Mark Field:My comment had to do with the WSJ editorial page. It leans right; I assume there’s no dispute about this.

Wait – so because it leans right, then the piece written in that page lacks credibility. But if it were written in another op/ed page… such as the L.A. or NY Times (which I think we can all agree leans left), it would be okay?

Or, if your argument is only that it is an op/ed page at all, then the fact that you mention the WSJ is supurfulous to your argument.

Given that if there *is* any legal problem it is absolutely and utterly trivial to restructure the position to do exactly this, I think this is a nonissue. Yes, probably the Treasury Secretary should be signing the forms. What-ever.

pireader: In many cases, Congress creates an agency or office, and its head, explicitly by statute. But there’s a long history of presidents and cabinet secretaries creating offices, bureaus, etc. within the executive departments to perform functions authorized by Congress; and then appointing heads to those offices.
Apparently Judge McConnell is denying that tradition’s constiututionality … in which case, I wish he’d explained why he thinks that.
Or have I mis-read him?

Perhaps you could give an example of the tradition you refer to. What McConnell is saying is that Feinberg is exercising “significant authority” within the meaning of Buckley v. Valeo and therefore must be appointed in accordance with the Appointments Clause. Since Congress has not “by law” authorized Feinberg to be appointed in any other manner, that Clause requires that he be appointed with advice and consent. As far as I can see, McConnell has to be right unless, for some reason, Feinberg is not actually an officer within the meaning of the Appointments Clause.

The possible grounds for arguing that Feinberg is not an officer would appear to be (1) that he is merely an advisor and is not actually exercising authority, just making recommendations or (2) that his functions are so temporary and/or intermittant as to exclude him from the definition of an officer. These don’t appear, at first blush, to be particularly strong arguments, but I cannot see any other way of escaping McConnell’s logic.

Other than putting your fingers in your ears and saying loudly “I can’t hear anything written in the WSJ,” of course. :)

If they didn’t want to suffer this indignity, they a) shouldn’t have accepted TARP funding in the first place, or b) should have paid it back like Goldman Sachs did. And the executives won’t be out at Halloween begging for dollars:

The executives affected by Mr. Feinberg’s ruling aren’t exactly going broke either. For instance, when you add up both the cash and stock components, 14 of Citigroup’s highest-paid executives still stand to make $5 million to $9 million each. And if the company eventually recovers, pays back the bailout money, and sees its stock rise, Mr. Feinberg’s decision to put so much of compensation into stock is going to create huge windfalls for them.

Also, it’s worth noting that certain contentious pay issues were either ignored or shoved under the rug. Ken Lewis, the soon-to-be-retired chief executive of Bank of America, has declined to take a salary in 2009, at Mr. Feinberg’s urging. But he is still going to get around $70 million in retirement pay — which Mr. Feinberg could do nothing about. And so Mr. Lewis will soon join the ranks of other top Wall Street executives who walked away with millions after doing a miserable job. That’s the kind of pay practice that makes people justifiably angry.

And the American International Group is contractually obliged to make bonus payments of nearly $200 million in March 2010. The company has promised to try to reduce that amount by 30 percent. But once again, there is nothing Mr. Feinberg can do because those bonuses were already written into contracts …..

Of course the real pay czar should be company shareholders–but since most shares are controlled by other institutions (pension and mutual funds and insurance companies, for example) with their own highly paid executives, they see nothing wrong with such pay packages.

first history: The limits apply to the 25 top earners of the seven companies receiving TARP funds that haven’t returned the funds.

Oh, so they’re only limiting the pay of top earners, eh? :-)

My comment had to do with the WSJ editorial page. It leans right; I assume there’s no dispute about this.

I not only dispute that point, but would wager good money that a number of those who frequent this site (including, perhaps, one or two of the Conspirators) believe the Wall Street Journal to be a commie-infested, left-leaning affront to our Nation, Christian values and the true conservative cause.

I believe a recent poll indicated that roughly 15 percent of Americans describe Fox as “mostly liberal” and that approximately 10 percent describe MSNBC as “mostly conservative.” I’m not sure I want to know too much about the perspective or thought process that could put a person in either camp, but one place to study the first group would be this site.

