KAVANAUGH, Circuit Judge, dissenting:

This case raises fundamental questions about the scope of the President's constitutional power to appoint and remove officers in the Executive Branch. Article II begins: "The executive Power shall be vested in a President of the United States of America." Under Article II, the President possesses the sole power and responsibility to "take Care that the Laws be faithfully executed." To assist in his duties, the President has authority, within certain textual limits, to appoint and remove executive officers. Myers v. United States, 272 U.S. 52, 117, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Disputes over the scope of the President's appointment and removal powers have arisen sporadically throughout American history. This latest chapter involving the Public Company Accounting Oversight Board is the most important separation-of-powers case regarding the President's appointment and removal powers to reach the courts in the last 20 years. Cf. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); Myers, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.

The Public Company Accounting Oversight Board is an independent executive agency created by the Sarbanes-Oxley Act of 2002. The PCAOB is considered an "independent" agency because the five members of the PCAOB are removable only for cause, not at will. The PCAOB portrays itself as just another independent executive agency — like the FCC, the FTC, and the NLRB — that is permissible under the Supreme Court's 1935 decision in Humphrey's Executor. Plaintiffs, including a Nevada accounting firm regulated by the Board, strenuously disagree and challenge its constitutionality. Plaintiffs object to the fact that members of the PCAOB are appointed by and removable for cause by another independent agency, the Securities and Exchange Commission, rather than by the President. They argue that this structure, an independent agency appointed by and removable only for cause by another independent agency: (i) interferes with the President's Article II authority to remove executive officers, and thereby exercise the executive power and take care that the laws be faithfully executed; and (ii) violates the specific terms of the Appointments Clause of Article II regarding the President's authority to appoint "principal officers" in the Executive Branch. Plaintiffs contend that "vesting government agencies with coercive power over the citizenry, and simultaneously depriving the citizenry of any ability to control or check those exercising such potentially tyrannical authority, is precisely the fundamental threat to the 'liberty and security of the governed' that separation of powers principles were designed to prevent." Plaintiffs' Br. at 10-11 (quoting Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991)).

On the removal issue, the majority opinion views this case as Humphrey's Executor redux. But this case is Humphrey's Executor squared. There is a world of difference between the legion of Humphrey's Executor-style agencies and the PCAOB: The heads of the Humphrey's Executor independent agencies are removable for cause by the President, whereas members of the PCAOB are removable for cause only by another independent agency, the Securities and Exchange Commission. The President's power to remove is critical to the President's power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of restriction on and attenuation of the President's authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and law-enforcement functions at the core of the executive power. So far as the parties, including the United States as intervener, have been able to determine in the research reflected in their exhaustive and excellent briefs, never before in American history has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency, rather than by the President or his alter ego. But that is the case with PCAOB members, who are removable for cause only by the SEC — and it is undisputed that the SEC as an independent agency is not the President's alter ego. The PCAOB thus goes well beyond what historical practice and Humphrey's Executor authorize.

The PCAOB's structure not only exceeds the boundaries of Humphrey's Executor; it also contravenes specific and critical language in the Supreme Court's 1988 decision in Morrison v. Olson. The Supreme Court allowed for-cause removal of the independent counsel in Morrison only because the President through his alter ego (the Attorney General) still retained the authority to remove the independent counsel. Therefore, the Court emphasized, Morrison was "not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the 'faithful execution' of the laws." 487 U.S. at 692, 108 S.Ct. 2597. This is such a case. The President has no ability to remove the PCAOB members, either directly or through an alter ego.

The statute's violation of the Appointments Clause is also plain. Under Article II as interpreted in Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), the PCAOB members are principal officers who must be appointed by the President with the advice and consent of the Senate. They are not inferior officers because they are not "directed and supervised" by the SEC, id. at 663, 117 S.Ct. 1573: The PCAOB members are not removable at will by the SEC; the SEC does not have statutory authority to remove them for failure to follow substantive SEC direction or supervision; and the SEC does not have statutory authority to prevent and affirmatively command, and to manage the ongoing conduct of, Board inspections, Board investigations, and Board enforcement actions. Moreover, as the statutory text demonstrates, the very purpose of this statute was precisely to create an accounting board that would operate with some substantive independence from the SEC, not one that would be "directed and supervised" by the SEC. See, e.g., 15 U.S.C. §§ 7211(c), 7214, 7215, 7217; see also S.Rep. No. 107-205, at 6 (2002) ("The successful operation of the Board depends upon its independence. . . ."); 148 CONG. REC. S6327, S6331 (daily ed. July 8, 2002) (statement of Sen. Sarbanes) ("[W]e need to establish this oversight board . . . to provide an extra guarantee of its independence. . . ."). Because PCAOB members are principal officers under the Edmond test, they must be appointed by the President with the advice and consent of the Senate. The Board members are appointed by the SEC alone; therefore, the statute violates the Appointments Clause as well.

The two constitutional flaws in the PCAOB statute are not matters of mere etiquette or protocol. By restricting the President's authority over the Board, the Act renders this Executive Branch agency unaccountable and divorced from Presidential control to a degree not previously countenanced in our constitutional structure. This was not inadvertent; Members of Congress designed the PCAOB to have "massive power, unchecked power." 148 CONG. REC. at S6334 (statement of Sen. Gramm). Our constitutional structure is premised, however, on the notion that such unaccountable power is inconsistent with individual liberty. "The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom." Morrison, 487 U.S. at 727, 108 S.Ct. 2597 (Scalia, J., dissenting); see also Clinton v. City of New York, 524 U.S. 417, 450, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (Kennedy, J., concurring) ("Liberty is always at stake when one or more of the branches seek to transgress the separation of powers."). The Framers of our Constitution took great care to ensure that power in our system was separated into three Branches, not concentrated in the Legislative Branch; that there were checks and balances among the three Branches; and that one individual would be ultimately responsible and accountable for the exercise of executive power. The PCAOB contravenes those bedrock constitutional principles, as well as long-standing Supreme Court precedents, and it is therefore unconstitutional.

Although the constitutional violations here are serious, two points are important to bear in mind. First, finding the PCAOB unconstitutional would not itself call into question the many other independent agencies that dot Washington, D.C. The heads of those agencies are appointed by and removable for cause by the President, the precise structure that Humphrey's Executor upheld and that is conspicuously missing from the PCAOB statute. In other words, the PCAOB is uniquely structured, and a judicial holding invalidating it would be uniquely limited to the PCAOB. Second, and relatedly, the constitutional flaws here could be easily and quickly corrected. Congress could simply amend the statute to require, for example, that the PCAOB members, like the heads of other agencies, be appointed by the President with the advice and consent of the Senate and therefore be removable by the President. Cf. Housing and Economic Recovery Act of 2008, Pub.L. No. 110-289, 122 Stat. 2654 (2008) (creating new "independent" federal regulator of Fannie Mae and Freddie Mac appointed by President with advice and consent of Senate and removable for cause by President). Alternatively, Congress could make the Board part of the SEC — directed, supervised, and removable at will by the Commission just like inferior officers in the SEC. In the meantime, however, the Board's structure violates the Constitution of the United States.

I

As the Supreme Court has indicated, it is always important in a case of this sort to begin with the constitutional text and the original understanding, which are essential to proper interpretation of our enduring Constitution. See Clinton v. City of New York, 524 U.S. 417, 438-40, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); Edmond v. United States, 520 U.S. 651, 658-64, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997); INS v. Chadha, 462 U.S. 919, 945-59, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Buckley v. Valeo, 424 U.S. 1, 118-37, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The text and original understanding are particularly significant in this case: They properly inform our analysis of the Board's arguments for extending the Supreme Court's 1935 opinion in Humphrey's Executor to cover this novel agency structure. I therefore will discuss the text and original understanding at some length.

