In a recent Notice and Comment blog post, Bernard Sharfman and Nick Morgan offer a provocative challenge to the bipartisanship requirements of the Securities Exchange Act of 1934. They argue that “it is highly likely that the partisan balance requirement” in section 4(a) of the Securities Exchange Act of 1934 “will run afoul of the [Supreme] Court’s current thinking[.]” The authors rightly identify the formalist trend in recent Article II unitary executive jurisprudence, but their conclusion relies on a categorical conflation of the removal power with the appointment power. In doing so, they overlook the constitutional and historical logic undergirding multi-member commissions like the Securities and Exchange Commission and overstate the likelihood that the Court would permit President Trump to appoint additional Republican SEC commissioners.

The unitary executive framework captures an important constitutional truth: the President must have sufficient control over the executive branch to ensure political accountability. But Sharfman and Morgan treat this principle as an absolute invalidation of any legislative constraint on presidential appointment. Three features of constitutional structure refute this reading.

First, the Constitution’s text forecloses their argument. The Appointments Clause does not grant the President unconstrained unilateral authority. Instead it creates a deliberately collaborative process requiring the “advice and consent of the Senate.” The Framers knew how to grant exclusive power when they meant to; they gave the President sole authority to grant reprieves and pardons, to receive ambassadors, and to serve as Commander in Chief. For appointments, they expressly chose shared power. This textual choice implies that Congress may define qualifications for office as part of its legislative power to structure the executive branch, just as the First Congress required the Attorney General to be “learned in the law” and subsequent Congresses required specialized expertise for the FEMA Administrator or professional licensure for the Surgeon General.

Second, the cases Sharfman and Morgan rely upon—Trump v. Slaughter and Trump v. Wilcox—address a fundamentally different question: whether Congress can impose for-cause restrictions on the President’s removal of agency heads. Furthermore, these are emergency stay orders, not final merits decisions; as noted in Trump v. Boyle, such interim actions are not conclusive. Even within the context of “shadow docket” orders, Wilcox held only that the President may remove officers pending litigation, noting he may do so “subject to narrow exceptions recognized by our precedents”—an acknowledgment of Humphrey’s Executor and the independent agency model. Neither case addresses appointment qualifications. Removal concerns the President’s ability to supervise officers already serving; appointment concerns who enters service in the first place. This is not semantic. It reflects the Constitution’s arguable commitment of removal power to the executive alone, while explicitly sharing appointment power with the Senate.

Moreover, recent signals from the Supreme Court suggest a potentially flexible aspect of unitary executive jurisprudence. During oral arguments in Trump v. Cook, Justice Kavanaugh—one of the trio of Justices invoked by Sharfman and Morgan—expressed concern that dismantling the independence of the Federal Reserve board could “weaken, if not shatter” the independence (and thus the institutional integrity) of the Federal Reserve. Similar logic applies to the 1934 Act’s partisanship requirement in the context of the SEC’s tripartite mission to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.

Third, the partisanship requirement does not actually prevent the President from implementing his policy program at the SEC. Rather, it defines the office itself and the qualifications for that office. Just as Congress may require that commissioners possess legal or financial expertise, it may require that the Commission as a whole reflects certain perspectives Congress believes are necessary for the credible performance of its quasi-legislative and quasi-judicial functions. Far from violating the separation of powers, this embodies it: the legislative branch defines the office, the executive nominates qualified candidates, and the Senate confirms or rejects based on fitness for the defined role.

Jason Spitalnick is a partner at Snell & Wilmer and previously served as counsel in the Enforcement Division at the Securities and Exchange Commission. The opinions expressed here do not represent the official positions of Snell & Wilmer or the Securities and Exchange Commission.