Ryan Waxx: I don’t find it a bit odd. Remember — news that is inconvenient to the left is not real news. Anyone caught disseminating news that is not real news is to be silenced if possible… ignored if silencing is not possible.This is a pattern, and not a particularly well-hidden one.

As opposed to the right, who would never dismiss an article off hand based on where it was published?

Get the terminology right, folks!

The WSJ editorial page (indeed, any editorial page) is not the place where people make serious legal arguments. It’s a place where they express opinions.

What an odd point of view. It implies that an editorial cannot contain serious legal points, because it is an editorial?

I suspect this is more of a case of dislike of the WSJ editorial page because it is one of the few conservative editorial pages out there.

You are correct. I apologize. I blame everyone (especially the quoting software) except myself. You know, like a good liberal. :)

Your dispute is with Twirlip.
The remark you’ve quoted is from him (at 4:25 pm), not from me.

pireader: not to mention that it’s an Op-Ed published in the WSJ.
Obviously, not a “legitimate news source” like the NYT.

But…. but….. Clinton! *sigh*

I love the WSJ. I think that their news and business reporters are some of the best in the business. Their op-ed page, on the other hand, isn’t suitable for wrapping a dead fish.

I agree with Mark Field; whatever the merits of McConnell’s arguments (and I would like to see him flesh it out in a real, scholarly settting if he’s serious), I find the forum and the timing do quite a bit to detract from his credibility.

The statutes authorize Secretary Geithner or his delegate to issue these pay mandates. And they generally authorize the secretary to delegate his authority in an area to any Treasury officer or employee. Which he has, in this area, to Mr Feinberg.

Congress might have stipulated that the secretary can only delegate that particular authority to a Senate-confirmed presidential appointee. But it didn’t.

So Judge McConnell’s issue seems to be that Congress authorized the TARP program but never explicitly created Mr. Feinberg’s office. And he apparently believes that Congress must explicitly create an office before Mr Geither can fill it.

In many cases, Congress creates an agency or office, and its head, explicitly by statute. But there’s a long history of presidents and cabinet secretaries creating offices, bureaus, etc. within the executive departments to perform functions authorized by Congress; and then appointing heads to those offices.

Apparently Judge McConnell is denying that tradition’s constiututionality … in which case, I wish he’d explained why he thinks that.

Or have I mis-read him?

wolfefan: I’ve admired McConnell for years because of his very public argument that the SCOTUS blew it in Bush v. Gore. I suspect that he was probably off of GW Bush’s short list before GW Bush was inaugurated,

Um, George W. Bush named Michael McConnell to the 10th Circuit. If he was on the President’s sh*t list, he would never have become an appellate judge in the first place.

There is nothing “conservative” about the arguments being advanced here.

My comment had to do with the WSJ editorial page. It leans right; I assume there’s no dispute about this.

As for the specific case of McConnell’s argument, on its face, you’re right — the argument is neutral as between Rs and Ds. The fact that it’s being made now (and in the context of a number of similar conservative arguments over the last few months), despite the fact that such “czars” have existed for at least 30 years, is kind of a hint.

JKB:
Any action by a federal employee or constitutional officer must be authorized by the Constitution or enacted law.The private sector can act in any way not prohibited by law but the government can only act as authorized.Authorizing and appropriation laws are how Congress delegates its power to the Departments for them to take some action. In this case, it appears the Pay Czar should not be issuing pay cap regulation under his own signature but rather the pay cap rule should be signed by the legislatively authorized official, the Treasury Secretary.What the op-ed is stating that either this must happen or the Pay Czar must be an officer of the United States and is subject to confirmation in order to issue the rule directly. The confirmation doesn’t have to be a big deal.Military officers are confirmed all the time appearing before the Senate as nothing more than a name on a list. So are many minor subordinate officer positions in the Departments.Of course, at anytime the Senate, at their discretion, can exercise more investigative procedures before confirming the officer.

Just what legal justification is there for the government to abrogate presumably legal binding contracts?

Oh, wait…they already do that – the whole bailout.

Jonathan H. Adler: find it odd (and somewhat disappointing) that so many folks are so quick to dismiss his argument because of where it was published.

I don’t find it a bit odd. Remember – news that is inconvenient to the left is not real news. Anyone caught disseminating news that is not real news is to be silenced if possible… ignored if silencing is not possible.

This is a pattern, and not a particularly well-hidden one.