"If there is a principle in our Constitution . . . more sacred than another, it is that which separates the Legislative, Executive and Judicial powers." Myers v. United States, 272 U.S. 52, 116, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (quoting 1 ANNALS OF CONGRESS 581 (Madison) (1789)). "The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787." Buckley, 424 U.S. at 124, 96 S.Ct. 612. To protect individual liberty, the Framers did not adopt a parliamentary system with a Prime Minister dependent on the Legislature but instead created a President independent from the Legislative Branch: The President is not selected by the Congress (except in the rare cases when no Presidential candidate wins a majority of the state electors' votes); the President's salary is protected against any congressional diminution; and the President's term in office is fixed, except in cases of impeachment by the House and conviction by twothirds of the Senate for high crimes and misdemeanors.

Article II of the Constitution addresses the Presidency. Its first 15 words are definitive: "The executive Power shall be vested in a President of the United States of America." U.S. CONST. art. II, § 1, cl. 1. Article II also grants the President the sole authority and duty to "take Care that the Laws be faithfully executed." Id. art. II, § 3. Under the text of our Constitution, a single President possesses the entirety of the "executive power" (whatever the scope of that power may be) and the entire authority to take care that the laws be faithfully executed.

The Framers established a single President by design: A single head of the Executive Branch enhances efficiency and energy in the administration of the Government. And a single head furthers accountability by making one person responsible for all decisions made by and in the Executive Branch. As the Supreme Court has noted, the "insistence of the Framers upon unity in the Federal Executive — to ensure both vigor and accountability — is well known." Printz v. United States, 521 U.S. 898, 922, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997); see also THE FEDERALIST Nos. 69, 70, 72, 76 (Hamilton); Sierra Club v. Costle, 657 F.2d 298, 405 (D.C. Cir. 1981); Elena Kagan, Presidential Administration, 114 HARV. L.REV. 2245, 2332 (2001) ("The Presidency's unitary power structure, its visibility, and its 'personality' all render the office peculiarly apt to exercise power in ways that the public can identify and evaluate.").

Justice Breyer succinctly summarized the Constitution's provision for a single President: "Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch. . . . The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. . . . [T]hese constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it." Clinton v. Jones, 520 U.S. 681, 712-13, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (concurring in judgment).

Of course, "the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates." Myers, 272 U.S. at 117, 47 S.Ct. 21. It has been understood since the beginning of the Republic that "Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers "a conclusion confirmed by his obligation to take care that the laws be faithfully executed." Buckley, 424 U.S. at 136, 96 S.Ct. 612 (quoting Myers, 272 U.S. at 163-64, 47 S.Ct. 21) (emphasis added).

Under Article II, the President thus necessarily possesses the power to appoint executive officers who exercise executive authority delegated by the President and who otherwise advise and assist the President. See U.S. CONST. art. II, § 2, cl. 2; id. art. II, § 2, cl. 1 (President "may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices"); see also Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 VA. L.REV. 647, 660-68 (1996). Reflecting the Framers' careful attention to checks and balances, the text of the Constitution constrains the President's appointment power in certain important respects. In particular, the Appointments Clause provides that the President may appoint the "principal" executive officers — a category that includes at least the heads of departments — only with the advice and consent of the Senate. See U.S. CONST. art. II, § 2, cl. 2. In other words, the President does not possess the unilateral power to appoint the Secretary of Defense or Attorney General, for example, but can do so only with Senate concurrence. Senate approval helps prevent the Presidential appointment of "unfit characters." THE FEDERALIST NO. 76 (Hamilton). Because Senate confirmation of all executive officers could prove cumbersome, however, the Appointments Clause also provides that Congress may by law vest the appointment of "inferior" executive officers in the President alone or the heads of departments, without the need for Senate approval. U.S. CONST. art. II, § 2, cl. 2.

To help direct and supervise executive officers — and thereby to exercise the "executive Power" and "take Care that the Laws be faithfully executed" — the President possesses not just the power to appoint, but also the power to remove executive officers. "Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal." Myers, 272 U.S. at 132, 47 S.Ct. 21. The moment that the President "loses confidence in the intelligence, ability, judgment or loyalty of any one of them, he must have the power to remove him without delay." Id. at 134, 47 S.Ct. 21; see also THE FEDERALIST NO. 72 (Hamilton) (executive officers "ought to be considered as the assistants or deputies of the Chief Magistrate . . . and ought to be subject to his superintendence"). "The power to remove officers, we have recognized, is a powerful tool for control." Edmond, 520 U.S. at 664, 117 S.Ct. 1573. The reason that the power to remove at will translates into the power to control is evident: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (quoting Synar v. United States, 626 F.Supp. 1374, 1401 (D.D.C. 1986)). If the President were stripped of plenary removal power over, say, the Secretary of Defense or the Attorney General, then the President no longer could fully control and be accountable for the exercise of executive power, as the Constitution demands. In other words, if Congress could unduly limit the President's ability to remove executive officers, the result would be a fragmented, inefficient, and unaccountable Executive Branch that the President would lack power to fully direct and supervise.

Unlike the President's power to appoint, the President's power to remove officers in the Executive Branch is not limited by the text of the Constitution. And the subject of removing officers in the Executive Branch "was not discussed in the Constitutional Convention." Myers, 272 U.S. at 109-10, 47 S.Ct. 21. The issue of removal of executive officers instead was first "presented early in the first session of the First Congress," during consideration of a bill establishing certain Executive Branch offices and providing that the officers would be subject to Senate confirmation and "removable by the President." Id. at 109, 111, 47 S.Ct. 21. "Then ensued what has been many times described as one of the ablest constitutional debates which has taken place in Congress since the adoption of the Constitution." Parsons v. United States, 167 U.S. 324, 329, 32 Ct Cl. 626, 17 S.Ct. 880, 42 L.Ed. 185 (1897). Representative James Madison of Virginia and others argued that Article II provided the President plenary power to remove executive officers, making the reference in the bill unnecessary and misleading surplusage. Madison and his allies "dwelt at length upon the necessity there was for construing Article II to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the Article to 'take care that the laws be faithfully executed.'" Myers, 272 U.S. at 117, 47 S.Ct. 21 (quoting 1 ANNALS OF CONGRESS 496, 497 (Madison)). As Madison explained, "If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community." Id. at 131, 47 S.Ct. 21 (quoting 1 ANNALS OF CONGRESS 499 (Madison)). Madison added: "Is the power of displacing an Executive power? I conceive that if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." 1 ANNALS OF CONGRESS 463 (Madison). This Presidential removal power would preserve "that great principle of unity and responsibility in the Executive department." Myers, 272 U.S. at 131, 47 S.Ct. 21 (quoting 1 ANNALS OF CONGRESS 499 (Madison)).

The House ultimately concurred with Madison's understanding and deleted the bill's express reference to the manner of removing the officers so as not to imply that the President's removal power "might appear to be exercised by virtue of a legislative grant only." Id. at 112 (quoting 1 ANNALS OF CONGRESS 579). Congress passed the bill, and President Washington signed it into law. President Washington proceeded to assert and use the removal power throughout his Presidency in order to ensure his personal control over and direction of the Executive Branch. See Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L.REV. 1779, 1827-29 (2006).

Congress's decision — referred to as the "Decision of 1789" — "provides contemporaneous and weighty evidence of the Constitution's meaning since many of the Members of the First Congress had taken part in framing that instrument." Bowsher, 478 U.S. at 723-24, 106 S.Ct. 3181 (internal quotation marks omitted). As Chief Justice Marshall explained, the Decision of 1789 "has ever been considered as a full expression of the sense of the legislature on this important part of the American constitution." 5 JOHN MARSHALL, THE LIFE OF GEORGE WASHINGTON 200 (1807).

