Did the Supreme Court Just Declare That a Bunch of Agencies Are Unconstitutional?

Earlier today, I wrote a post about the Supreme Court's ruling this morning that the way the Public Company Accounting Oversight Board was set up under the 2002 Sarbanes-Oxley Act violates the Constitution. Members of the board get two layers of protection: They can only be removed by the Securities and Exchange Commission for cause, and the SEC's members can only be removed by the president for cause. The court's majority ruled that at least in the case of the board, that's one layer of protection too many.

In a dissenting opinion, Justice Stephen Breyer raises an interesting issue: What about the dozens of independent federal agencies who are headed by officials who have some degree of statutory protection from arbitrary removal? If they are, in turn, administered on a day-to-day basis by executives who also get protection from removal under civil service laws, doesn't that violate the two-layers principle? Here's how Breyer put it:

I ... see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court's holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only "for cause." I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves are removable only "for cause." I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency's executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board.

This list, Breyer writes, is based only on career members of the Senior Executive Service. Other groups of career federal officials in protected positions, such as administrative law judges, might also be included -- as could, theoretically, military officers. (The precise definition of who might qualify as the type of official who could fall under the court's ruling depends in part on the murky definition of just who is an "inferior officer" under the Constitution.)

The majority opinion, delivered by Chief Justice John Roberts, dismisses Breyer's concerns, saying the court's ruling is limited to the Public Company Accounting Oversight Board:

We do not decide the status of other government employees....Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.