All the President's Czars
Obama emerges as a champion of the unitary executive.
Oct 12, 2009, Vol. 15, No. 04 • By STEVEN MENASHI
A bipartisan chorus in Congress, along with a bevy of conservative activists, has denounced President Obama for appointing an unprecedented number of "czars"--special advisers, envoys, deputies, and board chairmen who coordinate the policy efforts of the White House but are not subject to congressional oversight. Because the czar posts are created and filled by the White House, appointees are not confirmed by the Senate and do not report their activities to any congressional committee.
Two czar-related scandals recently brought attention to their presence in the administration. Steven Rattner, the Wall Street financier who led the executive branch's efforts to save General Motors and Chrysler, resigned as "car czar" amid controversy over an investigation into his former firm. Van Jones, Obama's pick for "green jobs czar," turned out to have a checkered past on the political fringe. But many other czars continue to craft public policy under the direction of the president alone.
There is a czar to chart the course to economic recovery, a czar to facilitate the closure of Guantánamo Bay, and a czar to promote efficiency in government. There are czars to help formulate the president's policies with respect to Afghanistan, Sudan, and the Middle East peace process. Another czar tackles health care reform, another aims to improve border security, and another coordinates the administration's climate change, energy, and environmental policies. Others address terrorism, domestic violence, education, urban affairs, cybersecurity, faith-based initiatives, and a host of other issues.
In February, Senator Robert Byrd (D-WV) issued a press release identifying himself as "the constitutional conscience of the Senate" and touting a letter he sent to Obama to express his concern. "The rapid and easy accumulation of power by White House staff can threaten the constitutional system of checks and balances," Byrd wrote. "As presidential assistants and advisers, these White House staffers are not accountable for their actions to the Congress, to cabinet officials, and to virtually anyone but the president."
More recently, Senator Kay Bailey Hutchison (R-TX) insisted that the scandal surrounding Jones's resignation would have been prevented had he been vetted through a Senate confirmation. "It is Congress's 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," she wrote. "The deployment of this many czars sets a dangerous precedent that undermines the Constitution's guarantee of separated powers. It must be stopped."
Yet when the executive branch formulates policy through czars accountable only to the president, does that not leave the legislative and executive powers more separate, rather than less? Congress may reject whatever policies the president formulates with the aid of his czars, of course, but Byrd and Hutchison want the legislature to oversee policy formulation within the executive. That seems to be the greater threat to separated powers.
Senators expect to exercise such oversight because Congress has intruded upon the executive branch throughout the last half-century. Since the expansion of the federal bureaucracy during the New Deal, agencies nominally within the executive branch receive mandates directly from Congress, bypassing the president. So executive authority, which Alexander Hamilton expected to be characterized by energy and dispatch, is fragmented and divided between the president, Congress, and agency heads invested with their own independent authority. It's not surprising that presidents, who are after all elected to implement new policies, have responded to the fragmented executive by seeking independent advisers who can help formulate policy and monitor the bureaucracy in hopes of keeping it in line. FDR had his Brain Trust; Obama has his czars.
Czars who advise the president in this way have no authority of their own. They can't execute or administer the laws, but only help the president decide how he might do so. So they're not principal "Officers of the United States," subject to Senate confirmation, but the president's own staff. A team of czars can't prevent congressional oversight of the federal agencies that actually implement policy, but by centralizing policymaking in the White House, the czars increase the likelihood that agencies will respond to presidential leadership.
Among "ingredients that constitute energy in the executive" Hamilton counted "unity," meaning a single president. "This unity may be destroyed," he wrote, by vesting the executive power "ostensibly in one man, subject in whole or in part to the control and co-operation of others, in the capacity of counselors to him," such as executive officers accountable to Congress. The Founders warned that Congress would attempt to colonize the other branches. "The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex," reads Federalist 48. "The great security against a gradual concentration of the several powers in the same department," according to James Madison, "consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others."
Every president surely has an interest in formulating his own policy agenda. By establishing policy czars accountable only to himself, Obama has sought to unify executive policymaking and guard against bureaucratic and congressional usurpation. For all the hullabaloo surrounding Dick Cheney, Joe Biden, and the "unitary executive theory" in the last election, Barack Obama has emerged as the leading champion of the unitary executive in practice and--against his congressional critics--the defender of separated powers.
Steven Menashi is an Olin/Searle fellow at Georgetown University Law Center.