Originally uploaded at SSRN.


In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for PCAOB’s actions in the same manner as he could hold the SEC accountable for its other responsibilities. Four Justices dissented. They argued that the majority’s decision, if applied consistently, would disrupt the independent administrative state by invalidating tiered protections for several independent boards, 1500 ALJs, 210,000 military officers, and numerous civil servants.

This article proposes that, contrary to the dissent’s position, courts can preserve agency independence and the President’s removal power without disturbing Free Enterprise Fund or the Court’s prior, inconsistent removal-power jurisprudence. The courts should distinguish the various tiered tenure-protection provisions, which fall into weak, intermediate, and strong-protection prototypes. Certain prototype combinations permit the President to have federal officers implement his policy choices. When the President can do so, he retains sufficient removal power, and thus certain prototype combinations are constitutional. Indeed, under my proposed analysis, the tiered-tenure protections for most agencies and officials are permissible. Distinguishing tenure-protection provisions (instead of just counting them) permits courts to provide some coherence to, without disturbing, the Supreme Court's otherwise inconsistent removal-power decisions.