Patterico's Pontifications

9/23/2008

They Keep Saying the President Can’t Fire the SEC Chair — Yet the Law Seems to Say Otherwise. Tapper Won’t Correct the Apparent Error. Will the L.A. Times?

Filed under: 2008 Election,Dog Trainer,General,Media Bias — Patterico @ 11:42 pm



Jake Tapper is repeating his claim that a President can’t fire the Chairman of the SEC:

“By the way I know he can’t be technically ‘fired,'” Sen. John McCain, R-Ariz., just said on “60 Minutes.” “But when I’m president, if I want someone to resign, he resigns.”

We fact-checked his threat to fire SEC chairman Chris Cox last week, as you may recall, pointing to a U.S. Supreme Court decision and ruling that the president does not have the power to fire the SEC Chair. But, we noted, certainly pressure can be brought to force someone out, as when then-Senate Majority Leader Tom Daschle, D-S.D., and then-House Minority Leader Dick Gephardt, D-Mo., called for President Bush to dump then-SEC chair Harvey Pitt.

Tapper is hardly alone in his view. The L.A. Times and McClatchy newspapers have espoused the same view.

With all due respect to all of them, my reading of the relevant cases indicates otherwise. I have written Tapper about this, and while I won’t repeat the content of his e-mails without his permission, I will say that he a) utterly failed to convince me he is right, and b) shows no sign of willingness to retract his apparently inaccurate statements.

Tonight, I wrote the L.A. Times “Readers’ Representative” seeking a correction to that paper’s similar assertion. I set forth the argument in the e-mail, which I here repeat in full:

An L.A. Times article from September 20, by Doyle McManus, titled “McCain and Obama different on style as well as substance,” asserts that the President can’t fire an SEC Chairman:

On Thursday, [McCain] said he’d fire the chairman of the Securities and Exchange Commission, Christopher Cox [if McCain were President]. (A president appoints but can’t fire an SEC chief, though he can apply pressure to resign. The White House said President Bush had confidence in Cox.)

But a federal court decision certainly seems to say otherwise. The case is Free Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667, 668-69 (D.C. Cir. 2008), and here is the relevant quote:

Members of the [Securities and Exchange] Commission, in turn, are appointed by the President with the advice and consent of the Senate and subject to removal by the President for cause; its chairman is selected by and serves at the pleasure of the President.

I have read that Jake Tapper of ABC and McClatchy newspapers have relied on a Supreme Court decision, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), to argue otherwise. However, I believe they have misread that case (if, indeed, they read it at all). That case, which dealt with the President’s power to fire an FTC commissioner, did not say that the commissioner could not be fired under any circumstances. Rather, it said that, when Congress restricted the president’s ability to fire commissioners except for cause, that restriction was constitutional.

In other words, a President can remove a commissioner — but only for cause. Meanwhile, according to the D.C. Circuit case I provide above, the Chair himself serves at the President’s pleasure, meaning he can be removed for any reason or no reason.

It’s true that the Chair serves a dual role as commissioner and Chair. But even if the President needs “cause” to fire Cox in his role as commissioner, he still can fire Cox. If I can fire you for cause, it’s wrong to say I can’t fire you at all.

I think Doyle McManus is repeating Conventional Wisdom on this. But I think Conventional Wisdom is wrong, and that your paper should issue a correction.

Yours truly,

Patrick Frey
http://patterico.com

I hasten to note that the consensus among the Republicans I speak with is that McCain wishes he had never made the statement, and is probably trying to sweep the issue under the rug. If that’s right, he may have no particular interest in challenging the Tapper/LAT/McClatchy spin that a President can’t fire an SEC Chair.

That’s fine; let McCain do what he’s gotta do. I’m not a McCain campaign guy. I care about accuracy. And I don’t see anyone interested in correcting this apparent misstatement.

It’s not important, in and of itself. But I’m getting increasingly frustrated with a media that seemingly wants to create its own facts, and airily dismisses anyone who dares question them. The facts, as I see them, are in this post.

I’m not an expert in this area and I haven’t fully canvassed the relevant law. I’ve read the two cases linked above and have done some Internet research, which indicates that some other people who have looked at the issue closely, agree with me. But that doesn’t mean I’m automatically right. If you see a flaw in my analysis — and you might — let me know what it is, specifically.

So far, I haven’t found anyone who can explain it to my satisfaction . . . or who has even really tried to.

All they want to do is ignore my points. And I find that frustrating.

79 Responses to “They Keep Saying the President Can’t Fire the SEC Chair — Yet the Law Seems to Say Otherwise. Tapper Won’t Correct the Apparent Error. Will the L.A. Times?”

  1. You immediately saw the connections between this and Scooter Libby’s appeal, of course, didn’t you, Patterico?

    (Wow. Seriously inside baseball. To not live in D.C., I’ve become an incredibly wonkish person, even for a lawyer.)

    I think you’re right, for what it’s worth. At first I thought what you were quoting from Free Enterprise Fund was probably dicta, but it’s actually an element (albeit only one among many) of the case’s holding.

    Beldar (208538)

  2. Actually, I also meant to also say that I’m impressed that you got Tapper to respond to your emails, even if he won’t back down.

    Beldar (208538)

  3. Dear Patterico:

    Most journalists think they know much more about a topic than any expert (I’m a scientist, so you can imagine how I cringe when I read the paper or watch the news regarding science and technology). Few journalists are willing to admit error, let alone a lack of knowledge. Call it the “Ted Baxter” Syndrome.

    Add the faux-intellectual elitism, cynicism, and short attention span of the press…and the very clear issue of media bias—and your discovery should not surprise you. The Narrative is everything.

    But I am as saddened by this as you are.

