"The Pay Czar Is Unconstitutional"


Writing in today's Wall Street Journal, Stanford law professor and former federal appeals court judge Michael W. McConnell argues that the position of "pay czar" is unconstitutional:

Mr. [Kenneth] 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 Founders understood that the president and heads of the executive departments could not single-handedly carry out the law, so they required Senate confirmation as what the Federalist Papers call "an excellent check" on abuse or favoritism by the president. Yes, there are some offices so inferior that this check may be eliminated—but it is for Congress to judge which ones these may be. Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

The power to set compensation at large American businesses is especially subject to potential abuse, favoritism, arbitrariness, or political manipulation. It is no reflection on Kenneth Feinberg, who has a sterling reputation and who appears to have approached these sensitive duties with a spirit of commendable integrity, to say that the checks and balances of the Constitution should be scrupulously observed. They were not. Because he is not a properly appointed officer of the United States, Mr. Feinberg's executive compensation decisions were unconstitutional.

Read the whole thing here.

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  1. The Constitution is racist.

  2. “The Pay Czar Is Unconstitutional”

    That’s never stopped ’em before.

    1. Yeah, the pay czar is Unconstitutional. Of course the justification for having a pay czar – that we bailed out the too big to fail with taxpayer money – was also Unconstitional too. So, basically, you can be Unconstitional to the extent it benefits the right people, but beyond that it’s a horror. None of this crap should have happened. Those Wall Street and big bank execs who produced this nightmare (in collusion with the feds)should be in the position I will be in in 5 months -wearing out their shoe leather trying to find somebody to give them a job so that they can make a living. Oh, I forgot, when you make many millions of dollars every year and you are not completely stupid, you don’t actually have to worry about making a living.

  3. The Constitution? What’s that?

    I heard a clip on FOX News (sorry I can’t source it) of Judge Napolitano asking a South Carolina congressman where in the Constitution was the provision that allowed them to be involved in health care. The response, all too serious, was “Most of what we do isn’t in the Constitution”. Unfortunately, in Washington DC (on both sides of the political aisle), the Constitution is seen as little more than a joke.

    1. Then let’s get the Institute for Justice to file constitutional challenge after constitutional challenge to make it obvious (even if we lose) to the citizens that the Constitution is just something that has a National Center in Philadelphia where Freedom medals are given out to all manner of anti-liberty pols, bureaucrats, celebs, etc. from all over the world.

  4. The Constitution is merely a fucking piece of paper, which makes it natural that politicians would wipe their asses with it.

    Seriously, though, the Constitution doesn’t mean shit. If everyone just ignores things in the Constitution (especially those in power), then those things don’t mean Jack Shit. Don’t ever wonder why I’m an anarcho-libertarian.

    1. anarcho-libertarian

      That has a nice ring to it.

  5. Can we get the whole “defend the Constitution” thing our of the oaths of office now? It’s not like we have to prove that politicians are consummate liars.

  6. Say, Epi. You seem to be some sort of anarcho-libertarian. How come?

  7. (sob) I learned it from watching you!

    (runs out of room)

  8. Constitution, schmonstitution.

    1. Obama is Jewish?

      1. See? I TOLD you he wasn’t an American!

      2. I like to reach out to all my Yiddisher friends. I don’t want them to think I’m a schlamiel.

  9. My first response to this post….well, duh. Even were the appointment done correctly, government setting compensation of a non-government business is clearly not listed as a power of the executive branch (or any branch for that matter). I’m really starting to wonder why I bothered to purchase and read the books on the constitution, and our founding principles. It’s all a waste anyway, as clearly none of it applies.

    1. Ripe for another liberal helping of commerce clause.

  10. “anarcho-libertarian” doesn’t make any sense.

  11. I’d say the horse is out of the barn on this one. How long have we had various “Czars?” The first one I remember was the drug czar under Bush I. Methinks the Russian empire terminology is apt.

