The New Civil Liberties Alliance, non-profit public interest law firm founded in 2017 by Columbia Law School professor Philip Hamburger, has filed a brief seeking summary judgment from the U.S. District Court for the District of Columbia in two consolidated John Doe v. Public Company Accounting Oversight Board cases. NCLA accuses the PCAOB of “abusive and unconstitutional disciplinary prosecutions,” among other things, and explains at length in the 74-page brief why the Does are seeking declaratory and injunctive relief to stop the PCAOB from continuing its disciplinary proceedings against them.
The press release doesn’t hold back:
Despite lacking the constitutional legitimacy to do so, PCAOB has investigated and brought secret prosecutions seeking to strip NCLA’s clients of their livelihoods and to impose quasi-criminal monetary penalties on them. NCLA asks the Court to stop these disciplinary proceedings that violate core civil liberties, including the right to a jury trial in an Article III court, and declare them unconstitutional.
After years of intrusive investigation, PCAOB can impose punishing sanctions against accountants and accounting firms in its regulatory ambit. For example, it can permanently ban an individual from associating with any registered firm, revoke a firm’s registration, and exact civil monetary penalties of more than $1 million per violation. PCAOB claims the power to impose such punitive sanctions unilaterally in its secret, juryless tribunals.
The bulk of PCAOB’s investigative, prosecutorial, and pseudo-judicial activity is performed and superintended by private citizens, none of whom is constitutionally appointed as an officer of the United States. Nor are these private actors subject to real-time direction and supervision by any presidentially appointed and Senate-confirmed government officer. PCAOB hearing officers, for instance, act as inferior constitutional officers yet were never lawfully appointed under the Constitution’s Appointments Clause and are unconstitutionally shielded by multiple layers of protection from removal by the President. Moreover, these PCAOB prosecutions are funded by money raised and spent with no involvement or oversight by Congress, in violation of Article I of the Constitution and the constitutional separation of powers. There’s little mystery, therefore, why then-Judge Brett Kavanaugh once described PCAOB as “this unprecedented extra-constitutional stew.”
“Private citizens have no business behaving like government prosecutors. PCAOB’s ersatz enforcement proceedings are devoid of due process of law, which requires supervision by real judges in real courts,” said Mark Chenoweth, NCLA president.
Full brief for your reading pleasure below.
With the shutdown, time to eliminate this redundant agency