Wednesday, October 7, 2009

Do White House Czars Violate the Appointments Clause?

The Senate Judiciary Committee Subcommittee on the Constitution yesterday held its hearing on the constitutionality of White House "czars"--an issue that has gained increased popular attention since Glenn Beck published his "List of Obama's Czars" in August.  (The White House responded here.)  Senator Cornyn (R-TX) may have stated the objections to czars most clearly:

First, it seems that some of President Obama's czars may wield a measure of authority usually reserved to principal officers of the United States.  In particular, some appear to exercise significant authority and have broad terms of duty, jurisdiction, and tenure.  See Morrison v. Olson.  If these czars are principal officers, they must be subject to Senate confirmation as required by the Constitution.

Second, even if none of the czars are principal officers, their ability to exercise decision-making authority absent congressional oversight is troubling.

Cornyn quoted Senator Byrd's (D-WV) February 2009 letter to President Obama cautioning that a proliferation of presidential assistants and advisers can lead (and has led) to accountability and oversight problems:

The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances.  At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials.  They have even limited access to the president by his own cabinet members.  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.

It's easy to see how badly designed czarships or rogue czars might blur lines of authority, create oversight challenges for Congress, and even present management problems for an administration.  But do Obama's czars violate the Appointments Clause?  Almost certainly not. 

The Appointments Clause, Art. II, Sec. 2, cl. 2, states 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 . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone . . .

The Office of Legal Counsel opined, "consistent with and expand[ing] on Buckley [v. Valeo]," in 2007 (during the Bush administration) that a position is an office for Appointments Clause purposes if "(1) it is invested by legal authority with a portion of the sovereign powers of the federal Government, and (2) it is 'continuing.'" 

Obama's czars do not meet this standard.  They by and large appear to be presidential advisers--and not "invested by legal authority with a portion of the sovereign powers of the federal Government."  (This is the White House position, as articulated by Greg Craig in his recent letter to Senator Feingold (D-WI).) 

But even if they are "inferior Officers," see Edmond v. United States, their appointment under 5 U.S.C. Sec. 105 appears to satisfy the Appointments Clause.  That section authorizes presidential employment of employees in the White House "without regard to any other provision of law regulating the employment or compensation of persons in the Government service."

(Nobody appears to be seriously arguing that any czars are principal officers, e.g., cabinet secretaries, that are also not subject to Senate confirmation.  See Feingold's statement for a helpful roadmap on czar types.)

If there's a serious, principled objection to White House czars, it's not based on the Appointments Clause.

SDS

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