Supreme Court Docket

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Free Enterprise Fund v. Pub. Co. Acctg. Oversight Bd.
No. 08-861

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Title:

Free Enterprise Fund v. Pub. Co. Acctg. Oversight Bd.

Subject:

Securities Law, Constitutional Law, Administrative Law

1. Whether the Sarbanes-Oxley Act of 2002 violates the Constitution's separation of powers by vesting members of the Public Company Accounting Oversight Board ("PCAOB") with far-reaching executive power while completely stripping the President of all authority to appoint or remove those members or otherwise supervise or control their exercise of that power, or whether, as the court of appeals held, the Act is constitutional because Congress can restrict the President's removal authority in any way it "deems best for the public interest."

2. Whether the court of appeals erred in holding that, under the Appointments Clause, PCAOB members are "inferior officers" directed and supervised by the
Securities and Exchange Commission ("SEC"), where the SEC lacks any authority to supervise those members personally, to remove the members for any policyrelated reason or to influence the members' key investigative functions, merely because the SEC may review some of the members' work product.

3. If PCAOB members are inferior officers, whether the Act's provision for their appointment by the SEC violates the Appointments Clause either because the SEC is not a "Department" under Freytag v. Commissioner, 501 U.S. 868 (1991), or because the five commissioners, acting collectively, are not the "Head" of the SEC.

• U.S. Court of Appeals - D.C. Circuit, Opinion Filed: August 22, 2008

Resources:

• Docket Sheet From the U.S. Supreme Court.

Briefs: Coming Soon	Counsel of Record For Petitioner: Michael A. Carvin Jones Day Washington, DC For Respondent: Elena Kagan Solicitor General United States Department of Justice Washington, DC
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