, 2L.Ed.2d 1377 (1958) (describing for-causeremoval as ‘‘involving the rectitude’’ of anofficer). And here there is judicial reviewof any effort to remove Board members,see 15 U.S.C. § 78y(a)(1), so the Commis-sion will not have the final word on thepropriety of its own removal orders. Theremoval restrictions set forth in the stat-ute mean what they say.

Indeed, this case presents an even moreserious threat to executive control than an‘‘ordinary’’ dual for-cause standard.S 503Congress enacted an unusually highstandard that must be met before Boardmembers may be removed. A Boardmember cannot be removed except forwillful violations of the Act, Board rules, orthe securities laws; willful abuse of au-thority; or unreasonable failure to enforcecompliance—as determined in a formalCommission order, rendered on the recordand after notice and an opportunity for ahearing. § 7217(d)(3); see § 78y(a). TheAct does not even give the Commissionpower to fire Board members for violationsof other laws that do not relate to the Act,the securities laws, or the Board’s authori-ty. The President might have less thanfull confidence in, say, a Board memberwho cheats on his taxes; but that discov-

ery is not listed among the grounds forremoval under § 7217(d)(3).7

The rigorous standard that must be metbefore a Board member may be removedwas drawn from statutes concerning pri-vate organizations like the New YorkStock Exchange. Cf. §§ 78s(h)(4),7217(d)(3). While we need not decide thequestion here, a removal standard appro-priate for limiting Government controlover private bodies may be inappropriatefor officers wielding the executive power ofthe United States.

Alternatively, respondents portray theAct’s limitations on removal as irrelevant,because—as the Court of Appeals held—the Commission wields ‘‘at-will removalpower over Board functions if not Boardmembers.’’ 537 F.3d, at 683 (emphasisadded); accord, Brief for United States27–28; S 504PCAOB Brief 48. The Commis-sion’s general ‘‘oversight and enforcementauthority over the Board,’’ § 7217(a), issaid to ‘‘blun[t] the constitutional impact offor-cause removal,’’ 537 F.3d, at 683, andto leave the President no worse off than ‘‘ifCongress had lodged the Board’s functionsin the SEC’s own staff,’’ PCAOB Brief 15.

Broad power over Board functions is notequivalent to the power to remove Boardmembers. The Commission may, for ex-ample, approve the Board’s budget,§ 7219(b), issue binding regulations,§§ 7202(a), 7217(b)(5), relieve the Board ofauthority, § 7217(d)(1), amend Board sanc-tions, § 7217(c), or enforce Board rules onits own, §§ 7202(b)(1), (c). But alteringthe budget or powers of an agency as awhole is a problematic way to control an

7. The Government implausibly argues that§ 7217(d)(3) ‘‘does not expressly make itsthree specified grounds of removal exclusive,’’and that ‘‘the Act could be construed to per-mit other grounds.’’ Brief for United States51, n. 19. But having provided in§ 7211(e)(6) that Board members are to beremoved ‘‘in accordance with [§ 7217(d)(3) ],

for good cause shown,’’ Congress would nothave specified the necessary Commissionfinding in § 7217(d)(3)—including formalprocedures and detailed conditions—if Boardmembers could also be removed without anyfinding at all. Cf. PCAOB Brief 6 (‘‘Causeexists where’’ the § 7217(d)(3) conditions aremet).


561 U.S. 506

inferior officer. The Commission cannotwield a free hand to supervise individualmembers if it must destroy the Board inorder to fix it.

Even if Commission power over Boardactivities could substitute for authorityover its members, we would still rejectrespondents’ premise that the Commis-sion’s power in this regard is plenary. Asdescribed above, the Board is empoweredto take significant enforcement actions,and does so largely independently of theCommission. See supra, at 3–4. Its pow-ers are, of course, subject to some latentCommission control. See supra, at 4–5.But the Act nowhere gives the Commissioneffective power to start, stop, or alter indi-vidual Board investigations, executive ac-tivities typically carried out by officialswithin the Executive Branch.

The Government and the dissent sug-gest that the Commission could governand direct the Board’s daily exercise ofprosecutorial discretion by promulgatingnew SEC rules, or by amending those ofthe Board. Brief for United States 27;post, at 3172. Enacting general rulesthrough the required notice and commentprocedures is obviously a poor means ofmicromanaging the Board’s affairs. See§§ 78s(c), 7215(b)(1), 7217(b)(5); cf. 5U.S.C. § 553, 15 U.S.C. § 7202(a), PCAOBS 505Brief 24, n. 6.8 So the Government of-fers another proposal, that the Commis-sion require the Board by rule to ‘‘secureSEC approval for any actions that it nowmay take itself.’’ Brief for United States27. That would surely constitute one ofthe ‘‘limitations upon the activities, func-tions, and operations of the Board’’ thatthe Act forbids, at least without Commis-

sion findings equivalent to those requiredto fire the Board instead. § 7217(d)(2).The Board thus has significant indepen-dence in determining its priorities and in-tervening in the affairs of regulated firms(and the lives of their associated persons)without Commission preapproval or di-rection.

Finally, respondents suggest that ourconclusion is contradicted by the pastpractice of Congress. But the Sarbanes–Oxley Act is highly unusual in committingsubstantial executive authority to officersprotected by two layers of for-cause re-moval—including at one level a sharplycircumscribed definition of what consti-tutes ‘‘good cause,’’ and rigorous proce-dures that must be followed prior to re-moval.

The parties have identified only a hand-ful of isolated positions in which inferiorofficers might be protected by two levels ofgood-cause tenure. See, e.g., PCAOBBrief 43. As Judge Kavanaugh noted indissent below:

‘‘Perhaps the most telling indication ofthe severe constitutional problem withthe PCAOB is the lack of historical prec-edent for this entity. Neither the ma-jority opinion nor the PCAOB nor theUnited States as intervenor has locatedany historical analogues for this novelstructure. They have not identified anyindependent agency other than thePCAOB that is appointed by S 506and re-movable only for cause by another inde-pendent agency.’’ 537 F.3d, at 699.

The dissent here suggests that othersuch positions might exist, and complainsthat we do not resolve their status in thisopinion. Post, at 3176 – 3181. The dissentitself, however, stresses the very size and

8. Contrary to the dissent’s assertions, see post,at 3172 – 3173, the Commission’s powers toconduct its own investigations (with its ownresources), to remove particular provisions oflaw from the Board’s bailiwick, or to require

the Board to perform functions ‘‘other’’ thaninspections and investigations, § 7211(c)(5),are no more useful in directing individualenforcement actions.


variety of the Federal Government, seepost, at 3168 – 3169, and those featuresdiscourage general pronouncements onmatters neither briefed nor argued here.In any event, the dissent fails to supportits premonitions of doom; none of thepositions it identifies are similarly situatedto the Board. See post, at 3179 – 3181.

[14] For example, many civil servantswithin independent agencies would notqualify as ‘‘Officers of the United States,’’who ‘‘exercis[e] significant authority pursu-ant to the laws of the United States,’’Buckley, 424 U.S., at 126, 96 S.Ct. 612.9

The parties here concede that Board mem-bers are executive ‘‘Officers,’’ as that termis used in the Constitution. See supra, at4; see also Art. II, § 2, cl. 2. We do notdecide the status of other Government em-ployees, nor do we decide whether ‘‘lesserfunctionaries subordinate to officers of theUnited States’’ must be subject to thesame sort of control as those who exercise‘‘significant authority pursuant to thelaws.’’ Buckley, supra, at 126, and n. 162,96 S.Ct. 612.

Nor do the employees referenced by thedissent enjoy the same significant and un-usual protections from Presidential over-sight as members of the Board. Senior orpolicymaking positions in government maybe excepted from the competitive serviceto ensure Presidential control, see 5 U.S.C.

§§ 2302(a)(2)(B), 3302, 7511(b)(2), andmembers of the Senior Executive Servicemay be reassigned or reviewed by agencyheads (and entire agencies may be exclud-ed from that Service S 507by the President),see, e.g., §§ 3132(c), 3395(a), 4312(d),4314(b)(3), (c)(3); cf. § 2302(a)(2)(B)(ii).While the full extent of that authority isnot before us, any such authority is ofcourse wholly absent with respect to theBoard. Nothing in our opinion, therefore,should be read to cast doubt on the use ofwhat is colloquially known as the civil ser-vice system within independent agencies.10

Finally, the dissent wanders far afieldwhen it suggests that today’s opinionmight increase the President’s authority toremove military officers. Without ex-pressing any view whatever on the scopeof that authority, it is enough to note thatwe see little analogy between our Nation’sarmed services and the Public CompanyAccounting Oversight Board. Military of-ficers are broadly subject to Presidentialcontrol through the chain of command andthrough the President’s powers as Com-mander in Chief. Art. II, § 2, cl. 1; see,e.g., 10 U.S.C. §§ 162, 164(g). The Presi-dent and his subordinates may also con-vene boards of inquiry or courts-martial tohear claims of misconduct or poor per-formance by those officers. See, e.g.,§§ 822(a)(1), 823(a)(1), 892(3), 933–934,

9. One ‘‘may be an agent or employee workingfor the government and paid by it, as nine-tenths of the persons rendering service to thegovernment undoubtedly are, without therebybecoming its office[r].’’ United States v. Ger-maine, 99 U.S. 508, 509 (1879). The applica-ble proportion has of course increased dra-matically since 1879.

10. For similar reasons, our holding also doesnot address that subset of independent agencyemployees who serve as administrative lawjudges. See, e.g., 5 U.S.C. §§ 556(c), 3105.Whether administrative law judges are neces-sarily ‘‘Officers of the United States’’ is dis-

puted. See, e.g., Landry v. FDIC, 204 F.3d1125 (C.A.D.C.2000). And unlike members ofthe Board, many administrative law judges ofcourse perform adjudicative rather than en-forcement or policymaking functions, see§§ 554(d), 3105, or possess purely recommen-datory powers. The Government below re-fused to identify either ‘‘civil service tenure-protected employees in independent agen-cies’’ or administrative law judges as ‘‘prece-dent for the PCAOB.’’ 537 F.3d 667, 699, n.8 (C.A.D.C.2008) (Kavanaugh, J., dissenting);see Tr. of Oral Arg. in No. 07–5127 (CADC),pp. 32, 37–38, 42.


561 U.S. 509

1181–1185. Here, by contrast, the Presi-dent has no authority to initiate a Boardmember’s removal for cause.

There is no reason for us to addresswhether these positions identified by thedissent, or any others not at issue in thiscase, are so structured as to infringe thePresident’s S 508constitutional authority.Nor is there any substance to the dissent’sconcern that the ‘‘work of all these variousofficials’’ will ‘‘be put on hold.’’ Post, at3181. As the judgment in this case dem-onstrates, restricting certain officers to asingle level of insulation from the Presi-dent affects the conditions under whichthose officers might someday be removed,and would have no effect, absent a con-gressional determination to the contrary,on the validity of any officer’s continuancein office. The only issue in this case iswhether Congress may deprive the Presi-dent of adequate control over the Board,which is the regulator of first resort andthe primary law enforcement authority fora vital sector of our economy. We holdthat it cannot.

IV

[15] Petitioners’ complaint argued thatthe Board’s ‘‘freedom from Presidentialoversight and control’’ rendered it ‘‘and allpower and authority exercised by it’’ inviolation of the Constitution. App. 46.We reject such a broad holding. Instead,we agree with the Government that theunconstitutional tenure provisions are sev-erable from the remainder of the statute.

[16–18] ‘‘Generally speaking, whenconfronting a constitutional flaw in a stat-ute, we try to limit the solution to theproblem,’’ severing any ‘‘problematic por-tions while leaving the remainder intact.’’Ayotte v. Planned Parenthood of NorthernNew Eng., 546 U.S. 320, 328–329, 126 S.Ct.961, 163 L.Ed.2d 812 (2006). Because‘‘[t]he unconstitutionality of a part of an

Act does not necessarily defeat or affectthe validity of its remaining provisions,’’Champlin Refining Co. v. CorporationComm’n of Okla., 286 U.S. 210, 234, 52S.Ct. 559, 76 L.Ed. 1062 (1932), the ‘‘nor-mal rule’’ is ‘‘that partial, rather than fa-cial, invalidation is the required course,’’Brockett v. Spokane Arcades, Inc., 472U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d394 (1985). Putting to one side petitioners’Appointments Clause challenges (ad-dressed below), the existence of the Boarddoes not violate the separation of powers,but the substantive removal S 509restrictionsimposed by 15 U.S.C. §§ 7211(e)(6) and7217(d)(3) do. Under the traditional de-fault rule, removal is incident to the powerof appointment. See, e.g., Sampson v.Murray, 415 U.S. 61, 70, n. 17, 94 S.Ct.937, 39 L.Ed.2d 166 (1974); Myers, 272U.S., at 119, 47 S.Ct. 21; Ex parte Hen-nen, 13 Pet., at 259–260. Concluding thatthe removal restrictions are invalid leavesthe Board removable by the Commissionat will, and leaves the President separatedfrom Board members by only a single levelof good-cause tenure. The Commission isthen fully responsible for the Board’s ac-tions, which are no less subject than theCommission’s own functions to Presiden-tial oversight.