In short, the plain text and original understanding of Article II establish the broad scope of the President's appointment and removal powers. As a leading scholar of the Constitution's text has aptly observed, "What Article II did make emphatically clear from start to finish was that the president would be personally responsible for his branch." AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 197 (2005).

II

With that grounding in the constitutional text and the First Congress's Decision of 1789, 1 turn to the Supreme Court's key precedents interpreting that text and to analysis of the questions presented in this case. In this Part II, I will address the removal power issue. In Part III, I will consider the Appointments Clause question.

A

As explained above, the constitutional text and the original understanding, including the Decision of 1789, established that the President possesses the power under Article II to remove officers of the Executive Branch at will. That original understanding became widely accepted during the first 60 years of the Nation. See, e.g., Myers v. United States, 272 U.S. 52, 149, 47 S.Ct. 21, 71 L.Ed. 160 (1926) ("[T]he construction given to the Constitution in 1789 . . . may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction.") (citing 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW, Lecture 14, at 310). Yet questions over the extent of the President's removal power did not end. The issue came to the fore in the wake of the Civil War and prompted the House of Representatives's impeachment of President Andrew Johnson in 1868. As part of a bitter struggle over Reconstruction, Congress enacted the Tenure of Office Act in 1867, 14 Stat. 430, ch. 154. That law prohibited the President from removing certain Executive Branch officers without the Senate's concurrence. President Johnson contended that the Act was unconstitutional; in defiance of the Act, he removed his Secretary of War without Senate approval. The House of Representatives responded by impeaching President Johnson, which was followed by a narrow Senate acquittal. The contentious Johnson episode ended in a way that discouraged congressional restrictions on the President's removal power and helped preserve Presidential control over the Executive Branch. The Tenure of Office Act was itself repealed in 1887. The Johnson acquittal stands as one of the most important events in American history in maintaining the separation of powers ordained by the Constitution. See WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 215-16, 230-31, 250 (1992); see also Raines v. Byrd, 521 U.S. 811, 826-28, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).

A few decades later in 1897, the Supreme Court considered a case that arose when President Cleveland fired a holdover U.S. Attorney from the Harrison Administration. See Parsons v. United States, 167 U.S. 324, 32 Ct.Cl. 626, 17 S.Ct. 880, 42 L.Ed. 185 (1897). The relevant statute established a four-year term for U.S. Attorneys. A unanimous Court held that the law did not preclude the President from removing the U.S. Attorney at will, based largely on the constitutional backdrop that necessarily informed interpretation of the statute. The Court said the debates and opinions on the removal power from the Decision of 1789 onward showed a "continued and uninterrupted practice" of unlimited Presidential removal power. Id. at 340, 17 S.Ct. 880. "Considering the construction of the Constitution in this regard as given by the Congress of 1789, and having in mind the constant and uniform practice of the Government in harmony with such construction," the Court construed the act as "providing absolutely for the expiration of the term of office at the end of four years, and not as giving a term that shall last, at all events, for that time." Id. at 339, 17 S.Ct. 880. The Court accordingly held that recognition that the officials "were removable from office at pleasure was but a recognition of the construction thus almost universally adhered to and acquiesced in as to the power of the President to remove." Id.; see also id. at 330, 17 S.Ct. 880 ("[T]he decision of Congress in 1789, and the universal practice of the Government under it, had settled the question beyond any power of alteration.").

In Myers v. United States, the Supreme Court thoroughly addressed the scope of the President's removal power. See 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). In an extraordinarily detailed opinion by Chief Justice Taft, who had previously served as President and had a keen understanding of the realities of Executive Branch governance, the Court reaffirmed the Decision of 1789 and agreed with President Johnson's view in 1868 that restrictions on the President's removal power were unconstitutional. Id. at 166-67, 47 S.Ct. 21. The dispute in Myers arose after President Wilson had removed a postmaster without Senate approval, in violation of an 1872 statute covering the Post Office Department. The postmaster sued. In upholding the President's removal authority and rejecting the postmaster's claim, the Court examined the text and history of Article II and outlined the broad reach of the President's appointment and removal powers:

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he can not continue to be responsible

Id. at 117, 47 S.Ct. 21. The Myers Court said that the President's power of removal over executive officers was "essential to the execution of the laws by him." Id. The Court added that the President's removal power extended to officers appointed by the President throughout the Executive Branch, including to officers who are charged with promulgating regulations or exercising "quasi-judicial" duties, such as "members of executive tribunals." Id. at 135, 47 S.Ct. 21. And the Myers Court made clear that Congress could play no role in the removal of executive officers.

Consistent with the constitutional text and the Decision of 1789, the holding of Myers continues to this day to prohibit any congressional involvement in the removal of executive officers. In its 1986 decision in Bowsher v. Synar, for example, the Court reaffirmed this precise holding. See 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583. The Bowsher Court held that Congress had impermissibly "intruded into the executive function" by preventing the President's removal of an executive officer (the Comptroller General as his duties were then defined) without congressional approval. Id. at 734, 106 S.Ct. 3181. The Court stated that "Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Id. at 726, 106 S.Ct. 3181.

B

If the removal issue in this case were decided based on the constitutional text, the prevailing understanding of that text at the time of drafting and ratification and during the First Congress, the historical practice and common understanding of that text during the first 146 years of our constitutional Government, and the leading Supreme Court decisions in Myers and Parsons, we would face an easy decision. The PCAOB would be flatly unconstitutional because the statute restricts the President's power to remove PCAOB members at will and thereby to direct and supervise the exercise of executive power and take care that the laws are faithfully executed.

It's not quite that easy, however. Any decision this Court makes in this area must recognize the central importance of the Supreme Court's 1935 decision in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). The Court there did not overrule the precise holding of Myers by allowing congressional involvement in removal of executive officers. But in tension with Myers, the Court did uphold congressionally imposed good-cause restrictions on the President's removal of certain executive officers. Id. at 631-32, 55 S.Ct. 869. The case arose after a decision by President Franklin Roosevelt, upon taking office in 1933, to ask for Humphrey's resignation from the Federal Trade Commission. President Roosevelt wrote in a letter to Humphrey, who had been appointed by President Hoover: "I do not feel that your mind and my mind go along together on either the policies or the administering of the FTC. Id. at 619, 55 S.Ct. 869. When Humphrey refused to resign, President Roosevelt fired him. Humphrey challenged the removal as a violation of the Federal Trade Commission Act, which provided that the President could remove commissioners during their statutory term of office only for "inefficiency, neglect of duty, or malfeasance in office." Id.

The Solicitor General defended President Roosevelt's decision on constitutional grounds by citing Myers. Yet the Court ruled for Humphrey. In an opinion by Justice Sutherland, the Court upheld the statutory limits on the President's removal power, allowing the FTC to be "a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government." Id. at 625-26, 55 S.Ct. 869 (emphasis omitted). The Court stated that the Constitution permitted Congress to establish independent agencies that "cannot in any proper sense be characterized as an arm or an eye of the executive." Id. at 628, 55 S.Ct. 869; see also Wiener v. United States, 357 U.S. 349, 355-56, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (relying on Humphrey's Executor and upholding removal restrictions on members of War Claims Commission).

Humphrey's Executor thereby blessed Congress's creation of the so-called "independent" agencies where "at least one individual is appointed by the President to a full-time, fixed-term position with the advice and consent of the Senate and has protection against summary removal by some form of 'for cause' restriction on the President's authority." Marshall J. Breger Gary J. Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 ADMIN. L.REV. 1111, 1114 (2000). Today, this collection of independent agencies is commonly understood to include, among many others, the CFTC, the FCC, the Federal Reserve, the FTC, FERC, the NLRB, and the SEC. As the cases and statutes illustrate, what makes an agency "independent" is the for-cause removal restriction that limits the President's ability to remove the heads of the agency — typically to cases of inefficiency, neglect of duty, or malfeasance in office. See, e.g., 44 U.S.C. § 3502(5) (listing as "independent" for purposes of the Paperwork Reduction Act 16 particular agencies); Breger Edles, Established By Practice, 52 ADMIN. L.REV. at 1114 n. 6, app. at 1236-94 (cataloging "independent agencies").

