Friday, September 19, 2008

Lawyer Says McCain Critics Wrong About President's Power to Fire SEC Chair

Sen. John McCain has been taking some heat for his statement that if he were in the Oval Office right now, he would fire the SEC chairman Christopher Cox. His statement is here:

Keith Olbermann led the charge on his show tonight for the left:

But Daily Standard contributor Adam White, an attorney, writes that McCain's critics are completely wrong:

It's true that the SEC is an "independent agency," and that the statute creating the SEC (specifically, Section 4 of the Securities Exchange Act of 1934) doesn't expressly state that the president can fire SEC commissioners. But the law on this point is well settled: As the D.C. Circuit reiterated as recently as last month, in Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667, 668-69 (D.C. Cir. 2008), "[m]embers of the Commission, in turn, are appointed by the President with the advice and consent of the Senate and subject to removal by the President for cause; its chairman is selected by and serves at the pleasure of the President."

The courts have never said that Congress can completely prevent a president from firing officials of an independent agency. At best, Congress can limit the president to firing such officials only "for cause," and the term "for cause" is generally interpreted pretty broadly.

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