Can Congress create agencies insulated from White House control?

Accountability through the SEC?

Lawyers for the oversight board and the US Solicitor General argue that the board members are accountable to the president through their appointment via the SEC. The president would be able influence policy or remove oversight board members through the chain of command by directing the SEC to take such action, they say.

“Congress designed the board to be independent from the accounting profession, not to reduce the president’s power or to aggrandize its own,” writes Washington lawyer Jeffrey Lamken in his brief on behalf of the oversight board.

“Congress lodged comprehensive oversight control over the board in the SEC, while leaving the president’s authority over the SEC undiminished,” he said.

Carvin counters that any exertion of presidential authority over the accounting board is diluted by having to pass through the SEC. He said a presidential attempt to remove members of the oversight board could involve also having to remove SEC commissioners. But since SEC commissioners require Senate confirmation, Congress would hold a potential veto over any presidential attempt to affect a double removal at both the SEC and the oversight board.

Carvin says a presidential threat to remove an SEC commissioner may not be enough to achieve the president’s goals at the oversight board. “The president needs the power ‘to remove,’ not to bluster about it,” Carvin writes.

New York Stock Exchange model

He notes that the oversight board was patterned on the New York Stock Exchange, which is also overseen by the SEC. “It is indisputable that the president cannot control or supervise the officers or policies of the New York Stock Exchange, notwithstanding the SEC’s pervasive regulatory control over that entity,” Carvin says.

Solicitor General Elena Kagan says in her brief that the SEC does, in fact, exert comprehensive control over the oversight board. The SEC can reject board-adopted rules, refuse to issue a subpoena for a board investigation, reverse any board enforcement decision, reject the board’s budget, and remove board members for cause.

She says rather than being “principal officers” of the executive branch subject to presidential appointment and Senate confirmation, oversight board members are “inferior officers” whose work is supervised by others who were appointed by the president and confirmed by the Senate.

Legal experts note that should the Supreme Court find the oversight board unconstitutional, Congress could easily remedy the infraction by amending the Sarbanes-Oxley Act to include a requirement that board members be appointed by the president and confirmed by the Senate. Another alternative, analysts say, would be to merge the oversight board into the SEC with board members becoming SEC employees.

On the other hand, if the high court issues a decision strongly upholding the insulated structure of the oversight board, it could open the way for Congress to create more independent watchdog groups -- and a new level of government regulation insulated from elected officials, analysts say.

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