Along the same lines as Humphrey's Executor, the Supreme Court's 1988 decision in Morrison v. Olson upheld a good-cause restriction on removal of an inferior executive officer by a head of department who was an alter ego of the President (that is, by a head of department removable at will by the President). See 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569. In particular, the Court upheld the independent counsel provisions of the Ethics in Government Act of 1978, including the restriction on the Attorney General's power to remove an inferior officer (the independent counsel) only for "good cause." Id. at 685, 108 S.Ct. 2597. In the Morrison Court's view, because the President's alter ego (the Attorney General) retained the authority to remove the independent counsel for cause, the President's "power to remove" was not "completely stripped." Id. at 692, 108 S.Ct. 2597. The for-cause removal provision of the statute therefore was deemed not to "unduly trammel[] on executive authority" any more than in Humphrey's Executor. Id. at 691, 108 S.Ct. 2597. The Court thus found no constitutionally significant difference for purposes of Humphrey's Executor between (i) the President removing an executive officer for good cause and (ii) a Presidential alter ego such as the Attorney General removing an executive officer for good cause. See also In re Sealed Case, 838 F.2d 476, 528 n. 30 (D.C. Cir. 1988) (R.B. Ginsburg, J., dissenting) (Attorney General "is the hand of the President in taking care that the laws of the United States . . . be faithfully executed.") (internal quotation marks omitted) (alteration in original), rev'd sub nom. Morrison, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569.

By permitting a good-cause restriction on the removal of an executive officer by the President or the President's alter ego, there is no doubt that Humphrey's Executor and Morrison authorize a significant intrusion on the President's Article II authority to exercise the executive power and take care that the laws be faithfully executed. See Morrison, 487 U.S. at 695, 108 S.Ct. 2597 ("It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity."); Humphrey's Executor, 295 U.S. at 628, 55 S.Ct. 869 (independent agencies are not "an arm or an eye of the executive").

For that reason, those cases have long been criticized by many as inconsistent with the text of the Constitution, with the understanding of the text that largely prevailed from 1789 through 1935, and with prior precedents such as Myers and Parsons. See, e.g., Geoffrey P. Miller, Independent Agencies, 1986 SUP.CT. REV. 41, 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."); Morrison, 487 U.S. at 733-34, 108 S.Ct. 2597 (Scalia, J., dissenting) ("Today's decision . . . fails to explain why it is not true that — as the text of the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed — all purely executive power must be under the control of the President.").

But we cannot, need not, and do not relitigate those two cases here. For this Court, those cases are binding precedents on the removal question. The question is whether the Sarbanes-Oxley Act's restriction on the President's removal power over the PCAOB is unconstitutional under Humphrey's Executor and Morrison. As I explain below, the PCAOB contravenes those precedents and violates the Constitution.

C

The removal issue in this case arises because, unlike in Humphrey's Executor and Morrison, neither the President nor a Presidential alter ego can remove the members of the PCAOB. Rather, the Board is removable only by the Securities and Exchange Commission, and only for cause. Put another way, the PCAOB is an independent agency appointed by and removable for cause by another independent agency. This means that the President of the United States is two levels of for-cause removal away from the PCAOB, notwithstanding that the PCAOB performs numerous regulatory and law-enforcement functions at the heart of the executive power.

In 1935 and 1988, the Supreme Court found that the President retains at least some authority to remove for-cause executive officers and thus some degree of control over them. The Court further said that the President's power to remove either directly or through an alter ego was essential to the constitutionality of the for-cause removal statutes. See Morrison, 487 U.S. at 692, 108 S.Ct. 2597. By contrast, the double for-cause removal provisions in the Sarbanes-Oxley Act completely strip the President's ability to remove PCAOB members, either directly or through an alter ego, and combine to eliminate any meaningful Presidential control over the PCAOB. As one commentator cogently stated, "defenders of the PCAOB's structure will have their work cut out for them in arguing that the Constitution allows the PCAOB's five members to be even more independent from the President than the members of federal independent agencies." Donna M. Nagy, Playing Peekaboo with Constitutional Law: The PCAOB and Its Public/Private Status, 80 NOTRE DAME L.REV. 975, 1056 (2005); see also Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L.REV. 573, 597 (1984) ("Whatever arrangements are made, one must remain able to characterize the President as the unitary, politically accountable head of all law-administration").

This case therefore presents what the majority opinion rightly labels a constitutional issue of first impression. The question is whether to extend Humphrey's Executor and Morrison to uphold the removal restrictions in this Act — in other words, to interpret those precedents to permit not just independent agencies whose heads are removable for cause by the President or his alter ego, but also independent agencies whose heads are removable for cause only by other independent agencies. I would not so stretch Humphrey's Executor and Morrison. Four points inform my conclusion.

First, the lengthy recitation of text, original understanding, history, and precedent above leads to the following principle: Humphrey's Executor and Morrison represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President's removal power. Therefore, given a choice between drawing the line at the holdings in Humphrey's Executor and Morrison or extending those cases to authorize novel structures such as the PCAOB that further attenuate the President's control over executive officers, we should opt for the former. We should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history. See Bowsher, 478 U.S. at 724-26 n. 4, 106 S.Ct. 3181; cf. Hein v. Freedom Religion Found., Inc., ___ U.S. ___, 127 S.Ct. 2553, 2571-72, 168 L.Ed.2d 424 (2007). In this case, that sensible principle dictates that we hold the line and not allow encroachments on the President's removal power beyond what Humphrey's Executor and Morrison already permit.

Second, the Supreme Court in Morrison has already specifically required that the President or his alter ego possess authority to remove an executive officer protected by a for-cause removal provision:

Nor do we think that the "good cause" removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the "faithful execution" of the laws. Rather, because the independent counsel may be terminated for "good cause," the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

Morrison, 487 U.S. at 692, 108 S.Ct. 2597 (emphases added).

That language from Morrison all but resolves the removal issue in this case. No doubt recognizing that this passage from Morrison dooms its submission, the Board tries to dismiss it as "dicta." PCAOB Br. at 43. I think not: This discussion contains the Morrison Court's essential explanation for why the independent counsel statute's restriction on removal was permissible under Humphrey's Executor. If that language from Morrison has meaning — and the Court clearly indicated that it would — it requires invalidation of the PCAOB. Here, unlike in Morrison, the "power to remove an executive official has been completely stripped from the President." 487 U.S. at 692, 108 S.Ct. 2597. Third Justice Holmes reminded us that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921). Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by and removable only for cause by another independent agency. Cf. Bowsher, 478 U.S. at 725 n. 4, 106 S.Ct. 3181 ("Appellants have referred us to no independent agency whose members are removable by the Congress for certain causes short of impeachable offenses, as is the Comptroller General."). The lack of precedent for the PCAOB counsels great restraint by the Judiciary before approving this additional incursion on the President's Article II powers.

Fourth, upholding the PCAOB here would green-light Congress to create a host of similar entities. Congress could thereby splinter executive power to a degree not previously permitted, in serious tension with Article II's conception of a single President who can control his subordinates and the exercise of executive power. Congress would have license to create a series of independent bipartisan boards appointed by independent agencies and removable only for cause by such independent agencies. Imagine an Energy Price Enforcement Board appointed by and removable only for cause by FERC, an Indecency Enforcement Board appointed by and removable only for cause by the FCC, a Mortgage Regulatory Board appointed by and removable only for cause by the Fed. All are permissible under the PCAOB's theory of the case. But in such a system, where is the President, in whom the Constitution vests the "executive power"?

