When lawyers and other commentators say that a court did not properly explain its decision, it’s typically for hyperbolic effect. But, in a bizarre move, a court in the failed great state of Michigan has dismissed an economic liberty case brought by our friends at the Mackinac Center Legal Foundation for reasons the court quite literally did not explain. The court simply denied the plaintiffs’ complaint and that was that.
Home-based day care owners Sherry Loar, Michelle Berry, and Paulette Silverson have all been taxed by the Michigan Department of Human Services because, according to the state, they are somehow employees of the state and (further!) must pay union dues. because this baseless assertion comes directly from the state DHS, an executive department, among the significant constitutional objections to the case presents separation of power problems. (Ok, I haven’t studied the Michigan Constitution, but I assume they separate their powers there.) Enough ridiculous laws are passed by state legislatures — more than 40,000 last year alone – we don’t need state executive agencies getting into the act.
Yet, the Michigan Court of Appeals has nothing at all to say about the case.
Inexplicable — and unpardonable.
CP: Cato's blog
Showing posts with label separation of powers. Show all posts
Showing posts with label separation of powers. Show all posts
Thursday, January 7, 2010
Monday, December 7, 2009
Big Out-of-Control Government Has Had Better Days at the Supreme Court
This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) — and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley. Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.
Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies. As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.
Traditionally, independent agencies that serve such executive functions must be accountable to the president. PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president. I previously blogged about the case, Free Enterprise Fund v. PCAOB, here, here, and here.
As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory. Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive. (Scalia at one point joked that he had no less power than the president — meaning not very much — to influence PCAOB.) Justice Stevens only spoke up once but seemed to show a leaning towards the government position. Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh — whose blistering yet scholarly dissent likely prompted the Court to take up the case.
And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy. I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.
Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally — seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?
CP: Cato's blog
Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies. As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.
Traditionally, independent agencies that serve such executive functions must be accountable to the president. PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president. I previously blogged about the case, Free Enterprise Fund v. PCAOB, here, here, and here.
As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory. Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive. (Scalia at one point joked that he had no less power than the president — meaning not very much — to influence PCAOB.) Justice Stevens only spoke up once but seemed to show a leaning towards the government position. Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh — whose blistering yet scholarly dissent likely prompted the Court to take up the case.
And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy. I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.
Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally — seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?
CP: Cato's blog
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