Michael McConnell v. Martin Flaherty on Whether the Pay Czar’s Appointment Violates the Appointments Clause

An online debate at the Federalist Society site — a fascinating subject, and two first-rate debaters. Check it out; here’s the summary (paragraph breaks added):

Under the statute authorizing the Troubled Assets Relief Program, Congress authorized the Secretary of the Treasury to “require each TARP recipient to meet appropriate standards for executive compensation.” By emergency rule promulgated without notice and comment, Secretary Geithner created the position of “Special Master for Compensation” or Pay Czar, and named Kenneth Feinberg to this position. In late October, Mr. Feinberg cut compensation for executives at seven large financial firms.

In an op-ed in the Wall Street Journal, Michael McConnell, the Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center, argues that Mr. Feinberg’s actions are unconstitutional because powers of the type entrusted to Mr. Feinberg may only be exercised by an officer of the United States, appointed in a manner consistent with the requirements of Article II, section 2, clause 2 of the Constitution. This provision stipulates that all “Officers of the United States” shall be appointed by the President “by and with the Advice and Consent of the Senate,” with the exception that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

This forum will discuss the arguments put forth in Professor McConnell’s op-ed regarding the Pay Czar and the Appointments Clause. We have excerpted the key paragraphs of the ep-ed in the first post below.