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Constitutionality of Public Company Accounting Oversight Board

Is the PCAOB constitutional? A Competitive Enterprise Institute paper by Hans Bader and John Berlau argues that this institution, established by Sarbanes-Oxley, and whose members are appointed by the SEC, violates the Appointments Clause. Donna Nagy identifies similar problems in the Notre Dame Law Review. And now the Free Enterprise Fund of the Competitive Enterprise Institute has filed a lawsuit, on behalf of an accounting firm aggrieved by PCAOB's onerous reporting requirements, arguing just that, with legal superstars Kenneth Starr, Michael Carvin, and Viet Dinh on the briefs. But because Sarbanes-Oxley has no severability provision, if the PCAOB is found unconstitutional, the whole law falls. (Kara Scannell and Brody Mullins, "Suit Seeks to Overturn Sarbanes-Oxley Law", Wall Street Journal, Feb. 8; Wall Street Journal op-ed, Feb. 8; Amy Borrus, "Who Watches Accounting's Watchdog?", Business Week, Feb. 8; complaint). Congress rejected these arguments when it drafted the law due to an analysis by Harvard Professor Elena Kagan, which does not appear to be on the web. Larry Ribstein comments, and Hans Bader himself debates the issue in the comments to this Volokh post.




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The Manhattan Insitute's Center for Legal Policy.