AMERICA: THE COUNTRY OF CZARS?
INTRODUCTION
A highly accomplished man—journalist, investment banker, and
head of a private-equity fund—receives a phone call late one
1
December. On the other end is the Secretary of the Treasury, Tim
Geithner. He is offering the successful career man a position as
2
an auto industry advisor for the President. This offer is yet
another opportunity to add to the career man’s accomplishments.
As head of “the task force charged with saving the American
auto industry,”3 this man is “personally involved in firing the
chief executive of General Motors and negotiat[ing] with
Chrysler’s creditors . . . to avoid bankruptcy of that company.”4
Then, after only a few months in his new position, he resigns.5
What went wrong? It was discovered that the President’s trusted
advisor is being investigated by the SEC and New York State for
giving kickbacks as part of his private-equity firm’s
1
Steve Fishman, Exit the Czar, NEW YORK, Aug. 10, 2009, available at
http://nymag.com/news/features/58193/. “It was a call that, in a sense, Steven Rattner had been
waiting for most of his life.” Id.
2
Id. “The assignment was one of the most difficult jobs in the American economy and, as
such, a huge honor for an enlightened capitalist like Rattner.” Id.
3
Id.
4
Louise Story, Auto Advisor to Obama Had Ties to Industry
Fund, N.Y. TIMES, May 28, 2009, at B5, available at
http://www.nytimes.com/2009/05/28/business/28rattner.html?_r=1&dl
bk.
5
Martin Crutsinger & Ken Thomas, Steve Rattner Leaving Auto
Task Force, THE HUFFINGTON POST, July 13, 2009,
http://www.huffingtonpost.com/2009/07/13/steve-rattner-auto-taskf_n_230982.html.
1
“participation in a $122 billion state pension fund.”
6
This is the true story of President Obama’s “car czar” Steve
7
Rattner, with the exception of one thing: Rattner was not
8
personally “accused of any wrongdoing” or investigated. This
story highlights some potential dangers. For example, someone who
spends more time with the President in six months than most
people do in four years and who works closely with the President
9
on major policy changes could effectively deceive the public . A
lack of formal avenues whereby presidentially appointed policy
advisors can be evaluated contributes to this deception. Since
the public relies on its government to perform the critical
evaluation, these concerns emphasize recent debate on whether it
is constitutional for the President to appoint high-level policy
advisors without the advice and consent of the Senate.10
Many argue that appointing these advisors, commonly known
6
Jonathan Martin, Ron Bloom to Replace Steve Rattner as Car
Czar, POLITICO, July 13, 2009, available at
http://www.politico.com/news/stories/0709/24876.html.
7
Fishman, supra note 1.
8
Martin, supra note 6 (reporting that Rattner’s firm
Quadrangle Group LLC “was part of a joint SEC and New York state
investigation”).
9
Fishman, supra note 1. As another example, the Green Jobs
Czar resigned “after much controversy over his belief that the
U.S. government was involved in the horrific terrorist attacks of
September 11, 2001.” Protecting our System of Checks and
Balances, US FED. NEWS, Sept. 21, 2009, available at 2009 WLNR
18606282.
10
See John Bresnahan, Byrd: Obama in Power Grab, POLITICO, Feb.
25, 2009, available at
http://www.politico.com/news/stories/0209/19303.html (quoting
Senator Byrd who said that “such positions ‘can threaten the
Constitutional system of checks and balances’”).
2
and referred to as “czars,” is a violation of the Appointments
Clause in the United States Constitution.
11
The Appointments
Clause requires the Senate to either approve Presidential
appointments or vest the President with the power to appoint
12
certain officers —neither of which has been done with czars.
While the Obama administration is certainly not the first to
employ czars, it is receiving criticism for the vast number of
appointments, especially since some of these czars wield high
power in influencing the President’s policies on “high-profile
issues.”13
In an attempt to curb this unchecked power, two pieces of
11
Although the term “unconstitutional” may not be directly
used, the sponsorship of legislation calling for accountability
with czars implies they may be unconstitutional. See Czar
Accountability and Reform (CZAR) Act of 2009, H.R. 3226, 111th
Cong. (2009) (Westlaw). See also H.R. Con. Res. 185, 111th Cong.
(2009) (Westlaw).
12
U.S. CONST. art. I, § 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, whose Appointments are not herein
otherwise provided for, and which shall be established
by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.
13
See Gary Andres & Patrick J. Griffin, Using Czars in W.H. to
Focus on Policy, POLITICO, April 27, 2009, available at
http://www.politico.com/news/stories/0409/21720.html (listing
health care reform, climate change/energy, and urban affairs as
some of the areas in which czars are already leading efforts).
The authors also note that President Obama’s use of czars “puts a
unique stamp on the structure of his administration” despite
being a “bold strategy that includes a host of risks and rewards
not widely understood.” Id.
3
legislation have recently been introduced in the House of
Representatives.
14
One, House Resolution 185, is aimed at
receiving and holding hearings on a report from the President
“regarding the responsibilities, authorities, and powers of his
‘czars.’”
15
Another, House Bill 3226, seeks to withhold funding
from czars that have not been appointed pursuant to the advice
and consent of the Senate.
16
Still in the beginning stages
17
it is
unclear if either will provide a much needed resolution to a
hotly debated and politically charged argument with significant
constitutional overtones.
This Note addresses this pressing constitutional quandary.
Part I introduces the Appointments Clause, House Resolution 185,
and House Bill 3226. It also examines the practical and policy
considerations behind czars, including a brief history of
presidential use of czars. Part II analyzes the crux of the
constitutional question by focusing on and deconstructing the
Appointments Clause. Part III then proposes that, in an effort to
maintain the separation of powers and receive assurances of
accountability, the Executive acknowledge and understand
Legislative concerns over the use of czars, the Supreme Court
defer to the Legislature to make judgments about who is an
14
See H.R. Con. Res. 185 (Westlaw). See also H.R. 3226
(Westlaw).
15
H.R. Con. Res. 185 (Westlaw).
16
H.R. 3226 (Westlaw).
17
H.R. Con. Res. 185 (Westlaw); H.R. 3226 (Westlaw). As of
October 26, 2009, both the Resolution and Bill are in the
committee stage.
4
officer, or Congress vest the appointment power of czars as
inferior officers in Heads of Departments.
I. EMPLOYING CZARS: POTENTIAL PROBLEMS
AND
SOLUTIONS
The criticism revolving appointing czars is two-fold.
Learned scholars debate whether czars are really necessary, and
whether they are fundamentally acceptable under the Appointments
Clause. The House of Representatives’ proposed legislation aims
to resolve both of these questions.
A. The Appointments Clause
Article II, Section two, Clause two of the Constitution,
known generally as the Appointments Clause, states:
[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,
whose
Appointments
are
not
herein
otherwise provided for, and which shall be established
by
Law:
but
the
Congress
may
by
Law
vest
the
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.18
The founders of the Constitution considered many things in
drafting the Appointments Clause.19 Addressing a concern for
18
U.S. CONST. art. I, § 2, cl. 2.
19
See generally MICHAEL J. GERHARDT,
17–29 (Duke University Press) (2000)
historical timeline of the founders’
the federal appointments authority).
5
THE FEDERAL APPOINTMENTS PROCESS
(detailing a thorough
deliberations on allocating
The author discusses that
separation of powers, the Clause essentially formed as a
compromise “to ensure balance, accountability, and energy” with
the President and the Senate having very specific and separate
roles.
20
Despite the rigid roles detailed therein, the Clause is
still ambiguous as to certain aspects and constitutional
questions such as the czar dilemma are bound to arise.
21
The Supreme Court has acknowledged that the Clause only applies
to “(1) all executive or administrative officers (2) who serve
pursuant to federal law, and, (3) who exercise significant
some of the aspects considered were separation of powers
concerns, debates for and against a strong or weak executive, and
finding a compromise to appease both small and large states in
the Union. Id.