In the past, when faced with novel creations of this sort, the Supreme Court has looked down the slippery slope — and has ordinarily refused to take even a few steps down the hill. As Justice Stevens stated for the Court in invalidating the structure of the Metropolitan Washington Airports Authority's Board of Review: "[T]he statutory scheme challenged today provides a blueprint for extensive expansion of the legislative power beyond its constitutionally confined role. . . . Congress could, if this Board of Review were valid, use similar expedients. . . . As James Madison presciently observed, the legislature 'can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.' Heeding his warning that legislative 'power is of an encroaching nature,' we conclude that the Board of Review is an impermissible encroachment." Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (quoting THE FEDERALIST NO. 48).

As demonstrated in MWAA, when presented with arguments for "the kind of practical accommodation between the Legislature and the Executive that should be permitted in a 'workable government,'" id. at 276, 111 S.Ct. 2298, the Court has strictly adhered to the constitutional text and the limitations of Myers and Humphrey's Executor and flatly and forcefully said no to novel policy inventions and corresponding structures that contravene Article II. See id. at 276-77, 111 S.Ct. 2298; Bowsher, 478 U.S. at 736, 106 S.Ct. 3181; Buckley v. Valeo, 424 U.S. 1, 132, 138-39, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); see also Clinton v. City of New York, 524 U.S. 417, 438, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998); INS v. Chadha, 462 U.S. 919, 945, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); cf. Printz v. United States, 521 U.S. 898, 922, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (striking down Brady Act in part on separation of powers grounds because it effectively transferred President's law enforcement responsibility to state officials "who are left to implement the program without meaningful Presidential control (if indeed meaningful Presidential control is possible without the power to appoint and remove)"). We should do the same here, lest we give rise to a new "Fifth Branch" of the Federal Government. Cf. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L.REV. 573.

In sum, the Sarbanes-Oxley Act created an entity that is inconsistent with the text and history of Article II, that the Humphrey's Executor Court did not confront much less endorse, that Morrison expressly rejects, that is apparently unprecedented in our history, and that could well lead to serious additional encroachments on the President's removal authority. The PCAOB violates Article II.

D

Underlying my conclusion that the PCAOB violates removal precedents is the premise that this double for-cause removal structure attenuates the President's control over the Board more than the typical single for-cause provision restricts the President's control over independent agencies (whose heads are removable for cause directly by the President). As explained above, text, history, precedent, and logic demonstrate that this premise is correct.

To be sure, some might argue that the President's Article II removal power over independent agencies is already so crippled by Humphrey's Executor and Morrison that this statute does no further discernible damage. The problem with any such suggestion, however, is that the Supreme Court upheld the for-cause restrictions at issue in Humphrey's Executor and Morrison on the precise factual assumption that they still permit the President some limited degree of control over executive officers. The Court concluded that a single for-cause restriction did not unduly "interfere with the President's exercise of the 'executive power' and his constitutionally appointed duty to 'take care that the laws be faithfully executed' under Article II." Morrison, 487 U.S. at 690, 108 S.Ct. 2597. Importantly, the Morrison Court distinguished the situation there from a case (like this one) where the power to remove had been "completely stripped" from the President. Id. at 692, 108 S.Ct. 2597. The double for-cause removal provision at issue here completely strips the President's removal power and, as Morrison anticipated, poses a greater restriction on the President's constitutional authority than a single for-cause provision.

From the other direction, rather than argue that the President's well of executive removal power is already drained by the single for-cause restriction allowed by Humphrey's Executor and Morrison (so what's the harm with two?), some alternatively might contend that the President's control over an independent agency is actually not significantly affected by a for-cause removal provision (so again, what's the harm with two?). The majority opinion seems to latch onto this theory, see Maj. Op. at 679-80, which posits that, not-withstanding two for-cause removal provisions, the President can control the SEC and the PCAOB just as well as the President can control, for example, the Secretary of State and the U.S. Ambassador to Iraq. But that suggestion does not fully account for the text of for-cause statutes, the realities of Executive Branch decisionmaking, and the longstanding interpretations and understandings of Congresses, Presidents, and courts regarding independent agencies.

The for-cause removal restrictions attached to independent agencies typically prohibit removal except in cases of inefficiency, neglect of duty, or malfeasance. Those restrictions have significant impact both in law and in practice. See Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 916, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part) ("independent regulatory agencies such as the Federal Trade Commission and the Securities and Exchange Commission" are "specifically designed not to have the quality . . . of being subject to the exercise of political oversight and sharing the President's accountability to the people") (internal quotation marks and alteration omitted); Mistretta v. United States, 488 U.S. 361, 411, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (good-cause provisions "specifically crafted to prevent the President from exercising 'coercive influence' over independent agencies"). Humphrey's Executor and Wiener demonstrate, for example, that "for cause" removal requirements forbid dismissal by the President due to lack of trust in the administrator, see 295 U.S. at 625-26, 55 S.Ct. 869, differences in policy outlook, id., or the mere desire to install administrators of the President's choosing, 357 U.S. at 356, 78 S.Ct. 1275. In Morrison, the Court therefore took it as a given that "the degree of control exercised by the Executive Branch over an independent counsel is clearly diminished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the President and subject to termination at will." 487 U.S. at 696 n. 34, 108 S.Ct. 2597; see also Buckley, 424 U.S. at 133, 96 S.Ct. 612 ("The Court in [Humphrey's Executor] carefully emphasized that . . . the members of such agencies were to be independent of the Executive in their day-to-day operations. . . ."); Humphrey's Executor, 295 U.S. at 628, 55 S.Ct. 869 (independent agencies "cannot in any proper sense be characterized as an arm or an eye of the executive").

Consistent with the plain language, precedents, and common interpretation of those for-cause provisions, Presidents, Congresses, and officials in independent agencies work under the real-world understanding that the heads of the "independent" agencies possess some degree of congressionally conferred substantive autonomy from the President (although exactly how much autonomy is not always clear). That understanding is why Congress continues to include for-cause removal restrictions when it wants to create an independent officer with some substantive autonomy — as it did yet again a few weeks ago. See Housing and Economic Recovery Act of 2008, Pub.L. No. 110-289, 122 Stat. 2654 (2008) (creating new "independent" federal regulator of Fannie Mae and Freddie Mac appointed by President with advice and consent of Senate and removable for cause by President). In short, the double for-cause removal restriction cannot be justified by a theory that for-cause removal restrictions have no real meaning and effect.

Notwithstanding that text, history, precedent, and logic show that for-cause removal provisions generally have significant effects, the Board persists in arguing that the second for-cause restriction at issue here — the restriction on the SEC's removal of the Board — does not meaningfully restrict the SEC's power over Board members. The suggestion is that Board members are no different from inferior officers in the SEC — like the SEC General Counsel — who are removable at will by the Commission. But the for-cause removal provision here (as elsewhere) carries real meaning. It ensures that the Board possesses some degree of substantive independence from the SEC: In particular, the SEC has no power to direct and supervise Board inspections, investigations, and enforcement actions. And the SEC cannot remove the Board for failing to follow any attempted substantive direction by the SEC with respect to specific Board inspections, investigations, and enforcement decisions — a point the Board never disputes. As a result, the for-cause removal restriction establishes, just as the congressional sponsors intended, that the PCAOB has "an extra guarantee of its independence and its plenary authority to deal with this important situation." 148 CONG. REC. S6327, S6331 (daily ed. July 8, 2002) (statement of Sen. Sarbanes). The for-cause removal restriction ensures, in other words, that the PCAOB operates as a "strong independent board." Cf. id. at S6330 (statement of Sen. Sarbanes) ("Title I of the bill creates a strong independent board to oversee the auditors of public companies."); S.REP. No. 107-205, at 2 (2002) (Act creates "a strong independent board"); id. at 6 ("The successful operation of the Board depends upon its independence. . . ."). The for-cause removal provision supplies the basis for the trenchant observation of one of the supporters of this legislation that the PCAOB has "massive power, unchecked power." 148 CONG. REC. at S6334 (statement of Sen. Gramm).

