By David B. Rivkin Jr. and Lee A. Casey
Saturday, September 19, 2009
Sen. Kay Bailey Hutchison (R-Tex.) argued on this page this week ["Czarist Washington," op-ed, Sept. 13] 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, however, the president's right to organize his White House policymaking apparatus is protected by that very constitutional principle.
The White House czars are presidential assistants charged with responsibility for given policy areas. As such, they are among the president's closest advisers. 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 trench 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.
As Hutchison points out, the result of a president seeking counsel where he likes may well be embarrassment -- as was the case with "green jobs czar" Van Jones, who recently resigned over revelations of his ties to radical groups and his apparent endorsement of Sept. 11 conspiracy theories. 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 Post reported this week: "By one count, Bush had 36 czar positions filled by 46 people during his eight years as president." Historically, presidents have turned to special advisers.
However much the czars may drive the policymaking process at the White House, they cannot -- despite their grandiose (and frankly ridiculous) appellation -- 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. Well-established 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, whose director is the "drug czar"), 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 -- which only the Constitution or Congress can confer.
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 meaningless, unenforceable by a court.
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, fully enforceable in the courts, not infrequently by substantial fines and even jail time.
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. Legally, they can do no such thing. 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 in the D.C. office of Baker Hostetler LLP and served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.