[19] The Sarbanes–Oxley Act remains‘‘ ‘fully operative as a law’ ’’ with thesetenure restrictions excised. New York,505 U.S., at 186, 112 S.Ct. 2408 (quotingAlaska Airlines, Inc. v. Brock, 480 U.S.678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661(1987)). We therefore must sustain itsremaining provisions ‘‘[u]nless it is evidentthat the Legislature would not have enact-ed those provisions TTT independently ofthat which is [invalid].’’ Ibid. (internalquotation marks omitted). Though thisinquiry can sometimes be ‘‘elusive,’’ Cha-dha, 462 U.S., at 932, 103 S.Ct. 2764, theanswer here seems clear: The remaining


provisions are not ‘‘incapable of function-ing independently,’’ Alaska Airlines, 480U.S., at 684, 107 S.Ct. 1476, and nothing inthe statute’s text or historical contextmakes it ‘‘evident’’ that Congress, facedwith the limitations imposed by the Consti-tution, would have preferred no Board atall to a Board whose members are remova-ble at will. Ibid.; see also Ayotte, supra,at 330, 126 S.Ct. 961.

It is true that the language providing forgood-cause removal is only one of a num-ber of statutory provisions that, workingtogether, produce a constitutional violation.In theory, perhaps, the Court might blue-pencil a sufficient number of the Board’sresponsibilities so that its members wouldno longer be ‘‘Officers of the UnitedStates.’’ Or we could restrict the Board’senforcement powers, so that it would be apurely recommendatory panel. Or theBoard S 510members could in future be maderemovable by the President, for goodcause or at will. But such editorial free-dom—far more extensive than our holdingtoday—belongs to the Legislature, not theJudiciary. Congress of course remainsfree to pursue any of these options goingforward.

V

[20] Petitioners raise three more chal-lenges to the Board under the Appoint-ments Clause. None has merit.

First, petitioners argue that Boardmembers are principal officers requiringPresidential appointment with the Senate’sadvice and consent. We held in Edmondv. United States, 520 U.S. 651, 662–663,117 S.Ct. 1573, 137 L.Ed.2d 917 (1997),that ‘‘[w]hether one is an ‘inferior’ officerdepends on whether he has a superior,’’and that ‘‘ ‘inferior officers’ are officerswhose work is directed and supervised atsome level’’ by other officers appointed bythe President with the Senate’s consent.

In particular, we noted that ‘‘[t]he powerto remove officers’’ at will and withoutcause ‘‘is a powerful tool for control’’ of aninferior. Id., at 664, 117 S.Ct. 1573. Asexplained above, the statutory restrictionson the Commission’s power to removeBoard members are unconstitutional andvoid. Given that the Commission is prop-erly viewed, under the Constitution, aspossessing the power to remove Boardmembers at will, and given the Commis-sion’s other oversight authority, we haveno hesitation in concluding that under Ed-mond the Board members are inferior offi-cers whose appointment Congress maypermissibly vest in a ‘‘Hea[d] of Depart-men[t].’’

But, petitioners argue, the Commissionis not a ‘‘Departmen[t]’’ like the ‘‘Execu-tive departments’’ (e.g., State, Treasury,Defense) listed in 5 U.S.C. § 101. InFreytag, 501 U.S., at 887, n. 4, 111 S.Ct.2631, we specifically reserved the questionwhether a ‘‘principal agenc[y], such as TTTthe Securities and Exchange Commission,’’is a ‘‘Departmen[t]’’ under the Appoint-ments Clause. Four Justices, however,would have concluded that S 511the Commis-sion is indeed such a ‘‘Departmen[t],’’ seeid., at 918, 111 S.Ct. 2631 (SCALIA, J.,concurring in part and concurring in judg-ment), because it is a ‘‘free-standing, self-contained entity in the Executive Branch,’’id., at 915, 111 S.Ct. 2631.

Respondents urge us to adopt this rea-soning as to those entities not addressedby our opinion in Freytag, see Brief forUnited States 37–39; PCAOB Brief 30–33,and we do. Respondents’ reading of theAppointments Clause is consistent with thecommon, near-contemporary definition of a‘‘department’’ as a ‘‘separate allotment orpart of business; a distinct province, inwhich a class of duties are allotted to aparticular person.’’ 1 N. Webster, Ameri-can Dictionary of the English Language


561 U.S. 513

(1828) (def.2) (1995 facsimile ed.). It isalso consistent with the early practice ofCongress, which in 1792 authorized thePostmaster General to appoint ‘‘an assis-tant, and deputy postmasters, at all placeswhere such shall be found necessary,’’ § 3,1 Stat. 234—thus treating him as the‘‘Hea[d] of [a] Departmen[t]’’ without thetitle of Secretary or any role in the Presi-dent’s Cabinet. And it is consistent withour prior cases, which have never invali-dated an appointment made by the head ofsuch an establishment. See Freytag, su-pra, at 917, 111 S.Ct. 2631; cf. Burnap v.United States, 252 U.S. 512, 515, 40 S.Ct.374, 64 L.Ed. 692 (1920); United States v.Germaine, 99 U.S. 508, 511, 25 L.Ed. 482(1879). Because the Commission is a free-standing component of the ExecutiveBranch, not subordinate to or containedwithin any other such component, it consti-tutes a ‘‘Departmen[t]’’ for the purposes ofthe Appointments Clause.11

But petitioners are not done yet. Theyargue that the full Commission cannot con-stitutionally appoint Board members, be-cause only the Chairman of the Commis-

sion is the Commission’s S 512‘‘Hea[d].’’ 12

The Commission’s powers, however, aregenerally vested in the Commissionersjointly, not the Chairman alone. See, e.g.,15 U.S.C. §§ 77s, 77t, 78u, 78w. TheCommissioners do not report to the Chair-man, who exercises administrative and ex-ecutive functions subject to the full Com-mission’s policies. See Reorg. Plan No.10 of 1950, § 1(b)(1), 64 Stat. 1265. TheChairman is also appointed from amongthe Commissioners by the President alone,id., § 3, at 1266, which means that hecannot be regarded as ‘‘the head of anagency’’ for purposes of the Reorganiza-tion Act. See 5 U.S.C. § 904. (The Com-mission as a whole, on the other hand,does meet the requirements of the Act,including its provision that ‘‘the head of anagency [may] be an individual or a com-mission or board with more than one mem-ber.’’) 13

As a constitutional matter, we see noreason why a multimember body may notbe the ‘‘Hea[d]’’ of a ‘‘Departmen[t]’’S 513that it governs. The AppointmentsClause necessarily contemplates collectiveappointments by the ‘‘Courts of Law,’’ Art.

11. We express no view on whether the Com-mission is thus an ‘‘executive Departmen[t]’’under the Opinions Clause, Art. II, § 2, cl. 1,or under Section 4 of the Twenty–FifthAmendment. See Freytag v. Commissioner,501 U.S. 868, 886–887, 111 S.Ct. 2631, 115L.Ed.2d 764 (1991).

12. The Board argued below that petitionerslack standing to raise this claim, because nomember of the Board has been appointedover the Chairman’s objection, and so peti-tioners’ injuries are not fairly traceable to aninvalid appointment. See Defendants’ Memo-randum of Points and Authorities in Supportof Motion to Dismiss the Complaint in CivilAction No. 1:06–cv–00217–JR (DC), Doc. 17,pp. 42–43; Brief for Appellees PCAOB et al.in No. 07–5127 (CADC), pp. 32–33. We can-not assume, however, that the Chairmanwould have made the same appointments act-ing alone; and petitioners’ standing does notrequire precise proof of what the Board’s

policies might have been in that counterfactu-al world. See Glidden Co. v. Zdanok, 370U.S. 530, 533, 82 S.Ct. 1459, 8 L.Ed.2d 671(1962) (plurality opinion).

13. Petitioners contend that finding the Com-mission to be the head will invalidate numer-ous appointments made directly by the Chair-man, such as those of the ‘‘heads of major[SEC] administrative units.’’ Reorg. PlanNo. 10, § 1(b)(2), at 1266. Assuming, howev-er, that these individuals are officers of theUnited States, their appointment is still made‘‘subject to the approval of the Commission.’’Ibid. We have previously found that the de-partment head’s approval satisfies the Ap-pointments Clause, in precedents that peti-tioners do not ask us to revisit. See, e.g.,United States v. Smith, 124 U.S. 525, 532, 8S.Ct. 595, 31 L.Ed. 534 (1888); Germaine, 99U.S., at 511; United States v. Hartwell, 6 Wall.385, 393–394, 18 L.Ed. 830 (1868).


II, § 2, cl. 2, and each House of Congress,too, appoints its officers collectively, seeArt. I, § 2, cl. 5; id., § 3, cl. 5. Petitionersargue that the Framers vested the nomi-nation of principal officers in the Presidentto avoid the perceived evils of collectiveappointments, but they reveal no similarconcern with respect to inferior officers,whose appointments may be vested else-where, including in multimember bodies.Practice has also sanctioned the appoint-ment of inferior officers by multimemberagencies. See Freytag, supra, at 918, 111S.Ct. 2631 (SCALIA, J., concurring in partand concurring in judgment); see alsoClassification Act of 1923, ch. 265, § 2, 42Stat. 1488 (defining ‘‘the head of the de-partment’’ to mean ‘‘the officer or group ofofficers TTT who are not subordinate orresponsible to any other officer of the de-partment’’ (emphasis added)); 37 Op. Atty.Gen. 227, 231 (1933) (endorsing collectiveappointment by the Civil Service Commis-sion). We conclude that the Board mem-bers have been validly appointed by thefull Commission.

In light of the foregoing, petitioners arenot entitled to broad injunctive reliefagainst the Board’s continued operations.But they are entitled to declaratory reliefsufficient to ensure that the reporting re-quirements and auditing standards towhich they are subject will be enforcedonly by a constitutional agency accountableto the Executive. See Bowsher, 478 U.S.,at 727, n. 5, 106 S.Ct. 3181 (concluding thata separation-of-powers violation may cre-ate a ‘‘here-and-now’’ injury that can beremedied by a court (internal quotationmarks omitted)).

* * *

[21] The Constitution that makes thePresident accountable to the people forexecuting the laws also gives him the pow-er to do so. That power includes, as a

general matter, the authority to removethose who assist him in carrying out hisS 514duties. Without such power, the Presi-dent could not be held fully accountable fordischarging his own responsibilities; thebuck would stop somewhere else. Suchdiffusion of authority ‘‘would greatly di-minish the intended and necessary respon-sibility of the chief magistrate himself.’’The Federalist No. 70, at 478.

While we have sustained in certain caseslimits on the President’s removal power,the Act before us imposes a new type ofrestriction—two levels of protection fromremoval for those who nonetheless exer-cise significant executive power. Congresscannot limit the President’s authority inthis way.

The judgment of the United StatesCourt of Appeals for the District of Colum-bia Circuit is affirmed in part and reversedin part, and the case is remanded forfurther proceedings consistent with thisopinion.

It is so ordered.

Justice BREYER, with whom JusticeSTEVENS, Justice GINSBURG, andJustice SOTOMAYOR join, dissenting.

The Court holds unconstitutional a stat-ute providing that the Securities and Ex-change Commission (SEC or Commission)can remove members of the Public Compa-ny Accounting Oversight Board from officeonly for cause. It argues that grantingthe ‘‘inferior officer[s]’’ on the AccountingBoard ‘‘more than one level of good-causeprotection TTT contravenes the President’s‘constitutional obligation to ensure thefaithful execution of the laws.’ ’’ Ante, at3147. I agree that the Accounting Boardmembers are inferior officers. See ante,at 3179 – 3180. But in my view the statutedoes not significantly interfere with thePresident’s ‘‘executive Power.’’ Art. II,§ 1. It violates no separation-of-powers


561 U.S. 516

principle. And the Court’s contrary hold-ing threatens to disrupt severely the fairand efficient administration of the laws. Iconsequently dissent.

S 515I

A

The legal question before us arises atthe intersection of two general constitu-tional principles. On the one hand, Con-gress has broad power to enact statutes‘‘necessary and proper’’ to the exercise ofits specifically enumerated constitutionalauthority. Art. I, § 8, cl. 18. As ChiefJustice Marshall wrote for the Court near-ly 200 years ago, the Necessary and Prop-er Clause reflects the Framers’ efforts tocreate a Constitution that would ‘‘endurefor ages to come.’’ McCulloch v. Mary-land, 17 U.S. 316, 4 Wheat. 316, 415, 4L.Ed. 579 (1819). It embodies their recog-nition that it would be ‘‘unwise’’ to pre-scribe ‘‘the means by which governmentshould, in all future time, execute its pow-ers.’’ Ibid. Such ‘‘immutable rules’’ woulddeprive the Government of the neededflexibility to respond to future ‘‘exigencieswhich, if foreseen at all, must have beenseen dimly.’’ Ibid. Thus the Necessaryand Proper Clause affords Congress broadauthority to ‘‘create’’ governmental ‘‘ ‘of-fices’ ’’ and to structure those offices ‘‘as itchooses.’’ Buckley v. Valeo, 424 U.S. 1,138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(per curiam); cf. Lottery Case, 188 U.S.321, 355, 23 S.Ct. 321, 47 L.Ed. 492 (1903).And Congress has drawn on that powerover the past century to create numerousfederal agencies in response to ‘‘variouscrises of human affairs’’ as they have aris-en. McCulloch, supra, at 415 (emphasisdeleted). Cf. Wong Yang Sung v.McGrath, 339 U.S. 33, 36–37, 70 S.Ct. 445,94 L.Ed. 616 (1950).

