Agency Independence After PCAOB

Abstract

Separation of powers has a new endeavor. The PCAOB decision makes the validity of good-cause removal protections depend on the separation of adjudicative from policymaking and enforcement functions within the agency. At a minimum, within independent agencies, it preserves the second layer of removal protection only for dedicated adjudicators. But its logic extends further. In PCAOB, the demand for political supervision over rulemaking and enforcement trumped Congress's choice to preserve the independence of officials who perform those roles and also adjudicate. In that way, PCAOB reversed the consistent constitutional validation of good-cause removal protections for those who engage in adjudication. While PCAOB might well be confined to two (or greater) levels of good-cause removal protection, it has the potential to restructure the constitutional footing for agencies with a single level of good-cause removal protection, preserving that protection for dedicated adjudicators but casting it aside for agencies with more than just adjudicative functions.