January 2012

Waxman-Markey: What’s new, what’s old?

by Marlo Lewis on May 15, 2009 · 2 comments

in Global Warming

Today, Reps. Henry Waxman (D-CA) and Ed Markey (D-MA) released a new 932-page version of their cap-and-trade bill and a summary explaining how emission allowances will be allocated.

President Obama had campaigned on a cap-and-trade plan in which 100% of the emission allowances would be auctioned. His FY 2010 Budget also calls for a 100% auction system (pp. 21 and 100), generating anywhere from $646 billion to nearly $2 trillion in revenues over ten years.

Of course, the last thing companies subject to emission caps want to do is pay $646 billion or more for the right to produce or use energy. So U.S. CAP, the main corporate lobby for cap-and-trade, lobbied for a system with mostly free rationing coupons, and that’s what they got.

Under the revised Waxman-Markey bill, from 2012 through 2025, the electricity sector will receive 35% of the allowances gratis and natural gas distribution companies will receive 9%, with free distributions phasing out from 2026 through 2030. In all, 85% of the rationing coupons are allocated free-of-charge to industry and other interests.

The bill instructs gas and electric utilities to use the free allocations to “protect consumers” from ”price increases.” This is odd. The whole point of cap-and-trade is to raise energy prices. As candidate Obama said in a moment of candor, electricity prices will “necessarily skyrocket.” That’s how cap-and-trade discourages consumption, which reduces emissions. It’s also how cap-and-trade rigs the market in favor of non-carbon energy, which also supposedly reduces emissions.

Perhaps what Waxman and Markey mean is that U.S. utilities will not be allowed to double-dip as European utilities did in Europe’s Emission Trading System (ETS). European utilities got emission allowances for free but claimed them as an expense and then passed the imaginary costs on to customers by raising electric rates (see pages 43-46 of Open Europe’s report on the ETS).

Does this mean Waxman-Markey would not have severe economic impacts of the sort the Heritage Foundation projects in its May 13, 2009 study? No!

The Heritage study estimates that by 2035, the Waxman-Markey cap-and-trade plan will:

  • Reduce aggregate gross domestic product (GDP) by $7.4 trillion,
  • Destroy 844,000 jobs on average, with peak years seeing unemployment rise by over 1,900,000 jobs,
  • Raise electricity rates 90 percent after adjusting for inflation,
  • Raise inflation-adjusted gasoline prices by 74 percent,
  • Raise residential natural gas prices by 55 percent,
  • Raise an average family’s annual energy bill by $1,500, and
  • Increase inflation-adjusted federal debt by 29 percent, or $33,400 additional federal debt per person, again after adjusting for inflation.

The Heritage folks are undoubtedly going to re-crunch the numbers in light of changes made to the bill.

However, the big picture should not change just because Waxman and Markey have decided to distribute 85% of the ration coupons free-of-charge. What chiefly determines any cap-and-trade scheme’s macro-economic and energy price impacts are the stringency of the caps, not how allowances are distributed under the caps.

As the caps tighten, the number of ration coupons declines, and so does the supply of carbon-based energy. As the supply falls relative to demand, energy prices increase, which then reduces economic output and employment.

So don’t be fooled! Electricity and fuel prices will reflect allowance prices, which will be determined by supply and demand, not by whether the allowance was initially auctioned or handed out for free. Think of it this way. The price at which a scalper can sell Super Bowl tickets outside the stadium is the same whether he buys the tickets himself or finds them on the ground.

It is therefore noteworthy that although the caps are identical in both versions of the bill from 2030 through 2050, the caps are generally less restrictive in the revised bill from 2012 through 2029. For example, the original version caps 2020 emissions at 4,873 million metric tons, the revised version at 5,056 mmt. 

I’m counting on our friends at Heritage to explain what these changes mean in terms of jobs, energy prices, and GDP. Once thing is certain. The bill is still a de facto energy tax; and if enacted, it will still be the biggest tax hike in American history.

