Kagan Really Does Think The Public Company Accounting Oversight Board Is Constitutional

What goes around comes around for U.S. Supreme Court nominee Elena Kagan.

Back in June 2002, Kagan, then a professor at Harvard Law School and an expert on presidential power, wrote a letter to Sen. Paul Sarbanes, D-Md., giving her legal insight into a provision of what became known as the Sarbanes-Oxley Act. The question was whether the creation of a Public Company Accounting Oversight Board to oversee accounting firms would violate the Appointments Clause of the Constitution. There was concern about the fact that its members would not be directly appointed (or removed) by the president, thereby undermining executive power. Instead the Securities and Exchange Commission would oversee it.

Kagan, in a brief letter contained in the questionnaire materials returned to the Senate Judiciary Committee today as part of the Supreme Court confirmation process, said that the proposal was constitutional. The board members would be considered “inferior officers” under the Constitution “validly appointed under the terms of the Appointments Clause,” she wrote.

Fast-forward seven years, and, in December 2009, in her role as solicitor general, Kagan stood before the Supreme Court and made the essentially the same argument when the issue finally made its way to the high court. Free Enterprise v. Public Company Accounting Oversight Board, 08-861. The court is yet to rule in the case, and Kagan was duty bound to defend the statute regardless of what her personal views were. But the letter does indicate that, in this case at least, her own views were reflected in the argument she made.

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Lawrence Hurley

Reporter based in Washington

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