    1. We need someone to coordinate our diplomatic relations with Russia. We can call him/her our Russian Czar.

    2. Is it as apt as the Soviet communism terminology?

    3. I’d say the horse is out of the barn on this one. How long have we had various “Czars?” The first one I remember was the drug czar under Bush I. Methinks the Russian empire terminology is apt.

      Czars have been around for a long time. Herbert Hoover was the “Food Czar” in the Wilson administration, during WWI.

  12. The Constitution is NOT open for interpretation!

    Black people ARE, in fact, 3/5ths of a person! I’ve seen it!

    1. You might want to refer to an updated copy, ‘tardo kitty.

    2. Oh really? Where does it say “black people” in the Constitution? It references those in servitude, but doesn’t say anything about their skin color.

    3. Don’t feed the mongoloid. Please.

    4. Woah there, sonny. The original constitution is not the current constitution. There is a reason behind amendments.

      1. Well, then – it’s a good thing nothing has changed since then and that the Constitution covers every possible aspect of American life, isn’t it?

        1. I don’t think it is supposed to ‘cover every possible aspect of American life’.

          1. *gasp* —– you mean…you mean we have to INTERPRET the Constitution?!?!?!


            1. I have to say, I’m enjoying your posts, simple, and wrong as they are. Stating that the constitution isn’t meant to cover every aspect of American life, in no way means that you have to interpret it. I’m not saying you don’t, I’m just saying his statement doesn’t lead to your conclusion. However, you seem to be implying that we should see the constitution as a living document, meant to be molded to the times, and whims of the electorate. That, is where the disagreement lies. I, and others who actually value the constitution, want it to be interpreted based on it’s actual meaning, keeping in mind the relevant texts, and evident intent. Those on the left want to submit it to their ideals, or ignore it, whichever is more expedient.

              1. So, like I said – you guys are fundamentalists on the markets and on the Constitution: why not call yourselves conservatives?

                1. I am a conservative.

                2. Were you always this stupid, or did you get a lobotomy somewhere along the way?

              2. What “actual meaning”? You mean your preferred interpretation, that’s all. The constitution does contain ambiguous and vague language. I happen to think that is purposeful–it gives it some versatility to handle a changing environment over time.

                1. What’s the point of a constitution if we can just say that the meaning changed arbitrarily from the original intention?


                2. No, Tony, I didn’t mean my preferred interpretation, as much as you’d like that. I mean the actual meaning as close as we can determine based on studying the text, the language, documentation of discussions surrounding the writing, and other texts by the same individuals involved. Stating that is’ just my preferred interpretation completely dismisses the idea that you can draw out the meaning through context.

                  1. None of those external sources have the force of law, and even with the context available there is still room for interpretation.

                    What’s clearly not the case is that those who claim to be originalists do not actually have a monopoly on the correct interpretation. Especially not Justice “the cross is a secular symbol” Scalia.

                    1. Did anyone imply that they had the force of law? I’m not suggesting that we can’t have a rational discussion on it. I’m suggesting that there is an actual meaning, and we should attempt to interpret it correctly.

                      So, Mr. force of law, where is it written that there should be a separation of church and state such that the state must be isolated from religion? The constitution is written such that we need to protect the practice of religion, not eliminate it from the public sphere.

                    2. Okay, that’s what you think the constitution says. That doesn’t make it the obvious, absolutely correct interpretation, which is apparent by the fact that courts have tended to disagree with you.

                      You’re just giving your political opinion an artificial boost of legitimacy by claiming it’s the original, as-written intent, when that is far from obvious.

                    3. Then what is the correct interpretaion and how is it decided that it is actually correct?

                    4. My above is a question for TARD.

          2. It already does. The 9th and 10th Amendments cover pretty much everything by leaving such things to the States or the People.

        2. Since when? And, do you seriously think the constitution should, or was meant to cover every aspect of American life?

          I’m thinking your moniker isn’t sarcastic.

        3. The Constitution is not supposed to cover every aspect of American life. It only covers the powers afforded the government, “aspects of American life” notwithstanding.