Government Bullies Retirees, Banks, Rips Off Taxpayers

by Hans Bader on May 15, 2009 · 2 comments

in Bailout Watch, Economy, Legal, Nanny State, Personal Liberty, Politics as Usual

The Obama Administration is now seeking to give the United Auto Workers Union a big chunk of General Motors, at the expense of taxpayers and bondholders (including non-union retirees). If Obama gets his way, the UAW will receive at least ten times as much value ($10 billion plus 39 percent of the company) as the bondholders (who get no money and 10 percent of the company) even though the bondholders are owed more ($27 billion vs. $20 billion). This is neither legal nor fair: under the bankruptcy laws, the UAW is not supposed to get preference over the bondholders; and it is the UAW, not the bondholders, which helped bring GM to its knees through its rigid work rules and excessive wages and benefits. The Administration will seek to get around the bankruptcy laws through a sham sale of GM’s assets to a shell company owned by the Administration and the UAW.

There are retirees — including white-collar, non-union, former GM employees — who depend on their holdings of GM bonds to pay for life’s necessities. Others bought GM bonds to put their kids through college.

The Obama Administration earlier engaged in similar tactics in the Chrysler bankruptcy, fleecing taxpayers, and the secured lenders who loaned the cash-strapped company money, in order to give the UAW union control of Chrysler. Veteran political commentator Michael Barone called it “gangster government.” Law professor and bankruptcy expert Todd Zywicki called it an attack on “the rule of law.”

Earlier, the Treasury Department bullied perfectly-healthy banks into accepting bailout (TARP) money, and then sought to conceal the evidence that it did so, fighting Freedom of Information Act requests.

Among the officials who helped bully the banks was the FDIC’s Sheila Bair. Bair has used banks taken over by the FDIC to engage in politically-correct social engineering, modifying the mortgages of irresponsible borrowers to reduce their payments to just 31 percent of their income — less than many thifty, responsible homeowners currently pay, without difficulty, on their mortgages in high living-cost areas. Deadbeats have had their principal balances reduced, and had their interest rates cut to as low as 3 percent. For that gratuitous waste of taxpayers’ money, she recently received an award from the Leadership Conference on Civil Rights (an ironically-named organization that recently pushed federal legislation to circumvent constitutional protections against double-jeopardy, by allowing innocent people to be tried all over again in federal court).

Save the Economy, Save the Environment

by Angela Logomasini on May 15, 2009

in Agriculture, Environment, Private Conservation

Whole Foods profit has fallen 32 percent, reflecting changes in consumer demand during economic hard times. It appears that organic food becomes a luxury item that must be dispensed with when times get hard. Despite the fact that organic food isn’t necessarily any healthier or better for the environment than conventional food, many people view it as environmentally superior and are willing to pay more for it—but only up to a point. There is a lesson for environmentalists to learn here. Wealth creates the will and the ability to pay for environmental amenities.

For example, when people have more spare change, they donate more to conservation groups that can privately manage lands to help save species. Wealth creation also means demand for better, cleaner energy sources. Despite what many greens seem to think, modern fossil fuels used in wealthy nations represent an environmental improvement over burning wood or things like animal dung as is done in developing nations.  In fact, rudimentary fuel sources create serious air pollution problems that have made respiratory illnesses a major cause of death in poor countries. Wealth also means the development of technologies that enhance our ability and will to control emissions, provide proper disposal of wastes, and purify drinking water. (For more on how poverty is bad for health and the environment  see here)

Ironically, most environmental activist groups seem to think that wealth creation—and profits—are the cause of environmental decline. Hence they fight these forces, opposing things like privatization of water because someone might make a profit. But their policies leave the world poor and lacking in things like clean water. And they also fight a main engine of growth: free trade. The failure of genuine environmentalists to understand this fundamental reality about wealth undermines their own cause because wealth depleting policies harm the environment.

