Professor Bainbridge...on law, politics, religion, culture & food

The important thing here is that John McCain didn’t know that.  Don’t be disingenuous.

(1) Not being clairvoyant, as I guess Eric is, I took McCain from the start at face value to mean that Cox should be fired as SEC chair, which the president can do. (2) The Blinder case, which has been widely cited and followed, assumed that the President can fire a SEC Commissioner under certain circumstances, including “inefficiency.” So even if McCain meant what Eric thinks he meant, McCain would still have been correct. (3) And why isn’t important that Wright and the blogosphere got it wrong?

Steve, I think you’re talking out your clairvoyant hat by claiming to be what you then claim not to be.

Unless you’ve interviewed Schmuck Talk yourself, you don’t know what he meant either.

And, giving the ever-increasing “winging it” factor (see “Spain, enemies of the U.S., Sept. 17), the assumption most blogs have made is much more likely correct.

Almost everyone subscribes to the notion that an SEC commissioner can only be fired for Cause, a threshold that I doubt anyone would argue includes inefficiency.  You say that Blinder is “widely followed,” but I don’t think an SEC commissioner has ever been removed for inefficiency, or any other standard below Cause (if at all). 

It is almost more noteworthy if McCain meant what he said in the way you describe, since it would identify him as another adherent of the unitary executive theory that everyone has grown so tired of.

I really don’t understand why people are being difficult about this. McCain said he would fire Cox. Wright said he couldn’t and countless folks have uncritically parroted the line. As I understand the law, McCain was right.

BTW, for those who still think the law is other than as I’ve described it, check out the MFS Securities Corp. and Bilzerian cases I cired in the update.

I believe Eric is seeing what he wants to see.

FIRE COX!  Folk’s this is serious!  (Right? or is this just another red herring like little TN hacker-boy stuff?)

I’m REALLY tired of this dem jibber-jabber...especially Michelle O trash talk.

Wake me up 03Nov09 and tell me how it went.

I guess you’ll never understand, Prof Bainbridge.  Just as the Obamassiah can never be wrong, McCain can never be right.  Especially not when the MSM disagrees with him.

Allow me to clarify.  My initial point is simply this: based on my own subjective view of the world, I highly doubt (i) that McCain was aware of the Blinder dicta or (ii) based on his comments today, that McCain was aware that, at least at some point, the general consensus was that a commissioner could only be removed for cause.  I argued the point that the conventional wisdom is that a commissioner can not be “fired” for less than cause to buttress this argumment (i.e., he could not have known he was right, if he was, because it is an opinion shared by a very few.) That being said, while I took Administrative Law several years ago at this point, it was after Blinder. 

The better question is why it even matters.  One answer is that after being in the Senate for this long he should know this type of thing.  Another, perhaps more important, potential conclusion is that McCain has not devoted adequate thought to a large financial crisis if a component of his solution is something that he is incapable of doing proceduraly.  Finally, it is a matter of temperament. 

With respect to the legal point: I think we can at least agree that at the end of the day, the law will be whatever the supreme court determines, if the issue ever presents itself (and I think this is an issue that the supreme court would hear). After having a Republican President nominating federal judges for 20 out of the last 28 years, I suspect judicial interpretation is trending towards the reading you’ve put forth.

So.. which is worse?  McCain being somewhat.. unclear.. about whether he could fire the SEC chief as President, or Senator Obama not realizing the Russia has a veto in the UN Security Council?

In other words, in typical democratic mumbo-jumbo BS, Eric just agreed with you Steve.

Rick, before you keep repeating the imbecilic talking point, you should know that McCain also called for a UN Security Council vote on Georgia.

Per Reuter’s on August 8, McCain said, “The U.S should immediately convene an emergency session of the U.N. security council to call on Russia to reverse course.”

So John McCain should have said that as President, he would demote Chairman Cox from the position - an action that he legally can take without showing cause.

It appears from your own research that a President McCain would have to show some sort of “cause” to remove the chairman.

BTW, personally, I think that Cox should be demoted.

"I took McCain from the start at face value to mean that Cox should be fired as SEC chair, which the president can do.”

But I think the (desired) rhetorical effect on the audience was that McCain would fire Cox from the commission. There was no nuance about removing him as Chair and allowing him to stay on the commission. So, while you might be right on the law, you’re wrong on the rhetoric. What McCain said to that audience was “I’d send Cox packing from the government.”