On the other hand, the opening sectionsof Articles I, II, and III of the Constitution

separately and respectively vest ‘‘[a]ll leg-islative Powers’’ in Congress, the ‘‘execu-tive Power’’ in the President, and the ‘‘ju-dicial Power’’ in the Supreme Court (andsuch ‘‘inferior Courts as Congress mayfrom time to time ordain and establish’’).In doing so, these provisions imply a struc-tural separation-of-powers principle. See,e.g., Miller v. French, 530 U.S. 327, 341–342, 120 S.Ct. 2246, 147 L.Ed.2d 326(2000). And that S 516principle, along withthe instruction in Article II, § 3, that thePresident ‘‘shall take Care that the Lawsbe faithfully executed,’’ limits Congress’power to structure the Federal Govern-ment. See, e.g., INS v. Chadha, 462 U.S.919, 946, 103 S.Ct. 2764, 77 L.Ed.2d 317(1983); Freytag v. Commissioner, 501 U.S.868, 878, 111 S.Ct. 2631, 115 L.Ed.2d 764(1991); Northern Pipeline Constr. Co. v.Marathon Pipe Line Co., 458 U.S. 50, 64,102 S.Ct. 2858, 73 L.Ed.2d 598 (1982);Commodity Futures Trading Comm’n v.Schor, 478 U.S. 833, 859–860, 106 S.Ct.3245, 92 L.Ed.2d 675 (1986). Indeed, thisCourt has held that the separation-of-pow-ers principle guarantees the President theauthority to dismiss certain ExecutiveBranch officials at will. Myers v. UnitedStates, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed.160 (1926).

But neither of these two principles isabsolute in its application to removal cases.The Necessary and Proper Clause doesnot grant Congress power to free all Exec-utive Branch officials from dismissal at thewill of the President. Ibid. Nor does theseparation-of-powers principle grant thePresident an absolute authority to removeany and all Executive Branch officials atwill. Rather, depending on, say, the na-ture of the office, its function, or its sub-ject matter, Congress sometimes may, con-sistent with the Constitution, limit thePresident’s authority to remove an officerfrom his post. See Humphrey’s Executor


v. United States, 295 U.S. 602, 55 S.Ct.869, 79 L.Ed. 1611 (1935), overruling inpart Myers, supra ; Morrison v. Olson,487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d569 (1988). And we must here decidewhether the circumstances surroundingthe statute at issue justify such a limita-tion.

In answering the question presented, wecannot look to more specific constitutionaltext, such as the text of the AppointmentsClause or the Presentment Clause, uponwhich the Court has relied in other separa-tion-of-powers cases. See, e.g., Chadha,supra, at 946, 103 S.Ct. 2764; Buckley,supra, at 124–125, 96 S.Ct. 612. That isbecause, with the exception of the general‘‘vesting’’ and ‘‘take care’’ language, theConstitution is completely ‘‘silent with re-spect to the power of removal from office.’’Ex parte Hennen, 13 Pet. 230, 258 (1839);see also Morrison, S 517supra, at 723, 108S.Ct. 2597 (SCALIA, J., dissenting)(‘‘There is, of course, no provision in theConstitution stating who may remove exec-utive officers TTT’’).

Nor does history offer significant help.The President’s power to remove Execu-tive Branch officers ‘‘was not discussed inthe Constitutional Convention.’’ Myers,supra, at 109–110, 47 S.Ct. 21. The FirstCongress enacted federal statutes that lim-ited the President’s ability to oversee Ex-ecutive Branch officials, including theComptroller of the United States, federaldistrict attorneys (precursors to today’sUnited States Attorneys), and, to a lesserextent, the Secretary of the Treasury.See, e.g., Lessig, Readings by Our UnitaryExecutive, 15 Cardozo L.Rev. 175, 183–184(1993); Tiefer, The Constitutionality of In-dependent Officers as Checks on Abuses ofExecutive Power, 63 B.U.L.Rev. 59, 74–75(1983); Casper, An Essay in Separation ofPowers: Some Early Versions and Prac-tices, 30 Wm. & Mary L.Rev. 211, 240–241

(1989) (hereinafter Casper); H. Bruff, Bal-ance of Forces: Separation of Powers Lawin the Administrative State 414–417 (2006).But those statutes did not directly limitthe President’s authority to remove any ofthose officials—‘‘a subject’’ that was ‘‘muchdisputed’’ during ‘‘the early history of thisgovernment,’’ ‘‘and upon which a great di-versity of opinion was entertained.’’ Hen-nen, supra, at 259, 38 U.S. 230; see alsoUnited States ex rel. Goodrich v. Guthrie,17 How. 284, 306, 15 L.Ed. 102 (1855)(McLean, J., dissenting); Casper 233–237(recounting the Debate of 1789). Scholars,like Members of this Court, have contin-ued to disagree, not only about the infer-ences that should be drawn from the in-conclusive historical record, but also aboutthe nature of the original disagreement.Compare ante, at 3151 – 3152; Myers, su-pra, at 114, 47 S.Ct. 21 (majority opinion ofTaft, C. J.); and Prakash, New Light onthe Decision of 1789, 91 Cornell L.Rev.1021 (2006), with, e.g., Myers, supra, at194, 47 S.Ct. 21 (McReynolds, J., dissent-ing); Corwin, Tenure of Office and theRemoval Power Under the Constitution, 27Colum. L.Rev. 353, 369 (1927); Lessig &Sunstein, S 518The President and the Admin-istration, 94 Colum. L.Rev. 1, 25–26(1994) (hereinafter Lessig & Sunstein);and L. Fisher, President and Congress:Power and Policy 86–89 (1972).

Nor does this Court’s precedent fullyanswer the question presented. At least itdoes not clearly invalidate the provision indispute. See Part II–C, infra. In Myers,supra, the Court invalidated—for the firstand only time—a congressional statute onthe ground that it unduly limited the Pres-ident’s authority to remove an ExecutiveBranch official. But soon thereafter theCourt expressly disapproved most ofMyers’ broad reasoning. See Humphrey’sExecutor, supra, at 626–627, 55 S.Ct. 869,overruling in part Myers, supra ; Wienerv. United States, 357 U.S. 349, 352, 78


561 U.S. 520

S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (statingthat Humphrey’s Executor ‘‘explicitly ‘dis-approved’ ’’ of much of the reasoning inMyers ). Moreover, the Court has sincesaid that ‘‘the essence of the decision inMyers was the judgment that the Consti-tution prevents Congress from ‘draw[ing]to itself TTT the power to remove or theright to participate in the exercise of thatpower.’ ’’ Morrison, supra, at 686, 108S.Ct. 2597 (emphasis added). And thatfeature of the statute—a feature thatwould aggrandize the power of Congress—is not present here. Congress has notgranted itself any role in removing themembers of the Accounting Board. Cf.Freytag, 501 U.S., at 878, 111 S.Ct. 2631(‘‘separation-of-powers jurisprudence gen-erally focuses on the danger of onebranch’s aggrandizing its power at theexpense of another branch’’ (emphasis add-ed)); Buckley, 424 U.S., at 129, 96 S.Ct.612 (same); Schor, 478 U.S., at 856, 106S.Ct. 3245 (same); Bowsher v. Synar, 478U.S. 714, 727, 106 S.Ct. 3181, 92 L.Ed.2d583 (1986) (same). Compare Myers, supra(striking down statute where Congressgranted itself removal authority over Ex-ecutive Branch official), with Humphrey’sExecutor, supra (upholding statute wheresuch aggrandizing was absent); Wiener,supra (same); Morrison, supra (same).

In short, the question presented lies atthe intersection of two sets of conflicting,broadly framed constitutional principles.And no text, no history, perhaps no prece-dent provides S 519any clear answer. Cf.Chicago v. Morales, 527 U.S. 41, 106, 119S.Ct. 1849, 144 L.Ed.2d 67 (1999) (THOM-AS, J., joined by Rehnquist, C.J., andSCALIA, J., dissenting) (expressing theview that ‘‘this Court’’ is ‘‘most vulnerable’’when ‘‘it deals with judge-made constitu-tional law’’ that lacks ‘‘roots in the lan-guage’’ of the Constitution (internal quota-tion marks omitted)).

B

When previously deciding this kind ofnontextual question, the Court has empha-sized the importance of examining how aparticular provision, taken in context, islikely to function. Thus, in Crowell v.Benson, 285 U.S. 22, 53, 52 S.Ct. 285, 76L.Ed. 598 (1932), a foundational separa-tion-of-powers case, the Court said that‘‘regard must be had, as in other caseswhere constitutional limits are invoked, notto mere matters of form, but to the sub-stance of what is required.’’ The Courtrepeated this injunction in Schor and againin Morrison. See Schor, supra, at 854,106 S.Ct. 3245 (stating that the Court mustlook ‘‘ ‘beyond form to the substance ofwhat’ Congress has done’’); Morrison, 487U.S., at 689–691, 108 S.Ct. 2597 (‘‘Theanalysis contained in our removal cases isdesigned not to define rigid categories ofthose officials who may or may not beremoved at will by the President,’’ butrather asks whether, given the ‘‘functionsof the officials in question,’’ a removal pro-vision ‘‘interfere[s] with the President’s ex-ercise of the ‘executive power’ ’’ (emphasisadded)). The Court has thereby writteninto law Justice Jackson’s wise perceptionthat ‘‘the Constitution TTT contemplatesthat practice will integrate the dispersedpowers into a workable government.’’Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed.1153 (1952) (opinion concurring in judg-ment) (emphasis added). See also ibid.(‘‘The actual art of governing under ourConstitution does not and cannot conformto judicial definitions of the power of anyof its branches based on isolated clauses oreven single Articles torn from context’’).

It is not surprising that the Court inthese circumstances has looked to functionand context, and not to bright-line S 520rules.For one thing, that approach embodies the


intent of the Framers. As Chief JusticeMarshall long ago observed, our Constitu-tion is fashioned so as to allow the threecoordinate branches, including this Court,to exercise practical judgment in responseto changing conditions and ‘‘exigencies,’’which at the time of the founding could beseen only ‘‘dimly,’’ and perhaps not at all.McCulloch, 4 Wheat., at 415.

For another, a functional approach per-mits Congress and the President the flexi-bility needed to adapt statutory law tochanging circumstances. That is why the‘‘powers conferred upon the Federal Gov-ernment by the Constitution were phrasedin language broad enough to allow for theexpansion of the Federal Government’srole’’ over time. New York v. UnitedStates, 505 U.S. 144, 157, 112 S.Ct. 2408,120 L.Ed.2d 120 (1992). Indeed, the Fed-eral Government at the time of the found-ing consisted of about 2,000 employees andserved a population of about 4 million.See Kaufman, The Growth of the FederalPersonnel System, in The Federal Govern-ment Service 7, 8 (W. Sayre 2d ed.1965);Dept. of Commerce, Census Bureau, His-torical Statistics of the United States: Co-lonial Times to 1970, pt. 1, p. 8 (1975).Today, however, the Federal Governmentemploys about 4.4 million workers whoserve a Nation of more than 310 millionpeople living in a society characterized byrapid technological, economic, and socialchange. See Office of Management andBudget, Analytical Perspectives, Budget ofthe U.S. Government, Fiscal Year 2010, p.368 (2009).

