FedSoc Online Debate- The Pay Czar & Appointment Clause with Profs. McConnell and Flaherty

I have blogged a bit about the President’s Czars and the appointments clause. Recently Professor McConnell posted a great WSJ Op-Ed on this point.

The Federalist Society is hosting an ongoing online debate between McConnell and Professor Flaherty.

Here are the opening salvos.

McConnell thrusts:

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.” Mr. Feinberg signed last week’s orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of “significant authority” pursuant to an Act of Congress. He is not a mere “employee,” acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

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.

Flaherty parries:

Unless one is a Wall Street solipsist, the power to reduce executive compensation does not place Feinberg on par with Hillary Clinton or above Kenneth Starr. It follows that Congress should have had a role in determining the appointment process, either by vesting the power in the Secretary of the Treasury, the President alone, or even a court, such as the D.C. Circuit.

One point, however, calls for clarification. Judge McConnell at first says that “Congress may, if it wished, vest the appointment of the pay czar in the secretary [as Head of a Department], without any need for Senate confirmation.” So far so good. Yet he adds that, in lieu of Congressional action, he could only delegate the Pay Czar power to someone who is subject to Senate confirmation. On one hand, why could he sub-delegate at all? On the other, why not sub-delegate to someone subject to appointment in one of the three ways that the lower track of the Appointments Clause calls for?


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Egquist, Olech, and the Class of One. New Article on Erosion of Equal Protection

My article forthcoming in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One heavily relies on the Olech and Engquist line of cases, so this recent article by Professor Shanske posted to SSRN is of some interest (H/T Legal Theory Blog).

This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values.

I discuss this dicta at length in my article, so I will be sure to incorporate this article prior to publication. For my thoughts on dicta, see here: Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum (one of these days I’ll get that article ready for publication).

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I want to be on Judge Braden’s List of Counsel

Judge Braden of the U.S. Court of Federal Claims, a regular at Federalist Society events in Washington, D.C.. issued a pretty cool order, per BLT.

In an unusual order last month in a constitutional challenge to Section 8(a) of the federal Small Business Act, Judge Braden determined that the plaintiff’s lawyer, despite “substantial experience” before her court and the U.S. Court of Appeals for the Federal Circuit, should have an appellate “lead co-counsel” with jurisdiction and constitutional law expertise. “The issues presented concern the extent of the court’s jurisdiction, as well as one of constitutional importance. As such, this is not a typical pre-bid protest,” She then offered a list of 11 lawyers who might be willing to step into that role.

Who was on this list? Sadly, not me, but a few cool names.

The lawyers on Judge Braden’s suggested list included such conservative legal stars as former solicitors general Theodore Olson of Gibson, Dunn & Crutcher and Kenneth Starr, dean of Pepperdine University School of Law, as well as such appellate veterans as Carter Phillips of Sidley Austin, Charles Cooper of Cooper & Kirk, David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, Edward Bruce of Covington & Burling, and Richard Samp of the Washington Legal Foundation.

I suppose this is the official Article I’  (Court of Federal Claims is not Article III) All Star Litigator List. But, will Ted Olson or Kenn star step in to help?

Posted in Uncategorized. Comments Off on I want to be on Judge Braden’s List of Counsel

Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr

I blogged a bit yesterday about what exactly was considered a federal crime in 1789 (see here and here). I argued that beyond certain crimes according to enumerated powers (securities, currency, etc), there could not be any general federal crimes.

I was pleased to see one of my favorite bloggers, and all-around nice guy, Orin Kerr, visited my comment thread.  Orin wrote:

The first set of federal crimes (that I know of) that Congress passed was 1 Stat. 112, enacted April 30, 1790. You should read Chief Justice Marshall’s opinion United States v. Wiltberger (1820) for an example of one of these laws: http://supreme.justia.com/us/18/76/case.html I don’t think it occurred to anyone at the time that such laws exceeded Congress’s commerce clause power.

Corey Carpenter, a contributor to Josh Blogs, replied:

I did a quick reading of the link you posted, and it seems that the 1 Stat. 112 particularly concerns crimes committed in places where only the federal government has jurisdiction, i.e. the high seas and federal land as opposed to a general policing power (and treason)

I just skimmed through Wiltberger, and it deals with manslaughter on the high seas, a federal offense.

All of the provisions of 1 Stat. 112 (see Library of Congress, and enter page 112) deal with matters clearly in the province of the federal government, and not traditional common law crimes.

The Federalism blog describes the crimes as such:

Sections 1 & 2 punish treason against the United States.  Id. at 112.  Sections 3 & 7 do not punish the state crimes of murder or manslauther.  Rather, it only criminalizes murders committed in “any place *** under the sole and exclusive jurisdiction of the United States, ”  id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal.  Id.  Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police.  Id.  Section 7 covers arson, but again, only against a building “under the sole and exclusive jurisdiction of the United States.”  Id.  Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115.  Section 14 criminalizes counterfeiting.  Id. at 115.  Section 15 punishes acts affecting an official paper of a federal court.  Id. at 115-116.  Sections 16 & 17 punish theft-related acts occurring on any place under the “sole and exclusive jurisdiction of the United States.”  Id. at 116. Sections 18-20 cover perjury committed in federal court.  Id. at 116-117.  Section 21 covers bribes against federal officials.  Id. at 117.  Section 22 criminalizes resisting arrest, where a federal official is the arresting officer.  Id.  Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.

So perhaps I should refine my initial inquiry. When did the Federal Government began criminalizing matters that were historically left to state prosecutions, namely the common law crimes, that had nothing to do with federal jurisdiction or federal property? And if this change predated the New Deal and the transformation of the commerce clause, on what enumerated power did the federal Government base this authority?

Perhaps Professor Kerr will open a thread at Volokh? 🙂 Or maybe I’ll just buy him a beer.

Now Google Can Read Your Lips, Automatic Captions to YouTube Videos

From AP (H/T Gizmodo):

Google Inc. said Thursday it is introducing automatic, machine-generated captions for videos on its YouTube site. The new service, being launched this week, is intended to make online videos accessible to the deaf and hearing-impaired.

So Google is tapping into the speech-recognition technology that it uses for its Google Voice call management service to make captions an automatic feature on YouTube.

In the meantime, Google is adding a new “auto-timing” feature to its existing manual captioning service to make it easier to use. Video creators will now simply have to create a text file with all the words spoken in a video and Google’s speech recognition technology will take it from there — matching the text to the words as they are spoken. Google hopes this will encourage more users to add captions to their videos.

So now Google knows what you read, knows what you write, and now knows the content of videos. By translating audio to text, Google, presumably can now index the transcript of a video.  Omniveillance is looming on the horizon.

FantasySCOTUS.net Update: Leagues are Now Live! Join and Create your Own Leagues!

By popular demand, I have added Leagues to FantasySCOTUS.net. I have already added the top 100 Schools, based on the US News & World Reports, but you can create your own leagues. Just log in, and click the Leagues link, and then Join or Create a league!

Also in the works are a League Scoreboard feature, A Cert or No Cert Game (the winner will receive the Certiorari Crystal Ball Award), a forum, and some other cool stuff.

And this morning at 10 a.m., Predictions of the 10th Justice will be premiering at www.AboveTheLaw.com.