It turns out that the President can indeed fire the Chair of the SEC after all.
After the L.A. Times and many others wrote that the President has no such authority, I sent a complaint to the L.A. Times on September 23. I cited case law holding that the Chair can be removed for no reason at all — and that even in his lesser role as Commissioner, he can be fired for cause. As I said in my letter to The Times:
[A] President can remove a commissioner — but only for cause. Meanwhile, according to the D.C. Circuit case I provide above, the Chair himself serves at the President’s pleasure, meaning he can be removed for any reason or no reason.
It’s true that the Chair serves a dual role as commissioner and Chair. But even if the President needs “cause” to fire Cox in his role as commissioner, he still can fire Cox. If I can fire you for cause, it’s wrong to say I can’t fire you at all.
I subsequently exchanged some e-mails with Doyle McManus, the author of the story, and he agreed to read the cases I had provided and discuss them with other editors.
Yesterday, the L.A. Times issued this correction:
SEC Chairman: Articles in Section A on Sept. 19 and 20 about the financial rescue plan said the president could not fire the chairman of the Securities and Exchange Commission. The statute governing the SEC does not explicitly give the president the authority to fire the commission’s members. However, federal courts have held that the president can remove members of independent commissions like the SEC “for cause,” including “inefficiency, neglect of duty or malfeasance in office.” The president can also demote the chairman of the SEC without removing him or her from the commission.
The correction does not make it clear that the demotion can occur for any reason, because the Chair serves at the President’s pleasure. However, I am still pleased to see the paper acknowledge that, as I previously argued, the President can indeed fire the Chair of the SEC.
The correction comes 10 days after I sent my letter — and too late to do much good. Because the L.A. Times and Jake Tapper failed to issue quick corrections, the public will likely remember this as a gaffe by McCain — one in which he foolishly spoke of exercising a power that he wouldn’t have as President. The fact remains, however, that whatever you think of McCain’s idea of firing Cox, he wasn’t wrong to say he could. (He was wrong to later backtrack, on 60 Minutes, and claim that he couldn’t. But in so doing, he merely was caving to the media’s Conventional Wisdom, which now turns out to have been wrong, as it often is.)