Last updated at 10 AM on Monday, January 4, 2010
Under the statute authorizing the Troubled Assets Relief Program, Congress authorized the Secretary of the Treasury to "require each TARP recipient to meet appropriate standards for executive compensation." By emergency rule promulgated without notice and comment, Secretary Geithner created the position of "Special Master for Compensation" or Pay Czar, and named Kenneth Feinberg to this position. In late October, Mr. Feinberg cut compensation for executives at seven large financial firms. In an op-ed in the Wall Street Journal, Michael McConnell, the Richard and Frances Mallery Professor of Law and Director of the Stanford Constitutional Law Center, argues that Mr. Feinberg's actions are unconstitutional because powers of the type entrusted to Mr. Feinberg may only be exercised by an officer of the United States, appointed in a manner consistent with the requirements of Article II, section 2, clause 2 of the Constitution. This provision stipulates that all "Officers of the United States" shall be appointed by the President "by and with the Advice and Consent of the Senate," with the exception that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." This forum will discuss the arguments put forth in Professor McConnell's op-ed regarding the Pay Czar and the Appointments Clause. We have excerpted the key paragraphs of the ep-ed in the first post below.
Professor McConnell's op-ed regarding the Pay Czar and the Appointments Clause is available here.
Questions and Answers:
Michael W. McConnell: 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."
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.
But Congress has not done so. ...
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.
Martin Flaherty: While not necessarily a good thing for the Republic, Judge McConnell's retirement from the bench does yield one benefit. He can now, as here, contribute his insights to a robust, ongoing debate concerning major constitutional issues in a way that a sitting judge cannot. In querying whether Pay Czar Kenneth Feinberg is, in effect, constitutional, he has identified yet another instance in which presidential power challenges the Founders' vision of separation of powers.
As does Judge McConnell, let me dispense with political considerations at the outset. His column at least implies disapproval at most of the idea of pay limits for on the salaries of the talented executives who landed us in the current recession, and at least of Mr. Feinberg's "ukase" in deciding to slash their disproportionately grotesque salaries. I will do more than imply that on the merits, I'm with the populists. Politically, government imposed limits of executive salaries paid by companies receiving TARP monies is a good thing.
The constitutionality of how this has been done is another matter. As a general matter, the Founders pioneered a distinctive brand of separation of powers to serve several goals that commanded wide assent. Among these were a balance among the branches to protect liberty; a measure of specialization to promote efficiency; and a form a joint accountability in which each branch would generally have some role in the creation, implementation, or oversight of government policy.
Those who ratified the Constitution left much of this to be worked out, including and especially matters concerning removal. But as McConnell notes, the Appointments Clause offers some initial guidance. It is hard to argue that the Special Master is not an officer of the United States as a mater of text, structure, or precedent, i.e. Buckley v. Valeo. And as the line has been worked out, the Pay Czar is certainly an "inferior Officer." 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?
We do perhaps agree on a more fundamental point. Beyond the Appointment Clause itself, the underlying functions of separation of powers seem disserved by the proliferation of "czars." Such officials significantly expand the already enormous power of the Executive Branch. At the very least, they should be limited by the text of the Appointments Clause, and further be subject to Congressional "for cause" limitations on removal. This is not only consistent with case law such as Morrison v. Olsen. It is consistent with the functions underlying separation of powers in an age in which the Executive has grown in power beyond the Founders' wildest imaginings.
Michael W. McConnell: I appreciate Martin Flaherty's willingness to engage on this issue, and his kind words on my return to academia. It appears that he and I agree that the use of an unconfirmed "pay czar," unauthorized by Congress, is unconstitutional. Since, as he points out, we probably disagree on the wisdom of the underlying policy but agree about the constitutional issue, this raises the question: Why did the Administration proceed in this fashion?
One might infer they lack lawyers. But does not seem to be the case.
More likely, the Administration chose to proceed in this way precisely in order to evade the political constraints that are the very purpose of the relevant constitutional provisions. One way to proceed, constitutionally, would have been to get congressional authorization for the position of "pay czar" (or "special master for executive compensation," which is Mr. Feinberg's official title). But that would have entailed public debate by the people's representatives about the wisdom of this policy. One can see why they might have wished to avoid that.