    5. The Constitution is NOT open for interpretation!

      Black people ARE, in fact, 3/5ths of a person! I’ve seen it!

      Learn the reasoning for the “3/5’s Compromise”, before you say something stupid.

      Unless of course you think that it would have been a good thing for slave states to have had more representation in government.

  13. Anarcho-capitalist, whatever, TAO. Get anal on someone else; it’s Friday.

    1. I thought every day was Anal-Day with you.

      1. You just wish you have anal day with Episiarch every day.

        1. His Anal-Days with Warty have been unsatisfying, I see.

      2. What would Jack Beeno say?

  14. Obama used to be a constitutional law professor. I’m sure he wouldn’t do this if it weren’t constitutional.


    1. Practice blind faith much?

      1. Yes. Especially their songs “Can’t Find My Way Home” and “Had to Cry Today”.

      2. Sarcasm. Hence the straight face.

        1. Ah.

  15. Thelonious: it may not surprise you that FDR started the trend.

    Anyway, by this point the United States has had way more czars than Russia ever did.

  16. TARD, even Morris trolls better than you do. Try harder next time.

    1. That’s trolling? I thought it was a cry for help.

  17. I still find H&R’s banhammering policy completely mystifying.

  18. Are you saying there’s a difference, JW?

  19. Well, both are pathetic. Besides, TARD can’t be more than 15. He’s probably confused and angry and this is the only way he knows how to reach out.

    1. Now I know what I am getting him for Christmas. A 1950’s era refrigerator to play in.

      1. That’s a good gift. He’ll have place to hide if Iran ever nukes us.

      2. Or Irwin Mainway’s Bag-O-Glass to munch on.

  20. Time for a revolution? The U.S. government is trending more and more to the exact kind centralization F.A. Hayek, Rand et. al. warned us about. The recent overreaching by the federal government into U.S. citizens’ and private firms’ sovereignty seems to be moving forward unchecked, which is frustrating if not infuriating. Please vote libertarian in your upcoming elections. We need the change!

  21. You know, I gave it a chance for several weeks. I really did try to like it. This commenting format sucks harder than Marilyn Chambers.

    1. Marilyn Chambers was a candidate for free porn weekend but she was rejected. We are sticking with Nina Hartley.

      1. Did you guys know that I blog and that I blog porn on that porn blog that I blog on?

        1. You do too? Cool! But I don’t blatantly post links to mine. Just look at my handle.

  22. Nice jorb with the personal attacks, guys! Not so much with the actual refutation of the arguments, but, hey – you’re Rand and Constitution fundies.

    1. Hah, your bothered by being called a troll (er…sorry, mongoloid),and my suggestion that you might actually be a tard? I think I said this to someone yesterday, you must be new here.

      Since you didn’t actually make any rational arguments, there wasn’t much refutation occurring.

      1. No, I’m not at all surprised at the reaction, really.

        You guys are fundamentalists; you just worship Rand and the Constitution instead of and/or in addition to the Bible.

        1. So, you just ad-hom, and then wonder why you get ad-homs in response.

          Fuck along back to KOS now.

          1. So you’re justifying your ad-homs by accusing me of ad-homs, and then you seal it with an ad-hom?

            Gosh, you’re smart.

        2. You stupid fucking cunts are too fucking stupid to have a rational thoughts, you pus-eating worms! That’s why you insult me, faggots!

          1. Please, please, please, please, please, please, please…

            READ A BOOK!

      2. In the proper spirit of engaging with the ‘tardo kitty.

    2. People with TARD in their moniker shouldn’t expect much here.

    3. Typically, one makes arguments before complaining about the fact that no one has attempted to refute them.

      1. aelhues already beat you to that lame comeback. Keep up!

        1. You can tell yourself that his and my point aren’t true, but it doesn’t change reality.

    4. I believe in another thread, you called me “insane” and said that I masturbate in my own feces…

      amongst other things…

  23. can’t say all bad things – apparently he’s a homestar runner fan.

