They Keep Saying the President Can’t Fire the SEC Chair — Yet the Law Seems to Say Otherwise. Tapper Won’t Correct the Apparent Error. Will the L.A. Times?
Jake Tapper is repeating his claim that a President can’t fire the Chairman of the SEC:
“By the way I know he can’t be technically ‘fired,'” Sen. John McCain, R-Ariz., just said on “60 Minutes.” “But when I’m president, if I want someone to resign, he resigns.”
We fact-checked his threat to fire SEC chairman Chris Cox last week, as you may recall, pointing to a U.S. Supreme Court decision and ruling that the president does not have the power to fire the SEC Chair. But, we noted, certainly pressure can be brought to force someone out, as when then-Senate Majority Leader Tom Daschle, D-S.D., and then-House Minority Leader Dick Gephardt, D-Mo., called for President Bush to dump then-SEC chair Harvey Pitt.
With all due respect to all of them, my reading of the relevant cases indicates otherwise. I have written Tapper about this, and while I won’t repeat the content of his e-mails without his permission, I will say that he a) utterly failed to convince me he is right, and b) shows no sign of willingness to retract his apparently inaccurate statements.
Tonight, I wrote the L.A. Times “Readers’ Representative” seeking a correction to that paper’s similar assertion. I set forth the argument in the e-mail, which I here repeat in full:
An L.A. Times article from September 20, by Doyle McManus, titled “McCain and Obama different on style as well as substance,” asserts that the President can’t fire an SEC Chairman:
On Thursday, [McCain] said he’d fire the chairman of the Securities and Exchange Commission, Christopher Cox [if McCain were President]. (A president appoints but can’t fire an SEC chief, though he can apply pressure to resign. The White House said President Bush had confidence in Cox.)
But a federal court decision certainly seems to say otherwise. The case is Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667, 668-69 (D.C. Cir. 2008), and here is the relevant quote:
Members of the [Securities and Exchange] 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.
I have read that Jake Tapper of ABC and McClatchy newspapers have relied on a Supreme Court decision, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), to argue otherwise. However, I believe they have misread that case (if, indeed, they read it at all). That case, which dealt with the President’s power to fire an FTC commissioner, did not say that the commissioner could not be fired under any circumstances. Rather, it said that, when Congress restricted the president’s ability to fire commissioners except for cause, that restriction was constitutional.
In other words, 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 think Doyle McManus is repeating Conventional Wisdom on this. But I think Conventional Wisdom is wrong, and that your paper should issue a correction.
I hasten to note that the consensus among the Republicans I speak with is that McCain wishes he had never made the statement, and is probably trying to sweep the issue under the rug. If that’s right, he may have no particular interest in challenging the Tapper/LAT/McClatchy spin that a President can’t fire an SEC Chair.
That’s fine; let McCain do what he’s gotta do. I’m not a McCain campaign guy. I care about accuracy. And I don’t see anyone interested in correcting this apparent misstatement.
It’s not important, in and of itself. But I’m getting increasingly frustrated with a media that seemingly wants to create its own facts, and airily dismisses anyone who dares question them. The facts, as I see them, are in this post.
I’m not an expert in this area and I haven’t fully canvassed the relevant law. I’ve read the two cases linked above and have done some Internet research, which indicates that some other people who have looked at the issue closely, agree with me. But that doesn’t mean I’m automatically right. If you see a flaw in my analysis — and you might — let me know what it is, specifically.
So far, I haven’t found anyone who can explain it to my satisfaction . . . or who has even really tried to.
All they want to do is ignore my points. And I find that frustrating.