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The Constitutionality of Obama's "Czars"

by Professor Will Huhn on October 7, 2009

in Constitutional Law,Uncategorized,Wilson Huhn

     Joe Markman of the Los Angeles Times reports today that five constitutional experts appeared yesterday before the Constitution subcommittee of the Senate Judiciary Committee and expressed their opinions regarding the constitutionality of President Obama's "czars" – officials who advise the President and coordinate policy among different agencies and departments of the federal government.  The experts agreed that the practice was constitutional so long as these officials operated in an advisory capacity only and exercised no legal authority.

     The Constitution provides that, with the advice and consent of the Senate, the President has the power to  nominate certain officers of the United States.  Article II, Section 2, Clause 2 of the Constitution (the "Appointment Clause") provides in part that the President:

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

     A webcast of the hearing is available here from the website for the Constitution subcommittee.  Some of the points made by the expert witnesses follow:

1.  No person actually has the actual title of "czar."  They are instead "special envoys" or "presidential advisors."

2.  Almost all of the persons described as "czars" report to some other official who has been nominated by the President and confirmed by the Senate – for example, special envoy Richard Holbrook reports to Secretary of State Hillary Clinton.  These are accordingly "inferior officers" whose appointment may be vested in the President alone or in the heads of departments.

3.  Public Law 95-570 (3 U.S.C. 105) authorizes the President to hire white house staffers, including "Assistants to the President" such as environmental "czar" Carol Browner, without Senate approval.

4.  White House staff members have no legal authority, but serve simply as advisors to the President, analogous to the role played by law clerks to Justices of the Supreme Court.  Like the "special envoys," these are inferior officers and accordingly under the Constitution it is appropriate for the law to entrust their appointment to the President alone.

5.  These "czars" help  the President to oversee the actions of administrative agencies.  The President has the power to remove the heads of these agencies and to direct their actions, but to exercise this power effectively he must know what the agencies are doing and he must be able to coodinate policy among different agencies.  The agencies themselves are subject to congressional oversight, and if these advisors were, in effect, running the agencies, it would violate the laws creating those agencies and the requirement in the Constitution that the heads of executive departments must be confirmed by the Senate.

6.  Under the Constitution, principal officers of the United States must be confirmed by the Senate, inferior officers may be appointed by the President alone, and non-officers are not subject to the Appointment Clause at all.  A memorandum prepared by the Office of Legal Counsel of the Justice Department from the Bush administration states that officers are persons who have the power to excercise "delegated sovereign authority" – sovereign functions such as rulemaking, investigation and prosecution of wrongdoing, adjudication, the authority to speak for the United States, and the authority to command the armed forces of the United States.

7.  To be an officer, one must also have statutory authority – and no-one on the white house staff has actual legal authority.  This is different from practical influence or informal power.  Does a person have the power to actually bind the government – to take a legally effective action?

8.  It is common for members of the White House staff to be extremely influential, it is clear that this has been true for a long time, and it is perfectly constitutional.  Whether this is a good thing is another question.

9.  There is no indication that any of President Obama's advisors has been exercising legal authority.

10.  It would not be constitutional for Congress to prohibit a President from relying on the advice any persons he chooses, inside or outside the government. 

11.  Despite the assertions of "Executive Privilege" raised by the Bush Administration, Congress does have the power to compel the testimony of Presidential advisors before Congress.

     Several of the expert panelists stated that it would be difficult to write a law limiting the authority of the President to choose advisors, and it would difficult for the courts to develop a legal principle that could be used to  distinguish between the lawful and unlawful exercise of power by presidential advisors.

{ 1 comment }

Darrel Baird October 7, 2009 at 10:39 am

I do believe that the influence of "Csars" is determined by the test of wills rather than a meeting of the minds. Roosevelt"s Harry Hopkins ,I think,is a good example of that.
It is my opinion that advisors meeting with the president without the appropiate cabinet member present is innapropiate .
Have a nice day,

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