It Depends

Peter Strauss stated at the outset of this Symposium that the participants were chosen in part for the likelihood that they would generate “intelligent disagreement.” By that standard, I may have been a poor choice--and if that is the case, I will leave it to the reader to determine whether it is a function of the first or second term in the quoted phrase. At first glance, it looks as though I sharply disagree with Rick Pildes and Harold Bruff about whether the PCAOB\u27s members are principal officers who must be appointed by the President with the advice and consent of the Senate. In my First Take article in this Symposium, I argued on three different grounds that they are indeed principal officers and their appointments by the SEC are therefore unconstitutional. On the other hand, Professor Bruff says that “the inferior officer issue should not long detain the Court” because the conclusion “that the PCAOB is at least minimally supervised by members of the SEC for constitutional purposes ... is easy to reach.”1 Professor Pildes similarly argues that “the constitutional challenges to the PCAOB should be rejected” and specifically says, “Because the SEC exercises pervasive authority, control, and oversight over Board members, they are not [principal officers].”2 How much farther apart could we be