Federal statutes now require or permitGovernment officials to provide, regulate,or otherwise administer, not only foreignaffairs and defense, but also a wide vari-ety of such subjects as taxes, welfare, so-cial security, medicine, pharmaceuticaldrugs, education, highways, railroads,electricity, natural gas, nuclear power, fi-

nancial instruments, banking, medicalcare, public health and safety, the environ-ment, fair employment practices, consum-er protection, and much else besides.Those statutes create a host of differentorganizational S 521structures. Sometimesthey delegate administrative authority tothe President directly, e.g., 10 U.S.C.§ 2031(a)(1); 42 U.S.C. § 5192(c); some-times they place authority in a long-estab-lished Cabinet department, e.g., 7 U.S.C.§ 1637b(c)(1); 12 U.S.C. § 5221(b)(2)(2006 ed., Supp. II); sometimes they dele-gate authority to an independent commis-sion or board, e.g., 15 U.S.C. § 4404(b); 28U.S.C. § 994; sometimes they place au-thority directly in the hands of a singlesenior administrator, e.g., 15 U.S.C.§ 657d(c)(4); 42 U.S.C. § 421; sometimesthey place it in a subcabinet bureau, office,division, or other agency, e.g., 18 U.S.C.§ 4048; sometimes they vest it in multi-member or multiagency task groups, e.g.,5 U.S.C. §§ 593–594; 50 U.S.C. § 402(2006 ed. and Supp. II); sometimes theyvest it in commissions or advisory commit-tees made up of members of more thanone branch, e.g., 20 U.S.C. § 42(a); 28U.S.C. § 991(a) (2006 ed., Supp. II); 42U.S.C. § 1975; sometimes they divide itamong groups of departments, commis-sions, bureaus, divisions, and administra-tors, e.g., 5 U.S.C. § 9902(a) (2006 ed.,Supp. II); 7 U.S.C. § 136i–1(g); andsometimes they permit state or local gov-ernments to participate as well, e.g., 7U.S.C. § 2009aa–1(a). Statutes similarlygrant administrators a wide variety ofpowers—for example, the power to makerules, develop informal practices, investi-gate, adjudicate, impose sanctions, grantlicenses, and provide goods, services, ad-vice, and so forth. See generally 5 U.S.C.§ 500 et seq.

The upshot is that today vast numbersof statutes governing vast numbers of sub-jects, concerned with vast numbers of dif-


561 U.S. 523

ferent problems, provide for, or foresee,their execution or administration throughthe work of administrators organized with-in many different kinds of administrativestructures, exercising different kinds ofadministrative authority, to achieve theirlegislatively mandated objectives. And,given the nature of the Government’swork, it is not surprising that administra-tive units come in many different shapesand sizes.

S 522The functional approach required byour precedents recognizes this administra-tive complexity and, more importantly,recognizes the various ways Presidentialpower operates within this context—andthe various ways in which a removal provi-sion might affect that power. As humanbeings have known ever since Ulysses tiedhimself to the mast so as safely to hear theSirens’ song, sometimes it is necessary todisable oneself in order to achieve a broad-er objective. Thus, legally enforceablecommitments—such as contracts, statutesthat cannot instantly be changed, and, asin the case before us, the establishment ofindependent administrative institutions—hold the potential to empower preciselybecause of their ability to constrain. Ifthe President seeks to regulate throughimpartial adjudication, then insulation ofthe adjudicator from removal at will canhelp him achieve that goal. And to free atechnical decisionmaker from the fear ofremoval without cause can similarly helpcreate legitimacy with respect to that offi-cial’s regulatory actions by helping to insu-late his technical decisions from nontechni-cal political pressure.

Neither is power always susceptible tothe equations of elementary arithmetic. Arule that takes power from a President’sfriends and allies may weaken him. But arule that takes power from the President’sopponents may strengthen him. And whatif the rule takes power from a functionally

neutral independent authority? In thatcase, it is difficult to predict how the Presi-dent’s power is affected in the abstract.

These practical reasons not only supportour precedents’ determination that casessuch as this should examine the specificfunctions and context at issue; they alsoindicate that judges should hesitate beforesecond-guessing a ‘‘for cause’’ decisionmade by the other branches. See, e.g.,Chadha, 462 U.S., at 944, 103 S.Ct. 2764(applying a ‘‘presumption that the chal-lenged statute is valid’’); Bowsher, 478U.S., at 736, 106 S.Ct. 3181 (STEVENS, J.,S 523concurring in judgment). Compared toCongress and the President, the Judiciarypossesses an inferior understanding of therealities of administration, and the mannerin which power, including and most espe-cially political power, operates in context.

There is no indication that the two com-paratively more expert branches were di-vided in their support for the ‘‘for cause’’provision at issue here. In this case, theAct embodying the provision was passedby a vote of 423 to 3 in the House ofRepresentatives and a by vote of 99 to 0 inthe Senate. 148 Cong. Rec. 14458, 14505(2002). The creation of the AccountingBoard was discussed at great length inboth bodies without anyone finding in itsstructure any constitutional problem. Seeid., at 12035–12037, 12112–12132, 12315–12323, 12372–12377, 12488–12508, 12529–12534, 12612–12618, 12673–12680, 12734–12751, 12915–12960, 13347–13354, 14439–14458, 14487–14506. The President signedthe Act. And, when he did so, he issued asigning statement that critiqued multipleprovisions of the Act but did not expressany separation-of-powers concerns. SeePresident’s Statement on Signing the Sar-banes–Oxley Act of 2002, 38 Weekly Comp.of Pres. Doc. 1286 (2002). Cf. ABA, Re-port of Task Force on Presidential SigningStatements and the Separation of Powers


Doctrine 15 (2006), online at http://www.abanet.org/op/signingstatements/aba finalsigning statements recommendation-report 7–24–06.pdf (all Internet materialsas visited June 24, 2010, and available inClerk of Court’s case file) (noting thatPresident Bush asserted ‘‘over 500’’ ‘‘con-stitutional objections’’ through signingstatements ‘‘in his first term,’’ including 82‘‘related to his theory of the ‘unitary exec-utive’ ’’).

Thus, here, as in similar cases, weshould decide the constitutional question inlight of the provision’s practical function-ing in context. And our decision shouldtake account of the Judiciary’s compara-tive lack of institutional expertise.

S 524II

ATo what extent then is the Act’s ‘‘for

cause’’ provision likely, as a practical mat-ter, to limit the President’s exercise ofexecutive authority? In practical terms no‘‘for cause’’ provision can, in isolation, de-fine the full measure of executive power.This is because a legislative decision toplace ultimate administrative authority in,say, the Secretary of Agriculture ratherthan the President, the way in which thestatute defines the scope of the power therelevant administrator can exercise, thedecision as to who controls the agency’sbudget requests and funding, the relation-ships between one agency or departmentand another, as well as more purely politi-cal factors (including Congress’ ability toassert influence) are more likely to affectthe President’s power to get somethingdone. That is why President Trumancomplained that ‘‘ ‘the powers of the Presi-dent amount to’ ’’ bringing ‘‘ ‘people in andtry[ing] to persuade them to do what theyought to do without persuasion.’ ’’ C. Ros-siter, The American Presidency 154 (2drev. ed.1960). And that is why scholarshave written that the President ‘‘is neither

dominant nor powerless’’ in his relation-ships with many Government entities,‘‘whether denominated executive or inde-pendent.’’ Strauss, The Place of Agenciesin Government: Separation of Powers andthe Fourth Branch, 84 Colum. L.Rev.573, 583 (1984) (hereinafter Strauss).Those entities ‘‘are all subject to presiden-tial direction in significant aspects of theirfunctioning, and [are each] able to resistpresidential direction in others.’’ Ibid.(emphasis added).

Indeed, notwithstanding the majority’sassertion that the removal authority is ‘‘thekey’’ mechanism by which the Presidentoversees inferior officers in the indepen-dent agencies, ante, at 3157, it appearsthat no President has ever actually soughtto exercise that power by testing the scopeof a ‘‘for cause’’ provision. See Bruff,Bringing the Independent S 525Agencies infrom the Cold, 62 Vand. L.Rev. En Banc63, 68 (2009), online at http://vanderbiltlawreview.org/articles/2009/11/Bruff–62–Vand–L–Rev–En–Banc–63.pdf (noting that‘‘Presidents do not test the limits of theirpower by removing commissioners TTT ’’);Lessig & Sunstein 110–112 (noting thatcourts have not had occasion to definewhat constitutes ‘‘cause’’ because Presi-dents rarely test removal provisions).

But even if we put all these other mat-ters to the side, we should still concludethat the ‘‘for cause’’ restriction before uswill not restrict Presidential power signifi-cantly. For one thing, the restriction di-rectly limits, not the President’s power,but the power of an already independentagency. The Court seems to have forgot-ten that fact when it identifies its centralconstitutional problem: According to theCourt, the President ‘‘is powerless to inter-vene’’ if he has determined that the Boardmembers’ ‘‘conduct merit[s] removal’’ be-cause ‘‘[t]hat decision is vested instead in


561 U.S. 527

other tenured officers—the Commission-ers—none of whom is subject to the Presi-dent’s direct control.’’ Ante, at 3153. Butso long as the President is legitimatelyforeclosed from removing the Commis-sioners except for cause (as the majorityassumes), nullifying the Commission’spower to remove Board members only forcause will not resolve the problem theCourt has identified: The President willstill be ‘‘powerless to intervene’’ by remov-ing the Board members if the Commissionreasonably decides not to do so.

In other words, the Court fails to showwhy two layers of ‘‘for cause’’ protection—layer 1 insulating the Commissioners fromthe President, and layer 2 insulating theBoard from the Commissioners—imposeany more serious limitation upon the Pres-ident’s powers than one layer. Considerthe four scenarios that might arise:

1. The President and the Commissionboth want to keep a Board memberin office. Neither layer is relevant.

2. The President and the Commissionboth want to dismiss a Board mem-ber. Layer 2 stops them both fromdoing S 526so without cause. ThePresident’s ability to remove theCommission (layer 1) is irrelevant,for he and the Commission are inagreement.

3. The President wants to dismiss aBoard member, but the Commissionwants to keep the member. Layer 1allows the Commission to make thatdetermination notwithstanding thePresident’s contrary view. Layer 2is irrelevant because the Commis-sion does not seek to remove theBoard member.

4. The President wants to keep aBoard member, but the Commissionwants to dismiss the Board member.Here, layer 2 helps the President,

for it hinders the Commission’s abili-ty to dismiss a Board member whomthe President wants to keep in place.

Thus, the majority’s decision to elimi-nate only layer 2 accomplishes virtuallynothing. And that is because a removalrestriction’s effect upon Presidential powerdepends not on the presence of a ‘‘double-layer’’ of for-cause removal, as the majori-ty pretends, but rather on the real-worldnature of the President’s relationship withthe Commission. If the President con-fronts a Commission that seeks to resisthis policy preferences—a distinct possibili-ty when, as here, a Commission’s member-ship must reflect both political parties, 15U.S.C. § 78d(a)—the restriction on theCommission’s ability to remove a Boardmember is either irrelevant (as in scenario3) or may actually help the President (as inscenario 4). And if the President faces aCommission that seeks to implement hispolicy preferences, layer 1 is irrelevant, forthe President and Commission see eye toeye.

In order to avoid this elementary logic,the Court creates two alternative scenar-ios. In the first, the Commission and thePresident both want to remove a Boardmember, but have varying judgments as towhether they have good ‘‘cause’’ to do so—i.e., the President and the Commissionboth conclude that a Board member shouldbe removed, but S 527disagree as to whetherthat conclusion (which they have bothreached) is reasonable. Ante, at 3153 –3154. In the second, the President wantsto remove a Board member and the Com-mission disagrees; but, notwithstanding itsfreedom to make reasonable decisions in-dependent of the President (afforded bylayer 1), the Commission (while apparentlytelling the President that it agrees withhim and would like to remove the Boardmember) uses layer 2 as an ‘‘excuse’’ to


pursue its actual aims—an excuse which,given layer 1, it does not need. Ante, at3154, n. 4.

Both of these circumstances seem un-usual. I do not know if they have everoccurred. But I do not deny their logicalpossibility. I simply doubt their impor-tance. And the fact that, with respect tothe President’s power, the double layer offor-cause removal sometimes might help,sometimes might hurt, leads me to con-clude that its overall effect is at mostindeterminate.

But once we leave the realm of hypo-thetical logic and view the removal provi-sion at issue in the context of the entireAct, its lack of practical effect becomesreadily apparent. That is because thestatute provides the Commission with fullauthority and virtually comprehensive con-trol over all of the Board’s functions.Those who created the Accounting Boardmodeled it, in terms of structure and au-thority, upon the semiprivate regulatorybodies prevalent in the area of financialregulation, such as the New York StockExchange and other similar self-regulatingorganizations. See generally Brief forFormer Chairmen of the SEC as AmiciCuriae (hereinafter Brief for Former SECChairmen). And those organizations—which rely on private financing and onofficers drawn from the private sector—exercise rulemaking and adjudicatory au-thority that is pervasively controlled by,and is indeed ‘‘entirely derivative’’ of, theSecurities and Exchange Commission(SEC). See National Assn. of SecuritiesDealers, Inc. v. SEC, 431 F.3d 803, 806(C.A.D.C.2005).

