[JURIST] A three-judge panel of the US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] in a 2-1 decision Friday that provisions in the Sarbanes-Oxley Act of 2002 [PDF text] establishing the Public Company Accounting Oversight Board (PCAOB) [official website] are constitutional. In 2006, the Free Enterprise Fund, a non-profit public interest organization promoting economic growth, lower taxes, and limited government, and a Nevada accounting firm, Beckstead and Watts, LLP [corporate website], challenged [JURIST report] certain portions of the legislation alleging that it violated separation of powers doctrine because it did not give the President sufficient control over the agency. The Court majority wrote:

In appellants’ view this statutory scheme vests Board members “with far reaching executive power while completely stripping the President of the authority to appoint or remove those members or otherwise supervise or control their exercise of that power.” Appellants’ Br. at 1. But their facial challenge ignores the entirety of the statutory scheme and runs afoul of the Supreme Court’s instruction regarding the nature of the President’s constitutional relationship with independent administrative agencies. Supreme Court precedent as we have it does not support appellants’ singular focus on removal powers as the be-all and end-all of Executive authority, but rather compels a more nuanced approach that examines the myriad means of Executive control.

We hold, first, that the Act does not encroach upon the Appointment power because, in view of the Commission’s comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission’s power to remove Board members and the President’s power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates. Accordingly, we affirm the grant of summary judgment to the Board and the United States.

[JURIST] The US Immigration and Customs Enforcement (ICE) [official website] Friday abandoned a pilot program [fact sheet; press release] it created to allow certain illegal immigrants to coordinate their removal from the US with ICE without the risk of home raids, arrest or detention. The Scheduled Departure Program was a pilot program [JURIST report] started on August 5 that ran through August 22 in five major cities [program overview], designed for illegal immigrants without criminal records who had ignored official removal orders. The program was considered by many to be a failure after only eight people turned themselves in. It was estimated that 457,000 were eligible for the program, including 30,000 located in the test cities of Charlotte, Chicago, Santa Ana, Phoenix, and San Diego. Jim Hayes [official profile], acting director of ICE's Office of Detention and Removal (DRO) [ICE Operations sheet], did not express disappointment in the program, but told [AP report] the Associated Press Thursday, "Quite frankly, I think this proves the only method that works is enforcement." Immigration rights groups such as Illinois Coalition for Immigrant and Refugee Rights (ICIRR) [advocacy website] and the Coalition for Humane Immigrant Rights of Los Angeles [advocacy website] had expressed doubt about the program from the start, saying there was little incentive for immigrants to turn themselves in. The San Antonio Express has more.

ICE maintains a number of additional initiatives [fact sheet] to combat illegal immigration, including an increased number of raids. In May, 270 illegal immigrants arrested during an ICE-led raid at an Agriprocessors Inc. [corporate website] meatpacking plant in Iowa were each sentenced to five months in prison [JURIST report] and 27 more received probation after pleading guilty to the use of false immigration documents. ICE also carried out a raid in California the same month targeting 495 people who had ignored deportation orders, resulting in the arrest of more than 900 illegal immigrants [ICE press release].

[JURIST] A judge for the US District Court for the Central District of California [official website] found two US Marines in contempt of court Friday after the two declined to testify against their former squad leader in a trial over the killing of Iraqi detainees during the Multinational Force-Iraq's November 2004 offensive [GlobalSecurity backgrounder] in Fallujah [archived USMC timeline; JURIST news archive]. Judge Stephen Larson held Sgt. Ryan G. Weemer [JURIST news archive] and Sgt. Jermaine Nelson in contempt after the two invoked their Fifth Amendment [text] right against self-incrimination when asked to testify against former Marine Sgt. Jose Nazario [JURIST news archive] in his civil trial [JURIST report]. Assistant US Attorney Jerry Behnke asked Larson to sentence the men to six months in jail in order to compel their testimony, but the judge refused even though he had previously sentenced [JURIST report] the men to jail for refusing to testify to a grand jury about the same events. A hearing is set for September 29 on the contempt charges. AP has more. The Los Angeles Times has local coverage.

In July 2007, the Naval Criminal Investigation Service (NCIS) [official website] announced investigations of at least 10 Marines [JURIST report] after Weemer admitted in a job interview with the US Secret Service that he had seen indiscriminate killings in Fallujah. Both Weemer and Nelson face court-martial on charges of murder and dereliction of duty [USMC charge sheet] as active members of the military in connection with the same incident as Nazario. They were indicted in March [press release; JURIST report] and December [JURIST report] respectively.

[JURIST] Judges for the US Court of Appeals for the Seventh Circuit [official website] on Friday ruled [opinion, PDF] that the use of specific documents from an illegal immigrant's alien-registration file during the immigrant's criminal trial is constitutional. The issue came before the court when the defendant, Franklin Burgos, appealed his conviction on one count of illegal reentry into the US [8 USC 1326(b)(2) text] subsequent to a conviction for commission of an aggravated felony, arguing that the US government's use of his deportation warrant and certificate of nonexistence of record (CNR) violated the Sixth Amendment's Confrontation Clause [LII backgrounder; amendment text]. In holding that there was no violation of the Confrontation Clause because the records did not constitute testimony against the defendant, the court wrote:

These documents have many attributes in common with business records. A warrant of deportation records the movement of a deported alien; the signing witness attests to the alien’s departure from the country. The warrant’s primary purpose is to memorialize the deportation, not to prove facts in a potential future criminal prosecution. ...

[B]ecause the database underlying the CNR is not maintained for the primary purpose of proving facts in criminal prosecutions, the CNR itself, attesting to the absence of a record within that database, is a nontestimonial business record.

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday ruled [opinion, PDF] that the federal Truth in Lending Act (TILA) [text] does not provide for statutory relief for a lender's failure to conspicuously disclose certain information about a loan to the borrower and to give the borrower certain information before offering the loan. The issue came before the court as an appeal from an earlier decision [text, PDF] by the Ninth Circuit Bankruptcy Appellate Panel [official website], which held that a debtor who had borrowed money through a subprime payday loan [FDIC backgrounder] could not later recover for the lender's failure to abide by conspicuous-disclosure [15 USC s. 1632(a) text] and information-sharing [15 USC 1638(b)(1) text] requirements. In affirming that decision, judges for the Court of Appeals wrote:

[A] consumer may not recover statutory damages under § 1640(a) for violations of § 1638(b)(1) and its corresponding regulations, 12 C.F.R § 226.17(b). As the Trustee has not enforced any liability under § 1640(a)(2), she is not entitled to attorneys’ fees and costs pursuant to § 1640(a)(3). ...

A violation of § 1632(a) cannot form the basis for statutory damages, as it does not fall within the closed list of § 1638(a) subsections, violations of which can support an award of statutory damages.