20
Id. at 28 (explaining that the president is able to make
nominations
because he is more accountable for his choices than the
multimembered body of the Senate, he can act more
efficiently in making nomination decisions, he is
likely to be less provincial than the Senate in
nominating people because he is expected to be more
familiar than any senator with qualified people from
around the country, and he is less prone than senators
to make secret deals on appointments).
The Senate on the other hand
is sufficiently independent from the president and
protective of the public welfare to prevent the
president from nominating his cronies or other unfit
people to important governmental positions, to make the
president account relatively swiftly for his bad
judgment in making nominations, and can otherwise check
the president’s abuse of his nominating authority. Id.
21
Id. at 16 (listing that some of these areas are: who
qualifies as an officer, if the president has to consult with the
Senate prior to a nomination for appointment, and if the
Constitution “limits or defines the criteria” for the president’s
procedure in choosing nominees and the Senate’s procedure in
approving or rejecting those nominees).
6
authority over federal government actions.”
22
Therefore, the focus
of a constitutional question arising under this framework lies in
the definition and distinction of officers.
Depending on whether or not czars are classified as
principal officers, the constitutional question arises because
they have not been subject to the advice and consent of the
Senate.
23
In order to bypass the advice and consent of the Senate
requirement, presidents can use means such as temporary or recess
appointments or placing people on their staffs.24 Recent use of
czars seems to fall in this latter category.25 However, Congress
has also developed techniques for directing the president’s
choices including using their “oversight and appropriations”
powers.26
22
Seattle Master Builders Ass’n v. Pac. Nw. Elec. Power and
Conservation Planning Council, 786 F.2d 1359, 1365 (9th Cir.
1986) (citing Buckley v. Valeo, 424 U.S. 1, (1976)).
23
The Clause enumerates the powers of the President providing
for appointment of principal officers with the advice and consent
of the Senate and for inferior officers if Congress has exercised
its plenary power to vest the appointment power in him. U.S.
CONST. art. I, § 2, cl. 2. Therefore, the only manner in which
advice and consent of the Senate is not required is if the czars
are merely employees or inferior officers. Id.
24
GERHARDT, supra note 19 at 174.
25
Id. (“No doubt, as the movement of influence toward
nonconfirmed figures such as the chief of staff or chief counsel
has become more widely known, it has attracted intensified
attention from Congress, the media, and interest groups.”)
26
One example of this involves President Lincoln who nominated
“four different generals to head the Union Army” and in response,
“the House established a special oversight committee that put
constant pressure on President Lincoln to take certain actions .
. . .” Id. Another example involves President Clinton naming a
“record number of chief White House counsels” because of
Congress’s “intense scrutiny of these officials.” Id. For more
7
B. The Practical Consideration: Arguments For and Against
Czars
“Czars” are people who presidents appoint and delegate
duties to in an effort to help execute their plans. Although the
constitutionality of czars has only come to the forefront
recently, President Obama is not the first president to use czars
in his administration.
1.
27
Presidents and Czars
The term czar started off with a negative connotation when
it came to American politics.28 However, starting with President
Roosevelt’s administration, over the years it has transformed
into a somewhat benign or perhaps harmless term.29 During the
information, see id.
27
Protecting our System of Checks and Balances, 2009 WLNR
18606282. “While there is a long history of the use of White
House advisors and czars, that does not mean we can assume they
are constitutionally appropriate. It is important to understand
the history for context, but often constitutional problems creep
up slowly.” Michael Scherer, Russ Feingold Takes On ‘Czars’: A
Plea For a More Civil Discourse?, TIME, Oct. 6, 2009 available at
http://swampland.blogs.time.com/2009/10/06/russ-feingold-takeson-czars-a-plea-for-a-more-civil-discourse/.
28
Ben Zimmer, Czar Wars How Did a Term for Russian Royalty
Work Its Way Into American Government? SLATE, Dec. 29, 2008,
http://www.slate.com/id/2207055/. “Czar” started off as a term to
describe “anyone with tyrannical tendencies.” Id. It was first
used in America to describe Andrew Jackson’s foe Nicholas Biddle
who, as President of a bank, centralized power in the bank. Id.
Then, after the Civil War, Johnson was also labeled as a czar for
his “mishandling of Reconstruction.” Id. But it was Democratic
congressmen who popularized the term in American politics by
referring to Republican House Speaker Thomas Reed as a czar for
“push[ing] through a rule that allowed the speaker to count
members as present for the quorum even if they didn't respond.”
Id.
29
Id. During World War II, when President Roosevelt “expanded
the government rapidly,” the Washington Post reported “on the
sudden rush of ‘executive orders creating new czars to control
8
Nixon administration though, when President Nixon appointed the
first drug czar and an energy czar, czars escalated in
popularity.
30
Since then, other presidents have used czars in
their administration. President Clinton appointed a czar to
“coordinate economic policy” and President George W. Bush
selected a czar “to lead efforts surrounding his signature No
Child Left Behind reform.”
31
The Democratic Party’s blog
calculated that the Bush Administration employed a total of 47
czars.32 Most recently, President Obama sparked the current czar
controversy by using czars “broadly and on [] many high-profile
issues.”33 In fact, Glenn Beck estimates that as of July 10, 2009
various aspects of our wartime economy.’” Id. Before President
Roosevelt though, the term had already started to take on a
favorable meaning. Id. For example, the first commissioner of
baseball was referred to as the czar of baseball and there was
also a boxing czar and a beer czar in New York. Id. Also, House
speaker Nicholas Longworth referred to himself as the genial
czar. Id. Also around the same time, a cartoon shows czar of
prices Leon Henderson, czar of production Donald Nelson, and czar
of ships Emory S. Land. Id.
30
Id. (stating “but it was the title of ‘energy czar’ that got
the most attention . . . [John A. Love’s] more powerful successor
William E. Simon really got the ‘czar’ ball rolling. [T]he
president himself used the term energy czar and discomfitingly
likened the role to that of Hitler's minister of armaments,
Albert Speer.”) (emphasis added).
31
Andres & Griffin, supra note 13. President Clinton “used
Robert Rubin and the National Economic Council” while President
Bush “brought in education expert Sandy Kress to lead efforts.”
Id.
32
See The Bush Czars, THE DEMOCRATIC PARTY, Sept. 16, 2009,
http://www.democrats.org/a/2009/09/the_bush_czars.php
(categorizing czars into AIDS, faith, budget, cleanup,
communication, cybersecurity, homeland security, intelligence,
manufacturing, public diplomacy, regulatory, and other czars,
based on news sources).
33
Andres & Griffin, supra note 13.
9
the Obama administration had 32 czars with plans to add more.
2.
34
Policy Considerations
One major concern many critics have is the immense number of
czars and why they are necessary.
35
Many czars are appointed to
roles very similar to an already established position, which
raises the question of why there needs to be multiple people
doing the same job.
36
Another concern is the financial cost of czars. “[M]ost of
the czars are making over $170,000 per year and have an office, a
staff, and transportation and travel budgets, all at taxpayer
34
See List of Obama’s Czars, THE GLENN BECK PROGRAM, Aug. 21,
2009,
http://www.glennbeck.com/content/articles/article/198/29391/
(listing 32 czars by title, salary, who they report to,
appointment date, and departments that might have handled similar
issues along with other possible czars yet to be appointed).
35
The hyperbolic statement “czarist Russia had just 18 czars
in 300 years. In just seven months, President Obama has nearly
doubled that number. At this rate, we’ll have 272 czars by 2012”
tends to portray some of the political backlash over czars. Who
Czar They? President Obama’s Czars Leave More Questions Than
Answers, AP ALERT, July 28, 2009. “For many on the right . . . the
czars are a means to an end . . . a plot device . . . in the
great battle for ratings, public opinion and power . . . .”
Scherer, supra note 27. “It doesn't matter that many of these
czars bear virtually no relation to a Russian monarch; it sounds
better, vaguely socialistic even, to call them after terrible
despots like Nicholas II, Emperor and Autocrat of All The
Russias.” Id.