S 528Adhering to that model, the statutehere gives the Accounting Board the pow-er to adopt rules and standards ‘‘relatingto the preparation of audit reports’’; toadjudicate disciplinary proceedings involv-ing accounting firms that fail to followthese rules; to impose sanctions; and to

engage in other related activities, such asconducting inspections of accounting firmsregistered as the law requires and investi-gations to monitor compliance with therules and related legal obligations. See 15U.S.C. §§ 7211–7216. But, at the sametime,

1 No Accounting Board rule takes ef-fect unless and until the Commissionapproves it, § 7217(b)(2);

1 The Commission may ‘‘abrogat[e],delet[e] or ad[d] to’’ any rule or anyportion of a rule promulgated by theAccounting Board whenever, in theCommission’s view, doing so ‘‘fur-ther[s] the purposes’’ of the securi-ties and accounting-oversight laws,§ 7217(b)(5);

1 The Commission may review anysanction the Board imposes and ‘‘en-hance, modify, cancel, reduce, or re-quire the remission of’’ that sanctionif it finds the Board’s action not ‘‘ap-propriate,’’ §§ 7215(e), 7217(c)(3);

1 The Commission may promulgaterules restricting or directing the Ac-counting Board’s conduct of all in-spections and investigations,§§ 7211(c)(3), 7214(h), 7215(b)(1)-(4);

1 The Commission may itself initiateany investigation or promulgate anyrule within the Accounting Board’spurview, § 7202, and may also re-move any Accounting Board mem-ber who has unreasonably ‘‘failed toenforce compliance with’’ the rele-vant ‘‘rule[s], or any professionalstandard,’’ § 7217(d)(3)(C) (empha-sis added);

1 The Commission may at any time‘‘relieve the Board of any responsi-bility to enforce compliance withany provision’’ of the Act, the rules,or professional standards S 529if, inthe Commission’s view, doing so is


561 U.S. 530

in ‘‘the public interest,’’§§ 7217(d)(1)–(2) (emphasis added).

As these statutory provisions makeclear, the Court is simply wrong when itsays that ‘‘the Act nowhere gives the Com-mission effective power to start, stop, oralter’’ Board investigations. Ante, at3158 – 3159. On the contrary, the Com-mission’s control over the Board’s investi-gatory and legal functions is virtually ab-solute. Moreover, the Commission hasgeneral supervisory powers over the Ac-counting Board itself: It controls theBoard’s budget, §§ 7219(b), (d)(1); it canassign to the Board any ‘‘duties or func-tions’’ that it ‘‘determines are necessary orappropriate,’’ § 7211(c)(5); it has full‘‘oversight and enforcement authority overthe Board,’’ § 7217(a), including the au-thority to inspect the Board’s activitieswhenever it believes it ‘‘appropriate’’ to doso, § 7217(d)(2) (emphasis added). And itcan censure the Board or its members, aswell as remove the members from office, ifthe members, for example, fail to enforcethe Act, violate any provisions of the Act,or abuse the authority granted to themunder the Act, § 7217(d)(3). Cf. Shurtleffv. United States, 189 U.S. 311, 314–319, 23S.Ct. 535, 47 L.Ed. 828 (1903) (holdingthat removal authority is not always ‘‘re-stricted to a removal for th[e] causes’’ setforth by statute); Bowsher, 478 U.S., at729, 106 S.Ct. 3181 (rejecting the ‘‘argua-ble premis[e]’’ ‘‘that the enumeration ofcertain specified causes of removal ex-cludes the possibility of removal for othercauses’’). Contra, ante, at 3158, n. 7. Seegenerally Pildes, Putting Power Back intoSeparation of Powers Analysis: Why theSEC–PCAOB Structure is Constitutional,62 Vand. L.Rev. En Banc 85 (2009), onlineat http://vanderbiltlawreview.org/articles/2009/11/Pildes–62–Vand–L–Rev–En–Banc–85.pdf (explaining further the comprehen-sive nature of the Commission’s powers).

What is left? The Commission’s inabil-ity to remove a Board member whoseperfectly reasonable actions cause theCommission to overrule him with greatfrequency? What is the practical likeli-hood of that occurring, or, if it does, ofS 530the President’s serious concern aboutsuch a matter? Everyone concedes thatthe President’s control over the Commis-sion is constitutionally sufficient. SeeHumphrey’s Executor, 295 U.S. 602, 55S.Ct. 869; Wiener, 357 U.S. 349, 78 S.Ct.1275; ante, at 3143 – 3144. And if thePresident’s control over the Commissionis sufficient, and the Commission’s controlover the Board is virtually absolute, then,as a practical matter, the President’s con-trol over the Board should prove suffi-cient as well.

B

At the same time, Congress and thePresident had good reason for enacting thechallenged ‘‘for cause’’ provision. Firstand foremost, the Board adjudicates cases.See 15 U.S.C. § 7215. This Court haslong recognized the appropriateness of us-ing ‘‘for cause’’ provisions to protect thepersonal independence of those who evenonly sometimes engage in adjudicatoryfunctions. Humphrey’s Executor, supra,at 623–628, 55 S.Ct. 869; see also Wiener,supra, at 355–356, 78 S.Ct. 1275; Morri-son, 487 U.S., at 690–691, and n. 30, 108S.Ct. 2597; McAllister v. United States,141 U.S. 174, 191–201, 11 S.Ct. 949, 35L.Ed. 693 (1891) (Field, J., dissenting).Indeed, as early as 1789 James Madisonstated that ‘‘there may be strong reasonswhy an’’ executive ‘‘officer’’ such as theComptroller of the United States ‘‘shouldnot hold his office at the pleasure of theExecutive branch’’ if one of his ‘‘principaldut[ies]’’ ‘‘partakes strongly of the judicialcharacter.’’ 1 Annals of Cong. 611–612;cf. ante, at 3156, n. 6 (noting that thestatute Congress ultimately enacted limit-


ed Presidential control over the Comptrol-ler in a different fashion); see supra, at3148. The Court, however, all but ignoresthe Board’s adjudicatory functions whenconducting its analysis. See, e.g., ante, at3155. And when it finally does addressthat central function (in a footnote), it sim-ply asserts that the Board does not ‘‘per-form adjudicative TTT functions,’’ ante, at3160, n. 10 (emphasis added), an assertionthat is inconsistent with the terms of thestatute. See § 7215(c)(1) (governing ‘‘pro-ceeding[s] by the Board to determinewhether a S 531registered public accountingfirm, or an associated person thereof,should be disciplined’’).

Moreover, in addition to their adjudica-tive functions, the Accounting Board mem-bers supervise, and are themselves, techni-cal professional experts. See § 7211(e)(1)(requiring that Board members ‘‘have ademonstrated’’ technical ‘‘understanding ofthe responsibilities’’ and ‘‘obligations of ac-countants with respect to the preparationand issuance of audit reports’’). ThisCourt has recognized that the ‘‘difficultiesinvolved in the preparation of’’ sound au-diting reports require the application of‘‘scientific accounting principles.’’ UnitedStates v. Anderson, 269 U.S. 422, 440, 46S.Ct. 131, 70 L.Ed. 347 (1926). And thisCourt has recognized the constitutional le-gitimacy of a justification that rests agencyindependence upon the need for technicalexpertise. See Humphrey’s Executor, su-pra, at 624–626, 55 S.Ct. 869; see alsoBreger & Edles, Established by Practice:The Theory and Operation of IndependentFederal Agencies, 52 Admin. L.Rev. 1111,1131–1133 (2000) (hereinafter Breger &Edles) (explaining how the need for admin-istrators with ‘‘technical competence,’’‘‘apolitical expertise,’’ and skill in ‘‘scienti-fic management’’ led to original creation ofindependent agencies); J. Landis, The Ad-ministrative Process 23 (1938) (similar);

Woodrow Wilson, Democracy and Efficien-cy, 87 Atlantic Monthly 289, 299 (1901)(describing need for insulation of expertsfrom political influences).

Here, the justification for insulating the‘‘technical experts’’ on the Board from fearof losing their jobs due to political influ-ence is particularly strong. Congress de-liberately sought to provide that kind ofprotection. See, e.g., 148 Cong. Rec.12036, 12115, 13352–13355. It did so forgood reason. See ante, at 3147 (notingthat the Accounting Board was created inresponse to ‘‘a series of celebrated ac-counting debacles’’); H.R.Rep. No. 107–414, pp. 18–19 (2002) (same); Brief forFormer SEC Chairmen 8–9. And histori-cally, this regulatory subject matter—fi-nancial regulation—has been thought toexhibit a particular need for independence.See, S 532e.g., 51 Cong. Rec. 8857 (1914) (re-marks of Sen. Morgan upon creation of theFederal Trade Commission) (‘‘[I]t is unsafefor an TTT administrative officer represent-ing a great political party TTT to hold thepower of life and death over the greatbusiness interests of this country TTT. Thatis TTT why I believe in TTT taking thesebusiness matters out of politics’’). AndCongress, by, for example, providing theBoard with a revenue stream independentof the congressional appropriations pro-cess, § 7219, helped insulate the Boardfrom congressional, as well as other, politi-cal influences. See, e.g., 148 Cong. Rec.12036 (statement of Sen. Stabenow).

In sum, Congress and the Presidentcould reasonably have thought it prudentto insulate the adjudicative Board mem-bers from fear of purely politically basedremoval. Cf. Civil Service Comm’n v. Let-ter Carriers, 413 U.S. 548, 565, 93 S.Ct.2880, 37 L.Ed.2d 796 (1973) (‘‘[I]t is notonly important that the Government andits employees in fact avoid practicing polit-ical justice, but it is also critical that theyappear to the public to be avoiding it, if


561 U.S. 534

confidence in the system of representativeGovernment is not to be eroded to a disas-trous extent’’). And in a world in whichwe count on the Federal Government toregulate matters as complex as, say, nucle-ar-power production, the Court’s assertionthat we should simply learn to get by‘‘without being’’ regulated ‘‘by experts’’ is,at best, unrealistic—at worst, dangerouslyso. Ante, at 3155 – 3156.

C

Where a ‘‘for cause’’ provision is so un-likely to restrict Presidential power and solikely to further a legitimate institutionalneed, precedent strongly supports its con-stitutionality. First, in considering a re-lated issue in Nixon v. Administrator ofGeneral Services, 433 U.S. 425, 97 S.Ct.2777, 53 L.Ed.2d 867 (1977), the Courtmade clear that when ‘‘determining wheth-er the Act disrupts the proper balancebetween the coordinate branches, theproper inquiry focuses on the extent towhich it prevents the Executive Branchfrom accomplishing its constitutionallyS 533assigned functions.’’ Id., at 443, 97S.Ct. 2777. The Court said the same inMorrison, where it upheld a restriction onthe President’s removal power. 487 U.S.,at 691, 108 S.Ct. 2597 (‘‘[T]he real questionis whether the removal restrictions are ofsuch a nature that they impede the Presi-dent’s ability to perform his constitutionalduty, and the functions of the officials inquestion must be analyzed in that light’’).Here, the removal restriction may some-what diminish the Commission’s ability tocontrol the Board, but it will have little, ifany, negative effect in respect to the Presi-dent’s ability to control the Board, letalone to coordinate the Executive Branch.See Part II–A, supra. Indeed, given Mor-rison, where the Court upheld a restrictionthat significantly interfered with the Presi-dent’s important historic power to controlcriminal prosecutions, a ‘‘ ‘purely execu-

tive’ ’’ function, 487 U.S., at 687–689, 108S.Ct. 2597, the constitutionality of thepresent restriction would seem to follow afortiori.

Second, as previously pointed out, thisCourt has repeatedly upheld ‘‘for cause’’provisions where they restrict the Presi-dent’s power to remove an officer withadjudicatory responsibilities. CompareHumphrey’s Executor, 295 U.S., at 623–628, 55 S.Ct. 869; Wiener, 357 U.S., at 355,78 S.Ct. 1275; Schor, 478 U.S., at 854, 106S.Ct. 3245; Morrison, supra, at 691, n. 30,108 S.Ct. 2597, with ante, at 3155 – 3156(ignoring these precedents). And we havealso upheld such restrictions when theyrelate to officials with technical responsi-bilities that warrant a degree of specialindependence. E.g., Humphrey’s Execu-tor, supra, at 624, 55 S.Ct. 869. The Ac-counting Board’s functions involve bothkinds of responsibility. And, accordingly,the Accounting Board’s adjudicatory re-sponsibilities, the technical nature of itsjob, the need to attract experts to that job,and the importance of demonstrating thenonpolitical nature of the job to the publicstrongly justify a statute that ensures thatBoard members need not fear for theirjobs when competently carrying out theirtasks, while still maintaining the Commis-sion as the ultimate authority over Boardpolicies and actions. See Part II–B, su-pra.

S 534Third, consider how several cases fittogether in a way that logically compels aholding of constitutionality here. In Per-kins, 116 U.S., at 483, 484, 6 S.Ct. 449—which was reaffirmed in Myers, 272 U.S.,at 127, 47 S.Ct. 21, and in Morrison, su-pra, at 689, n. 27, 108 S.Ct. 2597—theCourt upheld a removal restriction limitingthe authority of the Secretary of the Navyto remove a ‘‘cadet-engineer,’’ whom theCourt explicitly defined as an ‘‘inferior offi-cer.’’ The Court said:


‘‘We have no doubt that when Con-gress, by law, vests the appointment ofinferior officers in the heads of Depart-ments it may limit and restrict the pow-er of removal as it deems best for thepublic interest. The constitutional au-thority in Congress to thus vest theappointment implies authority to limit,restrict, and regulate the removal bysuch laws as Congress may enact inrelation to the officers so appointed.’’Perkins, supra, at 485, 6 S.Ct. 449 (em-phasis added; internal quotation marksomitted).

