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Can the President Fire the SEC Chairman?

6:20 PM, Sep 18, 2008 • By JONATHAN V. LAST
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John McCain said today that if he were the president, he would fire SEC Chairman Chris Cox. Some Democrats have made hay of this statement, asserting that because the SEC is an "independent agency," the president can't fire the chairman. For examples of that criticism, see that ABC blog post linked above, or ABC's subsequent "Fact Check," or the folks at Daily Kos.

Daily Standard contributor Adam White, an attorney, writes in explaining 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.