Or they could have vested this authority in an official subject to Senate confirmation. That, however, would have opened the nominee up to questioning about how he would carry out this authority. The confirmation process has a pesky tendency to turn into a examination of the substance of an administration's policies. Again, one can see why the Administration might have preferred to avoid this. (Not, I hasten to add, because of anything unique to this Administration. It is a constant of our political system that all Administrations, Democrat or Republican, prefer where possible to conduct potentially controversial policies without scrutiny. The Constitution, thankfully, usually stands in the way.)
A third possible avenue, consistent with the Constitution, would have been for Secretary Geithner to issue the pay orders under his own name, on his own authority, using his own staff for advice. Why was that not the selected alternative? One can only speculate, but such a course would differ in two important political respects from the "pay czar" approach. First, it would make Mr. Geithner, and indirectly the President, personally responsible for the decisions. It would be clearer to everyone where the buck stops. And second, it would eliminate the veneer of independence and expertise that an outside "special master" lends to the process. Setting executive pay turns out to have been a deeply political process, a balance of populist anger against economic consequences, with a dollop of mystery thrown in. The character of this type of decisionmaking is disguised, somewhat, by passing it off to an individual who is outside the Administration in a formal sense. When the Secretary or the President is asked at a press conference for a rationale for the decisions, he can respond: "Ask Mr. Feinberg."
These speculations about why the Administration proceeded in this apparently unconstitutional fashion serve primarily to confirm the good sense of the Framers. The details of Article II are not mindless formalism: they serve the function of focusing political accountability and enabling legislative deliberation. Secretary Geithner could have discharged his statutory powers in this matter in the ordinary way, through subdelegation to the appropriate Treasury officer, presumably the Assistant Secretary for Financial Institutions. Then the task would have been performed by professional civil servants, through established procedures, subject to full congressional oversight, and the praise or blame would fall on the Secretary and the President who appointed him. That is not the only way government can proceed, but to operate outside the ordinary channels, through "czars," requires explicit congressional approval, which this "czar" did not receive.
Professor Flaherty asks one point of clarification: Why, he asks, can the Secretary sub-delegate at all, and why not to an officer properly appointed under Article II? He can subdelegate because Congress has passed a statue allowing him to do so. And I agree with Professor Flaherty that the person to whom he sub-delegates significant legal authority must be a properly appointed officer. I heartily agree with Professor Flaherty that the proliferation of "czars" is a threat to our system of check and balances -- assuming we confine this non-technical term to persons who exercise significant legal authority but were not subject to Senate confirmation. (Some officials popularly called "czars" are properly appointed officers, with offices properly created by Congress, and others are mere advisors, not exercising legal authority.) I strongly suspect that if congressional approval were required, as the Constitution says, the number of czars would be few or none.
Steven Schwinn: I'm truly honored by this opportunity to engage with Judge McConnell and Professor Flaherty on such an important and timely issue, and I'm more than a little humbled to share this space with two such distinguished thinkers.
Let me start with a few comments about the unfortunate label "czar." These "czar" positions have proliferated in recent administrations and, as we know, have drawn heavy criticism most recently in the Obama administration. While some of these positions raise serious separation-of-powers and Appointments Clause issues, many, even most, do not. Importantly—and thankfully—their constitutionality does not turn on their label alone. Instead, it turns on their functions, their duties, and their processes of appointment.
The "pay czar"—or, rather, the Special Master for Compensation—was created, appointed, and empowered by the Secretary of the Treasury who, in turn, was empowered by Congress under the bailout program. The Secretary issued thorough and detailed emergency regulations—123 pages of rules—on precisely how to cap executive compensation, and he created the Office of Special Master to interpret and apply these.
Under these regulations, the Special Master both enjoys great discretion and is subject to tight controls. Thus, for example, the Special Master alone reviews compensation plans and approves compensation packages, issuing the government's "final and binding" determination on these. But on the other hand, the Special Master also serves merely at the will of the Secretary, he is guided by the Department's detailed regulations under the bailout program, and his actions are subject to full and mandatory public disclosure. Moreover, the position expires as soon as the companies that received bailout funds pay the government back.
