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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 28, 2010 ::
    Free Enterprise Fund gets even better, this time in a part where petitioners do not prevail. On the issue of appointment power, as distinct from the removal power, the Court adopts a position taken by Scalia and three others in his "scathing concurrence" (my term) in Freytag v. Commissioner:
    But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” (e.g., State, Treasury, Defense) listed in 5 U. S. C. §101. In Freytag, 501 U. S., at 887, n. 4, we specifically reserved the question whether a “principal agenc[y], such as . . . the Securities and Exchange Commission,” is a “Departmen[t]”under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a “Departmen[t],” see id., at 918 (SCALIA, J., concurring in part and concurring in judgment), because it is a “freestanding, self-contained entity in the Executive Branch,” id., at 915.

    Respondents urge us to adopt this reasoning as to thoseentities not addressed by our opinion in Freytag, see Brief for United States 37–39; PCAOB Brief 30–33, and we do.
    Now, for the next step: to adopt the rest of the Freytag concurrence's position, namely, that no entity that is not an Article III court can exercise "the judicial power of the United States."

    :: David M. Wagner 5:01 PM [+] ::

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