    Eric Blair (81e599)

  4. I apologize in advance for a cutting remark but we call what you are doing “majoring in the minors”.

    I don’t believe it’s a big issue either way.

    We’ve got a $700 billion taxpayer bailout on the table that dwarfs McCain’s ill advised remark.

    jharp (f4bed7)

  5. Sigh. And JAT jumps threads to spread happiness and clarity to all discussions.

    Eric Blair (81e599)

  6. Patterico – I care about accuracy.

    jharp – I don’t believe it’s a big issue either way.

    In a nutshell.

    Apogee (366e8b)

  7. Regarding JAT, Apogee….

    Your last comment is half correct (grin!).

    Eric Blair (81e599)

  8. “I don’t believe it’s a big issue either way.”

    It was important enough for LAT and McClatchy to say . . . and for Tapper to say *twice*.

    I figure it’s therefore important enough for some blogger to make sure they get it right.

    Patterico (669d1d)

  9. Its amazing how quickly wonks can lose the forrest for the trees. Whether or not you can find a legal precedent suggesting that McCain’s assumption he could fire the SEC Chairman is technically feasible, the statement obviously indicated a gross misunderstanding of the fundamental relationship between the president and the SEC, while attributing Cox unfounded blame for the economic meltdown. This was obvious to both the right and left, thus McCain’s immediate retraction. To suggest McCain’s statement represented anything other than these misunderstanding is more then inaccurate, it’s dishonest.

    Chris (e6fc83)

  10. Just as T. Boone Pickens $1,000,000 challenge went begging (prove any fact asserted by the Swift Boat vets wrong), so too, will your challenge to engage in this constitutional argument.

    Maybe Jeff Toobin can come down off his high horse and deign to delve into a legal argument?

    Is it not odd that when a president asserts authority over an Executive agency, it is seen as an unjustified power grab, but if a Democrat Congress asserts such a privilege against a GOP president, it is always a function of oversight and good government/in the People’s interest?

    Ed (f35a20)

  11. Chris 12:40am – Translation: I’ll first state that it doesn’t matter if McCain was correct or not, lots of people thought he wasn’t. I’ll then extrapolate on his possibly correct assumption by asserting an “obvious” nature to the relationship between the SEC and the President; all without support. I’ll attempt to act like the SEC had nothing to do with oversight, and end it all by accusing anyone who disagrees with me of dishonesty.

    Apogee (366e8b)

  12. Darn tutin’! The president has any and all power he wants! Wiretappin’, unilateral war startin’, you name it, he (and soon she) can do it. I am just gettin’ used to not pronouncing the -ing on words because our fine, soon to be president from up north doesn’t like pronouncin’ words all the way through, eh?

    AB (c313be)

  13. AB, there’s a big difference between saying that the executive branch is vested completely in the President, and saying that the executive branch can break the law.

    Juan (4cdfb7)

  14. Great. Once something is “fact-checked,” it means you don’t have to think about it any more.

    sierra (aa4594)

  15. Patterico –

    You mistake the meaning of:

    “… its chairman is selected by and serves at the pleasure of the President.”

    In a formal federal commission, commissioners are nominated by the President and confirmed by the Senate. The President chooses which of the commissioners is chairman. The President’s unilateral right concerning the chairman is not to remove that person, but demote that one back to commissioner and designate a different commissioner to be chairman.

    There is precedent for that demotion/reselection. Consider the US Nuclear Regulatory Commission after the TMI accident.

    On December 7, 1979, then-Chairman Hendrie of the NRC became a commissioner at the direction of President Carter. He was replaced as chairman by Commissioner Ahearne. Ahearne himself would go back to being a commissioner on March 3, 1981 (Hendrie again became chairman).

    You can trace this out here:

    http://www.nrc.gov/about-nrc/organization/commission/former-commissioners/former-commissioners.html#N_8_

    (read the bio there for Ahearne for more details)

    As for removing “for cause”, are you sure you understand that process, and the threshold “for cause” would require?

    jim2 (6482d8)

  16. Ignore Tapper:

    Biden just said no coal for America, let China have coal plants.

    Just run this over and over again in Colorado, Michigan, Ohio, West Virginia and especially in Pennsylvania.

    http://corner.nationalreview.com/post/?q=MTdiOWI2NDhhNmRjNzc4ZWE0ODc0ODYyN2Q5NTk2MzY=

    Joe (8102a5)

  17. Joe – Can you imagine the attention that McCain/Palin would have received if they had made any of the gaffes that Biden has?

    1) Telling a paralyzed veteran to stand up
    2) Claiming FDR went on TV to reassure the public after the 1929 stock market crash
    3) No coal for America

    JD (41e64f)

  18. jim2,

    Did you read my post?

    You say:

    You mistake the meaning of:

    “… its chairman is selected by and serves at the pleasure of the President.”

    In a formal federal commission, commissioners are nominated by the President and confirmed by the Senate. The President chooses which of the commissioners is chairman. The President’s unilateral right concerning the chairman is not to remove that person, but demote that one back to commissioner and designate a different commissioner to be chairman.

    If only I had said in the post:

    It’s true that the Chair serves a dual role as commissioner and Chair.

    Oh, wait. I did.

    And as for this:

    As for removing “for cause”, are you sure you understand that process, and the threshold “for cause” would require?

    I understand only what I know from my reading of the cases and online research. As I said in an e-mail to Tapper, cause appears to include “inefficiency, neglect of duty, or malfeasance in office.”