See also Morrison, supra, at 723–724, 108S.Ct. 2597 (SCALIA, J., dissenting)(agreeing that the power to remove an‘‘inferior officer’’ who is appointed by adepartment head can be restricted). Cf.ante, at 3162 – 3164 (holding that SECCommissioners are ‘‘Heads of Depart-ments’’).

In Humphrey’s Executor, the Courtheld that Congress may constitutionallylimit the President’s authority to removecertain principal officers, including headsof departments. 295 U.S., at 627–629, 55S.Ct. 869. And the Court has consistentlyrecognized the validity of that holding.See Wiener, supra ; United States v. Nix-on, 418 U.S. 683, 706, 94 S.Ct. 3090, 41L.Ed.2d 1039 (1974); Buckley, 424 U.S., at133–136, 96 S.Ct. 612; Chadha, 462 U.S.,at 953, n. 16, 103 S.Ct. 2764; Bowsher, 478U.S., at 725–726, 106 S.Ct. 3181; Morri-son, supra, at 686–693, 108 S.Ct. 2597;Mistretta v. United States, 488 U.S. 361,410–411, 109 S.Ct. 647, 102 L.Ed.2d 714(1989).

S 535And in Freytag, 501 U.S., at 878, 111S.Ct. 2631, Justice SCALIA stated in aconcurring opinion written for four Jus-tices, including Justice KENNEDY, that‘‘adjusting the remainder of the Constitu-tion to compensate for Humphrey’s Execu-tor is a fruitless endeavor.’’ In these Jus-

tices’ view, the Court should not create aseparate constitutional jurisprudence forthe ‘‘independent agencies.’’ That beingso, the law should treat their heads as ittreats other Executive Branch heads ofdepartments. Consequently, as the Courtheld in Perkins, Congress may constitu-tionally ‘‘limit and restrict’’ the Commis-sion’s power to remove those whom theyappoint (e.g., the Accounting Board mem-bers).

Fourth, the Court has said that ‘‘[o]urseparation-of-powers jurisprudence gener-ally focuses on the danger of one branch’saggrandizing its power at the expense ofanother branch.’’ Freytag, supra, at 878,111 S.Ct. 2631 (emphasis added); accord,Buckley, supra, at 124–125, 96 S.Ct. 612;Schor, supra, at 856, 106 S.Ct. 3245; Mor-rison, 487 U.S., at 686, 108 S.Ct. 2597; cf.Bowsher, supra. Indeed, it has added that‘‘the essence of the decision in Myers,’’which is the only one of our cases to havestruck down a ‘‘for cause’’ removal restric-tion, ‘‘was the judgment that the Constitu-tion prevents Congress from ‘draw[ing] toitself TTT the power to remove.’ ’’ Morri-son, supra, at 686, 108 S.Ct. 2597 (quotingMyers, supra, at 161, 47 S.Ct. 21; empha-sis added). Congress here has ‘‘drawn’’ nopower to itself to remove the Board mem-bers. It has instead sought to limit itsown power, by, for example, providing theAccounting Board with a revenue streamindependent of the congressional appropri-ations process. See supra, at 19; see alsoBrief for Former SEC Chairmen 16. Andthis case thereby falls outside the ambit ofthe Court’s most serious constitutionalconcern.

In sum, the Court’s prior cases imposefunctional criteria that are readily methere. Once one goes beyond the Court’selementary arithmetical logic (i.e., ‘‘oneplus one is S 536greater than one’’) our prec-edent virtually dictates a holding that the


561 U.S. 537

challenged ‘‘for cause’’ provision is consti-tutional.

D

We should ask one further question.Even if the ‘‘for cause’’ provision before usdoes not itself significantly interfere withthe President’s authority or aggrandizeCongress’ power, is it nonetheless neces-sary to adopt a bright-line rule forbiddingthe provision lest, through a series of suchprovisions, each itself upheld as reason-able, Congress might undercut the Presi-dent’s central constitutional role? Cf.Strauss 625–626. The answer to this ques-tion is that no such need has been shown.Moreover, insofar as the Court seeks tocreate such a rule, it fails. And in failingit threatens a harm that is far more seri-ous than any imaginable harm this ‘‘forcause’’ provision might bring about.

The Court fails to create a bright-linerule because of considerable uncertaintyabout the scope of its holding—an uncer-tainty that the Court’s opinion both re-flects and generates. The Court suggests,for example, that its rule may not applywhere an inferior officer ‘‘perform[s] adju-dicative TTT functions.’’ Cf. ante, at 3160,n. 10. But the Accounting Board performsadjudicative functions. See supra, at3155 – 3156. What, then, are we to makeof the Court’s potential exception? Andwould such an exception apply to an ad-ministrative law judge who also has impor-tant administrative duties beyond pure ad-judication? See, e.g., 8 CFR § 1003.9, 34CFR § 81.4 (2009). The Court elsewheresuggests that its rule may be limited toremoval statutes that provide for ‘‘judicialreview of a[n] effort to remove’’ an officialfor cause. Ante, at 3158. But we havepreviously stated that all officers protect-ed by a for-cause removal provision andlater subject to termination are entitled to

‘‘notice and [a] hearing’’ in the ‘‘courts,’’ aswithout such review ‘‘the appointing pow-er’’ otherwise ‘‘could remove at pleasure orfor such cause as [only] it deemed suffi-cient.’’ S 537Reagan v. United States, 182U.S. 419, 425, 21 S.Ct. 842, 45 L.Ed. 1162(1901); Shurtleff, 189 U.S., at 314, 23 S.Ct.535; cf. Humphrey’s Executor, supra(entertaining civil suit challenging remov-al). But cf. Bowsher, supra, at 729, 106S.Ct. 3181. What weight, then, should begiven to this hint of an exception?

The Court further seems to suggest thatits holding may not apply to inferior offi-cers who have a different relationship totheir appointing agents than the relation-ship between the Commission and theBoard. See ante, at 3158, 3159 – 3160.But the only characteristic of the ‘‘relation-ship’’ between the Commission and theBoard that the Court apparently deemsrelevant is that the relationship includestwo layers of for-cause removal. See, e.g.,ante, at 3158 (‘‘Broad power over Boardfunctions is not equivalent to the power toremove Board members’’). Why thenwould any different relationship that alsoincludes two layers of for-cause removalsurvive where this one has not? Cf. PartII–A, supra (describing the Commission’snear absolute control over the Board). Ina word, what differences are relevant? Ifthe Court means to state that its holdingin fact applies only where Congress has‘‘enacted an unusually high standard ’’ offor-cause removal—and does not otherwiserender two layers of ‘‘ ‘ordinary’ ’’ for-cause removal unconstitutional—I shouldwelcome the statement. Ante, at 3158(emphasis added); see also ante, at 3159 –3160, 3154, 3158, (underscoring this stat-ute’s ‘‘sharply circumscribed definition ofwhat constitutes ‘good cause’ ’’ and its ‘‘rig-orous,’’ ‘‘significant and unusual [removal]protections’’). But much of the majority’sopinion appears to avoid so narrow a hold-ing in favor of a broad, basically mechani-


cal rule—a rule that, as I have said, isdivorced from the context of the case athand. Compare Parts III–A, III–B, III–C, ante, with Parts II–A, II–B, II–C, su-pra. And such a mechanical rule cannotbe cabined simply by saying that, perhaps,the rule does not apply to instances that,at least at first blush, seem highly similar.A judicial holding by its very nature is not‘‘a restricted railroad ticket, good S 538for’’one ‘‘day and train only.’’ Smith v. All-wright, 321 U.S. 649, 669, 64 S.Ct. 757, 88L.Ed. 987 (1944) (Roberts, J., dissenting).

The Court begins to reveal the practicalproblems inherent in its double for-causerule when it suggests that its rule may notapply to ‘‘the civil service.’’ Ante, at 3160.The ‘‘civil service’’ is defined by statute toinclude ‘‘all appointive positions in TTT theGovernment of the United States,’’ exclud-ing the military, but including all civil‘‘officer[s]’’ up to and including those whoare subject to Senate confirmation. 5U.S.C. §§ 2101, 2102(a)(1)(B), 2104. Thecivil service thus includes many officersindistinguishable from the members ofboth the Commission and the AccountingBoard. Indeed, as this Court recognizedin Myers, the ‘‘competitive service’’—theclass within the broader civil service thatenjoys the most robust career protection—‘‘includes a vast majority of all the civilofficers’’ in the United States. 272 U.S., at173, 47 S.Ct. 21 (emphasis added); 5U.S.C. § 2102(c).

But even if I assume that the majoritycategorically excludes the competitive ser-vice from the scope of its new rule, cf.ante, at 3160 (leaving this question open),the exclusion would be insufficient. Thisis because the Court’s ‘‘double for-cause’’rule applies to appointees who are ‘‘inferi-or officer[s].’’ Ante, at 3147. And who arethey? Courts and scholars have struggledfor more than a century to define theconstitutional term ‘‘inferior officers,’’

without much success. See 2 J. Story,Commentaries on the Constitution § 1536,pp. 397–398 (3d ed.1858) (‘‘[T]here does notseem to have been any exact line drawn,who are and who are not to be deemedinferior officers, in the sense of the consti-tution’’); Edmond v. United States, 520U.S. 651, 661, 117 S.Ct. 1573, 137 L.Ed.2d917 (1997) (‘‘Our cases have not set forthan exclusive criterion for [defining] inferiorofficers’’); Memorandum from Steven G.Bradbury, Acting Assistant Attorney Gen-eral, Office of Legal Counsel, to the Gener-al Counsels of the Executive Branch: Offi-cers of the United States Within theMeaning of the Appointments Clause, p. 3(Apr. 16, 2007) (hereinafter OLC Memo),online S 539at http://www.justice.gov/olc/2007/appointmentsclausev10.pdf (‘‘[T]he Su-preme Court has not articulated the pre-cise scope and application of the [InferiorOfficer] Clause’s requirements’’); Ko-necke, The Appointments Clause and Mili-tary Judges: Inferior Appointment to aPrincipal Office, 5 Seton Hall Const. L. J.489, 492 (1995) (same); Burkoff, Appoint-ment and Removal Under the FederalConstitution: The Impact of Buckley v.Valeo, 22 Wayne L.Rev. 1335, 1347, 1364(1976) (describing our early precedent as‘‘circular’’ and our later law as ‘‘not partic-ularly useful’’). The Court does not clarifythe concept. But without defining who isan inferior officer, to whom the majority’snew rule applies, we cannot know thescope or the coherence of the legal rulethat the Court creates. I understand thevirtues of a common-law case-by-case ap-proach. But here that kind of approach(when applied without more specificitythan I can find in the Court’s opinion)threatens serious harm.

The problem is not simply that the term‘‘inferior officer’’ is indefinite but also thatefforts to define it inevitably conclude thatthe term’s sweep is unusually broad. Con-sider the Court’s definitions: Inferior offi-


561 U.S. 541

cers are, inter alia, (1) those charged with‘‘the administration and enforcement of thepublic law,’’ Buckley, 424 U.S., at 139, 96S.Ct. 612; (2) those granted ‘‘significantauthority,’’ 424 U.S., at 126, 96 S.Ct. 612;ante, at 3159 – 3160; (3) those with ‘‘re-sponsibility for conducting civil litigation inthe courts of the United States,’’ 424 U.S.,at 140, 96 S.Ct. 612; and (4) those ‘‘whocan be said to hold an office,’’ UnitedStates v. Germaine, 99 U.S. 508, 510, 25L.Ed. 482 (1879), that has been createdeither by ‘‘regulations’’ or by ‘‘statute,’’United States v. Mouat, 124 U.S. 303, 307–308, 23 Ct.Cl. 490, 8 S.Ct. 505, 31 L.Ed.463 (1888).

Consider the definitional conclusion thatthe Department of Justice more recentlyreached: An ‘‘inferior officer’’ is anyonewho holds a ‘‘continuing’’ position and whois ‘‘invested by legal authority with a por-tion of the sovereign powers of the federalGovernment,’’ including, inter alia, thepower to ‘‘arrest criminals,’’ ‘‘seize per-sons or property,’’ ‘‘issue regulations,’’S 540‘‘issue TTT authoritative legal opinions,’’‘‘conduc[t] civil litigation,’’ ‘‘collec[t] reve-nue,’’ represent ‘‘the United States to for-eign nations,’’ ‘‘command’’ military force,or enter into ‘‘contracts’’ on behalf ‘‘of thenation.’’ OLC Memo 1, 4, 12–13, 15–16(internal quotation marks omitted; empha-sis added).

