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Archive of entries posted on October 2009

Is the Pay Czar Unconstitutional?

           Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the “pay czar,” is an officer of the United States and therefore subject to the Appointments Clause.   Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate, [...]

Could the Nobel Peace Prize Violate the Illegal Gratuities Statute?

           At the Volokh Conspiracy, David Kopel discusses whether President Obama needs congressional consent to accept the Nobel Peace Prize, including a check in the amount of more than $1 million (which Obama has said will be donated to charity).  Kopel concludes that the matter is governed by the Foreign Gifts and Decorations Act, 5 [...]

Yes We Kant

           Yesterday Norm Eisen, the White House Special Counsel for Ethics and Government Reform, addressed the 2009 Administrative Law Conference sponsored by the ABA Section on Administrative Law and Regulatory Practice.  Eisen gave an energetic and engaging defense of the Obama administration’s ethics policies, particularly as regards to the activities of registered lobbyists, but I [...]

Lobbying Related Programs Today

           The 2009 Administrative Law Conference starts today at the Washington Convention Center, and there are several programs of interest to those who follow lobbying-related legal issues.  First, at 10:45 am today is a panel on “Lobbying in the Obama Administration: What Practitioners Need to Know.”  This panel, which I helped organize, will consist of [...]

More on White House Czars and the Appointments Clause

            As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council “czars” are officers of the United States within the meaning of the Appointments Clause because they “exercise[] [no] independent authority or sovereign power.”  Instead, Craig argues, they perform solely advisory functions.  For [...]

Lobbying and the Honest Services Statute

           The trial of Kevin Ring, a former lobbying associate of Jack Abramoff, ended in a mistrial this week when the jury was unable to reach a verdict.  Ring was charged with conspiring with Abramoff and others to deprive the United States and its citizens of the “honest services” of certain executive and legislative officials [...]

Obama’s Czars and the Appointments Clause

           Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various “czars” employed by the Obama administration.  Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which provides that the President “shall nominate, [...]

Tillman and Bailey on Federalist No. 77

Seth Barrett Tillman has written a new article entitled “The Puzzle of Hamilton’s Federalist No. 77″ [forthcoming 2010 in the Harvard Journal of Law and Public Policy], in which he takes a fresh look at Hamilton’s statement that “[t]he consent of [the Senate] is necessary to displace [an officer] as well as to appoint.”  This [...]

Tomorrow’s Just Your Future Yesterday

           In the course of his most recent ruling on Speech or Debate, the Magistrate addressed whether certain specific pieces of evidence protected by the privilege and would therefore be inadmissible in Renzi’s trial.  The Magistrate, it may be recalled, has relied heavily on the proposition that discussions of future legislative acts are not protected [...]

The Renzi Wiretap and FBI Interviews

           Last month the Magistrate Judge issued a ruling recommending denial of Renzi’s motions to suppress certain evidence, including the results of wiretaps and FBI interviews of Renzi’s legislative aides, based on the Speech or Debate Clause.  As I have suggested before, the wiretap ruling was foreshadowed by the Magistrate’s previous ruling on the Kastigar [...]