Articles of Impeachment- Part 7: Czars

Alan Bersin, Donald Berwick, Ron Bloom, David Blumenthal, John Brennan, Carol Browner, Ashton Carter, Aneesh Chopra, James Crowley, Cameron Davis, ad almost infinitum.  This is a partial list of Obama “czars”- 45 in all.  Throw in an additional 18 proposed czars and the list grows to 63.

Generally speaking, this goes to the core of the Senate’s Advise and Consent role in the United States Constitution.  Some positions, today designated as “czars,” were established by statute.  Further, some of these statutes designate the person as an inferior officer not subject to the Advise and Consent clause of the Constitution.  If the Senate was to be involved in the confirmation of the deputy secretary of state to the undersecretary for Latin American Affairs, the Senate would be continuously bogged down in the confirmation process.

In reality, this “problem” dates back to the Progressive Era when it was thought that important decisions were being made due to political considerations rather than choosing the best policy alternatives based upon the best evidence available.  Simply, the Progressives believed that a team of “experts” would do a better job of formulating and enacting policy in a variety of areas.

Over the years Congress is to blame for transferring many of their duties to executive agencies.  Every president has attempted to gain control over these agencies.  Most recently, it is through the creation of a “czar” position to oversee overall policy in a certain area. Obama has simply taken it to new heights.

The Constitution does not specify cabinet positions or any other agency, although it anticipates such.  Richard Nixon attempted a heavy-handed centralization of Executive power in the cabinet while Carter attempted a small-minded micro-managerial style.  Reagan moved the pendulum back in favor of the cabinet-style of governance much like his predecessors Washington, Lincoln and others.  However, since Clinton there has been a tendency to centralize control within the Executive Office of the President.

Obama takes it all to a new level.  If the administration is using these czar positions to bypass the Senate’s advise and consent role, then there is a serious constitutional issue.  Of course presidential advisors advance the policy positions of any president.  However, when they become operational officers partaking in responsibilities normally reserved for officers who would require advise and consent/confirmation by the Senate, we have the problem.  For example, then-Climate Change Czar Carol Browner was the lead negotiator in establishing new automobile emission standards as a result of a Supreme Court decision.  This is a job normally reserved for the EPA Commissioner who must be confirmed by the Senate.

Under Obama, these “czars” act less and less as advisors and more and more as administrators.  Obviously, there are operational issues also which then confuse the picture and obscure Congress’ oversight responsibilities.  For example, who was really in charge of health care reform- HHS Secretary Kathleen Sebelius or Health Care Czar Nancy DeParle?

The problem in making this an “impeachable offense” is that there may be no legal basis for it.  Many of Obama’s czars report directly to someone who is confirmed by the Senate, although some admittedly do not.  As such, they are considered “inferior” officers and are appointed without Senate confirmation.  Those who report to Obama are considered presidential advisors.  Furthermore, P.L. 95-570 allows the president to appoint White House staffers, including advisers to the president, without confirmation.

Technically, they have no legal authority.  Some have described them as analogous to Supreme Court law clerks.  The president has the power to oversee the heads of the executive department.  He can remove them and direct them, but in order to do so, he must be aware of what is going on and there must be coordination among the various departments, especially when there are overlapping duties.  That is where the purported role of the czar comes in.  If these advisors were, in effect, running the agencies, then it would violate the laws under which the agencies or departments were created.

Under Bush, a legal memo largely explained the differences.  Officers subject to the Appointments Clause must have “delegated sovereign authority.”  That is, they must have the power of rule-making, investigation, prosecution of wrongdoing, adjudication and authority to speak for the United States.  In effect, if a czar does not have the power to actually bind the government (take effective legal action), they are not subject to the Appointments Clause.  That is the Bush administration’s definition through which Obama has slipped through.

The problem with the Obama czars is that they do exert enormous influence over policy in many areas.  But, that ability is not unique to the Obama administration.  And it is perfectly constitutional.  The question, then, is whether this is a good thing or not.  We do know that if Congress were to limit the number of advisers a president decides to have, that would be an unconstitutional infringement on the separation of powers.

Thus, this would not be an impeachable offense unless it can be proven that any one of these czars exerted any legal authority.  Contrary to the assertions of some Republicans, these czars can be compelled to testify before Congress and this has been true for awhile.

Instead, Congress needs to look inwards, not outwards here.  Through the increasing delegation of power to executive branch agencies and the expansive bureaucracy that state of affairs hath wrought, they are to blame for allowing a president to develop a managerial paradigm that skirts the edges of the Appointments Clause.  Instead of penalizing a president through impeachment for what amounts to nothing more than a managerial method- and a legal and constitutional one at that- the only recourse they have is the oversight process.