And consider the fact that those whomthis Court has held to be ‘‘officers’’ include:(1) a district court clerk, Hennen, 13 Pet.,at 258; (2) ‘‘thousands of clerks in theDepartments of the Treasury, Interior,and the othe[r]’’ departments, Germaine,supra, at 511, who are responsible for ‘‘therecords, books, and papers appertaining tothe office,’’ Hennen, supra, at 259; (3) aclerk to ‘‘the assistant treasurer’’ stationed‘‘at Boston,’’ United States v. Hartwell, 73U.S. 385, 6 Wall. 385, 392, 18 L.Ed. 830(1868); (4 & 5) an ‘‘assistant-surgeon’’ and

a ‘‘cadet-engineer’’ appointed by the Secre-tary of the Navy, United States v. Moore,95 U.S. 760, 762, 24 L.Ed. 588 (1878);Perkins, 116 U.S., at 484, 6 S.Ct. 449; (6)election monitors, Ex parte Siebold, 100U.S. 371, 397–399, 25 L.Ed. 717 (1880); (7)United States attorneys, Myers, supra, at159, 47 S.Ct. 21; (8) federal marshals,Siebold, supra, at 397; Morrison, 487U.S., at 676, 108 S.Ct. 2597; (9) militaryjudges, Weiss v. United States, 510 U.S.163, 170, 114 S.Ct. 752, 127 L.Ed.2d 1(1994); (10) judges in Article I courts,Freytag, 501 U.S., at 878, 111 S.Ct. 2631;and (11) the general counsel of the Depart-ment of Transportation, Edmond, supra.Individual Members of the Court wouldadd to the list the Federal CommunicationCommission’s managing director, the Fed-eral Trade Commission’s ‘‘secretary,’’ thegeneral counsel of the Commodity FuturesTrading Commission, and more generally,bureau chiefs, general counsels, and ad-ministrative law judges, see Freytag, su-pra, at 918–920, 111 S.Ct. 2631 (SCALIA,J., concurring in part and concurring injudgment), as well as ‘‘ordinary commis-sioned military officers,’’ Weiss, supra, at182, 114 S.Ct. 752 (Souter, J., concurring).

Reading the criteria above as stringentlyas possible, I still see no way to avoidsweeping hundreds, perhaps thousands ofhigh-level Government officials within thescope of the S 541Court’s holding, puttingtheir job security and their administrativeactions and decisions constitutionally atrisk. To make even a conservative esti-mate, one would have to begin by listingfederal departments, offices, bureaus, andother agencies whose heads are by statuteremovable only ‘‘for cause.’’ I have found48 such agencies, which I have listed inAppendix A, infra. Then it would be nec-essary to identify the senior officials inthose agencies (just below the top) who


themselves are removable only ‘‘for cause.’’I have identified 573 such high-rankingofficials, whom I have listed in AppendixB, infra. They include most of the leader-ship of the Nuclear Regulatory Commis-sion (including that agency’s executive di-rector as well as the directors of its Officeof Nuclear Reactor Regulation and Officeof Enforcement), virtually all of the leader-ship of the Social Security Administration,the executive directors of the Federal En-ergy Regulatory Commission and the Fed-eral Trade Commission, as well as thegeneral counsels of the Chemical SafetyBoard, the Federal Mine Safety andHealth Review Commission, and the Na-tional Mediation Board.

This list is a conservative estimate be-cause it consists only of career appointeesin the Senior Executive Service (SES), see5 U.S.C. §§ 2101a, 3132(a)(2), a group ofhigh-ranking officials distinct from the‘‘competitive service,’’ see § 2102(a)(1)(C),who ‘‘serve in the key positions just belowthe top Presidential appointees,’’ Office ofPersonnel Management, About the SES,online at http://www.opm.gov/ses/aboutses/index.asp; and who are, without excep-tion, subject to ‘‘removal’’ only for cause,§§ 7542–7543; see also § 2302(a)(2) (sub-stantially limiting conditions under which‘‘a career appointee position in the SeniorExecutive Service’’ may be ‘‘transfer[red],or reassign[ed]’’). SES officials include,for example, the Director of the Bureau ofPrisons, the Director of the National DrugIntelligence Center, and the Director ofthe Office of International Monetary Policyin the Treasury Department. See SenateCommittee on Homeland Security S 542andGovernmental Affairs, United States Gov-ernment Policy and Supporting Positions99, 103, 129 (2008) (hereinafter PlumBook). And by virtually any definition,essentially all SES officials qualify as ‘‘in-

ferior officers,’’ for their duties, as definedby statute, require them to ‘‘direc[t] thework of an organizational unit,’’ carry outhigh-level managerial functions, or ‘‘other-wise exercis[e] important policy-making,policy-determining, or other executivefunctions.’’ § 3132(a)(2) (emphasis added).Cf. ante, at 3147 (describing an ‘‘inferiorofficer’’ as someone who ‘‘determines thepolicy and enforces the laws of the UnitedStates’’); ante, at 3160 (acknowledgingthat career SES appointees in independentagencies may be rendered unconstitutionalin future cases). Is the SES exempt fromtoday’s rule or is it not? The Court, afterlisting reasons why the SES may be differ-ent, simply says that it will not ‘‘address’’the matter. Ante, at 3160 – 3161. Per-haps it does not do so because it cannot doso without revealing the difficulty of distin-guishing the SES from the AccountingBoard and thereby also revealing the in-herent instability of the legal rule it cre-ates.

The potential list of those whom today’sdecision affects is yet larger. As JusticeSCALIA has observed, administrative lawjudges (ALJs) ‘‘are all executive officers.’’Freytag, 501 U.S., at 878, 111 S.Ct. 2631(opinion concurring in part and concurringin judgment) (emphasis deleted); see also,e.g., id., at 881, 111 S.Ct. 2631 (majorityopinion) (‘‘[A] [tax-court] special trial judgeis an ‘inferior Officer’ ’’); Edmond, 520U.S., at 654, 117 S.Ct. 1573 (‘‘[M]ilitarytrial and appellate judges are [inferior]officers’’). But cf. ante, at 3160, n. 10.And ALJs are each removable ‘‘only forgood cause established and determined bythe Merit Systems Protection Board,’’ 5U.S.C. §§ 7521(a)-(b). But the membersof the Merit Systems Protection Board arethemselves protected from removal by thePresident absent good cause. § 1202(d).

My research reflects that the FederalGovernment relies on 1,584 ALJs to adju-dicate administrative matters in over S 54325


561 U.S. 544

agencies. See Appendix C, infra; see alsoMemorandum of Juanita Love, Office ofPersonnel Management, to Supreme CourtLibrary (May 28, 2010) (available in Clerkof Court’s case file). These ALJs adjudi-cate Social Security benefits, employmentdisputes, and other matters highly impor-tant to individuals. Does every losing par-ty before an ALJ now have grounds toappeal on the basis that the decision en-tered against him is unconstitutional? Cf.ante, at 3160, n. 10 (‘‘[O]ur holding alsodoes not address’’ this question).

And what about the military? Commis-sioned military officers ‘‘are ‘inferior offi-cers.’ ’’ Weiss, 510 U.S., at 182, 114 S.Ct.752 (Souter, J., concurring); id., at 169–170, 114 S.Ct. 752 (majority opinion).There are over 210,000 active-duty com-missioned officers currently serving in theArmed Forces. See Dept. of Defense, Ac-tive Duty Military Personnel by Rank(Apr. 30, 2010), online at http://siadapp.dmdc.osd.mil/personnel/MILITARY/rg1004.pdf. Numerous statutory provisionsprovide that such officers may not be re-moved from office except for cause (atleast in peacetime). See, e.g., 10 U.S.C.§§ 629–632, 804, 1161, 1181–1185. Andsuch officers can generally be so removedonly by other commissioned officers, see§§ 612, 825, 1187, who themselves enjoythe same career protections.

The majority might simply say that themilitary is different. But it will have toexplain how it is different. It is difficult tosee why the Constitution would provide aPresident who is the military’s ‘‘command-er-in-chief,’’ Art. II, § 2, cl. 1, with lessauthority to remove ‘‘inferior’’ military ‘‘of-ficers’’ than to remove comparable civilofficials. See Barron & Lederman, TheCommander in Chief at the Lowest Ebb—A Constitutional History, 121 Harv. L.Rev.941, 1102–1106 (2008) (describing Presi-dent’s ‘‘superintendence prerogative’’ over

the military). Cf. ante, at 3160 – 3161 (not‘‘expressing any view whatever’’ as towhether military officers’ authority is nowunconstitutional).

The majority sees ‘‘no reason TTT toaddress whether’’ any of ‘‘these positions,’’‘‘or any others,’’ might be deemed uncon-stitutional S 544under its new rule, prefer-ring instead to leave these matters for afuture case. Ante, at 3160 – 3161. Butwhat is to happen in the meantime? Is thework of all these various officials to be puton hold while the courts of appeals deter-mine whether today’s ruling applies tothem? Will Congress have to act to re-move the ‘‘for cause’’ provisions? Cf.Buckley, 424 U.S., at 142–143, 96 S.Ct. 612.Can the President then restore them viaexecutive order? And, still, what aboutthe military? A clearer line would helpavoid these practical difficulties.

The majority asserts that its opinion willnot affect the Government’s ability to func-tion while these many questions are litigat-ed in the lower courts because the Court’sholding concerns only ‘‘the conditions un-der which th[e]se officers might somedaybe removed.’’ Ante, at 3161. But thiscase was not brought by federal officialschallenging their potential removal. Itwas brought by private individuals whowere subject to regulation ‘‘ ‘here-and-now ’ ’’ and who ‘‘object to the’’ very ‘‘exis-tence’’ of the regulators themselves. Ante,at 3164, 3150 (emphasis added). Andthose private individuals have prevailed.Thus, any person similarly regulated by afederal official who is potentially subject tothe Court’s amorphous new rule will beable to bring an ‘‘ ‘implied private right ofaction directly under the Constitution’ ’’‘‘seeking TTT a declaratory judgment that’’the official’s actions are ‘‘unconstitutionaland an injunction preventing the’’ official‘‘from exercising [his] powers.’’ Ante, at3151, n. 2, 3088 – 3089; cf., e.g., Legal Ser-


vices Corporation v. Velazquez, 531 U.S.533, 546, 121 S.Ct. 1043, 149 L.Ed.2d 63(2001) (affirming grant of preliminary in-junction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet &Tube Co., 343 U.S. 579, 72 S.Ct. 863(same). Such a plaintiff need not evenfirst exhaust his administrative remedies.Ante, at 3149 – 3151.

Nor is it clear that courts will always beable to cure such a constitutional defectmerely by severing an offending removalprovision. For a court’s ‘‘ability to devise[such] a judicial S 545remedy TTT often de-pends on how clearly’’ the ‘‘backgroundconstitutional rules at issue’’ have been‘‘articulated’’; severance will be unavail-able ‘‘in a murky constitutional context,’’which is precisely the context that theCourt’s new rule creates. Ayotte v.Planned Parenthood of Northern NewEng., 546 U.S. 320, 329, 330, 126 S.Ct. 961,163 L.Ed.2d 812 (2006). Moreover, ‘‘thetouchstone’’ of the severability analysis ‘‘islegislative intent,’’ id., at 330, 126 S.Ct.961, and Congress has repeatedly ex-pressed its judgment ‘‘over the last centu-ry that it is in the best interest of thecountry, indeed essential, that federal ser-vice should depend upon meritorious per-formance rather than political service,’’Civil Service Comm’n, 413 U.S., at 557, 93S.Ct. 2880; see also Bush v. Lucas, 462U.S. 367, 380–388, 103 S.Ct. 2404, 76L.Ed.2d 648 (1983) (describing the historyof ‘‘[c]ongressional attention to the prob-lem of politically motivated removals’’).And so it may well be that courts calledupon to resolve the many questions themajority’s opinion raises will not only ap-ply the Court’s new rule to its logicalconclusion, but will also determine that theonly available remedy to certain doublefor-cause problems is to invalidate entireagencies.

Thus, notwithstanding the majority’s as-sertions to the contrary, the potential con-

sequences of today’s holding are worrying.The upshot, I believe, is a legal dilemma.To interpret the Court’s decision as appli-cable only in a few circumstances willmake the rule less harmful but arbitrary.To interpret the rule more broadly willmake the rule more rational, but destruc-tive.

III

One last question: How can the Courtsimply assume without deciding that theSEC Commissioners themselves are re-movable only ‘‘for cause’’? See ante, at3148 – 3149 (‘‘[W]e decide the case withth[e] understanding’’ ‘‘that the Commis-sioners cannot themselves be removed bythe President except’’ for cause (emphasisadded)). Unless the Commissioners them-selves are in fact protected by a ‘‘forcause’’ requirement, the Accounting Boardstatute, on the Court’s own reasoning, S 546isnot constitutionally defective. I am notaware of any other instance in which theCourt has similarly (on its own or throughstipulation) created a constitutional defectin a statute and then relied on that defectto strike a statute down as unconstitution-al. Cf. Alabama v. North Carolina, 560U.S. 330, 352, 130 S.Ct. 2295, 2312, 176L.Ed.2d 1070 (2010) (opinion for the Courtby SCALIA, J.) (‘‘We do not—we cannot—add provisions to a federal statute TTTespecially [if] TTT separation-of-powersconcerns TTT would [thereby] arise’’); TheAnaconda v. American Sugar RefiningCo., 322 U.S. 42, 46, 64 S.Ct. 863, 88 L.Ed.1117 (1944) (describing parties’ inability to‘‘stipulate away’’ what ‘‘the legislation de-clares’’).

