New York University Public Law and Legal Theory Working Papers

Document Type



Duke Journal of Constitutional Law & Public Policy, Forthcoming


The recent Free Enterprise Fund presents the most expansive vision of Presidential power over the structure of administrative agencies in perhaps 90 years. Indeed, in holding that the design of the relationship between the President, the SEC, and the Public Company Accounting Oversight Board (the Board) violated the President’s Art. II powers, the United States Supreme Court found, for the first time, that the design of an administrative agency was unconstitutional even though Congress had not inappropriately inserted itself into the appointments or removal processes for the agency’s head or into the substance of agency policymaking by retaining a congressional veto power over the agency’s actions. In all prior decisions in which the design of an agency had been held unconstitutional, at least one of these congressional grabs at greater control over the agency had been involved. Yet in an expression of the “unitary executive branch” vision of presidential powers under Art. II, the Court nonetheless held that the Board’s design was unconstitutional, not because it left Congress too much control over the Board, but because it left the President too little.

This short essay explores two alternative ways of understanding the Court's decision, with alternative implications for future issues concerning the struggle between President and Congress for control over administration. One possibility is that Free Enterprise Fund is what I have elsewhere called a "boundary-enforcing decision." Such decisions establish outer-bound limits on the organization of public power in exceptional or extreme contexts - they establish that certain structures or actions have gone “too far” - but those boundaries remain vague and the Court does not relentlessly pursue the logic of those limiting principles all the way to their ultimate conclusion. Alternatively, Free Enterprise Fund might be read as a substantively transformative decision, in which the forceful rhetoric and analysis concerning presidential Art. II powers presages further decisions that shift the balance toward the President of the constitutional principles that structure control over administration of the laws.

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