Unfortunately, environmentalists not only misguided ones. Environmentalists fight wealth in the name of the environment, and lawmakers fight wealth in the name of the economy, as our stimulus policies reveal.

See CEI’s Environmental Source for more information on environmental quality issues.

Stimulus Ignites Job-Killing Trade War With Canada

by Hans Bader on May 15, 2009 · 1 comment

in Economy, Employment, Energy, Environment, Global Warming, International, Odds & Ends, Politics as Usual, Stimulus to Nowhere, Trade

The $800 billion stimulus package pushed through by Obama has ignited a trade war with Canada, reports the Washington Post. In response to vague “buy American” provisions in the stimulus, “A number of Ontario towns, with a collective population of nearly 500,000, retaliated with measures effectively barring U.S. companies from their municipal contracts — the first shot in a larger campaign that could shut U.S. companies out of billions of dollars worth of Canadian projects.”

A trade war is also underway with Mexico, thanks to a provision in the stimulus package that blocked a measley 97 Mexican truckers from U.S. roads. That minor NAFTA violation “caused Mexico to retaliate with tariffs on 90 goods affecting $2.4 billion in U.S. trade,” destroying 40,000 American jobs.

Obama’s protectionism echoes Herbert Hoover’s protectionism, which helped spawn the Great Depression. President Hoover signed the Smoot-Hawley tariff, which helped turn a recession into the Great Depression by triggering a trade war with other countries.

Unemployment is now even higher than what Obama predicted it would be without the stimulus. The White House now admits that there will be no job growth until 2010. The Congressional Budget Office repeatedly predicted that the stimulus would shrink the economy “in the long run,” but increase it in the short run, i.e., by the next election.

But so little of the stimulus money has gone into sectors of the economy where unemployment is high (like construction and transportation) that it seems to be doing nothing for the economy even in the short run. The $100 billion it pours into education — a sector where unemployment is very low, and where the U.S. also spends more per capita than almost every other country — appears likely to be wasted. Only 5.9 percent of the stimulus will go to transportation, a small amount compared to the amount of money it showers on state governments, which are using it to continue to provide lucrative pension and health benefits for state employees, whose wages continue to rise much faster than private sector workers.

Obama is following in Herbert Hoover’s footsteps on taxes and spending. In the Great Depression, Hoover raised marginal tax rates to 63%, and went on a deficit spending binge. Similarly, Obama has proposed higher marginal tax rates, which will produce another $1.9 trillion in tax increases. One of Obama’s own advisers now says that “the barrage of tax increases proposed in President Barack Obama’s budget could, if enacted by Congress, kill any chance of an early and sustained recovery.” He compares Obama’s tax increases to those that deepened the Great Depression.

Hoover imposed regressive taxes that burdened consumers, like the Revenue Act of 1932. Obama is now doing the same thing through his proposed $2 trillion cap-and-trade carbon tax. Obama privately admitted to the San Francisco Chronicle (which didn’t report it) that under his “plan of a cap and trade system, electricity rates would necessarily skyrocket.” As Obama admitted, that cost would be directly passed “on to consumers” — just the way Herbert Hoover’s 1932 excise tax increase was. Although the tax’s supporters claim it will cut greenhouse gas emissions, it may perversely increase them and also result in dirtier air. It is also chock full of corporate welfare, regional favoritism, political pay-offs, and give-aways to special interests.

Is Facebook Violating Federal Wiretapping Laws?

by Ryan Radia on May 14, 2009 · 2 comments

in Privacy, Tech & Telecom

Facebook has been at the center of a controversy involving its moderation policies and The Pirate Bay, a popular Bittorrent tracker that was found guilty of copyright infringement by a Swedish court last month. Since early April, Facebook has enforced a “site-wide” ban on links to The Pirate Bay – including those in private messages.

