Finding SIGTARP in the Separation ofPowers Labyrinth

I. IntroductionAaron Sims has written a fine paper on a worthy subject.1 He carefully examines the details of the statute creating the Special Inspector General for the TARP program (the SIGTARP) and puts them in the context of the Supreme Court's separation of powers jurisprudence. He usefully calls attention to several notable features of the SIGTARP statute.2 He deserves praise for his good work.His ultimate conclusion, however, seems mistaken. He gives too little weight to the President's power to remove the SIGTARP at will, and too much weight to the Secretary of the Treasury's obligation to respond to deficiencies in the TARP program identified by the SIGTARP. When the SIGTARP scheme is compared to statutory schemes that have been approved by the Supreme Court, it seems likely that it is constitutional.This short response first praises the strong aspects of Mr. Sims' s paper.3 It then lays out a general structure for examining separation of powers questions, which suggests that the cases must be placed into distinct categories according to several key factors.4 Finally, it applies the suggested structure to the SIGTARP statute and concludes that the statute is likely constitutional.5II. Where Praise Is DueBefore turning to critique, it is appropriate to begin with well-merited praise, starting with praise for those who conceived the excellent idea of having a colloquium to highlight student scholarship. The legal academy is currently debating the purposes of law school and the activities that should make up a student's legal education.6 But no one can doubt that at least one purpose of law schools is the production of legal scholarship, including legal scholarship by students. A forum to celebrate student scholarship is therefore most fitting.Mr. Sims has contributed to this forum, first of all, by choosing an excellent topic. The constitutional status of Inspectors General has not received the thorough examination that it deserves, and, as Mr. Sims shows, the Special Inspector General for the TARP program has some distinctive characteristics that make him suitable for special attention. Mr. Sims's topic is also very timely. The Supreme Court's recent decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board1 signals that the Court may now be taking a somewhat harder line on congressional intrusions into executive branch prerogatives, so it is especially useful to examine potential violations of separation of powers that take the form of restraints on the President.Mr. Sims pays careful attention to the details of the SIGTARP statute. He has thoroughly catalogued the various ways in which this Special Inspector General differs from a more ordinary Inspector General. He points out the ways in which these details might give rise to separation of powers concerns. His paper is also well written. It lays out its arguments very clearly, avoids getting sidetracked, and makes good use of authority. Overall, the paper is a worthy contribution to student scholarship.III. Identifying the Right Test in Separation of Powers LawTo appreciate the difficulties with Mr. Sims's conclusions about SIGTARP, it is necessary first to lay out some background in separation of powers law. In separation of powers cases, the first step is to identify the applicable test. There is no universal test for separation of powers cases.8 The landscape is littered with a multitude of tests, each of which has its own area of application. Sometimes the applicable test is whether Congress has "impede[d] the President's ability to perform his constitutional duty,"9 but other times it is whether Congress has laid down an "intelligible principle" for the executive to follow.10 In still other cases, the courts apply a multi-factor balancing test.11 Given all the different tests that swirl around, it is easy to get lost in the separation of powers labyrinth. To find one's way, it is necessary to identify which test applies to a particular case. …