Don’t the limits apply to tens of thousands of individuals?

The limits apply to the 25 top earners of the seven companies receiving TARP funds that haven’t returned the funds.

Remember the Golden Rule: He who has the gold makes the rules.

If a mere federal district court clerk has enough power to be an officer of the United States subject to the Appointments Clause — as the courts long ago held — how on Earth can the pay czar not be?

This is not a partisan or ideological issue. Liberal justices like Blackmun took the Appointments Clause as seriously as conservative ones like Rehnquist.

1) Why doesn’t Geithner just adopt the recommendations of Feinberg and issue them under his signature? That would eliminate the constitutional issue since it would reduce Feinberg’s role to that of advisor, rather than executive officer. My guess is that the Administration doesn’t want to do that because Geithner is a political figure while Feinberg has a reputation as a non-partisan, technical type, and they want to piggy back on his reputation.

2) Why doesn’t the Administration submit Feinberg to the Senate for confirmation (changing the statute creating the post if necessary)? My guess is that although Feinberg would certainly be confirmed, the Administration fears a confirmation hearing would become a public hearing on the merits of federal regulation of executive compensation, and they don’t want a public hearing on that.

The WSJ editorial page (indeed, any editorial page) is not the place where people make serious legal arguments. It’s a place where they express opinions. In the particular case of the WSJ, it’s a place where they express conservative opinions (your second paragraph to the contrary notwithstanding).

There is nothing “conservative” about the arguments being advanced here. Unless your notion of “conservative” is “anything which obstructs the power of the Democrat in office”, regardless of what you would think of the same actions with a Repubican in office. Which does seem to be the case.

Thanks for that suggestion as to how the Obama administration can try to skirt its legal difficulties. Clearly government ethics is a burning concern for you.

I am busy with work right now and don’t have time to do a detailed post, but my initial reaction is that there is a potential Appointments Clause problem. Based on my recollection of the case law, though, my sense is that courts go out of their way to to minimize the effect of a violation of the Appointments Clause. And fixing the problem may not be very difficult.

Called together by Sen. Russell D. Feingold (D-Wis.), who had written to Obama asking for more information about the czars, the panel concluded that Obama had the right to appoint independent advisors.

But the people in question are not “advising”. Setting the pay scales for individuals employed in the private sector is not “advising”. Obama’s “czars” are wielding executive power, indeed power not even granted to the executive at all, or even to the government.

not to mention that it’s an Op-Ed published in the WSJ.

Obviously, not a “legitimate news source” like the NYT.

mls: If that is the argument, it illustrates the problem with the idea of “czars” who just give advice and recommendations.

Absolutely, but what about the White House Chief of Staff? He probably has more power than most (all?) members of the cabinet.

If that is the argument, it illustrates the problem with the idea of “czars” who just give advice and recommendations.

UVA law professor John Harrison says of the “czars” that their “practical authority . . . is not legal authority, and as long as the distinction is rigorously maintained there will be no legal problem.” Therefore, the question is whether Feinberg’s advice has been reviewed and approved by Geithner, IMHO.

Ultimately, SCOTUS will have to tell us what they want to allow to go on, which of course, depends partially on the efficiency of these czars and whether or not SCOTUS approves of their actions. So we’ll see…

I find it odd (and somewhat disappointing) that so many folks are so quick to dismiss his argument because of where it was published.

This sounds nice in theory, but I don’t think you really believe it in real life. If I showed up to court in a clown costume, I can’t really expect the judge to take my argument seriously.

The WSJ editorial page (indeed, any editorial page) is not the place where people make serious legal arguments. It’s a place where they express opinions. In the particular case of the WSJ, it’s a place where they express conservative opinions (your second paragraph to the contrary notwithstanding). Thus, to publish there a “legal” argument is, as we all understand, to criticize the Administration rather than to offer serious legal analysis.

Mark Field doesn’t like the WSJ editorial page because it conflicts with his world view.

It’s more accurate to say that I don’t respect the WSJ editorial page. It’s one of the greatest purveyors of falsehoods in the US.

I’m perfectly happy to read conservative opinions (I hang out here, after all). The WSJ is entitled to its opinions. It’s not entitled to its own facts.

Sorry Mark, such ad hominems only weaken your own credibility.

The WSJ is genus homo?