With this combination of discretion and control, the Special Master's status for Appointments Clause purposes is not entirely clear. He is probably an inferior officer, as both Judge McConnell and Professor Flaherty suggest. (Given his tight control under the Department regulations and his inherently temporary appointment, however, one might argue—although I'm not—that he is a mere employee, not even subject to the Appointments Clause. The Office of Legal Counsel concluded a couple of years ago, during the Bush administration, that an "office" must be "continuing," Buckley v. Valeo notwithstanding. By this standard, the Special Master comes awfully close to a mere employee.)
If the Special Master is an inferior officer, the question becomes whether Congress, in authorizing the Secretary to regulate executive pay under the bailout program, adequately vested the appointment in the Secretary. We know that Congress did not specifically vest the appointment in the Secretary, and to this extent the appointment appears to violate the language of the Appointments Clause.
But it's not obvious how formal compliance with the Appointments Clause would better serve the purposes of the Clause in this case. For example, it's hard to see how a sub-delegation of the same authority to an already-existing officer in Treasury—one of Judge McConnell's suggestions to comply with the Clause—would have created any different role for Congress, any greater transparency in executing the functions, or any greater oversight than the Special Master. Either way—through an already-existing office, or through the Special Master—Congress is merely authorizing the Department's oversight of executive pay, and not a particular office or a particular person to oversee executive pay (as it would if the Special Master were a principal officer). In either case, it would be the Department's decision how to oversee executive pay.
The Special Master likely raises even fewer separation-of-powers worries. The office serves at the will of the Secretary, is tightly controlled by Department regulations, and is transparent. Congress authorized its functions in a highly publicized piece of legislation, thus fulfilling the traditional role of the legislature and ensuring accountability through Congress; and the Secretary tightly controls the office and can fire the Special Master at will, thus fulfilling the traditional role of the executive and ensuring accountability through the Secretary. Any perception that the office is independent and unaccountable is at odds with the weight of the regulations.
Congress and the administration might well have created and empowered this office differently. (Judge McConnell offers some excellent suggestions.) And they certainly would do well not to call it a "czar." But at bottom it's hard to say that the Special Master is unconstitutional.
Michael W. McConnell: I welcome Steve Schwinn to our conversation and appreciate his contribution. I certainly agree with him that the term "czar" is unhelpful; the question is whether the office of this particular "czar," the Special Master for Compensation, comports with Article II. As to that, I am a bit confused about Professor Schwinn's position. He concludes his comment with the statement: "at bottom it’s hard to say that the Special Master is unconstitutional." But up to that point all his arguments were trending the other way. He observes that the pay czar "enjoys great discretion" and that "[h]e is probably an inferior officer," as Professor Flaherty and I have argued. (Professor Schwinn toys with the possibility that Mr. Feinberg is merely an "employee" – but in the end does not embrace that argument.) It follows that Congress may vest appointment in the Secretary of the Treasury without Senate confirmation, but has it done so? Professor Schwinn then raises, and rejects, the theory that Congress "in authorizing the Secretary to regulate executive pay under the bailout program, adequately vested the appointment in the Secretary." But vesting authority in the Secretary to carry out a function is not the same as creating an inferior office, appointed by the Secretary, to carry out the function. Thus, Professor Schwinn correctly concludes: "We know that Congress did not specifically vest the appointment in the Secretary, and to this extent the appointment appears to violate the language of the Appointments Clause." I would have thought this was the end of the legal question. The Pay Czar is unconstitutional.
Then Professor Schwinn raises a more interesting question: "how formal compliance with the Appointments Clause would better serve the purposes of the Clause in this case." Well, some of us think the Constitution is the supreme law of the land and ought to be obeyed even if, in some particular case, we do not think its purposes would be served. Can the executive disregard the seemingly clear requirements of Article II whenever he thinks those limitations on executive discretion are pointless?
