Bersin in at CBP in Recess Appointment

Back in September of 2009, President Obama nominated Alan Bersin to take the helm at U.S. Customs and Border Protection. My original post, which includes his biographical details, is here.

To date, the Senate has not acted on the nomination. In fact, lots of nominations have languished. Some of that can be blamed on people being focused on health care and other pressing legislative issued. But, CBP commissioner is an important job that needs to be filled. The same can be said for TSA, but that is a different story (in brief, two nominees have backed out).

Apparently, the President is tired of waiting. Over the weekend, he exercised is constitutional prerogative to make recess appointments. In case any birther or other crank is worried about the legality of recess appointments, the Constitution specifically grants the President this authority in Article II, Section 2, Clause 3, which says "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." There is not even a limitation requiring that the appointment be in furtherance of the need for "a well regulated militia."

Bersin was among those appointed. So, we now have a new Commissioner of Customs and Border Protection. At least until the end of the next session of the Senate, at which time he will have to have been confirmed. As always, it will be interesting to see whether the change in leadership produces meaningful change visible to individual importers and others subject to Customs' regulatory oversight.

Comments

Anonymous said…
Larry -

Another in a long line of Commissioners who really don't know a darned thing about the job. I could name several people who are in private practice or retired that KNOW the challenges of CBP work and are eminently better qualified, but these folks are not politically "wired."

CBP's WORK gets done in spite of who's at the top. Washington could get nuked, and the field CBP officers would carry on quite well, thank you. The agency was born in the field, and works in the field irrespective of what's going on at Headquarters.

Your faithful Customs retiree.
Mar 29, 2010, 3:43:00 PM
Post a Comment

Popular posts from this blog

Ruling of the Week 2015.8: Old Jersey and Pitcairn Island

Image
For today's ROTW, I set out looking for a ruling dealing with some far off and preferably warm location. Turns out that, with the exception of coastwise transit issues, there are no Customs and Border Protection rulings involving Pitcairn Island or any of several Pacific Ocean microstates including Tuvalu , Niue , and Kiribati . Pitcairn Island What I did find is an interesting question about the country of origin marking for products of the Bailiwick of Jersey Island, Channel Islands. The ruling is HQ 561938 (Mar. 18, 2002). For those of you who may not know, Jersey is an island off the coast of Normandy, France. It is an independent international actor and not part of the U.K. although the U.K. is responsible for its defense and external relations. Also, the Queen is the Head of State in her capacity as "the Crown in Right of Jersey." It is, according to the U.S. Department of State, a " Crown Dependency " along with the Isle of Man and the Bailiwick o...
Read more

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl...
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance t...
Read more