36
Rep. Johnson Calls for Transparency, Accountability, Senate
Confirmation for Many Unchecked White House Czars, US FED. NEWS,
Sept. 18, 2009, available at 2009 WLNR 18362229. For example,
there is an Energy Czar and a Secretary of Energy; a Health
Reform Czar and a Secretary of Health and Human Services; and a
Terrorism Czar and a Secretary of Homeland Security. For an
easily accessible reference list of czars in the Obama
administration performing roles similar to an already established
department or position, see List of Obama’s Czars, supra note 34.
10
expense.”
37
The czars are also “costing taxpayers millions” in
other respects.
38
Critics argue that czars should have to come
before Congress and justify their budget like other high
officials such as cabinet secretaries.
39
Perhaps most important is the necessity of a legislative
check on the Executive’s power in appointing czars.
40
There is “an
urgent need for transparency and accountability with the
37
Protecting our System of Checks and Balances, 2009 WLNR
18606282.
38
For example, the Stimulus Accountability Czar received $18
million to makeover the stimulus accountability website. Rep.
Johnson Calls for Transparency, Accountability, Senate
Confirmation for Many Unchecked White House Czars, 2009 WLNR
18362229.
39
See Who Czar They? President Obama’s Czars leave More
Questions Than Answers, supra note 35 (stating “each year every
cabinet secretary must sit before several House and Senate
Committees to ask for and justify his or her budget. But not
these czars—not one has come before Congress”). See also Rep.
Johnson Calls for Transparency, Accountability, Senate
Confirmation for Many Unchecked White House Czars, 2009 WLNR
18362229 (“[T]he President should keep his campaign promise of
government transparency and require his closest policy advisors
to come before the Senate and undergo the constitutionallymandated vetting and approval process.”)
40
See, e.g., Rep. Johnson Calls for Transparency,
Accountability, Senate Confirmation for Many Unchecked White
House Czars, 2009 WLNR 18362229; Who Czar They? President Obama’s
Czars Leave More Questions Than Answers, supra note 35
(discussing the need for balance of power even if the President
has a right to pick his own team and agenda). See generally
Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 959
(1983) (“The choices we discern as having been made in the
Constitutional Convention impose burdens on governmental
processes that often seem clumsy, inefficient, even unworkable,
but those hard choices were consciously made by men who had lived
under a form of government that permitted arbitrary governmental
acts to go unchecked.”). “With all the obvious flaws of delay,
untidiness, and potential for abuse, we have not yet found a
better way to preserve freedom than by making the exercise of
power subject to the carefully crafted restraints spelled out in
the Constitution.” Id.
11
presidential appointments of czars.”
41
The czars have
“extraordinary unchecked power and influence and the American
people have a right to know who they are, their qualifications,
their potential conflicts of interest, and what their job
descriptions will be.”
42
Otherwise, situations such as “a 31 year
old with no background in the auto industry appointed to serve as
the car czar” will continue and perhaps even cause
embarrassment.
43
However, some argue that czars have the potential to
transform the economy and play a crucial role in reform. One such
argument is that using czars helps presidents to focus on their
policy agenda in two main ways.44 First, since “it’s easy to move
from crisis to crisis and lose sight of the agenda originally
promised,”45 czars show that the President is focused “on the
41
Rep. Johnson Calls for Transparency, Accountability, Senate
Confirmation for Many Unchecked White House Czars, 2009 WLNR
18362229. “Americans want, need, and deserve transparency and
accountability. Let’s rein in the czars.” Id.
42
Id. Representative Kingston stated that if the President can
show transparency, accountability, and balance in using these
czars, then he can “have all the czars he wants.” Who Czar They?
President Obama’s Czars leave More Questions Than Answers, supra
note 35.
43
See, e.g., Rep. Johnson Calls for Transparency,
Accountability, Senate Confirmation for Many Unchecked White
House Czars, 2009 WLNR 18362229; Who Czar They? President Obama’s
Czars Leave More Questions Than Answers, supra note 35.
44
See Andres
presidents face
risks are “only
“getting spread
administrations
& Griffin, supra note 13. The authors state all
two major risks with negative outcomes. These
reacting to events rather than shaping them” and
too thin.” By adopting the czar approach,
are able to combat both of these risks. Id.
45
Id. (explaining “every administration must face its share of
disasters and emergencies — it comes with the job”).
12
matters promised during the campaign.”
46
Second, czars help keep
the “President and his staff grounded”
47
and combat the temptation
for presidents to become involved with too many activities. The
President’s involvement in too many projects leaves the public
confused as to his priorities and leads the public to view him as
overwhelmed rather than in charge.
48
C. Legislative Proposals
As a result of the negative policy considerations and the
constitutional implications of employing czars, a set of
legislative proposals have been initiated.
1. House Bill 3226
On July 15, 2009, House Bill 3226, also known as the Czar
Accountability and Reform (CZAR) Act of 2009 was introduced in
the House of Representatives.49 Representative Jack Kingston from
Georgia introduced the legislation on behalf of himself and
seventeen co-sponsors, after which it was referred to the
46
Id.
47
Id. By creating czar positions, “it combats the tyranny of
the urgent, signaling to the administration, outside stakeholders
and the Hill what’s really important to the president.” Id.
48
For the proposition that “the Cabinet, stakeholders or just
daily world events” are tempting factors and the public’s
confusion stems from the President taking on an impossible
workload or “unlimited agenda” see Id. However, despite the
positive aspect of czars, the authors also discuss potential
“risks associated with this hyperattention to particular issues
through the use of czars.” Id. These risks include the opposition
and the public viewing the President “almost exclusively and
narrowly as a legislator” and inhibiting flexibility by
“spotlight[ing]
presidential initiatives and efforts.” Id.
49
Czar Accountability and Reform (CZAR) Act of 2009, H.R.
3226, 111th Cong. (2009) (Westlaw).
13
Committee on Oversight and Government Reform.
50
The bill seeks:
To provide that appropriated funds may not be used to
pay for any salaries or expenses of any task force,
council, or similar office which is established by or
at the direction of the President and headed by an
individual who has been inappropriately appointed to
such position (on other than an interim basis), without
the advice and consent of the Senate.
51
This bill exemplifies the House utilizing a weapon provided to it
in the Constitution. By refusing or withholding funds to the
president, the House can control presidential actions it deems
inappropriate without actually challenging the constitutionality
of such actions.52
All members who sponsored the bill are affiliated with the
Republican Party but some key Democrats are also questioning the
constitutionality of czars.53
50
See H.R. 3226 (Westlaw). See also Rep. Kingston Introduces
Czar Accountability and Reform Act, US FED. NEWS, July 31, 2009,
available at 2009 WLNR 14793288.
51
H.R. 3226 (Westlaw).
See U.S. CONST. art. I, § 8, cl. 1 (giving Congress the power
to raise revenue and expend it for various government
activities).
52
53
See Bresnahan, supra note 10 (“[T]he longest-serving
Democratic senator, is criticizing President Obama’s appointment
of White House ‘czars’ to oversee federal policy, saying these
executive positions amount to a power grab by the executive
branch.”). See also Noelle Straub, Sen. Byrd Questions Obama’s
Use of Policy ‘Czars’, NY TIMES, Feb. 25, 2009, available at
http://www.nytimes.com/gwire/2009/02/25/25greenwire-byrdquestions-obamas-use-of-policy-czars-9865.html (discussing
Senator Byrd’s letter to President Obama questioning his
appointment of czars). For the full text of Senator Byrd’s
letter, see id. at
14
2. House Resolution 185
House Resolution 185 is a concurrent resolution introduced
in the House on September 15, 2009 which expresses Congress’
belief that
(1) the President should(A) issue a report to Congress clearly outlining the
responsibilities,
the
special
qualifications,
assistants
to
the
and
authorities
President,
of
commonly
referred to as 'czars', that he has appointed; and (B)
certify to Congress that such czars have not asserted
and will not in the future assert any powers other than
those granted by statute to a commissioned officer on
the President's staff; and
(2) Congress should hold hearings on such report and
such certification within 30 days after the date of
their receipt.54
The resolution was introduced by Representative Marsha Blackburn
of Tennessee and referred to the Committee on Oversight and
Government Reform with 93 co-sponsors.55
http://www.eenews.net/public/25/9865/features/documents/2009/02/2
5/document_gw_02.pdf
54
H.R. Con. Res. 185, 111th Cong. (2009) (Westlaw).
