Friday, October 30, 2009

The Constitutionality of the Pay Czar?

Professor (and former judge) Michael McConnell makes the case that the Pay Czar Kenneth Feinberg is an unconstitutional officer because he hasn't been appointed by the Senate. Thus, Feinberg's actions to slash compensation and several very large financial services companies is likewise unconstitutional--and will probably be challenged.
Lost in the arguments over economics and political theory, however, is a more basic question: Was this action constitutional?

Mr. Feinberg's ukase is the most prominent example (and not just by the Obama administration) of the exercise of power by an individual unilaterally appointed by the executive branch without Senate confirmation—and thus outside the ordinary channels of Congressional oversight. Earlier this month, the Senate Subcommittee on the Constitution conducted hearings into the constitutional basis for this practice, which many see as an end-run around checks and balances. The Obama administration declined Sen. Russ Feingold's (D., Wisc.) invitation to send a witness to the hearing to explain the constitutional basis for its various "czars."

So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?
And therein lies the question.

Look, I have no doubt that the President is within his rights to name as many advisors as the Congress will appropriate money for. But Now these czars are exercising significant powers with little or no oversight from Congress and on dubious legal and constitutional grounds. The Obama Administration is hardly the first to do this. But that is kind of like the argument you mother used to make: "If your friend Johnny jumped off a bridge would you follow him."

My fraternity has a saying, "Merely because a practice is prevalent may be the poorest reason for continuing it.." I think the end of the line for czars is coming--and soon.

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