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In 2002, Congress was in a hurry and in a fix. Awash in popular anger over Enron and other corporate scandals, lawmakers were working frenetically on what would become the Sarbanes-Oxley corporate accountability law. Under pressure to adopt bold reforms at top speed, Congress created a new federal agency unlike any other.

A little over three years later, in fall 2005, a handful of free-market activists and litigators met in a windowless 11th-floor conference room at the American Enterprise Institute in Washington. They included two lawyers with the Competitive Enterprise Institute, a market-oriented think tank; representatives of the Free Enterprise Fund, an activist group; former U.S. Solicitor General (and Clinton-era Special Prosecutor) Kenneth Starr, now dean of Pepperdine University's law school; and Michael Greve, the chairman of the CEI and an AEI scholar, who brought the group together. They shared a conviction that Congress's 2002 creation was a constitutional monster.

By the time the meeting finished, the participants had decided to join forces and file suit. In February 2006, they asked the courts to strike down the Public Company Accounting Oversight Board -- ubiquitously nicknamed "Peekaboo" -- as unconstitutional.

A federal District Court slapped down the case on summary judgment. The D.C. Circuit Court of Appeals agreed, 2-to-1. No one paid much attention. But the yawning stopped on May 18, when the Supreme Court announced it will hear the case.

The high court is unpredictable, especially with a new justice coming aboard next term (probably Sonia Sotomayor, President Obama's nominee). But we know that at least four justices voted to review the case. We can guess that among them were most of the Court's conservatives, who take a dim view of constitutional improvisation. We can also guess that if those four votes find a fifth, the Court may agree with Judge Brett Kavanaugh, the dissenting judge on appeal, who called Peekaboo an "unprecedented extra-constitutional stew."

What's it all about? And what should the Court do?

The Public Company Accounting Oversight Board sets and enforces standards for the accountants who audit corporations' books. Congress could have given this task to the Securities and Exchange Commission. Or it could have chartered a private overseer, on the model of the New York Stock Exchange. Or it could have set up an entirely new regulatory agency, one similar to the SEC but separate from it.

Will the Supreme Court agree with Judge Brett Kavanaugh, who called Peekaboo an "unprecedented extra-constitutional stew"?

Peekaboo, however, breaks new ground. Unlike the New York Stock Exchange, it is a creation of Congress and wields powers characteristic of a government agency. Unlike the SEC, it is nominally a private, nonprofit corporation. Moreover, its five board members are not appointed by the president and cannot be removed by him. Rather, the SEC appoints them. Only the SEC can remove them, and even then only for cause (that is, for misconduct rather than, say, over a policy disagreement).

So the board is something new: an independent regulatory body nested within, and directly accountable to, another independent regulatory body. "Never before in American history," Kavanaugh wrote, "has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency."

Exactly why Congress chose to create such a jackalope is not completely clear. Legislators seem to have wanted Peekaboo to have as much independence from politics as the New York Stock Exchange does, but to have as much clout as the SEC wields.

In a matter as complicated and sensitive as auditing corporate books, there is much to be said for insulation from political pressure. But it's worth mentioning that the Founders had a different idea.

Among James Madison's strokes of counterintuitive brilliance, the most counterintuitive and brilliant was that the only reliable antidote to the abuse of political power is politics itself. If you want to keep politicians out of mischief, tying their hands or placing them under nonpolitical supervision will never work, at least not for long. Instead, pit them against each other. Force them to bid competitively for popular support. "Ambition must be made to counteract ambition," he famously wrote in Federalist 51, his argument for checks and balances. Too much insulation from politics, in Madison's view, is more dangerous than too little.

To which, Alexander Hamilton, explaining in Federalist 76 why the power to appoint should be reserved to the president, added: "The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation." The government's coercive power to enforce laws, Hamilton was saying, is unaccountable when dispersed. It should be wielded not by a group but by an individual, the president, who answers to the people. Any other scheme invites the "multitude of new offices" and "swarms of officers" that the Declaration of Independence complains about so bitterly.

In the 1930s, the Supreme Court took a step away from the original scheme by blessing independent regulatory agencies whose policy makers were appointed by the president but could not be removed by him, except for cause. Even so, the president retains some control. He appoints SEC commissioners, for instance, and he designates the SEC's chairman at will. The accounting oversight board, by contrast, is a second step removed, accountable to the SEC, not to the White House.

What's next -- an Indecency Enforcement Board appointed by and removable only for cause by the Federal Communications Commission?

Peekaboo thinks this is accountability enough. The agency argues that it is "a wholly owned subsidiary of the SEC," as Bill Gradison, a board member (and former member of Congress), said in a recent interview. "There's nothing of consequence the PCAOB can do that doesn't require advance approval by the SEC or can't be appealed to the SEC. And that's the actual way we operate around here."

The SEC approves Peekaboo's budget. The commission's signoff is necessary before any rule takes effect. The SEC can overturn any agency disciplinary action. If it wanted to, it could revoke the accounting board's powers altogether. The SEC's role is hardly pro forma, Gradison says. "We don't just send something over there and they approve it. Every item that ultimately they have approved is the result of a long process."

Peekaboo thus argues that its board members are what the Constitution calls "inferior officers," meaning that they are less like agency heads ("principal officers") and more like agency staff. The District and Appeals courts agreed. Under long-standing constitutional doctrine, hirelings who take orders from agency heads don't need to be appointed by the president or confirmed by the Senate.

Hogwash, retort the challengers. "These people are running their own agency," says Michael Carvin, a lawyer with Jones Day who is representing the plaintiffs. "The notion that they're not principal officers is just silly." How can Peekaboo's board members be mere servants of the SEC when, absent a showing of wrongdoing or incompetence, the SEC can't fire them, even for point-blank disobedience?

And if Peekaboo is allowed to stand, the challengers say, what next? Imagine the possibilities: an Energy Price Enforcement Board appointed by and removable only for cause by the Federal Energy Regulatory Commission, or an Indecency Enforcement Board appointed by and removable only for cause by the Federal Communications Commission. "All are permissible under the PCAOB's theory of the case," Kavanaugh wrote in his dissent. "But in such a system, where is the president?" And what would prevent Congress from setting up third-order regulators who report to other regulators who report to still other regulators?

The Supreme Court is unlikely to put Peekaboo and its almost 500 employees out of business. What it might do is force Congress to rewrite the law -- for instance, by making the board subject to White House appointment and Senate confirmation. If so, only a few accountants and law professors would notice the difference.

Still, says Donna Nagy, a law professor at Indiana University (Bloomington), "I think it's a tremendously important case, and I think that's part of the reason the Supreme Court granted certiorari. Going forward, the question is whether Congress can and should be creating these kinds of hybrid agencies that are supervised by independent regulatory agencies."

My opinion is no better than yours, but here it is: In creating a regulator accountable only to another regulator, Congress never showed a need to abandon Mr. Madison's constitutional scheme. Nor has evidence of any such need arisen. Indeed, no one disputes that Peekaboo could perform its duties effectively with presidential appointees on its board, just as the SEC and all the other independent regulatory agencies do.

The principle of keeping power accountable to elected officials sits at the very heart of the Constitution. It is too important to be weakened without a better justification than the government, in defending Peekaboo, has provided.