An unconstitutional ruler: Feinberg

An interesting POV from a Stanford Law Professor Michael McConnell on the constitutionality of Keith Feinberg, the pay czar’s appointment: (emphasis mine)

The Appointments clause of the Constitution, Article II, section 2, provides that all “Officers of the United States” must be appointed by the president “by and with the Advice and Consent of the Senate.” This means subject to confirmation, except that “the Congress may by Law vest the Appointment” of “inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP’s compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an “officer” properly appointed “by and with the advice and consent of the Senate.”

If this is so, it tells us then that all this ruling on executive pay is similarly unconstitutional.  Sure, the Senate/Treasury could move to make this constitutional but for now, does anyone care that this isn’t?

An afterthought: Another product of the vilification of Wall Street?

Source: WSJ

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