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The Federalist Society Online Debate Series
2009
The Pay Czar & the Appointments Clause – a Forum
November 19, 2009
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.
Individual Health Care Insurance Mandate Debate
November 3, 2009
Last Updated at 9 AM, Friday, November 6, 2009
This debate will focus on the following question:
Would a federally-imposed individual mandate to require health insurance be constitutional?
The participants of this installment of Originally Speaking are Erwin Chemerinsky and David B. Rivkin.
October 27, 2009
This debate will focus on the following questions:
Is the Sarbanes-Oxley Act consistent with the principle of separation of powers insofar as it establishes the Public Company Accounting Oversight Board (PCAOB) to be overseen by the Securities and Exchange Commission (SEC), which in turn is overseen by the President? Is it contrary to the Appointments Clause for the members of PCAOB to be appointed by the SEC and thus not directly removable by the president? How is the Supreme Court likely to resolve the case and upon what grounds?
The participants of this installment of Originally Speaking are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Peter M. Shane, Christian G. Vergonis, and Christian J. Ward.
September 18, 2009
Last Updated at 11:00 AM, Friday, October 27, 2009
The current debate about health care reform is to a significant extent a debate about what role the federal government can and should play in the provision of health care. What is the proper role of the federal government in the patient/physician relationship? Are there aspects of the current health care and insurance relationships now governed by private contract or state regulation that would be better addressed by the federal government? If so, what are they, and why is an increased federal role warranted? Is it possible that what is called for is the opposite approach -- i.e. less regulation and more room for contract? Are there relevant constitutional limits on Congress's powers here and if so, what are they?
The debate will focus on these issues as well as several proposals set forth in competing House and Senate legislation as well as the President's proposals. The participants of this installment of Originally Speaking are John Hoff, David A. Hyman, Timothy S. Jost, John Rother, William M. Sage, Paula M. Stannard, and Peter Urbanowicz.
August 17, 2009
The Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R. 1913) has been pending in Congress in roughly the same form since the 1990s. The bill passed the House on April 29, 2009 with a vote of 249 to 175. The Senate voted 63 to 28 to attach the Matthew Shepard Hate Crimes Prevention Act to the annual defense-appropriations bill. In this installment of Originally Speaking, Gail Heriot, Brian Moulton, and Lara Schwartz discuss the merits of the legislation.
The Sotomayor Nomination, Part III
July 17, 2009
On May 26th, President Obama nominated Sonia Sotomayor to replace David Souter as an Associate Justice of the Supreme Court of the United States. Judge Sotomayor's Senate Judiciary Committee hearing on her nomination began on July 13th and ended on July 16th. In this installment of Originally Speaking, Matthew J. Franck, Thomas C. Goldstein, Wendy Long, Scott Moss, Louis Michael Seidman, David Stras, and M. Edward Whelan III evaluate the hearing.
Please Note: This debate is being updated as posts are submitted.
Last Update: 3:00 PM, July 23.
To see Part I of this debate, please click here.
To see Part II of this debate, please click here.
The Sotomayor Nomination, Part II
July 13, 2009
On May 26, President Obama nominated Sonia Sotomayor to replace David Souter as an Associate Justice of the Supreme Court of the United States. Judge Sotomayor's Senate Judiciary Committee hearing on her nomination began on July 13th. In this installment of Originally Speaking, Matthew J. Franck, Thomas C. Goldstein, Wendy Long, Scott Moss, Louis Michael Seidman, David Stras, and M. Edward Whelan III discuss issues that are arising during the confirmation hearing.
To read Part I of this debate, please click here.
To read Part III of this debate, please click here.
The Sotomayor Nomination, Part I
July 9, 2009
On May 26, President Obama nominated Sonia Sotomayor to replace David Souter as an Associate Justice of the Supreme Court of the United States, and Senator Leahy has scheduled the Judiciary Committee hearing on her nomination to begin July 13. In this installment of Originally Speaking, Thomas C. Goldstein, Wendy Long, Scott Moss, Louis Michael Seidman, David Stras, and M. Edward Whelan III discuss how to approach Sotomayor's nomination: what standard Senators should use to support or oppose the nomination, what deference should be given to the President, what weight should be given to the nominee's views on issues, what questions the Committee should ask and which ones the nominee should answer.
To read Part II of this debate, please click here.
To read Part III of this debate, please click here.
June 1, 2009
On March 10, 2009, the Employee Free Choice Act (EFCA) was re-introduced to Congress by Sen. Ted Kennedy and Rep. George Miller. The EFCA would amend existing labor law to incorporate provisions for card check, mandatory arbitration, and higher penalties for organizational unfair labor practices. (The full text of the EFCA is available here.) In this installment of Originally Speaking, Richard Epstein (NYU/University of Chicago), Thomas Kochan (MIT), Eugene Scalia (Gibson, Dunn & Crutcher LLP), and Patrick Szymanski (Change to Win) debate the policy and constitutionality of the EFCA.
April 24, 2009
On April 16, President Obama announced that he was declassifying and releasing to the public four memos from the Department of Justice's Office of Legal Counsel that opined on the legality of various CIA interrogation methods for Al Qaeda detainees believed to have highly valuable information. In the wake of this decision there has been something of a firestorm over the decision to release the memos, the content of the memos, the value of the intelligence the methods produced, and statements by the President and others about different classes of people who may and may not be potentially subject to criminal sanction. In this installment of Originally Speaking, Bart DePalma, Scott Horton, Douglas Kmiec, David Luban, Andrew McCarthy, David Rivkin (in collaboration with Lee Casey), and Stephen Vladeck discuss the various controversies at issue.
The debate has now concluded. Further discussion may continue in the Comments section.
Total Records: 10