    Patterico (cc3b34)

  19. Its amazing how quickly wonks can lose the forrest for the trees. Whether or not you can find a legal precedent suggesting that McCain’s assumption he could fire the SEC Chairman is technically feasible, the statement obviously indicated a gross misunderstanding of the fundamental relationship between the president and the SEC, while attributing Cox unfounded blame for the economic meltdown. This was obvious to both the right and left, thus McCain’s immediate retraction. To suggest McCain’s statement represented anything other than these misunderstanding is more then inaccurate, it’s dishonest.

    Shorter Chris: naaaaaaaaaaaaaaaaaaaaaaaaaaaaa I can’t hear you!!

    I don’t see how McCain indicated a “gross misunderstanding of the fundamental relationship between the president and the SEC.” It sounds to me like he had it right, and the entire media world had it wrong. It also sounds like you didn’t read a word I said.

    As for his “attributing Cox unfounded blame for the economic meltdown,” you apparently failed to read the part where I say Republicans tend to think McCain’s comment was ill-considered.

    I won’t call it “dishonest” to a) pretend like I didn’t make the legal point I did, and b) pretend like I didn’t concede that many people think McCain wishes he had never made the statement.

    But you did both.

    Patterico (cc3b34)

  20. Maybe they ignore you because you spend so much time screaming LOOKIT ME, LOOKIT ME, GIMME SOME VALIDATION, while most of the time what you’re doing is chasing rabbits down holes, building strawmen or beating dead horses. Let’s keep those metaphors mixing: The boy who cried wolf.

    “All they want to do is ignore my points. And I find that frustrating.”

    Bw-a-a-a-a-wa-a-a-a-a-a-aa-a-a-aa-! Remember that study that came out two years ago in which 95 children were tracked for 20 years and, ta-da, the whiney ones tended to become conservatives. Bwa-a-a-a-a-a-a-a-a-a!

    Do you think “they” sit around just WANTING to ignore your points? Look. You’re not a blip on “their” radar screens, but feel secure in the fact that your self esteem is still tremendous. Just look at what all your munchkins do to prop you up in the comments section.

    p.s. I really liked when you were pushing “Tasergate” instead of Troopergate because you believe that would put the proper perspective on the matter. So much for the rule of law. If the governor illegally or unethically used the power of her office to get back at/settle a score with her ex brother-in-law, when the justice system took another tack, that’s fine by you. A logical assumption would be that you’re the only prosecutor in the country who thinks jury nullification is a good thing.

    Larry Reilly (d11f9a)

  21. Larry Reilly,

    I notice you don’t contest my legal reasoning here. A logical assumption would be that you’re fine with the facts being distorted, as long as they benefit your side.

    Whenever liberals call it whining when a conservative points out facts that have been distorted by the media, they show they don’t care about truth — only power. The media has the power to get it wrong, and ignore folks like me, because I’m just a blip on the radar screen, even though I’m right. And that’s okey-dokey with you.

    P.S. You oversimplify the argument on TaserGate. If I thought you cared about the truth I’d explain it to you. But you’re a blip on my radar screen.

    Patterico (f4fb58)

  22. “p.s. I really liked when you were pushing “Tasergate” instead of Troopergate because you believe that would put the proper perspective on the matter.” Comment by Larry Reilly — 9/24/2008 @ 6:53 am

    Seems that you have some deceased equines of your own to futilely abuse.

    C. Norris (e5e86f)

  23. Mr Reilly, no doubt, has another explanation for the huge rise in your page views. In fact, he is trolling here because he agrees with a lot of people that what you post is worth doing and contributes.

    I didn’t notice a link to his blog where, no doubt, all will be explained.

    I don’t know if McCain was right to include Cox in his attribution of responsibility but I have read others who agree with him.

    Mike K (2cf494)

  24. Patterico, the guy’s just an insulting troll. My guess is that your life is far richer in all sense of the word.

    An AWFUL lot of trolls around here lately. I wonder why?

    Eric Blair (81e599)

  25. So, what do you think of the ass as a hole?

    (not misspelled)

    Icy Truth (391c85)

  26. Patterico,

    I believe the cases, not too long ago, which dealt with Article II judges (e.g. bankruptcy judges are now Article III) may also be helpful. I’m running around a lot, today, but I’ll try to see if I’m on the right track.

    nk (796b84)

  27. Patterico – I thought Cyrus Sanai had already opinined on this matter on this very board. I think it’s curious you find it necessary to revisit this closed matter.

    /sarc/

    daleyrocks (d9ec17)

  28. Mary Reilly is in rare form too. They seem to be amping up the levels of krazy recently. Now all we need is AnnTM, MDKP, and David Petranos Esp.

    JD (41e64f)

  29. I had no problem with his Cox comment, and that is as someone who holds Cox in pretty high esteem. Their should be a spate of firings (and a few frog marchings), but we can’t trust President Bush, nor the citizens of CT or MA to man up or wise up, respectively. Cox asserting that there were problems requiring intervention is no substitute for dealing with what he knew forcefully. “I told you so” isn’t leadership, and McCain’s disdain for partisanship isn’t really translating into the electoral advantage he might have anticipated. Squandered opportunity? Time will tell.

    rhodeymark (6797b5)

  30. Patterico –

    I take your reply as snarky. Your privilege, since this is your site.

    My point was that the President could redesignate the chairman at any time, because the commissioner who serves as the chairman does so at the pleasure of the President. Where the President has more constraints is the removal from the commission of a commissioner, chairman or not.

    So, I take it that you meant “fire” as redesignate which serving commissioner carries the title of “chairman”? Well, then sobeit, just as long as you know that the so-called “fire”d chairman remains as a commissioner. That seems hardly “fired” in the sense of removal from the commission, and certainly not what I thought you meant, disclaimer or no.