The Board's argument for dismissing the impact of this second for-cause provision is particularly far-fetched in this case because the statutory restriction on the SEC's removal of the Board is far more stringent than the typical for-cause removal restriction. The Board is designed to be even more independent from the SEC when performing certain critical activities than, for example, the independent SEC is from the President. The statute permits removal only when a Board member has "willfully" broken the law, has "willfully abused" his or her authority, or "without reasonable justification or excuse" has "failed to enforce compliance." 15 U.S.C. § 7217(d)(3)(A)-(C). This is more restrictive removal language than the traditional for-cause language of inefficiency, neglect of duty, or malfeasance. This provision makes it even clearer that the SEC's substantive disagreements with the Board's decisions regarding specific inspections, investigations, or enforcement actions do not justify removal for cause — a critical point that the Board never contests and that badly undermines its argument for upholding the double for-cause removal restriction.

The statutory language and history show, in short, that the effect and purpose of this statute were to wall off the PCAOB from comprehensive SEC control, not to make the PCAOB "an arm or an eye" of the SEC. Cf. Humphrey's Executor, 295 U.S. at 628, 55 S.Ct. 869. The Board's counter-factual, counter-textual argument ignores the double for-cause reality of this statutory scheme.

* * *

In sum, neither the President of the United States nor a Presidential alter ego possesses any power to remove PCAOB members for cause or otherwise. The unique and apparently unprecedented double for-cause removal statute — an independent agency whose heads are removable for cause only by another independent agency — overruns the boundaries set by Supreme Court precedents in Humphrey's Executor and Morrison with respect to congressional encroachment on Presidential removal authority. I would hold it unconstitutional as a violation of Article II because it impermissibly restricts the President's power to remove executive officers.

III

The Accounting Board also violates the Appointments Clause of Article II of the Constitution.

A

To reiterate, the Appointments Clause provides that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. CONST. art. II, § 2, cl. 2.

By its plain text, the Appointments Clause governs the appointment of all "Officers of the United States." The PCAOB does not dispute that its members are "officers" of the United States, rather than mere employees who are "lesser functionaries." Buckley v. Valeo, 424 U.S. 1, 126 n. 162, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). This concession was sound: PCAOB members have extraordinarily broad power under the Sarbanes-Oxley Act of 2002 to, among other things, promulgate rules, initiate and conduct investigations and inspections, compel testimony, and impose sanctions. They plainly exercise "significant authority pursuant to the laws of the United States," and they therefore are officers who must "be appointed in the manner prescribed by" the Appointments Clause. Id. at 126, 96 S.Ct. 612; see also Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 881, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991).

As the plain text of Article II provides and as the Supreme Court has long recognized, the Constitution "for purposes of appointment very clearly divides all its officers into two classes." United States v. Germaine, 99 U.S. 508, 509, 25 L.Ed. 482 (1879). The most important executive officers — the "principal officers," a term that includes at least the "heads of departments" — require nomination by the President and confirmation by the Senate. The Framers foresaw, however, that the advice-and-consent process "might be inconvenient" when "offices became numerous, and sudden removals necessary." Id. at 510. The Appointments Clause therefore says that Congress can provide for appointment of "inferior officers" either by Presidential nomination and Senate confirmation or "in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. CONST. art. II, § 2, cl. 2.

B

The Appointments Clause issue in this case turns on whether PCAOB members are "principal" or "inferior" officers as those terms are understood and have been explained in Supreme Court decisions. If the members of the PCAOB are principal rather than inferior officers, then the Board is an unconstitutional violation of the Appointments Clause because Board members are not appointed by the President with the advice and consent of the Senate, but instead are appointed by the SEC.

Unlike with respect to the removal issue, there are relatively few Supreme Court precedents on the "principal versus inferior" officer issue for Appointments Clause purposes. See In re Sealed Case, 838 F.2d 476, 481 (D.C. Cir. 1988) ("Two hundred years after the adoption of the United States Constitution the federal courts are, essentially for the first time, required to construe closely the appointments clause of Article II."), rev'd sub nom. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988); see also Note, Congressional Restrictions on the President's Appointment Power and the Role of Longstanding Practice in Constitutional Interpretation, 120 HARV. L.REV. 1914, 1916 (2007). The dearth of precedent is easily explained as a matter of text and history. When Congress provides that appointment to a specific office requires Presidential appointment with Senate confirmation, the "principal versus inferior" question is irrelevant because that appointment procedure is constitutionally permissible for both principal and inferior officers. For example, the heads of the independent agencies are all appointed by the President with the advice and consent of the Senate, so it does not matter whether the officers are considered principal or inferior. Moreover, in most situations where Congress historically has provided for appointment of an executive officer by the Head of a Department, it was clear that the officer was inferior to that principal officer — because Congress did not prevent the principal officer from removing that inferior officer at will. See generally Ex parte Hennen, 38 U.S. 230, 259-60, 13 Pet. 230, 10 L.Ed. 138 (1839).

The Supreme Court most recently and most thoroughly analyzed the distinction between principal and inferior officers in Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). In that case, service members challenged the affirmance of their courtmartial convictions by the Coast Guard Court of Criminal Appeals, an intermediate Executive Branch judicial tribunal within the Department of Transportation. That Coast Guard Court reviewed decisions of courtsmartial, and its decisions were reviewed by the U.S. Court of Appeals for the Armed Forces. The service members argued among other things that the judges of the Coast Guard Court of Criminal Appeals were "principal officers." This created a constitutional problem, they contended, because the judges had been appointed by the Secretary of Transportation, not by the President with the advice and consent of the Senate. See id. at 655-56, 117 S.Ct. 1573.

In an opinion by Justice Scalia for eight Justices, the Supreme Court rejected that argument. Acknowledging that previous cases had not "set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes," id. at 661, 117 S.Ct. 1573, the Court stated that "the term 'inferior officer' connotes a relationship with some higher ranking officer or officers below the President: Whether one is an 'inferior' officer depends on whether he has a superior" other than the President who was nominated by the President and confirmed by the Senate. Id. at 662, 117 S.Ct. 1573. But it is "not enough" to identify other officers "who formally maintain a higher rank, or possess responsibilities of a greater magnitude." Id. at 662-63, 117 S.Ct. 1573. The Court succinctly stated the test for discerning the difference between the two: Inferior officers "are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Id. at 663, 117 S.Ct. 1573 (emphasis added).

Applying the "directed and supervised" test to the Coast Guard Court of Criminal Appeals judges, the Edmond Court concluded that they were inferior officers. See id. at 666, 117 S.Ct. 1573. The Court described two different ways the Coast Guard judges were "directed and supervised." First, the Coast Guard judges were "directed and supervised" by the Coast Guard Judge Advocate General (who is ex officio the General Counsel of the Department of Transportation) because they were removable at will by the JAG, and "[t]he power to remove officers . . . is a powerful tool for control." Id. at 664, 117 S.Ct. 1573 (citing Bowsher v. Synar, 478 U.S. 714, 727, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926)). As the Court also noted, the JAG prescribed rules of procedure for the court. Second, the Coast Guard judges were "directed and supervised" by the Court of Appeals for the Armed Forces because, by statute, their judicial decisions were subject to review by the Court of Appeals before the decisions took effect on the accused. The Coast Guard judges thus had "no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers." Id. at 665, 117 S.Ct. 1573.

