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En Banc Category

Our Twenty-First Century Constitution

Dec. 15, 2009—Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws...

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On Hunting Elephants in Mouseholes

Dec. 15, 2009—This response argues against using the vehicle of the relatively minor PCAOB case to decide large issues about the constitutionality of the independent agencies. It reviews constitutional provisions and history supporting independent functions. It concludes that the Court can invoke the avoidance canon to read the statute to allow appropriate levels of presidential supervision over...

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It Depends

Dec. 15, 2009—I suspect that Professors Pildes, Bruff, and I disagree less about the Appointments Clause than about the meaning of the word “unconstitutional.”  I use the word as a descriptive fact about semantic meaning, while Professors Pildes and Bruff are more concerned about the operational consequences of constitutional norms for actual governance and judicial decision-making.  As...

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

Nov. 2, 2009—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...

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Bringing the Independent Agencies in from the Cold

Nov. 2, 2009—Invalidating the PCAOB would cause unnecessary disruption to the Federal Government. The supervisory powers of the SEC over the agency justify concluding that its members are inferior officers. The removal provision can be sustained by confirming that the President has constitutional powers of removal that are appropriate to the function involved. The President’s power to...

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