55
H.R. Con. Res. 185. The resolution also states that while
Congress recognizes that the Constitution gives the President
power to appoint advisers whose communications with him are
protected, there is a need for “adequate transparency and
accountability to the public” and appointing czars “may subvert
the legislative and oversight authority of Congress under Article
I of the Constitution.” H.R. Con. Res. 185. See also Official
Alphabetical List of the House of Representatives of the United
States One Hundred Eleventh Congress, OFFICE OF THE CLERK, U.S. HOUSE
OF REPRESENTATIVES, Sept. 24, 2009,
15
II.
CONSTITUTIONAL PREDICAMENT: THE APPOINTMENTS CLAUSE
Constitutional issues are rarely unambiguous—Supreme Court
dissents illustrate this point. The czar question is no
different. Certainly, the unique position of a czar was never
contemplated by the founders.
56
As Chief Justice John Marshall
famously stated, “it is a constitution we are expounding.”
57
However, the founders did foresee some potential issues arising
with appointments in general and chose to address those issues
with the Appointments Clause by striking a delicate balance
between the Legislative and Executive branch.58 In deciding the
http://clerk.house.gov/member_info/olmbr.html (listing the name
and party of each co-sponsor of the resolution).
56
Chief Justice John Marshall stated
A constitution, to contain an accurate detail of all
the subdivisions of which its great powers will admit,
and of all the means by which they may be carried into
execution, would partake of the prolixity of a legal
code, and could scarcely be embraced by the human mind.
It would, probably, never be understood by the public.
Its nature, therefore, requires, that only its great
outlines should be marked, its important objects
designated, and the minor ingredients which compose
those objects, be deduced from the nature of the
objects themselves. That this idea was entertained by
the framers of the American constitution, is not only
to be inferred from the nature of the instrument, but
from the language.
M’Culloch v. Maryland, 17 U.S. 316, 407 (1819). This excerpt
reflects the idea that while the category of “inferior officers”
was explicitly provided for in the constitution at the time of
its creation, challenges to new positions such as czars was
inevitable.
57
Id. Chief Justice Marshall’s view was that the framers
provided a basic outline of principles that would be clarified
over time as new and unforeseeable challenges appeared. Id.
58
See Immigration and Naturalization Service v. Chadha, 462
U.S. 919, 957–58 (1983) (stating that “to preserve those checks,
16
constitutional question of czars, it must first be determined if
they are officers and if so, whether they are principal or
inferior officers. In making these determinations, it is
imperative to deconstruct the Appointments Clause. After
interpreting how czars fit within the Clause, one can propose a
solution to the possible constitutional problem.
A. Appointments Clause Concerns
In drafting the Appointments Clause, the founders intended
to achieve several different objectives. Challenging the
constitutionality of czars is an example of the desire to adhere
to these objectives. First, and most obvious, the Supreme Court
has established that separation of powers is a critical purpose
served by the Clause.59 Essentially, the Appointments Clause is a
“significant structural [safeguard] of the constitutional
and maintain the separation of powers, the carefully defined
limits on the power of each Branch must not be eroded”).
59
“The Constitution protects Americans’ liberties by creating
a limited government that is divided into three separate
branches, each of which holds only those powers delegated to it.”
Protecting our System of Checks and Balances, 2009 WLNR 18606282.
“Separation of powers was designed to encourage each branch of
government to serve as a watchdog over the powers of the other
branches, so that no one branch abuses or acquires too much
power.” Id. “The Clause ‘is a bulwark against one branch
aggrandizing its power at the expense of another branch.’” Edmond
v. United States, 520 U.S. 651, 659–60 (1997) (discussing The
Federalist Papers and Justice Story’s Commentaries on the
Constitution of the United States). It “supports the President’s
authority and duty to see to the execution of the laws.” Id. The
Clause also “preserves another aspect of the Constitution’s
structural integrity by preventing the diffusion of the
appointment power.” Id. There are also other separation of powers
concern which may affect the president’s appointment power such
as the “anti-aggrandizement” principle and the president’s duty
under the “Take Care Clause.” Steven G. Bradbury, Officers of the
United States Within the Meaning of the Appointments Clause,
OPINION OF THE OFFICE OF LEGAL COUNSEL, April 16, 2007, available at
2007 OLC Lexis 3.
17
scheme.”
60
It is fundamental to the separation of powers because
it “prevents congressional encroachment upon the Executive and
Judicial branches” by vesting the President alone with the power
to select principal officers.
61
Simultaneously, however, the
Clause requires the Senate’s consent on those appointments in an
effort to “curb Executive abuses” and promote sensible choices.
62
In the Federalist Papers, Alexander Hamilton notes that if the
President was solely responsible for appointments he would be
governed more by “his private inclinations and interests.”63 The
cooperation of the Senate attempts to resolve that temptation
because the President would fear rejection of his choice, danger
to his reputation and political career, and unpopularity with the
people for nominating someone for personal or political reasons.64
One major apprehension over czars is the president’s potential to
abuse his power since the Senate does not have an opportunity to
review czars.
Another purpose of the Clause is to “assure a higher quality
60
Edmond, 520 U.S. at 659.
61
Id.
62
Id. The Clause is “designed to preserve political
accountability relative to important government assignments.” Id.
63
THE FEDERALIST NO. 76 (Alexander Hamilton), reprinted in THE
FEDERALIST AND OTHER CONSTITUTIONAL PAPERS, 417 (E.H. Scott ed., William
S. Hein & Co., Inc. 2002) (1898).
64
Hamilton felt that a president would be “both ashamed and
afraid to bring forward . . . candidates who had no other merit
than that of . . . being, in some way or other, personally allied
to him.” Id.
18
of appointments.”
65
The founders realized that “the true test of a
good government is its aptitude and tendency to produce a good
administration.”
66
They wanted both the President and the Senate
to play a role in the decision making process since both are
representatives of the people.
67
As an individual, the President
is less likely to be influenced by outside sources than a
collective body of people.
68
And the Senate, as the branch that
aid[s] and support[s] the executive, secur[es] the rights of the
individual states, the government of the United States, and the
liberties of the people,” will do its best to fulfill those
duties through its role in the appointments process.69 Alexander
65
Edmond, 520 U.S. at 659.
66
THE FEDERALIST NO. 75 (Alexander Hamilton) reprinted in THE
FEDERALIST AND OTHER CONSTITUTIONAL PAPERS, 414 (E.H. Scott ed., William
S. Hein & Co., Inc. 2002) (1898).
67
Id. (stating “it is not easy to conceive a plan better
calculated to promote a judicious choice of men for filling the
offices of the Union”). See also Letter from Roger Sherman to
John Adams (July 1789), in 4 THE FOUNDERS’ CONSTITUTION 1, 108 (Philip
B. Kurland & Ralph Lerner eds., 1987). In the letter, Roger
Sherman wrote the branches of government are “all directed to one
end, the advancement of the public good.”
68
See GERHARDT, supra note 19 at 212–29, 231–34. “Since the
late eighteenth century, select citizens . . . have exercised
occasional influence over the outcome of the federal appointments
process.” Id. at 212. The public can participate in the federal
appointments process by “writing, phoning, submitting petitions,
telegraphing,” polling data, and acting “through intermediaries
such as interest groups.” Id. at 213–17. Also, “presidents and
senators routinely consult friends and other interested
individuals about possible nominations and confirmations.” Id. at
231. Lastly, “perhaps no actor or institution has been criticized
more for its activities in the federal appointments process than
the media.” Id. at 234.
