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It Depends

Posted by on Tuesday, December 15, 2009 in En Banc, Free Enterprise Fund v. PCAOB, Roundtables.

I suspect that Professors Pildes, Bruff, and I disagree less about the Appointments Clause than about the meaning of the word “unconstitutional.”  I use the word as a descriptive fact about semantic meaning, while Professors Pildes and Bruff are more concerned about the operational consequences of constitutional norms for actual governance and judicial decision-making.  As a result, the various arguments in this Symposium about the constitutionality of the appointment process for PCAOB members are sailing in somewhat different seas.  My semantic arguments are not much threatened by their normative claims, and their normative claims are not much bothered by my semantic arguments.  I think we can all be cool with that.