The sec is not an independent agency

Harvard Law Review

Volumn 126, Issue 3, 2013, Pages 781-801

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EID: 84872908943     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (210)

1. Catherine Dodge & Kim Chipman, McCain Says He Would Fire SEC's Cox if President, Bloomberg (Sept. 18, 2008, 8:41 PM), http://www.bloomberg.com/apps/news?pid=newsarchive &sid=a5ZRYnyf1osQ (quoting Sen. John McCain) (internal quotation marks omitted).
2. See, e.g., Alex Koppelman, McCain Caught Overpromising on SEC Chairman, Salon (Sept. 18, 2008, 3:20 PM), http://www.salon.com/2008/09/18/mccain_cox.
3. See, e.g., 44 U.S.C. § 3502(5) (2006 & Supp. IV 2010) (classifying the SEC as independent agency for purposes of the Paperwork Reduction Act)
4. SEC v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988) (accepting "that it is commonly understood that the President may remove a commissioner [of the SEC] only for 'inefficiency, neglect of duty or malfeasance in office'")
5. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 app. at 1285 (2000) (listing the SEC as an independent agency)
6. Andrew Downey Orrick, Organization, Procedures and Practices of the Securities and Exchange Commission, 28 Geo. Wash. L. Rev. 50, 52 (1959) ("The Commission is an independent regulatory agency.... ").
7. See Jennifer Parker, McCain Flub? Republican Says He'd Fire SEC Chair as President, ABC News (Sept. 18, 2008, 1:47 PM), http://abcnews.go.com/blogs/politics/2008/09/mccain-blasts-o-2 (noting that the campaign argued that Senator McCain had meant only that there was a "customary expectation" that SEC commissioners would resign if requested).
8. 130 S. Ct. 3138 (2010).
9. 130 S. Ct. at 3182 (2010) (Breyer, J., dissenting).
10. 130 S. Ct. at 3182-83.
11. 130 S. Ct. at 3183.
12. 130 S. Ct. at 3148-49 (majority opinion).
13. For purposes of this Note, the term "for cause" refers to any sort of removal protection, as distinguished from "at will" removal by the President. In reality, different statutes specify different standards for removing independent officers; the Court decided Free Enterprise Fund under the assumption that SEC commissioners are removable only "under the Humphrey's Executor standard of 'inefficiency, neglect of duty, or malfeasance in office.'" Id. at 3148 (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 620 (1935). Courts have never established exactly what "inefficiency, neglect of duty, or malfeasance in office" means, and some scholars have concluded that these terms could even encompass failure to obey a President's orders.
14. See, e.g., Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, 86-87.
15. 272 U.S. 52 (1926).
16. 295 U.S. 602.
17. Unless otherwise specified, this Note uses the term "independent" to describe agencies whose officers are not removable at will by the President.
18. 272 U.S. at 176.
19. 295 U.S. at 631-32.
20. See Myers, 272 U.S. at 109. For a thorough description of the famous Decision of 1789, in which the First Congress wrestled with this problem
21. see 272 U.S. at 111-16. For an alternative view
22. see Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 Colum. L. Rev. 1, 25-27 (1994).
23. Myers, 272 U.S. at 107 (quoting Act of July 12, 1876, ch. 179, § 6, 19 Stat. 78, 80).
24. 272 U.S. at 134-35.
25. 272 U.S. at 135. The Court noted that the Executive could not "properly influence or control" the outcome of a particular case, but could nonetheless "consider the decision after its rendition as a reason for removing the officer. " Id.
26. 272 U.S. at 135. The Court noted that the Executive could not "properly influence or control" the outcome of a particular case, but could nonetheless "consider the decision after its rendition as a reason for removing the officer. " Id.
27. Humphrey's Ex'r, 295 U.S. at 618-19.
28. Humphrey's Ex'r, 295 U.S. at 620 (quoting Federal Trade Commission Act, Pub. L. No. 63-203, § 1, 38 Stat. 717, 718 (1914) (codified as amended at 15 U.S.C. § 41 (2006).
29. Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War 97-98 (2002).
30. Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War 97-98 (2002) at 96 (internal quotation marks omitted).
