Former judge Michael McConnell writes in today's WSJ regarding "Pay Czar" Kenneth Feinberg's fixing of compensation for executives at large financial firms:
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. * * *
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." * * *
There is no doubt that Mr. Feinberg is an "officer" of the United States. * * * [His] orders setting pay levels * * * have the force of law and are surely an exercise of "significant authority" pursuant to an Act of Congress. * * * That means his office is subject to the requirements of the Appointments Clause. * * *
[P]rovisions governing appointments * * * embody the Founders' conviction that all power under U.S. laws must be exercised by officers with constitutional authority.
The Founders * * * required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. * * *
The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. * * * Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.
Earlier this month I expressed similar sentiments about Geithner's pay czar:
Perhaps the worst aspect of this whole thing is the Obama administration's attempt to avoid political accountability by creating a "czar." Process is supposed to matter in a democratic system. This is, in fact, what's at stake in the PCAOB case. I wonder if the Supreme Court will have in mind the current administration's approach to governance when considering the constitutionality of a past effort to create an agency with executive power but not executive accountability.
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