The czar ques­tion

The Washington Post Sunday - - SUNDAY OPINION -

The plethora of Obama-ap­pointed czars, who are not sub­ject to Se­nate con­fir­ma­tion, has ran­kled con­ser­va­tives and oth­ers wary of an over­reach­ing ex­ec­u­tive branch. Rep. Steve Scalise (R-La.) and 28 other House Repub­li­cans, in re­sponse to that con­cern, have in­tro­duced a bill to try to elim­i­nate the czar po­si­tions. The Hill re­ports:

“ The bill de­fines a czar as ‘a head of any task force, coun­cil [or] pol­icy of­fice within the Ex­ec­u­tive Of­fice of the Pres­i­dent, or sim­i­lar of­fice es­tab­lished by or at the di­rec­tion of the Pres­i­dent’ who is ap­pointed to a po­si­tion that would oth­er­wise re­quire Se­nate con­fir­ma­tion.”

But wait. As trou­bling as the czars are, does Congress have the power to tell the pres­i­dent whom he can hire?

Al­though there are few de­fin­i­tive an­swers in this area, it is im­por­tant to keep some pa­ram­e­ters in mind. In the most gen­eral terms, the Con­sti­tu­tion re­quires Se­nate con­fir­ma­tion of non-in­fe­rior “Of­fi­cers.” If a czar is an “Of­fi­cer” rather than mere ad­viser, the czar-elim­i­na­tion bill should pass con­sti­tu­tional muster. The prob­lem with the bill, then, is one of clar­ity: Which of the czars would “oth­er­wise re­quire Se­nate con­fir­ma­tion” — that is, be con­sid­ered an “Of­fi­cer”?

Todd Gaziano, di­rec­tor of the Cen­ter for Le­gal and Ju­di­cial Stud­ies at the Her­itage Foun­da­tion, e-mails this cau­tion­ary warn­ing: “ There are some steps Congress can take to limit the num­ber of high-level Czars, in­clud­ing lim­it­ing the num­ber of highly paid staffers in the Ex­ec­u­tive Of­fice of the Pres­i­dent, but there are also some con­sti­tu­tional lim­its that Congress must be care­ful to avoid, such as in­trud­ing upon the ad­vice the Pres­i­dent re­ceives from his sub­or­di­nates or mi­cro-man­ag­ing his de­ci­sion mak­ing process.”

Congress, for ex­am­ple, can’t pro­hibit the pres­i­dent from us­ing staff mem­bers, what­ever their job ti­tle, to com­mu­ni­cate his wishes on many is­sues. Congress can’t tell the pres­i­dent how to re­view reg­u­la­tions. In other words, the pres­i­dent is en­ti­tled to use his staff to com­mu­ni­cate and im­pose his will on those who are sub­ject to Se­nate con­fir­ma­tion. Fer­ret­ing out ex­actly what the czars do and how they do it would, I sus­pect, run into all sorts of ex­ec­u­tive priv­i­lege con­cerns. (It is ironic that these gen­eral con­cepts on which the Obama team would rely are part and par­cel of the dreaded “uni­tary ex­ec­u­tive” the­ory that riles up, so long as there is a Repub­li­can pres­i­dent, those on the left.)

So is there any­thing to be done? The power of the purse — cut­ting salaries or the bud­gets of agen­cies that czars have been ap­pointed to over­see — is the pri­mary tool at Congress’s dis­posal. But the fi­nal check on an im­pe­ri­ous pres­i­dent is the elec­torate. Vot­ers will de­cide in 2012 if Pres­i­dent Obama has over­reached both in his pol­icy de­ci­sions and his de­ploy­ment of un­ac­count­able czars.

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