This practice may run afoul of federal wiretapping statutes that bar service providers from “intercepting” private messages, according to an article that appeared on Wired Threat Level last week. Wired quotes Kevin Bankston, a senior attorney for the Electronic Frontier Foundation, who explains that Facebook’s practice raises “serious questions about whether Facebook is in compliance with federal wiretapping law.”

It’s important to draw a distinction between the traditional notion of “wiretapping” and Facebook’s “interception” of user messages, which doesn’t involve any human intervention. Regardless of how the courts may interpret ancient laws like the 1986 Electronic Communications Privacy Act, an automated computer system flagging and deleting certain strings from user messages simply isn’t comparable to a third party secretly listening in on a private phone conversation.

Besides, Facebook makes clear to its users from the get-go that their messages and postings are subject to a set of rules (which Facebook lays out in plain English). If Facebook believes a message or posting is against the rules, it can block or remove it. This is not an unreasonable rule; many online discussion forums have enforced similar policies since the Web’s early days. Such filtering is possible only if sites can “examine” messages to identify misconduct.

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Digital economy increases emissions: Mark Mills gets last laugh

by Marlo Lewis on May 14, 2009

in Global Warming

Back in 1999 and 2000, a fierce debate raged as to whether digital networks and devices increase or decrease electricity consumption and emissions.  Does the growth of the digital economy jeopardize the Kyoto agenda by increasing emissions? Or is the Internet a “green” force reducing our energy and carbon intensity?

On one side of the debate, researchers at the Lawrence Berkeley National Laboratory argued that the Internet could help reduce emissions by, for example, promoting telecommuting, online shopping, and efficient supply-chain management. On the other side, technology analyst Mark Mills and co-author Peter Huber argued that the rapid proliferation of digital devices and networks was increasing demand for high-quality (largely coal-based) power.

The Berkeley Lab researchers directed a lot of fire at Mills’s ”ballpark” estimate that Internet-based equipment and networks already accounted for 8% of U.S. electricity demand. I won’t try to settle that part of the controversy.

However, a just-published study by the International Energy Agency (IEA) shows that Mills was right about the big picture. Climatewire (subscription required) gives the gist of the study in its headline: “Soaring electricity use by new electronic devices imperils climate change efforts.” Herewith a few highlights:

  • Efforts by countries worldwide to reduce greenhouse gas emissions and increase energy security are in trouble if nothing is done to check the energy gobbled by both information and communication technologies and consumer electronics.
  • Energy used by computers and consumer electronics will double by 2022 and increase threefold by 2030.
  • The projected increase is equivalent to the current combined total residential electricity consumption of the United States and Japan.
  • To operate these new devices, households around the world will spend around $200 billion in electricity bills and require the addition of approximately 280 Gigawatts (GW) of new generating capacity between now and 2030.
  • The number of people using PCs will exceed 1 billion over the next seven months, and nearly 2 billion television sets are in use worldwide, averaging more than 1.3 sets per each household with access to electricity.
  • More than 3.5 billion people will be mobile phone subscribers by 2010.
  • In many households in OECD countries, electronic devices–a category that includes televisions, desktop computers, laptops, DVD players and recorders, modems, printers, set-top boxes, portable telephones, answering machines, game consoles, audio equipment, clocks, battery chargers, mobile phones and children’s games–consume more electricity than do traditional large appliances.
  • Household use of electronic devices is the major reason that residential electricity consumption is increasing in most countries.
  • Computers, related equipment and consumer electronics are responsible for close to 15 percent of total residential electricity consumption today, a share similar to that of other major appliance categories such as water heating or refrigeration.
  • Even with improvements foreseen in energy efficiency, consumption by electronics in the residential sector is set to increase by 250 percent by 2030.
  • “The share of electricity consumption by these appliances is therefore increasing to the extent that they will most likely comprise the largest end-use category in many countries before 2020, unless effective steps are taken,” said IEA Executive Director Nobuo Tanaka in a press release.
  • “These estimates suggest that total residential electricity consumption will increase more than many previous forecasts, and therefore pose a serious challenge to all governments with policy ambitions to increase energy security and economic development, and to mitigate climate change,” states the report.