31. Humphrey's Ex'r, 295 U.S. at 632.
32. Humphrey's Ex'r, 295 U.S. at 632.
33. Humphrey's Ex'r, 295 U.S. at 628.
34. Humphrey's Ex'r, 295 U.S. at 632.
35. See Morrison v. Olson, 487 U.S. 654, 724-26 (1988) (Scalia, J., dissenting)
36. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, at 93 ("Humphrey's Executor, as commentators have noted, is one of the more egregious opinions to be found on pages of the United States Supreme Court Reports. ").
37. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. 41, at 94 ("Humphrey's Executor has long been viewed as the fundamental constitutional charter of the independent regulatory commissions. ").
38. Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 U.S.C. §§ 78a-78pp (2006 & Supp. IV 2010).
39. Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 U.S.C. § 4, 48 Stat. at 885 (codified as amended at 15 U.S.C. § 78d).
40. See Joel Seligman, The Transformation of Wall Street 98 (3d ed. 2003)
41. Henry Laurence, Spawning the SEC, 6 Ind. J. Global Legal Stud. 647, 658 (1999).
42. See Anne M. Khademian, The SEC and Capital Market Regulation 34-35 (1992)
43. Henry Laurence, Spawning the SEC, 6 Ind. J. Global Legal Stud. at 658-59. (1999).
44. See 1 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 1.2[3][B] (6th ed. 2009). The legislative history of the 1934 Act also supports this position. See, e.g., 78 Cong. Rec. 8162 (1934) (statement of Sen. Carter Glass) ("[I]t was inconceivable that either the [FTC] or the Federal Reserve Board could do the work as effectively as could a separate commission appointed for the purpose, in view of the fact that [they] have important and complex duties which... now occupy all of their time and their ingenuity. ")
45. see also 4 The Economic Regulation of Business and Industry 2679 (Bernard Schwartz ed., 1973) (discussing the 1934 Act's legislative history).
46. Joel Seligman, The Transformation of Wall Street 98 (3d ed. 2003), at 99-100 (discussing various compromises in the 1934 Act).
47. Securities Exchange Act of 1934 § 4(a), 48 Stat. at 885 (codified as amended at 15 U.S.C. § 78d(a).
48. Securities Exchange Act of 1934 § 4(a), 48 Stat. at 885 (codified as amended at 15 U.S.C. § 78d(a).
49. Securities Exchange Act of 1934 § 4(a), 48 Stat. at 885 (codified as amended at 15 U.S.C. § 78d(a).
50. The statute was enacted on June 6, 1934. Securities Exchange Act of 1934 § 4(a), 48 Stat. at 885 (codified as amended at 15 U.S.C. § 78d(a). pmbl. The Court decided Humphrey's Executor on May 27, 1935. Humphrey's Ex'r v. United States, 295 U.S. 602, 602 (1935).
51. See Myers v. United States, 272 U.S. 52, 176 (1926)
52. Myers v. United States, 272 U.S. (1926) pp. 783-84. As Justice Breyer noted in Free Enterprise Fund, Congress did not provide removal protection for any of the agencies it created between Myers and Humphrey's Executor, but began doing so immediately after Humphrey's Executor was decided. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3183 (2010) (Breyer, J., dissenting).
53. See, e.g., Frederick F. Blachly & Miriam E. Oatman, Federal Regulatory Action and Control 42 (1940).
54. In Morrison v. Olson, 487 U.S. 654, 691 (1988), the Court held that removal restrictions are constitutional so long as they do not "impede the President's ability to perform his constitutional duty. " Given that the SEC has enjoyed de facto independence from executive control for decades, it would be difficult to argue that it is "essential to the President's proper execution of his Article II powers that [the SEC] be headed up by individuals who [are] removable at will. " Id.
55. In Morrison v. Olson, 487 U.S. 654, 691 (1988), the Court held that removal restrictions are constitutional so long as they do not "impede the President's ability to perform his constitutional duty. " Given that the SEC has enjoyed de facto independence from executive control for decades, it would be difficult to argue that it is "essential to the President's proper execution of his Article II powers that [the SEC] be headed up by individuals who [are] removable at will. "
56. see SEC v. Blinder, Robinson & Co., 855 F.2d 677, 682 (10th Cir. 1988) (concluding that removal protection for SEC commissioners is constitutional under Morrison).
57. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 app. at 1144 (2000), n.163 ("After Morrison, a threshold question remains whether Congress intended to confer some form of statutory protection on government officials. ").
