Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional
This article has two aims: to explain the historical context and reasons that led Congress to design the administrative structure at issue in Free Enterprise Fund, and to provide a realistic account of how that structure actually functions in practice. The article is, thus, a kind of “Brandeis brief” for this important case concerning the constitutional structure for the administrative state. The article seeks to provide a rich understanding of the unique, long-established structures of financial regulation and an appreciation for how the administrative structures at issue actually work. With a clear understanding of these elements in mind, the article argues that the Court should find the Sarbanes-Oxley Act constitutional.