Criticism of Huber and Mills got pretty nasty at times. But, as the old adage says: He who laughs last, laughs best.

“Bush holdover” is career civil servant hired during Clinton

by Marlo Lewis on May 14, 2009

in Global Warming

Team Obama was embarrassed earlier this week when a leaked interagency memorandum  acknowledged that EPA’s proposed finding that greenouse gases endanger public health and welfare could impose severe economic burdens on small business. The memorandum said, in part: 

 Making the decision to regulate CO2 under the CAA [Clean Air Act] for the first time is likely to have serious economic consequences for regulated entities throughout the U.S. economy, including small businesses and small communities.  Should EPA later extend this finding to stationary sources, small businesses and institutions would be subject to costly regulatory programs such as New Source Review.

An unnamed Administration official dismissed the memo on the grounds that it was written by a “Bush holdover.”

Rep. Darrell Issa (R-CA), Ranking Member on the House Government Reform and Oversight Committee, takes issue with the Administration’s spin on two counts. First, the “holdover” put-down is an ad hominem argument–as if merely being associated with Bush is sufficient to discredit whatever the memo author has to say.

Second, and more importantly, it is untrue! The so-called Bush holdover, Issa reports, is “a career civil servant who was originally hired during the Clinton Administration and worked at one time for a Democratic Member of Congress. Shawne Carter McGibbon is now Acting-Chief Counsel, keeping the office running until a Chief Counsel for Advocacy is confirmed by the Senate.”

Kudos to Mr. Issa for setting the record straight–and to Ms. McGibbon for speaking truth to power.

Stupid and Evil Soda Tax

by Angela Logomasini on May 14, 2009 · 1 comment

in Nanny State, Personal Liberty

Nanny statists are, apparently, equal opportunity hacks. Activists on the left and their legislative team players are not only going after the bottled water “sin industry.” They are also increasing the pressure for regulations on other beverages, seeking to slap a federal 3 cent tax on beverages containing sugar. Where will it end?

Look at this debate between Jeff Stier of the American Council on Science and Health and Michael Wolff of Vanity Fair. Wolff basically calls any American who is over-weight a needless drain on America’s health care system. Should they be punished with a nanny state tax?  He says: “Why not?”

Why not? Because, as Stier points out,  we live in a free society in which individuals should be responsible for themselves. And who seriously believes that 3 cents is going to matter a hill of beans? However, it will aggregate into a good chunk of change to enrich government bureaucrats who will probably do lots more stupid and possibly evil things. Let’s face it. This money won’t fix our health care system which suffers from excessive government regulations and runaway entitlement programs. They will probably use it for more misguided programs.

Before Stier was cut off by the rude talking heads he was up against, he pointed out better solutions for Americans suffering with some excess on their waistlines, one of which included allowing technologies to develop that will help reduce caloric intake. Ironically, nanny statists have fought and undermined these solutions.

For example, for decades they condemned the sugar substitute saccharin by saying it was a carcinogen based on questionable science. After scaring people away from this calorie saver for decades, the U.S. Centers for Disease Control and Prevention finally announced that all the “science” previously touted was wrong. Saccharin isn’t a carcinogen after all.

Moreover, nanny statists with the ironic name Center for Science in the Public Interest (CSPI) fought the release of olestra, a fat substitute that allows people to enjoy a few extra chips without all that many extra calories. A side effect for a small segment of people might be gastrointestinal distress, such as soft stools. But the product would not have this impact on everyone. Ironically, as the American Council on Science and Health notes in one publication, various studies showed that these effects were no higher (about 2.5 percent of consumers in test groups) than they were for chips made with regular oils. Nonetheless, CSPI undermined the marketing of this product and was able to win regulations that limit its use. It is only used for snack foods, but if the Food and Drug Administration allowed it, olestra could be used in a wide-range of valuable applications. Unfortunately, nanny statists would rather find an excuse to tax us.