    As for “for cause”, it is not merely the words you cite, but what would constitute proof that the words were sufficiently met. It is that latter point to which I referred when I said “threshold”.

    jim2 (a9ab88)

  31. Patterico got it right, Tapper’s wrong and so are his apologists here.

    The problem is that Tapper is too arrogrant to admit his error. He’s got a figleaf and he’s going to use it to cover his red rear end. That’s all folks!

    Ropelight (f4b89a)

  32. Not as researched as I would for a brief, but I believe that, “quasi-judicial” or not, only Presidential appointees exercising Article III power are entitled to “during good behavior” protection. Patterico’s position is the better one, in my opinion. But … you know … the Constitution is what the courts say it is.

    nk (796b84)

  33. The boy who cried wolf.

    Hey, Mawy’s learning some new fairy tales! Mawy, did you hear the one about the Troll under the bridge? Did you figure out who the Troll really was? Why, it was you, Mawy! Wasn’t that fun? (Mawy’s hands clapping wildly in glee).

    Dmac (e639cc)

  34. Personally, I think it’s ridiculous that under Article II the Secretary of Defense, fourth in line for the Presidency, can be fired at will and the chairman of the SEC could be fired only for cause.

    Should I ever be appointed to the Supreme Court in a future re-incarnation …. 😉

    nk (796b84)

  35. jim2 —

    So, I take it that you meant “fire” as redesignate which serving commissioner carries the title of “chairman”? Well, then sobeit, just as long as you know that the so-called “fire”d chairman remains as a commissioner. That seems hardly “fired” in the sense of removal from the commission, and certainly not what I thought you meant, disclaimer or no.

    — From Webster’s: fire – to dismiss from a position. Stop parsing the word “is”.

    Icy Truth (630deb)

  36. jim2:

    The phrase “for cause” means the President CAN fire them. We can all quibble about WHY he can (what would constitute ’cause’) but Tapper et. al are arguing that he can NOT fire him (for any reason).

    Patterico seems to have merely pointed out that ‘inconsistency’ and you and your ilk jumped it.

    There is a major difference in the ability to do something for a given reason and the ability to NOT to something for any reason.

    Lord Nazh (899dce)

  37. Protein Wisdom reports:

    As I noted in an update last evening would almost certainly be the case, the media today is pushing the story that the firm owned by McCain’s campaign manager, Rick Davis, lobbied for Freddie and Fannie Mac — all while continuing to ignore exploring, at any length, Sen Barack Obama’s actual ties to those closely related to the current economic meltdown. Not only that, but the Davis-as-tied-to-crisis story is disputed by the McCain campaign — which alleges that the NYT has reported in bad faith, and that public records back up the campaign’s claims that Mr Davis cut ties to his firm in 2006, and that he never lobbied Freddie or Fannie Mac (and in fact, hasn’t been a registered lobbyist since 2005).

    All of which, I suppose, is not surprising; after all, the media seems to think that the Sen from Illinois is running against everyone but Senator McCain, from the Gov. of Alaska to a campaign manager, and so their function has been to try to dirty them and hope that as the stories accrue, the public is left with a certain impression crafted by their reporting, while the facts that undercut this impression will ultimately only be “corrected” in the back pages of the paper, if at all.

    http://proteinwisdom.com/?p=13309

    By the way check this out: http://hotair.com/archives/2008/09/24/new-mccain-ad-the-coal-miner/ (it is awesome)

    Joe (dcebbd)

  38. #21- If I thought you cared about the truth I’d explain it to you. But you’re a blip on my radar screen.
    Comment by Patterico — 9/24/2008 @ 7:18 am

    I think I like that. “You’re a blip on my radar screen” = not interested in facts or rational discussion, move on. Could be shortened to “Blip“.

    MD in Philly (3d3f72)

  39. IT and LN –

    I have not read Tapper (?) and have not followed the SEC thing at all, so I do not know what “ilk” LN seems to believe I am part of. Rather, I know how statutory federal commissions work from personal experience.

    The President could always request a resignation, and he could always issue an Executive Order. I am just not sure what the President would have to do to make that Order a legal one. The President could allege causes, but such an Order might requre a Judicial review prior to execution. If so, the magistrate, judge, or court might insist on a demonstration or evidence to support the allegation in the Executive Order. This difference is the heart of the distinction between an official who serves only at the pleasure of the President and all others.

    jim2 (a9ab88)

  40. Drudge is reporting that McCain is suspending his campaign to focus on the bailout plan. I don’t know that this is a good idea. I think the markets would be reassured by an Obama collapse in the debate Friday night.

    Mike K (f89cb3)

  41. The response to Sen. McCain from SEC Chairman Cox:

    “While I have great respect for Senator McCain, we have sometimes disagreed, and this is one such occasion. The SEC has made plain that we have zero tolerance for naked short selling. In this market crisis, the men and women of the SEC have responded valiantly as they always do—with the utmost dedication and professionalism. Addressing the extraordinary challenges facing our markets, the independent and bipartisan SEC has taken the following decisive actions:

    [List of steps the SEC is taking]

    “There is much more work to be done, and the current crisis is presenting new challenges on an hourly basis. What America and the world needs now is steadiness and reduction of uncertainty. History will judge the quality of our response to this economic crisis, but now is not the time for those of us in the trenches to be distracted by the ebb and flow of the current election campaign. And it is precisely the wrong moment for a change in leadership that inevitably would disrupt the work of the SEC at just the wrong time. I have long made clear my intention to leave the SEC after the end of this Administration. The next President will have an opportunity to look at the major structural questions so important to the regulation and oversight of our financial markets.

    “I very much appreciate the strong and immediate support of the President. As someone who has been in public life for over 20 years, I know as well as anyone that occasionally this sort of thing can come with the territory. The best response to political jabs like this is simply to put your head down and not lose a step doing the best job you can possibly do on behalf of those you serve. For my part, I plan to do just that. I leave the political campaigns to pursue their own course.”