  24. Weren’t the bailouts unconstitutional in the first place?

    Off topic.

    If anyone is planning a trip to the World Series in Philly tomorrow, better drive or bring cab fare. SEPTA is going on strike.

      1. I believe it was just before the RNC convention that they did the same thing – and won. But in case they hadn’t noticed, the Mayor just had to go to Harrisburg to beg so he could raise the sales tax and defer pension contributions. I don’t think the union can rely on City support this time. But, if the City had been properly assessing commercial property values for the past 20 years, they wouldn’t be having this problem.

  25. I still find H&R’s banhammering policy completely mystifying.

    Did I miss something? Did someone get banned?

    1. No one got banned, TAO thinks reason should ban trolls. I see his point, but I kind of glad they don’t.

      1. Me too, they can be entertaining. Though sometimes I wish they’d ban LoneWacko/24aheaddotcom or whatever his post name is.

    2. I haven’t seen SugarFree today. Where is his Battle Buddy?

  26. Jesus people, don’t you realize that appointing new Czars is part of the stimulus process. Personally I am waitting for my appointment to come in the mail any day now.

    1. The administration is waiting for your check to clear.

    2. I call dibs on “Thumbtack Czar”. They are dangerously pointy and in need of oversight.

  27. While this news is moderately inspiring — I was hoping that TARP repayment would fail on account of the best intentions of the Kremlin, I mean, the White House — I don’t think anything would prevent the Democrat-dominated Senate from going through a perfunctory confirmation before blessing Tsar Feinberg with the power to set salaries.

  28. LibTARD, apparently you believe sarcasm passes for presenting some kind of coherent proposition.

    I believe your sarcastic comment about “interpreting” the Constitution was meant to imply that awful libertarians and conservative bastards (but I repeat myself) do not believe in “interpreting” the Constitution.

    To the contrary, of course we must interpret the Constitution. But keep in mind that “interpret” means only “to explain the meaning of.” It is not a question of whether we must interpret the Constitution; rather, the question is the correct question for doing so.

    Modern so-called “progressives” (a/k/a rudderless, emotion-driven, fuzzy thinkers) believe the way to interpret the Constitution is to start out with the desired end result and then squeeze the meaning out of the words used in the Constitution that are necessary to achieve that end result. The “living” Constitution renders the actual intent and words used a nullity by making them mean whatever serves the exigencies of the day. Convenience and expediency are the guides.

    “The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” – Thomas Jefferson

    That nutty old TJ dude also said, “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

    If we’re going to interpret (i.e., explain the meaning of) the Constitution, the method most consistent with the fundamental concept of what a constitution actually is, is the original understanding. Note that this is not quite the same as “original intent.” The term “originalism” is tossed about sometimes, which lacks clarity.

    The fact that our society has evolved and changed does not mean that the words in the Constitution suddenly mean something different today than they meant when they were written. It also does not mean that it is not possible to divine and understand the fundamental, foundational principles established in the Constitution and apply them to modern circumstances.

    Whenever someone – such as yourself – makes a snarky comment along the lines of those you have made, it seems to me the implication is that somehow the Constitution is outdated or no longer suits the country. I’d love for you to enlighten the rest of us as to which particular features of the Constitution you feel have become excess, superfluous, anachronistic, dated, passe, obsolete or otherwise undesirable.

    1. That was way more energy and effort than ‘tardo kitty deserves.

      1. Well said nonetheless, Bill.

    2. There are probably instances in which an interpretation was reached rather dubiously probably in the service of end results. Roe v. Wade comes to mind. But liberals do not tend to do this more than conservatives. Conservatives just arrogantly claim their beliefs to be the correct originalist ones. But ‘originalist’ rulings and opinions can be and are just as results-minded.

  29. Filed in the no shit file, yet again.

    In other news Commercial Real Estate. OMG WE ARE GOING TO DIE!!!

    I know, I’m begining to sound like a broken record.

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