I agree with McCain that Cox needs to be replaced.  Mayor Wanda S. Parsnips of Buxtahatchee, Alabama, (pop. 7,387), is available too!  She’s a down-to-earth Walmart Mom with six kids and a solid husband who just won the local bass finshing tournament.  Mayor Parsnips is a champion frog-hunter and she looks good in a bikini, (she was on the cover of a Whitesnake album!).  She’s also a real reformer too.  She caught Jimmy Hasgood, the assistant manager at the Dennys, using canned peaches at the breakfast bar instead of fresh cut local produce. 

You want to clean up Wall Street?  Get Wanda, she’s your lady!

Clairvoyance has nothing to do with this. A large number of people, with, apparently the exception of Bainbridge, some of the folks over at the The Volokh Conspiracy and anyone with a right/libertarian leaning, believe that when McCain said he would “fire” Cox he really meant that he would “remove” or “demote” him from the Chairmanship position but not “fire” him from the Commission.  If McCain’s use of the word “fire” is truly ambiguous then his campaign should issue a statement to the effect that McCain really meant that he would simply demote/remove Cox from the Chairman’s position.  But the campaign has done no such thing.  And so, your passionate defense and ridicule of the MSM coverage is for naught.  In short, you effectively agree (based on the citations provided) that the President cannot willy-nilly fire SEC commissioners without cause.  The Blogosphere (and Wright) is only wrong if your interpretation of McCain’s statement is correct - a (highly) debatable proposition – and one that the McCain campaign itself has not embraced.

Indeed, there is nothing technically inaccurate about Wright’s statement: “But while the president nominates and the Senate confirms the SEC chair, a commissioner of an independent regulatory commission cannot be removed by the president.” The president cannot remove a commissioner from an independent regulatory commission like the SEC.  Your criticism is premised on the assumption that Wright knew that McCain only meant “demoting” Cox, rather than “removing” him entirely from the Commission.

So, if I’m following your logic here properly, you’re suggesting that since the President has the ability to appoint the Chairman of the SEC, that means that the Chairman serves at the pleasure of the President.

By that same logic, since the President also appoints Supreme Court Justices, does that mean that the Supreme Court also serves at the pleasure of the President?

And since your logic also seems to suggest that, since the President has the explicit right to appoint commissioners to the SEC that he must have an implicit (but never specified nor granted) right to remove commissioners, do you also believe that the President has the ability to remove Supreme Court Justices?

Because I don’t think your logic actually follows, though I’m totally willing to believe that it’s due to poor explanation rather than poor logic.

http://kudlow.nationalreview.com/post/?q=NmJjOWJiMmE5MTM5NGFjMTg3NjE0MTAzNzBiZjQ0M2M=

Kudlow is pretty critical of Cox.  I suppose the real question is not if he can be fired, but if he should be fired.

>>>Indeed, there is nothing technically inaccurate about Wright’s statement: “But while the president nominates and the Senate confirms the SEC chair, a commissioner of an independent regulatory commission cannot be removed by the president.”<<<

Except for, “and the Senate confirms the SEC chair”. That’s more than “technically” wrong. The President nominates and the Senate confirms the commissioners. The President appoints one of the commissioners to be the chairman, without Senate confirmation.

Now, the criticism of McCain may be justified. He’s no dummy, but he does often pop off without checking the facts, and he does know the difference between “fire” and “demote”. (Even though all his management experience is in an organization, the Navy, where demotion can be worse than firing.)

I am amazed how the partisans of Barack Obama have such little regard for “res judicata,” the established law. While we might want to take some time to look at the meaning of “inefficiency,” how can someone serve at the President’s pleasure and not be able to be removed?

If this is the best that Obama’s “ready response team” (which here in Chicago is rumored to have a lot of high-powered law firm types on board) can do, is it any wonder that Barack Obama himself has never produced a scholarly law article despite his law review and teaching experience and has also removed himself voluntarily from the Illinois roster of those who can legally practice law?

And how can McCain be wrong if there is still something to discuss on the power of the President to remove the Chairman?

This is a silly debate.  As a practical matter, were the president to “demote” an SEC chairman to just run-of-the-mill commissioner status, that chairman would leave.  He could stick around if he really wanted to be a pain about it, but in practice nobody would.  The important point is that McCain is just being ridiculous.  Going after short-selling is just shooting the messenger.  These investment banks are not going under because of bear raids based on completely fabricated rumors and false information.  People are shorting these stocks because they just don’t believe the balance sheets are accurate.  You could make the argument that Goldman is getting unfairly hammered because of fears over less well-situated firms, but all that means is that if Goldman’s shares drop too far, the firm will just go private.  For the rest, the problems are too real and McCain just demonstrated that he really doesn’t understand the nature of this financial crisis.