But in this case the purposes seem pretty clear. If the "pay czar" were subject to Senate confirmation, the appointee could have been grilled about how he would perform his responsibilities. Would he, for example, allow affected employees the due process right to present information and argument about their situation? (Apparently he did not.) Would he employ consistent and coherent standards? (Unclear.) If, as strikes me as more likely, the authority were vested in an existing officer within the Treasury, such as the Assistant Secretary for Financial Institutions, congressional oversight would be further enhanced. Not only would Congress be able to question the appointee to that position about his intentions, but also those in the chain of command above and below him. Moreover, the involvement of civil servants, with their traditions of professionalism and long-term perspective, could also be a help. Transparency? We have no clue how Mr. Feinberg reached his conclusions. And what about accountability? The political function of a supposedly independent "pay czar" is to deflect accountability from the President and his Secretary to Mr. Feinberg, who has no obligations to answer questions and no need ever to stand for reelection.
Steven Schwinn: I appreciate Judge McConnell's very thoughtful responses. We seem to agree on several important points. First, the term "czar" is unhelpful. (I go even farther and say that it's harmful in that it inflates the position beyond its clear parameters in the Treasury regulations. This inflation can too often lead to confusion about the nature of the position in the public discourse.) Next, Congress could have – even should have – created or vested authority for this position in any number of different ways that might have given the Secretary more blunt and direct authority and might have increased transparency and accountability. (Judge McConnell offered several fine suggestions in a previous post.) Finally, the Appointments Clause is no mere formality; it serves an important role in preserving the separation of powers and in promoting transparency and accountability.
But to say that Congress could have – even, as a normative matter, should have – created or vested authority for this position differently is not to say that it's unconstitutional.
At bottom, Congress did vest authority in the Secretary to appoint the Special Master. Congress long ago authorized the Secretary to prescribe regulations to carry out his duties and to "delegate duties and powers...to another officer or employee of the Department of the Treasury." 31 U.S.C. § 321(b); see also 5 U.S.C. §§ 301 & 302. Taken together with the Secretary's specific authority to regulate executive pay under the EESA – and with the inherently flexible approach under the Excepting Clause, designed for administrative convenience, see Edmond, Weiss – the Secretary had all the authority he needed under the Appointments Clause to create and appoint the Special Master.
At least two circuits have upheld the creation and appointment of inferior offices under similarly broad authority against Appointments Clause challenges. Thus the Fifth Circuit in 2005 in Willy v. ARB upheld the Secretary of Labor's creation of the Administrative Review Board, and the Secretary's appointment of officers to that Board, based on the Secretary's general authority to delegate. Similarly, the Third Circuit in 1996 in Pennsylvania v. HHSupheld the Secretary of HHS's creation of the HHS Appeals Board, and the Secretary's appointment of officers to that Board, based on the Secretary's general appointment authority.
These results make good sense. They balance the competing considerations of transparency, accountability, and separation of powers, on the one hand, with a practical recognition that Congress can't oversee every aspect of the administration. As the court in Pennsylvaniawrote, "The convenience afforded by inferior officer appointments would hardly be served if we were to require Congress to account for every potential inferior officer appointment in its statutory grant of authority to the department head."
Relying on broad authority for the Special Master similarly serves the values of transparency, accountability, and separation of powers, while also giving Congress and the Secretary the flexibility that the founders envisioned for the appointment of inferior officers. Of particular note: The Special Master testified just recently before Congress on many of the important issues that Judge McConnell raised in his last post; the Office freely publicizes its proceedings on the Treasury web-site; and, as I last wrote, the Special Master operates under detailed regulations issued by Treasury under public notice-and-comment procedures. (Indeed, because of the Office's high profile – and especially because of the Special Master's testimony before Congress – Congress may be said to have acquiesced in the Secretary's creation and appointment of the Special Master, even if Congress somehow didn't intend to convey this authority in the first place.)
Finally, requiring specific Congressional vesting – as opposed to this more general vesting – risks turning the Excepting Clause into a formality. For example, Congress might have vested the appointment in the Secretary by writing a single line in the EESA authorizing the Secretary to create the Office and appoint the Special Master. But this single line would do little, if anything, to promote transparency, accountability, and separation of powers over the more general approach that Congress actually used. Such a requirement would turn the Excepting Clause into a mere formality – something we all seem to agree it is not.