    — While Cox understandably says it would not be a good idea to remove him, WHERE does he say that the President couldn’t remove him if he wished to do so?

    Icy Truth (0b6250)

  42. jim 2 wrote: As for removing “for cause”, are you sure you understand that process, and the threshold “for cause” would require?

    How interesting it is that you cited in your argument the NRC chairman at the time of the near-meltdown at Three Mile Island, and how he was removed by Carter “for cause.”

    You don’t think what’s happened in the past few months doesn’t qualify as “a meltdown?”

    L.N. Smithee (e1f2bf)

  43. (rumble..grumble…#@&!! ) …double-negatives!…

    L.N. Smithee (e1f2bf)

  44. LNS –

    You may find it interesting, but I do not recall that Carter removed him “for cause”.

    For one thing, he did not “remove” him from the commission at all. Second, he became chairman again a couple years later.

    Sorry if that impacted your analogy.

    jim2 (6482d8)

  45. Wow, I’m thinking McCain may have just lost the election. Either I just don’t get it (admittedly very possible) or he just admitted he can’t multi-task. Obama looks unruffled, saying “well, I can respond to the credit crisis AND do a debate. What’s wrong with you?”

    This smacks of desperation because the poll numbers were clearly getting away from him (Obama’s economy bounce has been just as high as McCain’s Palin bounce).

    I respected the surprise choice of Palin, because I thought he had the guts to make a big, risky move once in a while. This, however, starts to make him look like he’s trying lots of big, risky moves, because he has no actual platform to win on. Not good.

    Phil (6d9f2f)

  46. Just get your current talking points email Phil?

    G (722480)

  47. Mmmm!

    Love the smell of fresh astroturf!

    jim2 (6482d8)

  48. I actually enjoy the fact that McCain is addressing the financial crisis with his full attention. To me that says he’s ready to get to work and not deal with other distractions. Now I’d much rather see a debate on Friday though, just glad McCain has shown leadership.

    G (722480)

  49. Just goes to show how much faith McCain really has in this country’s fundamentals — it can’t get along without HIM! Must stop this campaign he’s losing, and go fix things himself!

    Phil (6d9f2f)

  50. Wow, I’m thinking McCain may have just lost the election.
    — I’m thinking you picked a bad week to stop sniffing glue.

    Either I just don’t get it (admittedly very possible)
    — Not without paying for it.

    or he just admitted he can’t multi-task. Obama looks unruffled, saying “well, I can respond to the credit crisis AND do a debate. What’s wrong with you?”
    — The economy is THE issue, an issue that needs to be dealt with IMMEDIATELY, and you think it’s important that they don’t postpone a debate on foreign policy?

    This smacks of desperation because the poll numbers were clearly getting away from him (Obama’s economy bounce has been just as high as McCain’s Palin bounce).
    — That’s right; he’s ‘desperately’ doing the right thing.

    I respected the surprise choice of Palin, because I thought he had the guts to make a big, risky move once in a while. This, however, starts to make him look like he’s trying lots of big, risky moves, because he has no actual platform to win on. Not good.
    — Doing his job, the job that the people of Arizona (including me) hired him to do, is a “risky” move?

    Icy Truth (0b6250)

  51. Patterico answered Larry Reilly: Whenever liberals call it whining when a conservative points out facts that have been distorted by the media, they show they don’t care about truth — only power. The media has the power to get it wrong, and ignore folks like me, because I’m just a blip on the radar screen, even though I’m right. And that’s okey-dokey with you.

    Further proof that they only care about power (and not truth) is the shocking admission from leftosphere superstars at a November 2007 conference and expo revolving around “new media” (italics mine):

    2. Media’s Treatment of the War in Iraq – A question from the audience was asked, “What about the recent facts on the ground in Iraq? What happens if developments in Iraq go well? Do these facts change or color the effort to pull all of our troops out when it appears we might become victorious for the hearts and minds of the people of Iraq?”

    The responses to this question from the audience member were shocking.

    First to respond, Jeralyn Merritt stated, in unequivocal terms “Facts Don’t Matter!” The questioner from the audience interjected, “What? Facts don’t matter?” Merritt responded again, “That’s right. Facts Don’t Matter. We want our troops home. Until they are home, the war was just a mistake.”

    [Hugh] Hewitt then asked the other members on the panel who were representing the Left, “Do facts matter in Iraq?”

    Not only did the other two panelists from the Left (Sudbay and Armstrong) repeat the phrase in agreement, “No, the facts don’t matter”, but Daily KOS founder Markos Zuniga (from the floor) weighed in by repeating the phrase loudly, to the surprise of a few of us in the room. “No. The Facts Don’t Matter.”

    The unison was stunning in its word-for-word declaration. This is more than just a talking point. It is a template.

    Leftist parties present (on the panel and from the audience) repeatedly stated that 70% of the American populace want the troops out of Iraq and that the US should end the war there now without regard to any other issue.

    L.N. Smithee (e1f2bf)

  52. The economy is THE issue, an issue that needs to be dealt with IMMEDIATELY, and you think it’s important that they don’t postpone a debate on foreign policy?

    Hey, I don’t think it’s important either way. I’m not the one who was chosen by his party to run for president, but can’t seem to find the time to actually run anymore.

    Doing his job, the job that the people of Arizona (including me) hired him to do, is a “risky” move?

    You all hired him to fix the national credit crisis? Come on — this is the guy who’s admitted he doesn’t really understand economics. What the heck is he going to storm into Washington and do?

    Hide from his sinking poll numbers, that’s what.

