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Putting Power Back Into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional

Posted by on Monday, November 2, 2009 in En Banc, Free Enterprise Fund v. PCAOB, Roundtables, Volume 62, Number 5.

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.