C

Edmond was a relatively easy case in which to apply the "directed and supervised" test: The officers were removable at will, and at-will removal has always been considered a powerful tool for control. See id. at 664, 117 S.Ct. 1573. And the case involved intermediate adjudicatory officers in the Executive Branch whose decisions were subject to review by a higher adjudicatory body before taking effect, not executive officers who performed more typical executive functions such as conducting investigations, taking enforcement actions, and otherwise executing laws passed by Congress.

The task in this case is to apply the Edmond "directed and supervised" test to traditional executive officers who perform quintessentially executive functions, such as conducting investigations and inspections, and bringing enforcement actions.

Edmond, and the basic principles underlying Article II teach that the key initial question in determining whether an executive officer is inferior is whether the officer is removable at will. Removability at will carries with it the inherent power to direct and supervise: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." Bowsher, 478 U.S. at 726, 106 S.Ct. 3181 (quoting Synar v. United States, 626 F.Supp. 1374, 1401 (D.D.C. 1986)). Therefore, if an executive officer is removable at will and is not the head of a department, the officer ordinarily may be considered inferior for purposes of the Appointments Clause. And Congress in turn may provide for appointment by the President alone or by the head of the department, rather than through Presidential appointment with Senate advice and consent.

By contrast, an executive officer removable only for cause is ordinarily designed and understood to be free from significant substantive direction and supervision by superiors. Indeed, that's the whole point of for-cause removal. See Humphrey's Executor v. United States, 295 U.S. 602, 625-26, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); cf. id. at 629 ("[I]t is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will."). Because the purpose and effect of for-cause removal are to give the officer some measure of substantive independence from direction and supervision, for-cause officers ordinarily are not "directed and supervised" for purposes of Edmond. Instead, they presumptively should be considered principal officers who must be appointed by the President with the advice and consent of the Senate (as are the heads of independent agencies other than the PCAOB). The key, therefore, to applying the Edmond test to a for-cause executive officer, therefore, is to appreciate that for-cause removal by its nature is generally inconsistent with the notion of being "directed and supervised" by a superior officer.

To be sure, if a statute expressly provides that a for-cause officer could be removed for disobeying any direction or orders by a superior, that officer would be subject to direction and supervision via the removal power, much like at-will officers. But the vast majority of agency statutes do not specify that for-cause officers can be removed for such disagreement, no doubt because the point of allowing removal only for cause would not be clear in that situation. Cf. Elena Kagan, Presidential Administration, 114 HARV. L.REV. 2245, 2323 (2001) ("[A] for-cause removal provision would buy little substantive independence if the President, though unable to fire an official, could command or, if necessary, supplant his every decision.").

As noted above, in finding the Coast Guard judges to be inferior officers, Edmond did not refer only to the fact that the Coast Guard judges were removable at will by the JAG. The Court also pointed out that the intermediate appellate adjudicatory body at issue in Edmond could not issue a final decision; instead, all of its decisions were subject to review and preapproval by a superior court if requested by the accused or the JAG. The Court therefore stated that the officers in question had "no power to render a final decision on behalf of the United States unless permitted to do so by other Executive officers." 520 U.S. at 665, 117 S.Ct. 1573. Although Edmond involved at-will adjudicatory officers, it is logical to assume that even for-cause executive officers who perform traditional executive functions — investigations, enforcement actions, and the like — still might be considered "directed and supervised" if a superior other than the President has statutory authority to prevent and affirmatively command, and to manage the ongoing conduct of, all significant exercises of executive authority by the officer.

Therefore, an officer removable only for cause is ordinarily not "directed and supervised" for purposes of Edmond, at least unless (1) the statute expressly provides that the officer can be removed for failing to follow a supervisor's direction and supervision, or (2) the statute expressly provides that a superior officer other than the President has authority to prevent and affirmatively command, and to manage the ongoing conduct of, all of the officer's exercises of executive authority against the public (such as conducting investigations and taking enforcement actions).

D

Applying the Edmond analysis to this case, PCAOB members are principal officers.

To begin with, unlike the judges at issue in Edmond, PCAOB members are not removable at will. The SEC can remove PCAOB members only for cause.

Nor does the statute satisfy the conditions under which a for-cause officer can still qualify as inferior. The statute's for-cause removal provision does not allow the SEC to remove PCAOB members for failure to follow SEC direction and supervision. And the statute does not provide that the SEC can prevent and affirmatively command, and manage the ongoing conduct of, all PCAOB functions — most importantly, inspections, investigations, and enforcement actions.

In that regard, it again bears mention that the whole point of this statute — as evidenced in the statutory text and history — was to create an Accounting Board that would not be part of the SEC and not be subject to direction and supervision by the SEC with respect to Board inspections, investigations, and enforcement actions. Rather, the text of the Sarbanes-Oxley Act reflects the deliberate legislative choice to create an independent entity protected by for-cause removal from SEC interference. As the statutory text repeatedly shows, Congress did not want the PCAOB to have "here-and-now subservience" to the SEC. Bowsher, 478 U.S. at 727 n. 5, 106 S.Ct. 3181.

E

The Board nonetheless cites a scattershot of authorities that, it suggests, show that the Board is "directed and supervised" by the SEC and that Board members therefore are inferior officers. But those arguments are all unavailing. The key is this: None of the cited authorities gives the SEC power to prevent and affirmatively command, and to manage the ongoing conduct of, Board inspections, investigations, and enforcement actions. First, the Board contends that after-the-fact review of Board sanctions by the SEC suffices to show that the SEC directs and supervises the Board with respect to its inspections, investigations, and enforcement actions. That makes little sense. One would not say, for example, that a U.S. Attorney is directed and supervised by a federal district court in his or her investigative decisions just because a court ultimately would have an opportunity to review any indictment or subpoena challenge. So too here. After-the-fact judicial or quasi-judicial review of enforcement decisions following an investigation does not remotely equate to direction and supervision for purposes of Edmond. Second, the Board argues that the SEC has power to review Board rules before they take effect. That is true — and if the Board's sole statutory power were rulemaking, then it might be reasonable to conclude that the Board was "directed and supervised" for purposes of Edmond. But the problem with this argument is that the Board also has power to conduct inspections, investigations, and enforcement actions without SEC direction and supervision. Being directed and supervised in only one slice of an officer's portfolio does not render the officer inferior if the officer is not directed and supervised in other significant activities. To qualify as inferior, an officer must be statutorily subject to direction and supervision in all significant activities.

Third, the Board points out that the SEC, in certain circumstances, can exercise, take over, or limit some investigative and enforcement responsibilities assigned to the Board if the SEC chooses to do so (after on-the-record hearings). See 15 U.S.C. § 7217(d)(1)-(2). But the SEC's exercising, taking over, or limiting the Board's responsibilities does not amount to directing and supervising the PCAOB. For example, Congress can alter the jurisdiction of particular federal courts, but that does not make judges inferior to Congress, or "directed and supervised" by Congress. Congress may switch regulatory authority from one agency to another, but that does not make the initial agency "directed and supervised" by Congress. Again, the critical point is this: The SEC's theoretical power to alter the Board's jurisdiction does not equate to power to prevent and affirmatively command, and to manage the ongoing conduct of, Board inspections, Board investigations, and Board enforcement actions. Fourth and finally, the Board seems to argue — albeit only in one oblique singlesentence footnote — that the SEC actually has statutory authority to issue rules by which the SEC could give itself power to direct and supervise all Board inspections, investigations, and enforcement actions. See PCAOB Br. at 26 n. 3. There is a reason this bootstrapping argument appears in the Board's brief only in a singlesentence footnote. It is incorrect. The statute does not give the SEC that kind of authority; indeed, such authority would all but destroy the independence that the statutory text mandates and that Congress sought to ensure the Board would possess. Section 7211 states that the Board operates "subject to action by the Commission under section 7217." 15 U.S.C. § 7211(c); see also § 7211(f). Section 7217 in turn gives the SEC power to review only Board rules before they take effect. But § 7217 does not give the SEC power to direct or supervise Board inspections, investigations, and enforcement actions. In addition, § 7202 provides that the SEC may promulgate rules "as may be necessary or appropriate in the public interest or for the protection of investors, and in furtherance of this Act." § 7202(a). The phrase "in furtherance of this Act" means, of course, that SEC rules have to further some aspect of the Act. But the Act nowhere gives the SEC authority to direct and supervise Board inspections, investigations, and enforcement actions. So § 7202 cannot be read as a bootstrapping provision that grants the SEC authority to issue rules giving itself power to direct and supervise Board inspections, investigations, and enforcement actions. Finally, the SEC's related power to amend Board rules does not constitute a backdoor grant of authority to exercise direction and supervision over Board inspections, investigations, and enforcement actions.