58. See 15 U.S.C. § 78d(a) (2006 & Supp. IV 2010).
59. See 15 U.S.C. § 78d(a) (2006 & Supp. IV 2010).
60. See Parsons v. United States, 167 U.S. 324, 342 (1897)
61. see also Pievksy v. Ridge, 98 F.3d 730, 734 (3d Cir. 1996) ("It is a long-standing rule in the federal courts that a fixed term merely provides a time for the term to end. "). These cases did not involve independent agencies, and some courts have suggested, in dicta, that a fixed-term provision along with several other structural factors might allow courts to infer removal protection.
62. See, e.g., FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993). Regardless, the cases establish that the fixed term does not, by itself, confer removal protection; at most, a fixed term might be one factor in some extratextual test, based on the agency's structure, that courts might use to infer removal protection.
63. Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. (1983). section III. A, pp. 794-95.
64. See generally Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 806-07 (1983). To be sure, the use of canons is controversial, but nevertheless widespread.
65. Richard A. Posner, Statutory Interpretation-In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. (1983). at 805.
66. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 259 (1839).
67. 38 U.S. (13 Pet.) 230.
68. 38 U.S. (13 Pet.) at 259.
69. 38 U.S. (13 Pet.) at 259.
70. See Myers, 272 U.S. at 109. The Decision of 1789 strongly suggests that the Framers believed the President would have the power to remove an officer in the face of statutory silence.
71. See, e.g., Shurtleff v. United States, 189 U.S. 311, 314-15 (1903)
72. Keim v. United States, 177 U.S. 290, 293 (1900)
73. Blake v. United States, 103 U.S. 227, 231 (1880).
74. In 1920, after all three Myers dissenters (Justices Holmes, McReynolds, and Brandeis) had joined the Court, Justice Brandeis authored a unanimous opinion explaining that "[t]he power to remove is, in the absence of statutory provision to the contrary, an incident of the power to appoint. " Burnap v. United States, 252 U.S. 512, 515 (1920).
75. 189 U.S. 311.
76. 189 U.S. at 313 (quoting Customs Administrative Act, ch. 407, § 12, 26 Stat. 131, 136 (1890).
77. 189 U.S. at 318.
78. 189 U.S. at 318.
79. 189 U.S. at 315.
80. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010) ("Under the traditional default rule, removal is incident to the power of appointment. ").
81. Humphrey's Executor did not overrule Shurtleff, but essentially limited it to its facts, especially the fact that the statute in Shurtleff did not provide a term of office for general appraisers. See Humphrey's Ex'r v. United States, 295 U.S. 602, 621-23 (1935).
82. 357 U.S. 349 (1958).
83. 357 U.S. at 356. (1958).
84. 357 U.S. at 354-55. (1958).
85. 357 U.S. (1958). at 355 (internal quotation marks omitted).
86. 357 U.S. (1958). at 354-55.
87. 357 U.S. (1958). at 356.
88. 357 U.S. (1958). at 356.
89. 357 U.S. (1958). at 355-56.
90. 357 U.S. (1958). at 355.
91. 357 U.S. (1958). at 356.
92. Andrew Downey Orrick, Organization, Procedures and Practices of the Securities and Exchange Commission, 28 Geo. Wash. L. Rev., at 52 (1959) ("[T]he absolute independence of the Commission is limited by explicit responsibilities running to both the Executive Branch and to the Congress, and both these branches possess specific powers relating to its operations. ").
93. See M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. 1383, 1384 (2004).
94. M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. Chi. L. Rev. at 1388 (2004).
95. See, e.g., Richard J. Pierce, Jr., The Inherent Limits on Judicial Control of Agency Discretion: The D.C. Circuit and the Nondelegation Doctrine, 52 Admin. L. Rev. 63, 94 (2000) ("The EPA Administrator... serves at the pleasure of the President. ").
96. 487 U.S. 654 (1988).
97. 487 U.S. (1988). at 689-91.
98. 487 U.S. (1988). at 691.
99. Morrison v. Olson, 487 U.S. at 689 (1988) n.28. The dissent also agreed "that the line between 'purely executive' functions and 'quasi-legislative' or 'quasi-judicial' functions is not a clear one or even a rational one. "
100. Morrison v. Olson, 487 U.S. at 725 (1988) (Scalia, J., dissenting). The majority did note, however, that attempting to identify the nature of an agency's functions might help interpret an ambiguous statute.
101. Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 U.S.C. §§ 78a-78pp (2006 & Supp. IV 2010). at 691 n.30 (majority opinion).
102. Pub. L. No. 73-291, 48 Stat. 881 (codified as amended at 15 U.S.C. §§ 78a-78pp (2006 & Supp. IV 2010) at 689-90. Moreover, converting Morrison into a rule of interpretation would be contrary to the very functional principles underlying the decision itself. To turn the Morrison rule into a statutory presumption would mean that, by default, the President's power to remove commissioners would end where Congress's power to insulate them begins; the President could remove most officers only if Congress expressly acted to delegate that power. This approach would be antithetical to the functional ideas embraced in Morrison, and more akin to the formalist principle that there be sharp divisions between the three branches.
103. See, e.g., John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939, 1942-44 (2011) (comparing formalism and functionalism). By contrast, the Hennen rule provides that where Congress has not yet acted (that is, it has remained silent), either branch may exercise power over an agency: the President by removing an officer, and Congress by enacting removal protection. This idea, rejecting a sharp division between the branches in favor of a shared space where either can act, is more in accord with functional principles.
104. see also Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 667-69 (1984) (describing a functional perspective of separation of powers)
105. cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (explaining how Congress and the President have shared, overlapping, and interdependent powers).
106. Where canons of construction make the text of a statute clear, the Supreme Court has suggested that consideration of legislative history is unnecessary, and potentially even inappropriate. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 119 (2001) (noting that consideration of the legislative history was unnecessary after using canons to determine meaning of the text).
107. See, e.g., Braffith v. Virgin Islands, 26 F.2d 646, 649 (3d Cir. 1928).
108. See Circuit City, 532 U.S. at 114-15, 119
109. (declining to rely on "sparse" legislative history in the face of conflicting canons of construction Circuit City, 532 U.S. at 119).
110. In one compilation of the legislative histories of securities laws, the 1934 Act's legislative history occupies volumes four through eleven. See 1 Legislative History of the Securities Act of 1933 and Securities Exchange Act of 1934, at ix-xii (J.S. Ellenberger & Ellen P. Mahar eds., 2001).
111. Cf. James M. Landis, The Legislative History of the Securities Act of 1933, 28 Geo. Wash. L. Rev. 29, 29 & n.1 (1959) (commenting on the difficulty of gathering reliable legislative history for the Securities Act of 1933). For a discussion of the general unreliability of legislative history
112. see Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1015-19 (1992).
113. For more on the difficulties presented by hopes and expectations, see Ronald Dworkin, Law's Empire 319-22 (1986).
114. See 1 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 1.2[3][B] (6th ed. 2009). The legislative history of the 1934 Act also supports this position. See, e.g., 78 Cong. Rec. 8162 (1934) (statement of Sen. Carter Glass) ("[I]t was inconceivable that either the [FTC] or the Federal Reserve Board could do the work as effectively as could a separate commission appointed for the purpose, in view of the fact that [they] have important and complex duties which... now occupy all of their time and their ingenuity. "), at 2679-80.
115. See H.R. Rep. No. 73-1383, at 16 (1934).
116. H.R. Rep. No. 73-1383 (1934) pp. 783-84.
117. See Humphrey's Ex'r v. United States, 295 U.S. 602, 618-19 (1935).
118. 78 Cong. Rec. 8111 (1934) (statement of Rep. William Cole) (emphasis added).
119. 78 Cong. Rec. at 8162 (1934) (statement of Sen. Carter Glass).
120. A Westlaw search revealed no federal statute that used the words "for reason" to confer removal protection.
121. See 78 Cong. Rec. 7946-47 (1934) (statement of Rep. Hamilton Fish).
122. 78 Cong. Rec. (1934) at 7946.
123. See, e.g., Charles M. Cameron, Veto Bargaining 20 (2000)
124. Bruce G. Peabody & John D. Nugent, Toward a Unifying Theory of the Separation of Powers, 53 Am. U. L. Rev. 1, 57-59 (2003).
125. J. Richard Broughton, Rethinking the Presidential Veto, 42 Harv. J. on Legis. 91, 128 (2005) (discussing President Roosevelt's aggressive, policy-based use of the veto, and how he sometimes vetoed bills just to send Congress "a reminder of his strength as President").