69
Letter from Roger Sherman to John Adams, supra note 67.
Roger Sherman told John Adams that because of the knowledge of
people in the states, senators can “give the best information as
19
Hamilton commented that the appointments power is a balance,
which holds both the President and the Senate publicly
accountable for either a “bad nomination” or “rejecting a good
one.”
70
It is argued that because czars are high level policy
advisors, the Senate requires input in the appointing process in
order to accomplish its duty of producing the best possible
administration for citizens.
Lastly, by requiring Senate approval, the Appointments
Clause “contributes to the stability of the administration.”71 It
connects public officers with approval or disapproval by the
Senate, which is likely the most stable part of the government.72
Also, when there are new presidents, officers that were approved
by the Senate instead of only the previous President will less
to who are qualified for office.” Id. Also, because the senators
are responsible to states, they will be vigilant in supporting
states’ rights “against infringement by the legislature or
executive of the United States.” Id.
70
See Edmond v. United States, 520 U.S. 651, 660 (1997).
Alexander Hamilton stated:
The blame of a bad nomination would fall upon the
president singly and absolutely. The censure of
rejecting a good one would lie entirely at the door of
the Senate; aggravated by the consideration of their
having
counteracted
the
good
intentions
of
the
executive. If an ill appointment should be made, the
executive for nominating, and the senate for approving,
would participate, though in different degrees, in the
opprobrium and disgrace.
Id. See also GERHARDT, supra note 19 at 34–38 (discussing the
constitutional limits on presidential and senatorial discretion
in the appointments process).
71
Hamilton, supra note 63.
72
Id.
20
likely be replaced.
73
B. The Key Distinctions
The Appointments Clause expressly vests the President with
the power to nominate four classes of people subject to the
Senate’s advice and consent.
74
While the first three classes are
fairly clear, the last of these four categories, “Officers of the
United States,” is more problematic because the Clause itself
does not define the term “officers.”
75
Additionally, the Clause
also provides an option for Congress to vest the appointment
power of inferior officers in the President without any guidance
on what constitutes an inferior officer.76 Hence, when it is
unclear how to categorize appointed officials such as czars,
there is a struggle to appropriately label them in order to
comply with the Constitution’s requirements.
73
Id.
74
See U.S. CONST. art. I, § 2, cl. 2 (enumerating the
President’s power to nominate (1) ambassadors, (2) other public
ministers and consuls, (3) judges of the Supreme Court, and (4)
all other officers of the United States, subject to the advice
and consent of the Senate).
75
Id. (providing only “whose appointments are not herein
otherwise provided for, and which shall be established by Law”).
76
Id. The provision for inferior officers, also known as the
“Excepting Clause” was included for “administrative convenience”
purposes to avoid the “cumbersome procedure” of requiring the
advice and consent of the Senate. United States v. Germaine, 99
U.S. 508, 509–10 (1878). “[F]oreseeing that when offices became
numerous, and sudden removals necessary, this mode [advice and
consent of the Senate] might be inconvenient, it was provided
that, in regard to officers inferior to those specially
mentioned, Congress might by law vest their appointment in the
President alone, in the courts of law, or in the heads of
departments.” Id. But the administrative convenience only applies
if the appointees are truly inferior officers. Edmond v. United
States, 520 U.S. 651, 660 (1997).
21
1.
Officers v. Employees
There is no bright line test on who constitutes an officer
or employee.
77
One view is that a definition of “officer” is
difficult to ascertain because (1) there are not enough cases to
establish a coherent precedent and (2) the few cases that exist
to define officer give mere conclusions instead of arguments
justifying their conclusion.
78
“The earl[iest] Appointments Clause
cases often employed circular logic, granting officer status to
an official based in part upon his appointment by the head of a
department.”79 For example, in United States v. Hartwell, the
Court found Hartwell—“a clerk in the office of the assistant
treasurer of the United States”—to be an officer.80 The Court
reasoned that he was appointed by a “department head,” the
assistant treasurer, with the approval of the Secretary of the
Treasury and that his position “embrace[d] the ideas of tenure,
duration, emolument, and duties”—specifically “continuing and
permanent, not occasional or temporary” duties.81 Under this
77
See Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1132
(D.C. Cir. 2000) (citing Nick Bravin, Note, Is Morrison v. Olson
Still Good Law? The Court’s New Appointments Clause
Jurisprudence, 98 COLUM. L. REV. 1103, 1114 (1998)). “Early Supreme
Court attempts to define the term ‘officer’ provide inexact, if
any, judicially manageable standards.” Id.
78
See Edward Susolik, Note, Separation of Powers and Liberty:
The Appointments Clause, Morrison v. Olson, and Rule of Law, 63
S. CAL. L. REV. 1515, 1545 (1990).
79
Landry, 204 F.3d at 1132–33.
80
United States v. Hartwell, 73 U.S. 385, 392 (1867).
81
Id. at 393 (finding defendant was an officer because he
worked for the United States, he was appointed by law, his
compensation was fixed by the law, his tenure was set, and his
22
approach, it is unclear whether czars are officers. On the one
hand, many of them are appointed by department heads suggesting
they are officers.
82
On the other hand, their positions are often
limited in tenure, duration, and duties since they are employed
to help the President with a specific issue and are relieved once
the specific issue is resolved.
83
Early on, the Court also set a precedent for defining
employees when it held that someone is merely an agent or
employee if he or she aids someone else in the “performance of
[the other person’s] official duties.”84 Other factors the Court
considered were if the person was appointed and removable at
pleasure.85 This approach suggests that czars are merely employees
since they aid the President in his various duties and are
appointed and removed by him at will.
In 1920, the Court attempted to define the terms “employee”
and “officer” further when Justice Brandeis wrote that the
distinction rests on “the manner in which Congress has
specifically provided for” three things: (1) creation of the
position, (2) duties of the position, and (3) appointment of the
position rather than on “differences in the qualifications
necessary to fill the positions or in the character of the
duties were permanent). See also Bravin, supra note 77 (stating
that the Court did not elaborate on any of these characteristics
so a balancing approach was subsequently used).
82
See discussion supra INTRODUCTION about Steve Rattner.
83
See discussion supra INTRODUCTION and Part I.B.
84
United States v. Germaine, 99 U.S. 508, 512 (1878).
Id.
85
23
service to be performed.”
86
Since then additional efforts were
expended to clearly define the terms. According to an opinion of
the Office of Legal Counsel, the essential elements of an
“office” under the Appointments Clause are (1) “the position must
possess delegated sovereign authority of the federal government
and (2) it is “continuing.”
87
These elements resemble the Court’s
holding in Buckley v. Valeo that “any appointee exercising
significant authority pursuant to the laws of the United States
is an Officer.”88 Czars certainly exercise significant authority
since they are entrusted by the President to fulfill various
86
See e.g., Burnap v. United States, 252 U.S. 512, 516 (1920)
(explaining that “the term ‘employ’ is used as the equivalent of
appoint” and clerks and employees includes people “filling
positions which require technical skill, learning and
professional training but that the distinction between employee
and officer is different than that); Walsh v. United States, 156
F. Supp. 619, 620 (E.D. Pa. 1957) (holding firefighters hired by
“an Army officer operating under Civil Service standards adopted
by the War Department” to be employees not officers because the
act of Congress allowing for creation of these positions applied
to “independent establishments” as well, “Congress clearly had
nothing to do with establishing the duties of [the
firefighters],” and the firefighters were hired by an Army
officer
not appointed).
87
See Bradbury, supra note 59 (defining delegated sovereign
authority as “power lawfully conferred by the Government to bind
third parties, or the Government itself, for the public benefit”
including authority to “administer, execute, or interpret the
law”) Bradbury also explains that under the first requirement,
“officers are persons to whom the powers delegated to the United
States by the Constitution are in turn delegated in order to be
carried out.” Id. Also, according to prior common law, an officer
was someone who carried out the king’s duties or had authority
that would “affect the people generally.” Id. As to the second
requirement, the position must be permanent or not “personal,
transient, or incidental.” Id.