In short, the Board cobbles together disparate pieces of statutory text to justify its mantra that the SEC's control over the Board is "comprehensive and pervasive" and that Board members are therefore inferior officers. But the Board cannot answer three key questions that completely undermine its mantra: How can we say that the Board is directed and supervised by the SEC given that the Board has plenary statutory authority to conduct its most critical functions — inspections, investigations, and enforcement actions — without any opportunity for the SEC to prevent and affirmatively command, and to manage the ongoing conduct of, those activities? What are the purpose and effect of the stringent statutory for-cause removal provision if the Board is simply a subordinate of the SEC subject to the SEC's "comprehensive and pervasive" control? And why should we accept the Board's characterization of itself as part of the SEC when, as both statutory text and history reveal, Congress specifically considered — and rejected — proposals to make the Board part of the SEC and Congress expressly decided to create the Board as an independent entity?

In sum, the PCAOB structure violates the Appointments Clause of Article II.

IV

In Morrison, the Supreme Court not only considered the appointment and removal issues separately, but also asked whether the combination of the appointment and removal mechanisms "taken as a whole" violated "the principle of separation of powers by unduly interfering with the role of the Executive Branch." 487 U.S. 654, 693, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). The Court thus seemed to contemplate a scenario (albeit somewhat difficult to imagine) whereby a statute complied with Article II removal principles and with the Appointments Clause, but nonetheless violated the constitutional separation of powers because of restrictions on the President's appointment and removal powers. In this case, of course, I need not address that possibility because I find a constitutional problem on both the appointment and removal issues.

In considering the combination of the appointment and removal problems posed by the PCAOB, I add only one point: From an accountability perspective, the whole of this statute is worse than the sum of the parts because neither the President nor his alter ego has any role in the appointment of Board members or in the removal of Board members. Cf. Printz v. United States, 521 U.S. 898, 922-23, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). Each problem compounds the other, as Professor Tribe perceptively suggested when describing the Article II accountability issue with this kind of structure: "[I]n the particular situation in which an inferior officer is appointed by persons who are themselves not politically accountable . . . ongoing supervision by a politically accountable official, whether by the President or by someone serving at the President's pleasure, seems particularly important. In such circumstances, where there is little or no political accountability at the front end for the choice of that officer, a 'for cause' limitation on removal that renders political supervision impossible appears troubling from an accountability perspective." LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW § 4-8, at 684 (3d ed. 2000); see also Humphrey's Executor v. United States, 295 U.S. 602, 625-26, 55 S.Ct. 869, 79 L.Ed. 1611 (1935) (noting that independent agency would be independent of President " except in its selection").

This Act is a problem on the appointment front and on the removal front. And taken as a whole, this unprecedented extra-constitutional stew is a clear violation of Article II's text, original understanding, and history, and of Supreme Court precedents.

V

Three final points about this important case warrant comment.

First, the Department of Justice representing the United States as intervenor has defended the constitutionality of this statute. To be sure, the defense has been rather tentative; at oral argument, the superb counsel from DOJ refused to say that the structure of the PCAOB would be permissible in any analogous situation, strongly implying that the Executive Branch's position is a ticket good for this train and this day only. In any event, the Executive Branch has defended the statute as consistent with Article II. This is reason for respectful consideration.

But as the Supreme Court has stated when this situation has arisen before, the Judiciary cannot defer to the Executive Branch in justiciable cases affecting individual rights simply because the Executive Branch does not assert its Article II prerogatives. The primary reason, as the Court has explained time after time, is that the separation of powers protects not simply the office and the officeholders, but also individual rights. As Justice Kennedy has stated, "Liberty is always at stake when one or more of the branches seek to transgress the separation of powers." Clinton v. City of New York, 524 U.S. 417, 450, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (Kennedy, J., concurring); see also Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 272, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) ("The ultimate purpose of this separation of powers is to protect the liberty and security of the governed."); Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (separation of powers is "essential to the preservation of liberty"); Bowsher v. Synar, 478 U.S. 714, 721-22, 730, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (separation of powers is "critical to preserving liberty"); INS v. Chadha, 462 U.S. 919, 963 n. 4, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (Powell, J., concurring in judgment) (discussing concern that "Congress is exercising unchecked judicial power at the expense of individual liberties" and stating it was "precisely to prevent such arbitrary action that the Framers adopted the doctrine of separation of powers").

The point was captured well by Justice Blackmun in his opinion for the Court in Freytag: "In reaching this conclusion, we note that we are not persuaded by the Commissioner's request that this Court defer to the Executive Branch's decision that there has been no legislative encroachment on Presidential prerogatives. . . . The structural principles embodied in the Appointments Clause do not speak only, or even primarily, of Executive prerogatives simply because they are located in Article II. . . . The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic." Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 879-80, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). So too here.

Second, in the wake of accounting scandals, Congress enacted the Sarbanes-Oxley Act and created the PCAOB to serve important policy goals. Courts must respect Congress's policy objectives. But as the Supreme Court has repeatedly stressed, the importance of a policy does not license the Judiciary to ignore or weaken constitutional limits arising out of the separation of powers. "[P]olicy arguments supporting even useful 'political inventions' are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised." Chadha, 462 U.S. at 945, 103 S.Ct. 2764. Even assuming that the statutory scheme structuring the PCAOB is an effective means to regulate the accounting industry, "that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." Id. at 944, 103 S.Ct. 2764. Over the years, the Supreme Court thus has struck down as inconsistent with the constitutional separation of powers the original method of appointing the Federal Election Commission, the legislative veto, the provision for congressional removal of the Comptroller General, the structure of the Metropolitan Washington Airports Authority's Board of Review, and the Line-Item Veto Act — several of which were at least as important as the PCAOB in terms of their policy objectives. Congress, fearing another accounting meltdown, may have "had good reason" for creating the PCAOB, but "such fears, however rational, do not by themselves warrant a distortion of the Framers' work." Buckley v. Valeo, 424 U.S. 1, 134, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Third, to reiterate, the PCAOB is uniquely structured, and a judicial holding invalidating it would be uniquely limited to the PCAOB. And Congress could easily fix the constitutional flaws by, for example, making PCAOB members subject to Presidential appointment with the advice and consent of the Senate and therefore removable by the President. Cf. Housing and Economic Recovery Act of 2008, Pub.L. No. 110-289, 122 Stat. 2654 (2008) (creating new "independent" federal regulator of Fannie Mae and Freddie Mac appointed by President with advice and consent of Senate and removable for cause by President). Alternatively, Congress could fix the problem by making the PCAOB a truly subordinate part of the SEC — for example, by giving the SEC express authority to direct and supervise all Board actions and to fire Board members at will. In such a structure, the Board would not differ from any other inferior officers in the SEC. In the meantime, in my judgment, the Board's structure violates the Constitution of the United States.

* * *

I would hold that the PCAOB's structure unconstitutionally restricts the President's appointment and removal powers. I respectfully dissent.