126. See Kathryn Marie Dessayer, Note, The First Word: The President's Place in "Legislative History, " 89 Mich. L. Rev. 399, 413 (1990).
127. See Kathryn Marie Dessayer, Note, The First Word: The President's Place in "Legislative History, " 89 Mich. L. Rev. pp. 783-84. (1990).
128. Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War 98 (2002).
129. William E. Leuchtenburg, The Origins of Franklin D. Roosevelt's "Court-Packing" Plan, 1966 Sup. Ct. Rev. 347, 382.
130. See Angel Manuel Moreno, Presidential Coordination of the Independent Regulatory Process, 8 Admin L.J. Am. U. 461, 484 (1994) ("Roosevelt took a more aggressive approach toward independent agencies than any of his predecessors.... He used a variety of tactics to influence the independent agencies, including... 'jawboning,' requesting undated letters of resignation from prospective appointees, and... employing the removal power. " (footnote omitted)
131. see also Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. 599, 616-17 (2010).
132. See, e.g., Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. 15, 16 (2010).
133. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 app., at 1135, 1137-54 (2000) (discussing factors commonly shared by independent agencies)
134. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. at 51.
135. The D.C. Circuit has suggested, in dicta, that a court might infer removal protections from this sort of structural analysis. See Kalaris v. Donovan, 697 F.2d 376, 395-96 (D.C. Cir. 1983).
136. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. at 51.
137. Marshall J. Breger & Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L. Rev. 1111 app., at 1137 (2000) (discussing factors commonly shared by independent agencies)
138. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. at 51.
139. See Ruggero J. Aldisert, Logic for Lawyers 201-02 (1989).
140. Many commentators have discussed the need for courts to be sensitive to the diversity of unique regulatory structures that Congress has created. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3168-69 (2010) (Breyer, J., dissenting)
141. Peter L. Strauss, On the Difficulties of Generalization-PCAOB in the Footsteps of Myers, Humphrey's Executor, Morrison, and Freytag, 32 Cardozo L. Rev. 2255, 2282 (2011).
142. Erwin Chemerinsky, Constitutional Law: Principles and Policies 358 (4th ed. 2011).
143. The Constitutional Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 168 n.115 (1996).
144. The Constitutional Separation of Powers Between the President & Cong., 20 Op. O.L.C. 124, 168 n.115 (1996). (noting that this rule "seems questionable").
145. See, e.g., Aulana L. Peters, Independent Agencies: Government's Scourge or Salvation?, 1988 Duke L.J. 286, 291-93
146. see also Swan v. Clinton, 100 F.3d 973, 983 (D.C. Cir. 1996) ("[P]eople will likely have greater confidence in financial institutions if they believe that the regulation of these institutions is immune from political influence. ").
147. Swan v. Clinton, 100 F.3d (D.C. Cir. 1996) ("[P]eople will likely have greater confidence in financial institutions if they believe that the regulation of these institutions is immune from political influence. "). at 983 n.6 ("It merits noting, however, that the Comptroller of the Currency, who is responsible for implementing laws relating to the national currency and Federal Reserve notes... can be removed by the President [at will]. ").
148. See Wiener v. United States, 357 U.S. 349, 354-56 (1958)
149. Wiener v. United States, 357 U.S. (1958) pp. 788-89.
150. see also Lisa Schultz Bressman & Robert B. Thompson, The Future of Agency Independence, 63 Vand. L. Rev. at 611-14 (2010).
151. See, e.g., Rachel E. Barkow, Insulating Agencies: Avoiding Capture Through Institutional Design, 89 Tex. L. Rev. at 290-93. (2010).
152. See James C. Miller, III, A Reflection on the Independence of Independent Agencies, 1988 Duke L.J. 297, 297-99
153. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. at 82-83.
154. Geoffrey P. Miller, Independent Agencies, 1986 Sup. Ct. Rev. at 80-81.
155. See Terry M. Moe, Regulatory Performance and Presidential Administration, 26 Am. J. Pol. Sci. 197, 202-03 (1982).
156. See James C. Miller, III, A Reflection on the Independence of Independent Agencies, 1988 Duke L.J., at 297.
157. See, e.g., Aulana L. Peters, Independent Agencies: Government's Scourge or Salvation?, 1988 Duke L.J. at 288-89.
158. 17 C.F.R. § 200.58 (2012).
159. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45 (1984)
160. see also Kalaris v. Donovan, 697 F.2d 376, 390-91 (D.C. Cir. 1983) (determining that Congress intended for an agency to decide its own position within the executive branch, and deferring to the agency on that question).
161. Where the statutory text is clearly resolved by ordinary tools of statutory interpretation-including canons of construction-there is no ambiguity for the agency to resolve. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446-49 (1987).
162. See Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
163. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 178 (2007) ("[T]he ultimate question is whether Congress would have intended, and expected, courts to treat an agency's rule, regulation, application of a statute, or other agency action as within, or outside, its delegation to the agency of 'gap-filling' authority. ").
164. See Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2101 (1990) (arguing that deference is not due when "the agency's self-interest is conspicuously at stake").
165. See generally Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol'y 203 (2004)
166. (arguing that "a court confronted with an arguably selfinterested agency interpretation of law should evaluate the agency's interpretation de novo, " Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol'y at 207 (2004).
167. The Supreme Court's decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2644-45 (2010), arguably supports this position as well, as the Court rejected the NLRB's self-interested interpretation of its quorum requirement without even addressing Chevron or any other framework of deference.
168. See The Supreme Court, 2009 Term-Leading Cases, 124 Harv. L. Rev. 179, 387-90 (2010).
169. See Chevron, 467 U.S. at 865-66. The Court explained that, "[w]hile agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices. " Id. at 865.
170. 467 U.S. at 865.
171. The importance of political accountability has led some commentators to suggest that the amount of deference given to an agency interpretation should vary according to the level of involvement the President had in that interpretation. See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2372, 2376-77 (2001). Under this theory, an agency interpretation adverse to the President's interests should be entitled to little or no deference.
172. 529 U.S. 120 (2000).
173. 529 U.S. at 143 (2000).
174. see also Massachusetts v. EPA, 549 U.S. 497, 531 (2007).
175. Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994).
176. Brown & Williamson, 529 U.S. at 155-56.
177. 44 U.S.C. §§ 3501-3521 (2006 & Supp. IV 2010).
178. U.S.C. § 3502(5) (internal quotation marks omitted).
179. Cf. Massachusetts v. EPA, 549 U.S. at 529-31 (distinguishing Brown & Williamson based on the strength of the postenactment record in that case).
180. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 417-24 (2012)
181. Michael J. Glennon, The Use of Custom in Resolving Separation of Powers Disputes, 64 B.U. L. Rev. 109, 110-11, 115-16 (1984).
182. See Medellín v. Texas, 552 U.S. 491, 532 (2008) (noting that "the Government has not identified a single instance in which the President has attempted" the action at issue).
183. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. at 412 (2012)
184. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. at 438-39. (2012)
185. Indeed, since the Court had to accept the SEC's independence to reach its holding in Free Enterprise Fund, some scholars conclude that the Court has already implicitly relied on this reasoning. Historical Gloss and the Separation of Powers at 483-84
186. see also Jack M. Beermann, An Inductive Understanding of Separation of Powers, 63 Admin. L. Rev. 467, 491 (2011). To be sure, Free Enterprise Fund did not endorse such an approach; although it may be surprising that the Supreme Court's conservative Justices would allow parties to create a constitutional defect by stipulation, the issue was neither squarely presented nor decided in the case.
187. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3148-49 (2010).
188. See generally Adrian Vermeule, Conventions of Agency Independence (Harvard Pub. Law Working Paper No. 12-32, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2103338. Professor Vermeule suggests that courts should consider the conventions of independence when forced to evaluate an agency's actual independence, but not when a convention conflicts with some action taken by the Executive or the legislature. See id. at 49 ("[C]onventions may be recognized by courts in the course of interpretation, but may not be... directly enforced as freestanding rules that would trump clear statutes or executive action clearly authorized by statute.").
189. Adrian Vermeule, Conventions of Agency Independence at 49 (Harvard Pub. Law Working Paper No. 12-32, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2103338 ("[C]onventions may be recognized by courts in the course of interpretation, but may not be... directly enforced as freestanding rules that would trump clear statutes or executive action clearly authorized by statute.").