88
Buckley v. Valeo, 424 U.S. 1, 125 (1976). See also Bradbury,
supra note 59 (taking the phrase “significant authority pursuant
to the laws of the United States” to convey both delegated
sovereign authority and the continuing elements).
24
tasks, often on high profile issues.
89
The Court in Buckley also said that “the Appointments Clause
could, of course, be read as merely dealing with etiquette or
protocol in describing ‘Officers of the United States,’ but the
drafters had a less frivolous purpose in mind.”
90
This purpose was
articulated by the Court as dividing all officers into two
classes (principal and inferior) and requiring anyone holding an
office to be appointed by one of the modes prescribed in the
Clause.91 Therefore, it logically holds that anyone not appointed
by one of the modes in the Clause, either with the advice and
consent of the Senate or by the Senate vesting the appointment
power, would not be considered an officer of the United States.92
Instead, such a person might merely be an employee or agent.93
Czars are challenged precisely because they have not been
appointed by either mode. This implies that they cannot be
officers but rather employees. The Court in Buckley proceeded to
state that “employees are lesser functionaries subordinate to
officers of the United States” who would be “subject to the
control or direction of any other executive, judicial, or
89
See discussion supra Part I.B.
90
Buckley, 424 U.S. at 125.
Germaine, 99 U.S. at 509–10.
91
92
Id. (stating “all persons who can be said to hold an office
under the government about to be established under the
Constitution were intended to be included within one or the other
of these modes of appointment there can be but little doubt”).
93
Id. The Court also stated that nine-tenths of the people
working for the government are simply agents or employees without
becoming officers. Id.
25
legislative authority.”
94
In the case of czars, this definition is
circular and unhelpful. If it is unclear whether czars are
officers, how can it be determined if they are employees
subordinate to officers?
As one lower court observed, “many of the numerous cases
deciding which individuals on the Government payroll are
‘officers’ and which are ‘employees’ are difficult to
reconcile.”
95
This is certainly true for czars since the Supreme
Court’s guidance on how to make the proper determination is
contradictory.
2.
Principal v. Inferior Officers
Reflecting on its own jurisprudence, in 1997 the Supreme
Court said “our cases have not set forth an exclusive criterion
for distinguishing between principal and inferior officers for
Appointments Clause purposes.”96 However, in Morrison v. Olson,
the Court provided four factors for determining the existence of
an inferior officer including: whether they are subject to
removal by a higher officer, whether they perform only limited
94
Buckley, 424 U.S. at 125.
Walsh v. United States, 156 F. Supp. 619, 622 (E.D. Pa.
1957). See also United States v. Cisneros, 26 F. Supp. 2d 13, 23–
24 (D.C. 1998). The court in Cisneros held that “the operative
distinction between an officer and an employee concerns the
nature and scope of their authority.” Id. It further stated, “to
determine the scope of an official’s authority, courts look to
the federal statutes which define that authority.” Id. In the
District of Columbia Circuit specifically, it is established that
an officer gets his authority from a federal statute. Id.
95
96
Edmond v. United States, 520 U.S. 651, 659 (1997). In fact,
the Court listed that it has found a “district court clerk, an
election supervisor, a vice consul charged temporarily with the
duties of the consul, a ‘United States commissioner,’” and an
independent counsel to be inferior officers. Id.
26
duties, whether they have narrow jurisdiction, and whether they
hold limited tenure.
97
However, the Court also warned that it was
not attempting to “decide exactly where the line falls” because
the situation in that particular case was already clear.
98
Then, in Edmond v. United States, the Court changed the test
by holding that “inferior officers are officers whose work is
directed and supervised at some level by others who were
appointed by presidential nomination with the advice and consent
of the Senate.”99 The new test basically “combines the first two
of Morrison’s factors—removeability and scope of duties.”100 Also,
97
Id. at 661. The Court explained “limited in tenure” to mean
appointment to an office which is terminated after a single task
has been completed and “limited in jurisdiction” to mean
performing only those tasks within the scope of jurisdiction
granted as both terms were used in the Morrison case. Id.
98
Id. (holding that an independent counsel “clearly falls on
the ‘inferior officer’ side of [the] line”). Effectively, this
implements a “we-know-it-when-we-see-it approach.” Bravin, supra
note 77.
99
Edmond, 520 U.S. at 661. In Edmond, one of the issues was
whether judges of the Coast Guard Court of Criminal Appeals who
were appointed by the Secretary of Transportation were principal
or inferior officers. Id. at 655–56, 666. The Court held that the
term “inferior officer” naturally suggests a direct relationship
with a higher officer, not merely the existence of other higher
officials. Id. at 661. Otherwise, the Constitution would have
said “lesser officer.” Id. To support the Court’s interpretation
of the Appointments Clause, it looked to the first Congress which
expressly designated certain principal officers and their
subordinates as inferior officers. Id. Under this holding, the
Court found the judges to be inferior officers because “the
General Counsel of the Department of Transportation in his
capacity as Judge Advocate General and the Court of Appeals for
the Armed Forces” both supervised over the judges’ work. Id. at
666.
100
See Bravin, supra note 77. The Court in Edmond found the
status as “inferior officers” based on the fact that they could
be removed and “ha[d] no power to render a final decision on
27
“Edmond did not reject the validity of the Morrison factors,
suggest that the result in Morrison would have been different had
the Court employed the Edmond analysis, or indicate that the
factors relied on in Edmond would be the governing factors for
all future Appointments Clause challenges.”
101
Under the Morrison approach, czars are likely to be inferior
officers. The removal factor is clearly met since czars can be
removed by the department heads who appointed them or by the
President.102 Czars also have limited duties, narrow jurisdiction,
and limited tenure since they are often appointed to work on a
single policy area. However under the Edmond analysis, it is not
as clear. While some czars are sure to work with others in the
execution of their duties, it is ambiguous whether others are
directing and supervising the czars’ work or simply aiding. Most
likely, since czars are appointed to work on the President’s
policy issues and often perform an advisory role to the
President, they are supervised on some level suggesting that they
are inferior officers, if officers at all.
III.
RESPONDING
TO THE
CZAR UNCERTAINTY
behalf of the United States unless permitted to do so by other
executive
officers.” Id.
101
Justice Souter’s concurrence in Edmond “viewed supervision
as a necessary but not sufficient condition of inferior officer
status.” Id. For a detailed comparison of the Morrison and Edmond
cases, see United States v. Libby, 429 F. Supp. 2d 27, 37 (D.C.
2006) (quoting United States v. Gantt, 194 F.3d 987, 999 (9th
Cir. 1999)).
102
See Hamilton, supra note 63 (stating that consent of the
Senate is required to both appoint and remove officers but the
editors clarified that “this [Hamilton’s] construction has since
been rejected by the Legislature; and it is now settled in
practice, that the power of displacing belongs exclusively to the
President”).
28
Although the current czar controversy is embroiled in a
political clash, there is a credible constitutional argument at
the center.
103
Resolution of this argument depends on the
classification of czars, which is difficult due to the inherent
ambiguity in their roles. Nevertheless, there are potential
solutions that may appease both the constitutional dispute and
the political criticism. This Note promotes three distinct
schemes for consideration including simple acknowledgement of the
issue, legislative deference by the Supreme Court, and Congress
vesting the appointment power of czars in heads of departments.
A.
The First Step is Acknowledging there is a Problem
Perhaps there is a simple solution to the czar issue. The
Executive branch should recognize that the Legislative branch has
a valid motive for being alarmed and has good intentions. The
Senate, composed of “respectable citizens” is simply trying to
encourage “fair and upright conduct” by the Executive.104 Because
the Executive and the Legislative branches are both dedicated to
the “public good,” there is “no reason why the several branches
of the government should not maintain the most perfect
103
With the rare exception, there appears to be a split along
party lines with mainly Republicans questioning the validity of
czars. See discussion supra Part I.C. See also discussion supra
note 53. Despite the political implications, the widespread use
of “czars” on high profile issues raises legitimate Appointments
Clause concerns.
