The Czar Has No Clothes by Kevin Sholette
I. Introduction One of President Obama’s most controversial executive branch appointments is Kenneth Feinberg, the Special Master for TARP Executive Compensation, informally known as the Pay Czar. Feinberg is responsible for interpreting the TARP regulations on executive compensation standards, and more notably, for unilaterally approving the pay for top executives at the largest institutions receiving TARP funding. In October of 2009, he invoked this authority to slash compensation for executives at seven large financial firms by an average of fifty percent. Although most financial executives have been too timid to publically complain about Feinberg’s bold intrusion into corporate boardrooms, legitimate constitutional questions surround the validity of his decisions. Public policy concerns abound over the TARP legislation that authorized government regulation of executive compensation. However, this Note will focus solely on whether Feinberg constitutionally possessed the legal authority he exercised, given the method of his appointment. Executive Branch appointments fall within two categories: officers and employees. Officers occupy an “office” of the United States, and “[e]mployees are lesser functionaries subordinate to officers of the United States.” According to the Supreme Court in Buckley v. Valeo, “the term ‘Officers of the United States’ as used in Art. II . . . [read more]