    Phil (6d9f2f)

  53. Phillogical.

    In Phillogic, if Obama had proposed delaying the first debate to focus on the problem, it would be brilliant, and if McCain declined to delay the debate, Phillogic would dictate that “McCain may have just lost the election” by demonstrating callousness. McCain is so egotistical, thinking he can both have the debate AND work on the economy. How dare he! It’s so Phillogical.

    In Phillogic, however, with McCain actually being the candidate to propose postponing the first debate and Obama being the one to decline to do so, “McCain may have just lost the election” because he’s admitting he can’t multi-task — and is so egotistical for thinking that the nation’s economic probablems can’t be solved without McCain!

    Phillogic!

    Mitch (890cbf)

  54. Hey, I don’t think it’s important either way.
    — Then you would be wrong. It is important. So is the news that the federal ban on offshore drilling has expired. ONCE AGAIN, the Dems cave, and do it in a typically weaselly manner — allowing the ban to expire, rather than voting to suspend it.

    I’m not the one who was chosen by his party to run for president, but can’t seem to find the time to actually run anymore.
    — Country First; not just a slogan but a way of life. Feel free to respond with evidence that the Party is opposed to his move today.

    You all hired him to fix the national credit crisis?
    — We hired him to do the work that a member of Congress is taxed to do.

    Come on — this is the guy who’s admitted he doesn’t really understand economics.
    — Gimme an el, and an eye, and an eeeeeeeeeee!!!!!!!!

    What the heck is he going to storm into Washington and do? Hide from his sinking poll numbers, that’s what.
    — How can he hide if he’s ‘storming in’? Watch the network evening news shows tonight and note who is featured in the top stories. Obviously, the President will be first because of his speech tonight; but who do you think will be number 2?
    Someone who is trying to hide?

    Icy Truth (0b6250)

  55. Hey, I’m not saying Obama’s brilliant. Never have. Today all he’s done is show up. Nothing brilliant at all.

    Having had a bit of time to mull this over, I’m starting to see what’s going on. This is a big, ballsey move on McCain’s part. It’s obviously and transparently political. He hasn’t stopped campaigning, obviously.

    If (and this is a big if) we start to see a recovery in the next few weeks, McCain can now take credit for it. After all, he selflessly abandoned his campaign, and look at what he accomplished!

    It’s actually somewhat consistent, too — after all if McCain really believes the fundamentals of the economy are strong (and I actually agree with him on that) then joining the panic that’s everywhere right now gives him a pretty good chance at looking like he “fixed” what he never thought was broken.

    Phil (6d9f2f)

  56. Must stop this campaign he’s losing, and go fix things himself!

    I endeavor to beclown myself at every opportunity here, no matter the subject at hand! I have nothing in the way of objective sources to buttress my ravings, yet continue to come here and post the many varied and fevered meanderings of my cognitive functions!

    Dmac (e639cc)

  57. Phil flip – flops more than a dead carp.

    Dmac (e639cc)

  58. I endeavor to beclown myself at every opportunity here, no matter the subject at hand! I have nothing in the way of objective sources to buttress my ravings, yet continue to come here and post the many varied and fevered meanderings of my cognitive functions!

    Yeah, me and every other commenter on this blog.

    Phil (6d9f2f)

  59. So let me get this all straight. McCain suspends his campaign to revert back to Senator McCain for this crisis. Now McCain is pinned as “afraid” of the debate on foreign policy, or that he can’t multi-task.

    I’m glad that Obama can multi-task so well. I mean, what is he gonna do on the vote? Vote present? Great multitasking there!

    G (722480)

  60. jim 2 wrote:

    LNS –

    You may find it interesting, but I do not recall that Carter removed him “for cause”.

    For one thing, he did not “remove” him from the commission at all. Second, he became chairman again a couple years later.

    Sorry if that impacted your analogy.

    Don’t worry your pretty little head, jim. It doesn’t “impact my analogy” because you are misrepresenting both what I wrote and what YOU originally wrote.

    Here’s what I wrote (bold mine):

    How interesting it is that you cited in your argument the NRC chairman at the time of the near-meltdown at Three Mile Island, and how he was removed by Carter “for cause.”

    I never wrote that the NRC chairman was removed “from the commission.” I clearly referenced the chairmanship. What made you think I did?

    The whole point of your nitpicky comment is that you think McCain believed “firing” Cox would not only remove him from the chairmanship, but from the SEC altogether. But you are the one who implied that Carter removed Joseph Hendrie because of TMI:

    In a formal federal commission, commissioners are nominated by the President and confirmed by the Senate. The President chooses which of the commissioners is chairman. The President’s unilateral right concerning the chairman is not to remove that person, but demote that one back to commissioner and designate a different commissioner to be chairman.

    There is precedent for that demotion/reselection. Consider the US Nuclear Regulatory Commission after the TMI accident.

    You linked a chart detailing former commissioners of the NRC, including the chairmen. According to that chart, Carter’s removal of Hendrie some five months after TMI was the first instance of an NRC Chairman being replaced in a manner other than resignation or term expiration.

    Hendrie’s second stint as NRC chairman only lasted three months until his term expired. He was replaced by Nunzio Palladino, whose entire term at the NRC was as chairman.

    Nice try.

    L.N. Smithee (e1f2bf)

  61. FYI, Pat – I got a post stuck in WordPress Purgatory backing you up on leftists’ priority on power over truth.

    L.N. Smithee (e1f2bf)

  62. Senator Obama (D-IL) isn’t going to stop his campaign to deal with the biggest financial crisis in US history, heck, his party caused it in the first place, and made a pretty penny too. Let the elected officials from fly-over country deal with the broken dreams of thousands of homeowners. This sort of stuff is above his pay grade anyway.