104
See Letter from Roger Sherman to John Adams, supra note 67
(expressing his belief that senators are respectable citizens
with “wisdom and probity, superior to mean and unworthy conduct”
and have the “best tendency to preserve the confidence of the
people and of the states”).
29
harmony.”
105
Regardless of whether the Executive branch perceives
a valid concern about the issue of czars, by acknowledging that
the Legislative branch—a body composed of citizens, elected by
citizens, and directly answerable to citizens—is worried about
transparency and accountability, it is effectively helping itself
while helping the Legislative branch.
If the Executive branch provided the public, and thereby the
Senate, with more information about the czars it intends to use,
people would feel more comfortable with the idea of czars and may
not even perceive a problem. Fear of the unknown is often worse
than the reality of the situation. Hence, lack of information
about criteria used to select czars and the specific duties of
czars leads to an increase in the magnitude of fear. One method
in which the Executive could alleviate some of these fears would
be to hold a press conference every time a new czar position is
created and inform the public about why the position was created,
what goals the “czar” will be working toward, and how the
position will help achieve those goals.106 This simple information
would help to dispel any rumors and allow people to stay
informed. In turn, people would be more likely to be accepting of
the work czars do even if they do not necessarily agree with it
because they would understand the rationale behind certain
decisions. Similarly, the President often needs Legislative help
in implementing many of the programs and decisions czars are
105
Id.
Press conferences are simply one method of communicating the
information. However, other methods such as press releases or
addressing Congress may be similarly effective.
106
30
involved with and allowing the Legislature to feel comfortable
with czars only progresses that relationship.
107
Despite these laudable goals, early indicators suggest that
the Executive branch does not perceive a problem exists.
108
For
example, White House counsel Greg Craig told Senator Susan
Collins that czars working in the White House will not testify
before Congress.
109
The decision was based on the belief that
while “it is theoretically possible that a president could create
new positions that inhibit transparency or undermine
congressional oversight, [t]hat is simply not the case, however,
in the current administration."110 At the very least, the
Executive branch should not casually dismiss the notion that
107
From the President’s perspective, there may be some
hesitancy in following this course of action since it might be
viewed as ceding his power to appoint personal advisors.
Furthermore, such actions do require time and may slow down the
appointments process generally.
108
As one example, the Director of Communications for the White
House wrote on the White House’s official website a blog entitled
“The Truth About ‘Czars’” in which she responded to several of
the major complaints against czars. Although the piece contained
valid points, its main purpose was to “call out” the “lies” about
czars which implicitly suggests that there is no truth to any of
the arguments against czars. Anita Dunn, The Truth About ‘Czars’,
THE WHITE HOUSE BLOG, Sept. 16, 2009,
http://www.whitehouse.gov/blog/the-truth-about-czars/.
109
See Stephen Dinan, White House: Policy Czars Won’t Testify,
THE WASH. TIMES, Oct. 23, 2009, available at
http://www.washingtontimes.com/news/2009/oct/23/czar-warescalates-between-congress-white-house/?page=2 (reporting that
the White House counsel said “they will not make available any of
the czars who work in the White House and don't have to go
through Senate confirmation. She [Sen. Collins] said he [White
House counsel] was ‘murky’ on whether other czars outside of the
White House would be allowed to come before Congress”).
110
Id. In his four-page letter, the White House counsel also
stated that the positions are "are solely advisory in nature and
have no independent authority.” Id.
31
appointing czars is a violation of the general spirit of the
Constitution, which seems to empower the legislature to have
input in major decisions affecting the public.
111
Therefore, even
if there is no perfect solution to the czar problem,
acknowledgement may be sufficient to enable the two branches to
work amicably on the issue.
B.
The Need for Legislative Deference
As with many constitutional issues, the czar question may
not be truly resolved until it reaches the Supreme Court. The
Court has already proved somewhat valuable in Appointments Clause
concerns by providing insight into the Clause’s intentions.112
However, since previous attempts to offer insight on the crucial
distinctions between officers and employees and principal and
inferior officers have proven unworkable, the Court should defer
to the legislature on the issue.113
The legislature in turn should pass a law outlining the
necessary criteria for employees, principal officers and inferior
111
See United States v. Maurice, 26 F.Cas 1211, 1213 (C.C.Va.
1823), reprinted in 4 THE FOUNDERS’ CONSTITUTION 115 (Philip B.
Kurland & Ralph Lerner ed., The University of Chicago Press 1987)
(stating that the spirit of the constitution “seems to have
arranged the creation of office among legislative powers”). This
shows that the constitution regarded the Senate as having an
important role in the appointments process. See also DAVID P.
CURRIE, THE CONSTITUTION IN CONGRESS 21 (The University of Chicago
Press) (1997) (stating that unlike the House of Representatives,
the Senate was given an important role in two important executive
functions
including the appointments process).
112
See discussion of Edmond and Morrison cases supra Part
II.B.2.
113
See Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1132
(D.C. Cir. 2000) (noting that “the line between mere employees
and inferior officers is anything but bright”).
32
officers within the bounds that the Supreme Court has already
provided. For example, in Buckley the Court held that an
appointee “exercising significant authority pursuant to the laws
of the United States” was an Officer.”
114
Therefore, the
legislature could define an employee as one who performs mundane,
non-discretionary tasks because that would not constitute
“significant authority.” Then, in making the distinction between
principal and inferior officers the legislature could provide for
certain features that are characteristic of a principal officer
and an inferior officer. For example, a position with an
unlimited budget could constitute a principal officer since more
accountability is required in that situation.115 This law would
provide clarity and finality on the issue by determining whether
a specific czar is an employee, a principal officer, or an
inferior officer. Once that determination is clear, the
requirements for appointment of that position also become clear.
This position has support from William Rawle in noting that
“the text is not very explicit as to the officers whose
appointments require the consent of the senate.”116 He suggests
114
Buckley v. Valeo, 424 U.S. 1, 125 (1976). See also Bradbury,
supra note 59 (taking the phrase “significant authority pursuant
to the laws of the United States” to convey both delegated
sovereign authority and the continuing elements).
115
Other possible factors could include aspects such as a time
requirement. For example, positions that the Executive views as
being necessary for at least one year could constitute a
principal officer because that suggests the position is more
permanent.
116
William Rawle, A View of the Constitution of the United
States, reprinted in 4 THE FOUNDERS’ CONSTITUTION 115 (Philip B.
Kurland & Ralph Lerner ed., The University of Chicago Press 1987)
(1829).
33
that since “the term inferior is somewhat vague . . . it is
perhaps left to congress to determine how to apply it.”
117
Justices Ginsburg and Souter seem to concur in this view as
well.
118
In Justice Ginsburg’s dissent in In re Sealed Case, she
“suggest[s] that where it is fairly debatable whether an officer
should be deemed inferior or principal, Congress’ conclusion . .
. should not be judicially second-guessed.”
119
Justice Souter
agreed in his concurrence in Weiss v. United States stating that
“in the presence of doubt deference to the political branches’
judgment is appropriate.”120 If Congress has decided based on its
concern for the public that czars are officers, which need to be
approved through the appropriate process, then the Court should
establish that Congress has that right.
The bill and resolution currently introduced in Congress,
however, are not adequate to resolve the czar controversy. House
Bill 3226 is vague and simply states that no funds can be used to
pay for “any task force, council, or similar office” that is
headed by an individual “inappropriately appointed.”121 Passage of
this bill is not likely to resolve anything since it is unclear
if czars qualify as part of a “task force, council, or similar
117
Id. (adding “if they do not otherwise direct, the consent of
the
senate
is necessary under the qualifications described”).
118
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 685 (Foundation Press
2000) (1978).
119
Id.
120
Id. at n.45.
121
Czar Accountability and Reform (CZAR) Act of 2009, H.R.