It is certainly not obvious that the SECCommissioners enjoy ‘‘for cause’’ protec-tion. Unlike the statutes establishing the48 federal agencies listed in Appendix A,infra, the statute that established theCommission says nothing about removal.


561 U.S. 548

It is silent on the question. As far as itstext is concerned, the President’s authorityto remove the Commissioners is no differ-ent from his authority to remove the Sec-retary of State or the Attorney General.See Shurtleff, 189 U.S., at 315, 23 S.Ct. 535(‘‘To take away th[e] power of removal TTTwould require very clear and explicit lan-guage. It should not be held to be takenaway by mere inference or implication’’);see also Memorandum from David J. Bar-ron, Acting Assistant Attorney General,Office of Legal Counsel, to the PrincipalDeputy Counsel to the President: Remov-ability of the Federal Coordinator forAlaska Natural Gas Transportation Pro-jects, p. 2 (Oct. 23, 2009), online at http://justice.gov/olc/2009/gas-transportproject.pdf (‘‘[Where] Congress did not explicitlyprovide tenure protection TTT the Presi-dent, consistent with TTT settled principles,may remove TTT without cause’’); TheConstitutional Separation of Powers Be-tween the President and Congress, 20 Op.Legal Counsel 124, 170 (1996) (same).

Nor is the absence of a ‘‘for cause’’provision in the statute that created theCommission likely to have been inadver-tent. Congress created the Commissionduring the 9–year period after this Courtdecided Myers, and thereby cast seriousS 547doubt on the constitutionality of all ‘‘forcause’’ removal provisions, but before itdecided Humphrey’s Executor, which re-moved any doubt in respect to the consti-tutionality of making commissioners of in-dependent agencies removable only forcause. In other words, Congress createdthe SEC at a time when, under thisCourt’s precedents, it would have beenunconstitutional to make the Commission-ers removable only for cause. And, duringthat 9–year period, Congress created atleast three major federal agencies withoutmaking any of their officers removable forcause. See 48 Stat. 885, 15 U.S.C. § 78d(SEC), 48 Stat. 1066, 47 U.S.C. § 154

(Federal Communications Commission);46 Stat. 797 (Federal Power Commission)(reformed post-Humphrey’s Executor asthe Federal Energy Regulatory Commis-sion with ‘‘for cause’’ protection, 91 Stat.582, 42 U.S.C. § 7171). By way of con-trast, only one month after Humphrey’sExecutor was decided, Congress returnedto its pre-Myers practice of including suchprovisions in statutes creating independentcommissions. See § 3, 49 Stat. 451, 29U.S.C. § 153 (establishing National LaborRelations Board with an explicit removallimitation).

The fact that Congress did not makethe SEC Commissioners removable ‘‘forcause’’ does not mean it intended to createa dependent, rather than an independentagency. Agency independence is a func-tion of several different factors, of which‘‘for cause’’ protection is only one. Thosefactors include, inter alia, an agency’sseparate (rather than presidentially de-pendent) budgeting authority, its separatelitigating authority, its composition as amultimember bipartisan board, the use ofthe word ‘‘independent’’ in its authorizingstatute, and, above all, a political environ-ment, reflecting tradition and function,that would impose a heavy political costupon any President who tried to remove acommissioner of the agency without cause.See generally Breger & Edles 1135–1155.

The absence of a ‘‘for cause’’ provision isthus not fatal to agency independence. In-deed, a ‘‘Congressional ResearchS 548Service official suggests that there areat least 13 ‘independent’ agencies withouta removal provision in their statutes.’’ Id.,at 1143, n. 161 (emphasis added) (citingcongressional testimony). But it doesdraw the majority’s rule into further con-fusion. For not only are we left without adefinition of an ‘‘inferior officer,’’ but weare also left to guess which department


heads will be deemed by the majority to besubject to for-cause removal notwithstand-ing statutes containing no such provision.If any agency deemed ‘‘independent’’ willbe similarly treated, the scope of the ma-jority’s holding is even broader still. SeeAppendix D, infra (listing agencies poten-tially affected).

The Court then, by assumption, readsinto the statute books a ‘‘for cause remov-al’’ phrase that does not appear in therelevant statute and which Congress prob-ably did not intend to write. And it doesso in order to strike down, not to uphold,another statute. This is not a statutoryconstruction that seeks to avoid a constitu-tional question, but its opposite. See Ash-wander v. TVA, 297 U.S. 288, 347, 56 S.Ct.466, 80 L.Ed. 688 (1936) (Brandeis, J.,concurring) (‘‘It is not the habit of theCourt to decide questions of a constitution-al nature unless absolutely necessary to adecision of the case’’ (internal quotationmarks omitted)); NLRB v. Catholic Bish-op of Chicago, 440 U.S. 490, 500, 99 S.Ct.1313, 59 L.Ed.2d 533 (1979) (‘‘[A]n Act ofCongress ought not be construed to violatethe Constitution if any other possible con-struction remains available’’).

I do not need to decide whether theCommissioners are in fact removable only‘‘for cause’’ because I would uphold theAccounting Board’s removal provision asconstitutional regardless. But were thatnot so, a determination that the silent SECstatute means no more than it says wouldproperly avoid the determination of uncon-stitutionality that the Court now makes.

* * *

In my view the Court’s decision iswrong—very wrong. As Parts II–A, II–B,and II–C of this opinion make clear, ifS 549the Court were to look to the properfunctional and contextual considerations, itwould find the Accounting Board provisionconstitutional. As Part II–D shows, inso-

far as the Court instead tries to create abright-line rule, it fails to do so. Its ruleof decision is both imprecise and overlybroad. In light of the present imprecision,it must either narrow its rule arbitrarily,leaving it to apply virtually alone to theAccounting Board, or it will have to leavein place a broader rule of decision applica-ble to many other ‘‘inferior officers’’ aswell. In doing the latter, it will underminethe President’s authority. And it will cre-ate an obstacle, indeed pose a seriousthreat, to the proper functioning of thatworkable Government that the Constitu-tion seeks to create—in provisions thisCourt is sworn to uphold.

With respect I dissent.

APPENDIXES

A

There are 24 stand-alone federal agen-cies (i.e., ‘‘departments’’) whose heads are,by statute, removable by the Presidentonly ‘‘for cause.’’ Moreover, there are atleast 24 additional offices, boards, or bu-reaus situated within departments that aresimilarly subject, by statute, to for-causeremoval provisions. The chart below firstlists the 24 departments and then lists the24 additional offices, boards, and bureaus.I have highlighted those instances in whicha ‘‘for-cause’’ office is situated within a‘‘for-cause’’ department—i.e., instances of‘‘double for-cause’’ removal that are essen-tially indistinguishable from this case (withthe notable exception that the AccountingBoard may not be statutorily subject totwo layers of for-cause removal, cf. PartIII, supra ). This list does not includeinstances of ‘‘double for-cause’’ removalthat arise in Article I courts, although suchinstances might also be affected by themajority’s holding, cf. ante, at ––––, n. 10.Compare 48 U.S.C. §§ 1424(a), 1614(a),


561 U.S. 549

APPENDIXES—Continued

with 28 U.S.C. §§ 631(a), (i), and 18 U.S.C.§§ 23, 3602(a).


561 U.S. 549



Editor’s Note: The preceding image contains the reference for footnote *.

* See Lebron v. National Railroad Passenger Cor-poration, 513 U.S. 374, 115 S.Ct. 961, 130

L.Ed.2d 902 (1995).


561 U.S. 549


Editor’s Note: The preceding image contains the reference for footnote †

† See Lebron, supra.


561 U.S. 549



S 556B

The table that follows lists the 573 ca-reer appointees in the SES who constitutethe upper level management of the inde-pendent agencies listed in Appendix A,supra. Each S 557of these officials is, underany definition—including the Court’s—aninferior officer, and is, by statute, subjectto two layers of for-cause removal. Seesupra, at 25–30.

The data are organized into three col-umns: The first column lists the ‘‘office’’ towhich the corresponding official is as-signed within the respective agency and,where available, the provision of law estab-lishing that office. Cf. supra, at 27 (citingMouat, 124 U.S., at 307–308, 8 S.Ct. 505;


Germaine, 99 U.S., at 510). The secondand third columns respectively list the ca-reer appointees in each agency who occupy‘‘general’’ and ‘‘reserved’’ SES positions.A ‘‘general’’ position is one that could befilled by either a career appointee or by anoncareer appointee were the current (ca-reer) occupant to be replaced. See 5U.S.C. § 3132(b)(1). Because 90% of allSES positions must be filled by careerappointees, § 3134(b), ‘‘most General posi-tions are filled by career appointees,’’Plum Book 200. A ‘‘reserved’’ position, bycontrast, must always be filled by a careerappointee. § 3132(b)(1). The data for the‘‘general position’’ column come from the2008 Plum Book, a quadrennial manualprepared by the congressional committeesresponsible for Government oversight.


561 U.S. 557


See supra, at 29. Positions listed as va-cant in that source are not included. Thedata for the ‘‘reserved position’’ columncome from a list periodically published bythe Office of Personnel Management andlast published in 2006. See 72 Fed.Reg.


16154–16251 (2007); § 3132(b)(4). Giventhe Federal Government’s size and thetemporal lag between the underlyingsources, the list that follows is intended tobe illustrative, not exact.


561 U.S. 557


561 U.S. 557



* The officers in this agency are part of the‘‘excepted service,’’ but enjoy tenure protec-tion similar to that enjoyed by career SESappointees. See 5 U.S.C. § 2302(a)(2)(B);Plum Book, p. v (distinguishing ‘‘excepted

service’’ from ‘‘Schedule C’’); id., at 202 (de-scribing schedule C positions).


561 U.S. 586


S 586C

According to data provided by the Officeof Personnel Management, reprinted be-low, there are 1,584 ALJs in the FederalGovernment. Each of these ALJs is aninferior officer and each is subject, by


statute, to two layers of for-cause removal.See supra, at 3180 – 3181. The table be-low lists the 28 federal agencies that relyon ALJs to adjudicate individual adminis-trative cases. The source is available inthe Clerk of Court’s case file. See ibid.


561 U.S. 588


S 588D

The table below lists 27 departmentsand other agencies the heads of which arenot subject to any statutory for-cause re-moval provision, but that do bear certainother indicia of independence.

The table identifies six criteria that maysuggest independence: (1) whether theagency consists of a multimember commis-sion; (2) whether its members are re-quired, by statute, to be bipartisan (ornonpartisan); (3) whether eligibility toserve as the agency’s head depends onstatutorily defined qualifications; (4)


whether the agency has independence insubmitting budgetary and other proposalsto Congress (thereby bypassing the Officeof Management and Budget); (5) whetherthe agency has authority to appear incourt independent of the Department ofJustice, cf. 28 U.S.C. §§ 516–519; and (6)whether the agency is explicitly classifiedas ‘‘independent’’ by statute. See general-ly Breger & Edles 1135–1155; supra, at35–36. Unless otherwise noted, all infor-mation refers to the relevant agency’s or-ganic statute, which is cited in the firstcolumn. The list of agencies is nonex-haustive.




* See Lebron, 513 U.S. 374, 115 S.Ct. 961.


561 U.S. 588


Editor’s Note: The preceding image contains the reference for footnote †.




Editor’s Note: The preceding image contains the reference for footnote †.

,

561 U.S. 593, 177 L.Ed.2d 792

Bernard L. BILSKI and RandA. Warsaw, Petitioners,

v.

David J. KAPPOS, Under Secretary ofCommerce for Intellectual Propertyand Director, Patent and TrademarkOffice.

No. 08–964.

Argued Nov. 9, 2009.

Decided June 28, 2010.

Background: Patent applicants chal-lenged denial of patent application formethod of hedging risk in field of commod-ities trading in the energy market basedon lack of patent-eligible subject matter.The Patent and Trademark Office, Board

of Patent Appeals and Interferences, 2006WL 5738364, sustained rejection of allclaims in application. Applicants appealed.Following sua sponte order of review enbanc, the United States Court of Appealsfor the Federal Circuit, Michel, ChiefJudge, 545 F.3d 943, affirmed. Certiorariwas granted.

Holdings: The Supreme Court, JusticeKennedy, held that:

(1) machine-or-transformation test is notthe sole test for determining the patenteligibility of a process, and

(2) applicants’ method was an unpatent-able abstract idea.

Affirmed.

Justice Scalia joined the opinion in part.

Justice Stevens filed an opinion concurringin the judgment, in which Justice Gins-burg, Justice Breyer, and Justice Sotoma-yor joined.

Justice Breyer filed an opinion concurringin the judgment, in which Justice Scaliajoined in part.


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