    Senator Obama has a prime time TV show to think about. He can’t be distraced dealing with tangentials, this is the big leagues folks, the real deal, it’s about time a THE ONE had a chance to show that old guy up, and on national TV too.

    No sir, pal, Obama’s just got to keep his eye on the ball, the Democrat Party expects nothing less of their nominee. Onward! History awaits THE COMING OF THE ONE, (even if there’s not much left when he arrives.)

    Ropelight (f4b89a)

  63. LN,

    I found your comment and released it. Thanks for your patience and thank you, also, for mentioning it here. I don’t always remember to check the filter so it helps if I see a comment mentioning that one is there.

    DRJ (c953ab)

  64. Hey, I’m not saying Obama’s brilliant. Never have. Today all he’s done is show up. Nothing brilliant at all.
    — He showed up AND voted “present”.

    Having had a bit of time to mull this over, I’m starting to see what’s going on. This is a big, ballsey move on McCain’s part. It’s obviously and transparently political. He hasn’t stopped campaigning, obviously.
    — I’d join Dmac in calling you the flip-flopper of the year, but I also have this take: you came up with this in order to cover your ass, putting McCain in a catch-22, damned-if-he-does-damned-if-he-doesn’t situation.

    If (and this is a big if) we start to see a recovery in the next few weeks, McCain can now take credit for it. After all, he selflessly abandoned his campaign, and look at what he accomplished!
    — And you can remind everyone that he was playing politics the whole time. But, if it doesn’t happen he has a head-start on resuming his Senate career; and you can return to your “he was packing it in” theory; right?

    Icy Truth (7b38bb)

  65. Yeah, me and every other commenter on this blog.

    Wrong – you made a statement on an earlier thread asking for proof of judicial corruption on a widespread basis; I provided it. So either admit the truth, or STFU.

    Dmac (e639cc)

  66. From the earlier thread titled “Biden and the Barbarians:”

    You wrote:

    PCD, if you think that much buying of either judges or jurors goes on, by all means, make your case.

    My response:

    Once again, here’s your evidence, Phil – you really don’t understand much regarding the Chicago Machine and Cook County politics, do you?

    http://www.chicagotribune.com/news/politics/chi-chicagodays-greylord-story,0,4025843.story

    Operation Greylord exposed just the tip of the iceberg regarding the widespread fraud and bribery that permeated the entire judicial system here, and still exists on multiple levels. Just over the past few years, we’ve had a former GOP Governor sent to the slammer for fraud, many Chicago Alderman sent to prison regarding shakedowns and bribery schemes, and now we have Tony Rezko awaiting a plea deal to spill the beans on what he’s been up to recently. There is a reason why both parties wanted Fitzgerald removed from his position here, and the fact that he was appointed by a former GOP Senator in order to clean up this cesspool made no difference to those who were reaping the rewards of the status quo.

    Dmac (e639cc)

  67. Dmac, I responded to your post – I just didn’t see it before. Relax, for crying out loud.

    Phil (3b1633)

  68. Phil,

    That was Dmac but he posted it earlier. I just found that comment in the spam filter and released it.

    There have been a lot of comments in the filter from a variety of long-time commenters. I think it might have something to do with the recent problems or maybe the server change Patterico mentioned a few days ago.

    DRJ (c953ab)

  69. Phil,

    That was Dmac but he posted it earlier. I just found that comment in the spam filter and released it.

    There have been a lot of comments in the filter from a variety of long-time commenters. I think it might have something to do with the recent problems or maybe the server change Patterico mentioned a few days ago.

    DRJ (c953ab)

  70. There have been more double comments, too.

    Sorry.

    DRJ (c953ab)

  71. I understand, DRJ. Thanks for trying to sort it out. I’m sure that these server problems are somehow, someway, the fault of those damn Democrats.

    Phil (3b1633)

  72. LNS –

    I did not say that Carter redesignated the nrc chairman using the “for cause” language. Can you support that?

    Nice of you to acknowledge that Hendrie once again became NRC chairman, defeating your argument. Oh, wait, are you asserting that resuming chairmanship of the NRC for a four months (less 3 days) is somehow consistent with the president having removed him “for cause”?

    The NRC chairman change in October 1979 was a symbolic change in the face of the recommendations of the Kemeny Report, which recommended making the NRC into a single administrator agency, like DOE. THAT’s why he was able to again be chairman. Ask a long time nuke.

    As for my pretty head, thank you!

    jim2 (9db0a5)

  73. So, I take it that you meant “fire” as redesignate which serving commissioner carries the title of “chairman”? Well, then sobeit, just as long as you know that the so-called “fire”d chairman remains as a commissioner. That seems hardly “fired” in the sense of removal from the commission, and certainly not what I thought you meant, disclaimer or no

    Try reading the post again. Especially this part:

    In other words, a President can remove a commissioner — but only for cause. Meanwhile, according to the D.C. Circuit case I provide above, the Chair himself serves at the President’s pleasure, meaning he can be removed for any reason or no reason.

    It’s true that the Chair serves a dual role as commissioner and Chair. But even if the President needs “cause” to fire Cox in his role as commissioner, he still can fire Cox. If I can fire you for cause, it’s wrong to say I can’t fire you at all.

    Patterico (cc3b34)

  74. It’s clear that Cox can be removed as chairman at will and the chairmanship handed to another Commissioner. That isn’t really being fired though, and every important issue before the SEC is decided by majority vote. The Chairman is the administrative head of the agency, but that does not give him power to make any rule changes or enforcement decisions; all of that goes to a vote.