Source for photo: Katharine Moriarty

Adviser Admits Obama’s Tax Increases May Kill Economic Recovery

by Hans Bader on May 14, 2009 · 2 comments

in Bailout Watch, Deregulate to Stimulate, Economy, Employment, Energy, Environment, Features, Global Warming, Politics as Usual, Precaution & Risk, Stimulus to Nowhere

Harvard economist Martin Feldstein, who has advised Obama, warns that “the barrage of tax increases proposed in President Barack Obama’s budget could, if enacted by Congress, kill any chance of an early and sustained recovery.” He compares Obama’s tax increases to the ones that contributed to the Great Depression and the “Lost Decade” of economic stagnation and decay in Japan.

Feldstein, who serves on Obama’s economic advisory board, has also “warned of serious inflation and higher taxes down the road” as a result of Obama’s policies.

Feldstein singles out for criticism Obama’s proposed global-warming tax. “Mr. Obama’s biggest proposed tax increase is the cap-and-trade system of requiring businesses to buy carbon dioxide emission permits. . .CBO Director Douglas Elmendorf testified before the Senate Finance Committee on May 7 that the cap-and-trade price increases . . . would cost the average household roughly $1,600 a year, ranging from $700 in the lowest-income quintile to $2,200 in the highest-income quintile.”

That’s a highly regressive tax increase, since lowest-income earners don’t make a third of what highest-income earners make, but they would incur a third as much cost. It’s regressive in the same way as the 1932 excise tax increase by Herbert Hoover that deepened the misery of the Great Depression.

During the Great Depression, Herbert Hoover damaged the economy, and impoverished the American people, with costly, artificial attempts to stimulate the economy through increased government spending, financed by heavy taxes like the Revenue Act of 1932.

Obama earlier admitted that “under my plan of a cap and trade system, electricity rates would necessarily skyrocket.” As Obama admitted, that cost would be directly passed “on to consumers” — just the way Herbert Hoover’s regressive excise taxes were in 1932. Although the tax’s supporters claim it will cut greenhouse gas emissions, it may perversely increase them and also result in dirtier air.

In reality, Obama’s proposed “cap-and-trade” tax is likely to raise $2 trillion over the next decade, far more than even Feldstein anticipates. That’s far more than the $646 billion the Administration earlier estimated — amounting to at least $3,100 per family per year. And that figure may be dwarfed by the amount of money siphoned from consumers to well-connected corporations that have learned how to game “cap-and-trade” schemes.

In the Great Depression, President Herbert Hoover raised marginal tax rates to 63%, and went on a deficit spending binge. Similarly, Obama has proposed higher marginal tax rates, which will produce another $1.9 trillion in tax increases.

In spite of its massive size, Obama’s carbon tax won’t begin to pay for all his spending increases, such as a budget that will generate $4.8 trillion in increased deficits, Obama’s trillion-dollar toxic-asset program, and his $800 billion, economy-shrinking “stimulus” package, all of which contradict Obama’s campaign pledge of a “net spending cut.”

These tax increases are breaches of Obama’s campaign promise not to raise taxes on people making less than $250,000 a year, which he earlier broke by signing into law the regressive SCHIP excise tax increase.

It’s part of a long line of broken promises, such as Obama’s pledge to enact a “net spending cut,” which he discarded by offering mind-bogglingly large budgets that will explode the national debt through $9.3 trillion in massively increased deficit spending.

Law Professors Urge Supreme Court to Review Challenge to Powerful Agency, in Free Enterprise Fund v. Public Company Accounting Oversight Board

by Hans Bader on May 13, 2009

in Deregulate to Stimulate, Economy, Legal, Personal Liberty, Precaution & Risk

Tomorrow, the Supreme Court will weigh whether to decide what a federal judge called the “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.” Law professors Kenneth Starr and Viet Dinh, who worked on the case, have an editorial in today’s Wall Street Journal urging the Supreme Court to hear the case, which challenges a powerful, and largely unaccountable, federal agency called the Public Company Accounting Oversight Board (PCAOB). As they point out, in creating the PCAOB, “Congress created a striking Constitutional anomaly – a powerful executive branch agency with a structure that gives the President almost no say over its policies.”

