The czar question
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.