    Whether or not Cox can be removed as a Commissioner, and if so, the grounds for firing is something the D.C. Circuit has assumed, but not decided squarely. The case that dealt with this issue explicitly was S.E.C. v. Blinder, Robinson & Co., Inc., 855 F.2d 677, 681 (10th Cir. 1988), where the 10th Circuit wrote:

    “Until 1950, the Chairman was elected
    annually. Following Reorganization Plan No. 10 of 1950 (see, Reorganization Act of 1949, 5 U.S.C. § 901-913), the President designates the chairman. Pursuant to this Reorganization Plan, the chairman succeeded to most of the executive and
    administrative functions of the commission. The Act does not expressly give to the President the power to remove a commissioner. However, for the purposes of this case, we accept appellants’ assertions in their brief, that it is commonly
    understood that the President may remove a commissioner only for “inefficiency, neglect of duty or malfeasance in office.””

    The D.C. Circuit cites to Blinder, Robinson in Free Enterprise Fund with approval, but this is a pure dictum, so the issue could be fairly challenged.

    That being said,the language of Free Enterprise fund, and the general reluctance of the courts to completely insulate adminstrative agencies from executive control in cases of bribery, misconduct, etc., make it extremely likely that the Free Enterprise fund dicta would be found to be the law by the D.C. Circuit.

    So Patterico is definitely right about redesignation of the chairmanship, and probably is right about how the D.C. Circuit would rule on dismissal of a Commissioner; I have no idea how the Supreme Court would come out on it though, and it is definitely the kind of issue that would be taken up on cert if squarely presented.

    However, nothing Cox has done that we know of rises to the level of “for cause”, so Cox could not be fired as a Commissioner for this mess. Whether McCain could force Cox out is doubtful. The Commissioners are supposed to be pretty independent, as they have quasi judicial powers in terms of broker-dealer regulations.

    Cyrus Sanai (4df861)

  75. Patterico –

    The English here is just a bit ambiguous. I was not then and am not now trying to get cross-wise with you.

    In my experience with commissions, I have not encountered the word “fire” when discussing re-designating the chairman. In some commissions, the President routinely redesignates the chairman to be a commissioner of his own party sometime shortly after he is sworn in. Those commissions are bipartisan in that both parties have members on the commission, with the party holding the White House entitled to appoint new ones as terms expire so as to have a majoruty.

    That is, for a 5 member commission, right now, if the commission has a full 5 members, 3 are Rep and 2 are Dem. If a Dem wins the White House, he could redesignate the chairman and fill the next vacancy with a Dem to have a 3 – 2 majority. That action has never in my experience been called “fire”.

    It would be a fair and tighter phrasing to say Bush could fire Cox _as chairman_. The Chairman his/herself is not removed, the chairmanship is shifted or redesignated. He could be “removed from the chairmanship” – that would be fair wording, or even “fired from the chairmanship”.

    I have worked with commissions and I apparently still misunderstood your intent, disclaimer or not.

    jim2 (9db0a5)

  76. Jeez! Phil ran away. jim2 made the last comment . . . and ran away.

    Icy Truth (d2ca3b)

  77. jim2 wrote: The NRC chairman change in October 1979 was a symbolic change in the face of the recommendations of the Kemeny Report, which recommended making the NRC into a single administrator agency, like DOE. THAT’s why he was able to again be chairman. Ask a long time nuke.

    From the conclusion of the Kemeny Report (bold mine):

    In addition to all the other problems with the NRC, we are extremely critical of the role the organization played in the response to the accident. There was a serious lack of communication among the commissioners, those who were attempting to make the decisions about the accident in Bethesda, the field offices, and those actually on site. This lack of communication contributed to the confusion of the accident. We are also skeptical whether the collegial mode of the five commissioners makes them a suitable body for the management of an emergency, and of the agency itself.

    We found serious managerial problems within the organization. These problems start at the very top. It is not clear to us what the precise role of the five NRC commissioners is, and we have evidence that ~ they themselves are not clear on what their role should be. The huge bureaucracy under the commissioners is highly compartmentalized with insufficient communication among the major offices. We do not see evidence of effective managerial guidance from the top, and we do see evidence of some of the old AEC promotional philosophy in key officers below the top. The management problems have been made much harder by adoption of strict rules that prohibit the commissioners from talking with some of their key staff on issues involved in the licensing process; we believe that these rules have been applied in an unnecessarily severe form within this particular agency. The geographic spread, which places top management in Washington and most of the staff in Bethesda and Silver Spring, Maryland (and in other parts of the country), also inhibits the easy exchange of ideas.

    We therefore conclude that there is no well-thought-out, integrated system for the assurance of nuclear safety within the current NRC.

    We have found evidence of repeated in-depth studies and criticisms both from within the agency and from without, but we found very little evidence that these studies have resulted in significant improvement. This fact gives us particular concern for the future of the present NRC.

    You are correct that there is nothing that says Chairman Hendrie — “the top” — was fired “for cause.” But the report sure makes it clear he didn’t have any business running the operation.

    Why did someone in the Reagan Admin feel he should given his old job back? God only knows. We’re all lucky to be alive.

    L.N. Smithee (ffab10)

  78. Whoops! It should have read: “From the conclusion of the section of the Kemeny Report about the NRC itself…”

    L.N. Smithee (ffab10)

  79. LNS –

    In a commission, the members do not run the agency day-to-day. That task belongs to the senior civil servants – and still does. The Kemeny recommendation was to do away with the commission structure entirely. He got his job back because he was a good man who had done nothing wrong. Carter rejected that Kemeny conclusion, but changed the chairman as a gesture. The subsequent Presidential decision was a vote of confidence to that effect.

    God certainly does know and we are always lucky to be alive. However, very, very little – if any at all – of that luck has been fortunate near-misses at US nuke plants.

    jim2 (a9ab88)


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