190. Adrian Vermeule, Conventions of Agency Independence at 43, 49 (Harvard Pub. Law Working Paper No. 12-32, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2103338
191. see also Free Enter. Fund, 130 S. Ct. at 3155 ("[T]he separation of powers does not depend on... whether 'the encroached
192. Merely asserting the President's nonacquiescence might not be sufficient: acquiescencebased arguments typically turn on the President's acts, not on the President's assertions.
193. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev., at 134. (2012)
194. See Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L.J. 451, 498 (1979) ("[I]ndependent agencies have been granted protection from presidential involvement in order to ensure... development of expertise and stability.).
195. See Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev., at 444 (noting that Presidents sometimes fail to protect their institutional prerogatives for political reasons). (2012)
196. Peter L. Strauss, On the Difficulties of Generalization-PCAOB in the Footsteps of Myers, Humphrey's Executor, Morrison, and Freytag, 32 Cardozo L. Rev., at 2276 (arguing that the enacting Congress might have "understood that... presidential interference with [the SEC] would generate enough political heat to dissuade any President from dismissing a commissioner without an articulable, apolitical reason"). (2011).
197. See Hanly A. Ingram, Note, United States v. Tucker: Should Independent Counsels Investigate and Prosecute Ordinary Citizens?, 86 Ky. L.J. 741, 742-47 (1998).
198. Hanly A. Ingram, Note, United States v. Tucker: Should Independent Counsels Investigate and Prosecute Ordinary Citizens?, 86 Ky. L.J. at 744-46. (1998).
199. Hanly A. Ingram, Note, United States v. Tucker: Should Independent Counsels Investigate and Prosecute Ordinary Citizens?, 86 Ky. L.J. at 744-46. (1998).
200. see also Cass R. Sunstein, Bad Incentives and Bad Institutions, 86 Geo. L.J. 2267, 2281 (1998).
201. Herbert J. Miller, Jr. & John P. Elwood, The Independent Counsel Statute: An Idea Whose Time Has Passed, Law & Contemp. Probs., Winter 1999, at 111, 112.
202. Hanly A. Ingram, Note, United States v. Tucker: Should Independent Counsels Investigate and Prosecute Ordinary Citizens?, 86 Ky. L.J., at 2280-81. (1998).
203. Hanly A. Ingram, Note, United States v. Tucker: Should Independent Counsels Investigate and Prosecute Ordinary Citizens?, 86 Ky. L.J., at 2283 (1998). ("Most people who have explored the subject know[] that the [Independent Counsel] Act is a disastrous failure and that it should be repealed. ").
204. As an example, Congress might use a politically protected agency to support a two-layer removal protection scheme similar to the one struck down in Free Enterprise Fund. The Court likely would have upheld the Public Company Accounting Oversight Board structure if it had found that the President legally could remove SEC commissioners at will, even if as a political matter, it would be difficult or impossible for the President actually to remove them. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3153-54 (2010).
205. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. p. 781 (2010).
206. Currently, a sitting President might be unlikely to remove an SEC commissioner, because the SEC's independence allows the President to avoid taking responsibility for the Commission's activities.
207. See Terry M. Moe, Regulatory Performance and Presidential Administration, 26 Am. J. Pol. Sci. 197, at 202-03. (1982).
208. Whether cases like Free Enterprise Fund should be decided based on the President's legal power to remove an agency's officers, as opposed to the degree of independence that an agency enjoys in practice, is a separate question beyond the scope of this Note.
209. See generally Adrian Vermeule, Conventions of Agency Independence (Harvard Pub. Law Working Paper No. 12-32, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2103338. Professor Vermeule suggests that courts should consider the conventions of independence when forced to evaluate an agency's actual independence, but not when a convention conflicts with some action taken by the Executive or the legislature. See id. at 49 ("[C]onventions may be recognized by courts in the course of interpretation, but may not be... directly enforced as freestanding rules that would trump clear statutes or executive action clearly authorized by statute.").
210. See generally Adrian Vermeule, Conventions of Agency Independence (Harvard Pub. Law Working Paper No. 12-32, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id =2103338. at 8-10. Professor Vermeule suggests that courts should consider the conventions of independence when forced to evaluate an agency's actual independence, but not when a convention conflicts with some action taken by the Executive or the legislature. See id. at 49 ("[C]onventions may be recognized by courts in the course of interpretation, but may not be... directly enforced as freestanding rules that would trump clear statutes or executive action clearly authorized by statute.").