There are several, even many, alternative ways that Congress might have vested the Secretary with the authority to create and appoint the Special Master. Some of these might even have increased transparency and accountability. But this doesn't make the Office unconstitutional.
Michael W. McConnell: Professor Schwinn makes the best case I have seen for the constitutionality of this arrangement, but I still am not persuaded. Congress has statutorily authorized the Secretary to delegate authority to an "officer or employee of the Department of the Treasury." 31 U.S.C. § 321(b). Professor Schwinn and I agree that Mr. Feinberg is not a mere "employee." If he is an officer, his appointment required the advice and consent of the Senate, unless the Congress provided otherwise, which it did not. The question, to me, is whether Art. II requires congressional authorization of the creation of a non-advise-and-consent officer. My copy of the document suggests that it does. The only argument I see in the lower court decisions Professor Schwinn cites is that this would not be "convenient."
Martin Flaherty: I too welcome Steven Schwinn's participation in this discussion, especially as the points he makes are cogent and sensible. And ordinarily I am inclined to agree. On purely policy grounds, as I noted, an office of Special Master and the policies it is designed to discharge make good sense. Not only are the excesses of the pay structures on Wall Street symbolically corrosive, but they have also led directly to the economic crisis from which we are only now emerging. From a constitutional viewpoint, moreover, a careful study of the Founding indicates that Congress and the President should have substantial flexibility in developing institutional mechanisms to meet the nation's changing needs.
All that said, I nevertheless continue to view the Special Master as unconstitutional as currently established. This conclusion follows on formal and functional grounds.
Formally, in contrast to many separation of powers issues such as removal, here there is constitutional text that provides a good measure of guidance. The Appointments Clause, of course, involves Congress on either one or two tracks: higher officers and others. It may be that Congress properly vests appointment of mere functionaries solely in officers that it creates. The Special Master's powers, however, are substantial. Limiting compensation of leading executives in leading corporations that set the tone for the economy may not render the Special Master on par with a cabinet official. But I agree with Judge McConnell that powers of the office place it at least on the lower enumerated track, on par with the now defunct Independent Counsel.
In functional terms, the Special Master also fails to pass muster. One point of the Appointments Clause, not to mention separation of powers in general, is to insure a balance of power among the branches to prevent a tyrannical accretion of power in any one. Congressional involvement in the appointments process with regard to officers who exercise, as here, significant power, is one way to insure this goal. A multiplicity of officers such as this whose appointments are not subject to any sort of Congressional input, would increase the power of the Executive, by far the dominant branch, still further. Granted, a second function of separation of powers is to promote specialization and efficiency. Assuming sufficient popular support to create an office such as the Special Master, it is hard for me to see how Congress having to vest the formal power of appointment in, say, the President alone, would prevent either the subsequent appointment of the Special Master, nor the Special Master from undertaking exactly the policies he has chosen so far. To the contrary, his policies would generate less resistance precisely because he would have a better democratic pedigree. A final core function of separation of powers is accountability. Not the leaden version put forth by unitary executive advocates. The Founders instead gave every branch, even the judiciary, some democratic provenance. But especially with regard to the political branches, the Founding vision means that both the President and Congress should be involved in major policy initiatives. This stands in contrast to the theory that a statute delegating authority to the Executive means that only the President, and not Congress, is accountable for aspects of implementation that go beyond mere execution, such as issuing of regulations or agency adjudicatory decisions. Itseems to me that this last principle applies to the Special Master as well. The Executive cannot be the only branch accountable for the appointment of an official of such power.
Congress could easily cure all of this by vesting the appointment of the Special Master in the President. Who knows? Maybe even Joe Lieberman would vote for it.
Steven Schwinn: I appreciate Judge McConnell's and Professor Flaherty's thoughtful and incisive comments, and I share their insistence–and the Constitution's requirement–for a separation of powers and balances between the branches to preserve the values that they both so powerfully express. But I continue to believe in this case that the Secretary's creation and appointment of the Office of Special Master satisfied the requirements of the Appointments Clause. Drawing on the language that Professor Flaherty helpfully introduced to this discussion, I'll try in closing to put our points of disagreement in sharper focus in order to help readers decide where they come down.