Last year, a divided D.C. Circuit Court of Appeals voted 2-to-1 to uphold a provision of the Sarbanes-Oxley Act, over a strong dissent by Judge Kavanaugh, in the case of Free Enterprise Fund v. Public Company Accounting Oversight Board. That ruling deserves Supreme Court review both because the case is exceedingly important, and because the ruling rests on reasoning that is disturbingly inconsistent.

The case challenges the PCAOB, the regulatory board set up by the 2002 Sarbanes-Oxley Act, as a violation of the Constitution’s Appointments Clause and separation of powers. The PCAOB is enormously important: As Starr and Dinh note, “A Brookings-American Enterprise Institute study found that all of Sarbanes-Oxley’s provisions – mostly enforced by the PCAOB – have cost the U.S. economy more than $1 trillion in direct and indirect costs.” Moreover, the PCAOB’s red tape imposes annual compliance costs of over $35 billion, while providing only illusory benefits for investors, and driving businesses overseas. The PCAOB enjoys “massive power,” “unchecked power by design,” according to a Senator who voted to create it.

But rather than being picked by the President with Senate approval, the way important government officials are supposed to be, PCAOB members are picked by SEC Commissioners as a group (which led to a disorganized selection process for the first PCAOB members). As Starr and Dinh note, “The PCAOB’s lack of an accountable structure has likely contributed to what members of both parties see as its policy failures, such as its failure to stem inadequate disclosures by “firms reporting subprime securities.”

The lawsuit says that violates the Appointments Clause of the Constitution, which requires that government officials be picked by the President or (for minor officials) by the “Head of a Department.” The lawsuit also argued that the PCAOB members are so unaccountable to the president, who can’t remove them (the SEC Commissioners collectively can, but only for “willful” misconduct), that it violates separation of powers.

In order to reject the constitutional challenges, the court’s majority had to rely on inconsistent reasoning. First, it claimed that the SEC’s Chairman is NOT the SEC’s head, but rather “simply one” of “several commissioners,” making the SEC Commissioners collectively the head of the SEC. See Opinion, at pg. 20 (“The [SEC's] Chairman . . . is simply one Commissioner”); Opinion, pg. 21 (“The commission is a body whose ‘Head’ consists of the several commissioners”). Only by doing that could it rule that the SEC Commissioners collectively are the “Head” of a department and thus are permitted by the Appointments Clause to make appointments. (Never mind that the Chairman has been described by the SEC itself as its “chief executive” and “head”).

Then, just a few pages later, it suddenly suggested just the opposite: that the SEC’s chairman was, after all, the SEC’s head. Confronted with the argument that the PCAOB is not accountable to the President through his appointees, such as the SEC’s chairman (who, unlike other SEC commissioners, serves at the president’s pleasure), the court stated that the President does have indirect influence over the PCAOB through the SEC, because the president picks the SEC Chairman, who “dominates commission policymaking.” See Opinion, Pg. 24. (It said that “by appointment of the Commission chairman, who serves at the pleasure of the President and often ‘dominate[s] commission policymaking,’ the President can influence Commission policy and control who directs ‘the administrative side of commission business, select[s] most staff, set[s] budgetary policy, and as a consequence command[s] staff loyalties.’” See Opinion, pg. 24). But if the Chairman so “dominates commission policymaking,” that is because he is the SEC’s actual “head” (its “top executive,” as the SEC concedes), not a mere figurehead.

Is it too much to ask that courts not rely on inconsistent reasoning? Especially in a case like this, which Judge Kavanaugh noted is “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.”

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