Pro & Con: Do White House policy ‘czars’ upset the separation of powers?

By Kay Bailey Hutchison

The framers of the Constitution knew that the document founding our democracy must be the anchor of liberty and the blueprint for its preservation. Wisely, they provided a balance of powers to ensure that no individual and no single arm of government could ever wield unchecked authority against the American people.

Nearly 250 years later, these critical lines of separation are being obscured by a new class of federal officials. A few of them have formal titles, but most are simply known as “czars.” They hold unknown levels of power over broad swaths of policy. Under the Obama administration, we have an unprecedented 32 czar posts (a few of which it has yet to fill), including a “car czar,” a “pay czar” and an “information czar.” There are also czars assigned to some of the broadest and most consequential topics in policy, including health care, terrorism, economics and key geographic regions.

So what do these czars do? Do they advise the president? Or do they impose the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate? Unfortunately — and in direct contravention of the framers’ intentions — virtually no one can say with certainty what these individuals do or what limits are placed on their authority. We don’t know if they are influencing or implementing policy. We don’t know if they possess philosophical views or political affiliations that are inappropriate or overreaching in the context of their work.

This is precisely the kind of ambiguity the framers sought to prevent. Article One tasks the legislative branch with establishing federal agencies, defining what they do, determining who leads them and overseeing their operations. Article Two requires the president to seek the advice and consent of the Senate when appointing certain officials to posts of consequence. Thus, authority is shared between government branches, guaranteeing the American people transparency and accountability.

As the senior Republican on the Senate Committee on Commerce, Science and Transportation, I oversee legislation and agencies that cover policy areas as vast and varied as trade, technology, transit, consumer protection and commercial regulation. As many as 10 of the 32 czars functionally fall under my committee’s jurisdiction. Yet neither I nor the committee chairman have clear authority to compel these czars to appear before our panel and report what they are doing. The Obama administration presented only two of these officials for our consideration before they assumed their duties. We have had no opportunity to probe the others’ credentials.

Recently we saw the kinds of dangerous details that can slip by when a powerful federal official isn’t put through the Senate confirmation process. Before assuming the post of “green jobs czar,” Van Jones had engaged in such troublesome activities as endorsement of fringe theories about the Sept. 11 attacks. He has ties to a socialist group. The Senate confirmation process would typically provide an appropriate forum for identifying and discussing these types of issues and for allowing for public input. Jones’ case highlighted the lack of accountability that is becoming commonplace under the Obama administration.

While Jones rightly resigned, there are dozens of other administration czars about whom we still know very little. It is Congress’ duty to know who is serving at the highest levels of government, what they are doing and what qualifications or complications these people bring to the job. It is also our responsibility to make this information known to the people who have elected us to serve and protect them. This is how we ensure accountability.

The deployment of this many czars sets a dangerous precedent that undermines the Constitution’s guarantee of separated powers. It must be stopped. President Obama should submit each of his many policy czars to the Senate so that we can review their qualifications, roles and the limits on their authority. To deliver anything less is to deny the American public the accountability and transparency the Constitution guarantees.

Sen. Kay Bailey Hutchison, a Republican senator from Texas, is running for governor of that state.

No: Czars have no legal power, and many presidents use them.

By David B. Rivkin Jr. and Lee A. Casey

Sen. Kay Bailey Hutchison has argued that the Obama administration’s “czars” are effectively in those positions unconstitutionally because their hiring creates “precisely the kind of ambiguity the framers sought to prevent.” Far from undermining the separation of powers, the president’s right to organize his White House policy-making apparatus is protected by that very principle.

The White House czars are presidential assistants charged with responsibility for given policy areas. In many respects, they are equivalent to the personal staff of a member of Congress. To subject the qualifications of such assistants to congressional scrutiny — the regular confirmation process — would infringe upon the president’s inherent right, as the head of an independent and equal branch of the federal government, to seek advice and counsel where he sees fit.

The result of a president seeking counsel where he likes may be embarrassment — as was the case with “green jobs czar” Van Jones. Barack Obama has taken the political hit — and he is not the first president to pay that price. In 2006, Claude Allen, a domestic policy adviser to President George W. Bush, resigned after being accused of shoplifting.

This raises a second point in the Obama administration’s favor: Some of the positions many are now criticizing have existed for years. As The Washington Post has reported: “By one count, Bush had 36 czar positions filled by 46 people during his eight years as president.”

However much the czars may drive the policy-making process at the White House, they cannot determine what that policy will be. The Constitution’s “appointments clause” requires that very senior federal officials be appointed with the Senate’s consent, though lesser appointments can be made by the president, agency heads or the courts, as Congress provides. Supreme Court precedent holds that an “officer” subject to these requirements is one who exercises “significant authority pursuant to the laws of the United States.”

This is the critical difference between the White House czars and federal officials who must be confirmed by the Senate. In the absence of legislation (such as that creating the Office of Drug Control Policy), the only power exercised by White House czars comes from their proximity to the president and the access this provides. Yes, as many will note, that truly is power. But it is not significant authority under U.S. law.

Thus, White House “Energy and Environment Czar” Carol Browner can analyze, develop, advise, hold meetings and pound the table all she likes on energy and environment issues, but she can determine nothing. Her signature on any order, decision or regulation establishing or altering Americans’ legal obligations would be unenforceable.

Contrast this with Browner’s authority as Senate-confirmed administrator of the Environmental Protection Agency during the Clinton administration, when her signature on regulations gave them the force and effect of law.

If there is doubt about the centrality of advisers to the president’s execution of his office, recall the 2005 demands by Democrats that former White House counsel Harriet Miers and Bush adviser Karl Rove testify before Congress about the dismissal of several U.S. attorneys. This effort had very little to do with Miers and Rove and even less to do with a handful of unhappy Republican political appointees. The target was always President Bush and his policies. Republicans who are concerned about Obama’s czars should not fall into the same bad habits now that a Democrat is president.

Hutchison’s frustration at being unable to tell whether the czars are imposing the administration’s agenda on agency officials who have been confirmed by the Senate is misplaced. The Constitution vests all executive power in the president, creating a unitary executive, and it is his authority to execute the laws that federal officials exercise, subject to his direction.

The writers are partners with Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

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