Czar Wars
posted by Jon Siegel
Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House. These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation. Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers. Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.
Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong. As Rivkin and Casey point out, the President can get advice from whomever he wants. He could get all his advice from me if that’s what he wanted to do. He doesn’t need Congress’s permission to seek anyone’s advice.
Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.” But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that? The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example). But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what?
Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so. Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me. Everyone else who serves at my pleasure, do what Joe Biden tells you to do.” Could there be anything wrong with that? I think not.
And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs. So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”
So I think Hutchison is wrong to suggest that there’s a constitutional problem. Of course, whether having so many czars makes sense as a public policy matter is a different question.
And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars. I’m not so sure about that. If the President wants to seek my advice, Congress can’t stop him. But if someone wants to be on the federal payroll, then Congress is footing the bill. If Congress wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so. The President has a lot of power, but the power of the purse is pretty potent, too.
September 21, 2009 at 7:09 am
Posted in: Administrative Law, Constitutional Law
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Responses (2)
DCLawyer - September 21, 2009 at 2:26 pm
I’m not sure a Czar could be subject to Senatorial confirmation as that is mandated for Officers of the United States. Would a Czar be an “inferior officer”? If so, could he still be required to under confirmation by the Senate?
I know one thing for certain – if this were a Republican president, there would be a LOT of angst from the academy about centralization of power, the “Imperial presidency,” the undermining of cabinet government, etc., etc. Of course, conversely, there wouldn’t be op-eds from GOP senators questioning their constitutionality.
Brett Bellmore - September 22, 2009 at 3:59 am
Of course there’s a constitutional problem: The President can ask advice of anybody he wants, but if he pays them federal funds to give that advice, THEN they’re officers of the federal government, in need of Senate confirmation. And if they’re wielding that much power, the claim that they’re inferior officers is going to be rather hard to defend.
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