3226, 111th Cong. (2009) (Westlaw).
34
office” and the entire debate revolves around whether czars are
“inappropriately appointed.” This bill seems circular and only
superficially helpful at best. House Resolution 185 is aimed
directly toward czars but again does not address the question of
whether czars are principal or inferior officers. In fact, it
names czars as “special assistants” and states czars should not
“assert any powers other than those granted by statute to a
commissioned officer” suggesting that czars are only employees
not officers.122 If this is true, then the resolution is
inappropriately ordering the President to report to Congress
about his employees—a task not contemplated in the Appointments
Clause.
The position advocated does have some limitations. First, it
would be allowing Congress to make explicit or implicit
“judgments about the basic meaning of lines drawn in the
Constitution” when that is the Court’s role.123 Second, it is
possible that Congress might make an error in judgment, which
would violate the purpose of Congress’ role in the appointments
process to begin with. If the law enacted by Congress designates
someone as an inferior officer when he or she should clearly be a
principal officer, judicial deference would be inappropriate. For
example, if
a prosecutor who is clearly not subject to day-to-day
guidance or supervision by the Attorney General or by
122
H.R. Con. Res. 185, 111th Cong. (2009) (Westlaw).
123
Id. at 685–86, n.46 (stating that the Court in Marbury v.
Madison established “the intrinsic judicial function of say[ing]
what the law is”).
35
any
other
officer
of
the
United
States,
who
has
a
virtually unlimited budget, and whose powers, within
her designated field of activity, are limited only in
the Pickwickian sense that the powers of the major
Cabinet
members
and
even
the
President
himself
are
limited
and that person is designated an inferior officer, this violates
the principle of “ensuring that those who exercise significant
responsibility on behalf of the United States . . . are subject
to significant oversight and supervision unless appointed by the
President with the advice and consent of the Senate.”124
Despite these limitations, congressional deference might
still be appropriate since it is probable that the Court would be
unable to hear a czar challenge. It is well established that the
Court cannot hear a case unless there is standing.125 It is hard
to imagine a scenario in which someone may have proper standing
to bring a challenge. For example, a merely concerned citizen
would not be able to challenge that the Executive branch has
violated the law by appointing czars.126 Furthermore, czars only
advise the President so it is highly unlikely that someone would
be able to argue “personal injury fairly traceable to the
defendant's allegedly unlawful conduct and likely to be redressed
124
Id. at 686.
125
See Allen v. Wright, 467 U.S. 737, 750 (1984) (“[T]he Art.
III doctrine that requires a litigant to have "standing" to
invoke the power of a federal court is perhaps the most important
of [the justiciability] doctrines.”)
126
Id. at 751.
36
by the requested relief.”
127
Another possible hurdle on the Court hearing a czar
challenge would be the political question doctrine. The Court has
held several types of cases to involve a political question
including those with
a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a
lack
of
judicially
discoverable
and
manageable
standards for resolving it; or the impossibility of
deciding without an initial policy determination of a
kind
clearly
impossibility
for
of
nonjudicial
a
court's
discretion;
undertaking
or
the
independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need
for
unquestioning
adherence
to
a
political
decision
already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on
one question.128
By the Court’s own admission, the doctrine appears
“disorderly.”129 It can be inferred from this that the Court
employs a somewhat ad hoc test for political questions and even
127
Id. at 750. The Court also establishes that the injury must
be “direct and palpable and not abstract or conjectural or
hypothetical.” Id. It must also be “fairly traceable to the
challenged action, and relief from the injury must be likely to
follow
from a favorable decision.” Id.
128
Baker v. Carr, 369 U.S. 186, 217 (1962).
129
Id. (stating that the political question doctrine’s
attributes “diverge, combine, appear, and disappear in seeming
disorderliness”).
37
if the constitutionality of czars does not fit within one of the
above categories, it may still be deemed a political question.
Therefore, these obstacles support the proposition of deferring
to the legislature in resolving the czar dispute.
C.
Vesting the Power to Appoint Czars in Heads of Departments
Assuming czars are classified as inferior officers, a
potential solution would be for Congress to vest their
appointment in the Heads of Departments.
130
The Appointments
Clause specifically provides that “the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of
Departments.131 In United States v. Germaine, the Court defined
“heads of departments” as “a part or division of the executive
government, as the Department of State, or of the Treasury.”132
Then, in Burnap v. United States, the court clarified the
definition as someone in the executive government “who is a
member of the Cabinet. It does not include heads of bureaus or
lesser divisions.”133
If lack of transparency and accountability are the main
reasons behind the criticism of czars, it makes sense to vest
130
Although the question remains whether czars are principal or
inferior officers, if officers at all, this part provides a
method for ensuring accountability if the determination is that
czars are inferior officers. Considering that czars are often
appointed to deal with one specific task and are advisory in
nature, it seems probable that they would be classified as
inferior
officers.
131
U.S. CONST. art. I, § 2, cl. 2.
132
United States v. Germaine, 99 U.S. 508, 510 (1878).
133
Burnap v. United States, 252 U.S. 512, 515 (1920).
38
their appointment in Cabinet members. When Cabinet members are
nominated, the Senate has an opportunity to review their
qualifications and assure trustworthiness. Therefore, vesting
those members with the appointment power guarantees the
accountability and qualification of czars to an extent because
Cabinet members are not likely to appoint just anyone. They are
likely to be more careful and scrutinize their decisions. While
this is not an ideal solution because of the inherent possibility
that they may be influenced in their decisions by the President,
it is still a better solution than no accountability at all.134
CONCLUSION
In his Gettysburg Address, President Abraham Lincoln
famously stated that we have a “government of the people, by the
people, for the people.”135 It is this ideal concept, which is
memorialized in the Constitution’s various provisions including
the Appointments Clause. Czars, or high level policy advisors to
the President, are challenged as both unnecessary and a violation
of this Clause because they have not been approved by the
Senate.136 Hence, they are unaccountable to the public.
The element of approval is essential because the Clause
134
THE FEDERALIST NO. 75 (Alexander Hamilton), reprinted in THE
FEDERALIST AND OTHER CONSTITUTIONAL PAPERS 417–18 (E.H. Scott ed.,
William S. Hein & Co., Inc. 2002) (1898). Although discussing the
relationship between the president and the senate, Hamilton noted
that “the Executive might occasionally influence some
individuals.” Id.
135
Abraham Lincoln, President, United States of America, The
Gettysburg Address (Nov. 19, 1863).
136
See discussion supra Part I.
39
serves several fundamental purposes including promoting the
separation of powers.
137
By requiring the cooperation of both the
Executive and Legislative branches of the government, the Clause
ensures minimal congressional encroachment upon Executive
decisions while providing a vital check on the abuse of Executive
power.
138
Furthermore, the Clause allows the two branches elected
by the people to participate equally in selecting public
officials and contributes to the stability of the
administration.139
The crucial constitutional dilemma arises because it is
unclear whether czars are first officers not employees, and
second, whether they are principal or inferior officers.140 Only
“officers” are subject to the Appointments Clause requirements
and only principal officers need Senate approval.141 However,
Congress also has to vest the appointment of inferior officers in
someone.142
In an effort to resolve this question, the House of
Representatives has proposed a bill and a resolution addressing
the concern over czars.143 However, neither are likely to pass
137
138
See discussion supra Part II.A.
See discussion supra Part II.A.
139
See discussion supra Part II.A.
140
See discussion supra Part II.B.
141
See discussion supra Part II.B.
142
See discussion supra Part II.B.
143
See discussion supra Part II.C.
40
since they are split along partisan lines.
144
Better solutions to
address the issue would be for the Executive branch to
acknowledge the existence of concern by the Legislative branch in
an effort to open communication channels and work together for
the public good, for the Supreme Court to decide to defer to
legislative judgments, or Congress vesting the power to appoint
czars—if classified as inferior officers—in Heads of
Departments.
144
145
145
See discussion supra Part II.C.
See discussion supra Part III.
41