In formal terms, Judge McConnell and Professor Flaherty read the Appointments Clause to require a specific vesting–that Congress must have specifically named and empowered the Office of Special Master in the bailout legislation. In contrast, I argue that congressional authorization to the Secretary to perform the functions of the Office, Congress's previous and general authorization to the Secretary to delegate authority, and congressional acquiescence in the creation of the Office together satisfy the formal requirements of the Excepting Clause.
The Exception Clause, of course, doesn't say when or if Congress must specifically name and empower an inferior office. Instead, it speaks in broader terms, saying that "Congress may by Law vest the Appointment of such inferior Officers . . . in the . . . Heads of Departments." (Contrast this general, ambiguous language with other, determinate clauses in the Constitution, like the requirement that "neither shall any Person be eligible to [the office of the President] who shall not have attained to the Age of thirty five Years . . . .") This language seems to be vague enough to accommodate a specific vesting (as Judge McConnell and Professor Flaherty argue) or a more general vesting (as I argue). Without a clear answer in the language itself, we look to the array of interpretive modes, including (most relevant here) functional considerations, original understanding, and practice.
In functional terms, Professor Flaherty worries about checks to avoid tyranny, specialization and efficiency, and accountability. Judge McConnell articulated similar concerns. In contrast, I argue that the detailed statutory and regulatory structure creating and guiding the Office–with all the attendant oversight and publicity–satisfy these concerns. I also argue that the framers wrote the Excepting Clause to give Congress and the administration flexibility and convenience in appointing inferior officers, and that this approach is consistent with congressional and administrative practice. Judge McConnell rightly counters that the two circuit cases to address the question are based largely on convenience. But convenience here is no trivial matter: it seems to be a motivating consideration driving the flexibility for appointments of inferior officers in the Excepting Clause (as opposed to the rigidity for appointments of superior officers in the Appointments Clause).
I'll make just one final point to try to put this discussion in a larger context. It seems that most Appointments Clause and separation-of-powers debates arise when defenders of presidential authority argue that Congress did too much, by, for example, creating independent boards or offices that are not sufficiently accountable to the unitary executive and thus encroach upon the President's power. (The Court is considering just such a case this term in Free Enterprise Fund v. PCAOB. The Federalist Society hosted a recent on-line debate on this case, as well.) But here the claim is that Congress did too little, and that the Secretary's move in this congressionally created power vacuum aggrandizes executive authority and confuses the lines of accountability. The two debates–the more typical Appointments Clause cases and the Special Master question–nicely bookend Appointments Clause and separation-of-powers issues, and considering the two together may give us even greater insights. This discussion has certainly caused me to rethink my own positions on these questions, and for that I am deeply grateful to our host and to my co-participants.
I want to thank the Federalist Society again for inviting me to join this discussion, and I'd like to thank Judge McConnell and Professor Flaherty for so warmly welcoming me. It has been a true pleasure and honor.
Michael W. McConnell: First, let me convey my holiday greetings to Professors Schwinn and Flaherty, and my thanks for an interesting conversation. I do not have much more to add, except to note that if Professor Schwinn is correct, the executive branch will be free in every case, without congressional authorization, to create new positions outside of senatorial confirmation, and to assign whatever delegated powers they wish to such people. With all respect, that seems to be precisely what this provision of the Constitution was written to prevent.
Martin Flaherty: My only substantive comment is triggered by Professor Schwinn's understandable effort to draw a distinction between the Constitution's ostensibly permissive wording regarding the how Congress is to vest the appointment of inferior officers and other texts that appear to be more express. Much as lawyers tend to bridle against this, I would counsel wariness about over reading the Constitution's text. As a historian, I believe it is clear that the Constitution reflects not just the problems of a committee document, but of a document riven with compromises, gaps, holes, and wording that reflected multiple understandings, not to mention a desire to wrap things up and get out of Philadelphia. This is not to say that the words don't provide guidance. But I do hesitate in giving too much weight to stylistic choices that Gouverneur Morris made in late August of 1787.
More importantly, I would also like to thank Professor Schwinn, Judge McConnell, and the Federalist Society for another stimulating exchange. I know I come away from it both challenged and better informed.