[Senate Hearing 111-805]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-805
 
                PRESIDENTIAL ADVICE AND SENATE CONSENT:
                    THE PAST, PRESENT, AND FUTURE OF
                              POLICY CZARS

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                                 of the

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 22, 2009

                               __________

       Available via http://www.gpoaccess.gov/congress/index.html

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs





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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas              GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana          JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri           LINDSEY GRAHAM, South Carolina
JON TESTER, Montana                  ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, JR., Massachusetts

                  Michael L. Alexander, Staff Director
                    Beth M. Grossman, Senior Counsel
                       Jeffrey E. Greene, Counsel
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
        Amanda Wood, Minority Director for Governmental Affairs
                   Jennifer L. Tarr, Minority Counsel
                  Trina Driessnack Tyrer, Chief Clerk
         Patricia R. Hogan, Publications Clerk and GPO Detailee
                    Laura W. Kilbride, Hearing Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Lieberman............................................     1
    Senator Collins..............................................     2
    Senator Bennett..............................................     5
    Senator McCaskill............................................     6
    Senator Burris...............................................    23
Prepared statements:
    Senator Lieberman............................................    35
    Senator Collins..............................................    37
    Senator Burris...............................................    40

                               WITNESSES
                       Thursday, October 22, 2009

Hon. Thomas J. Ridge, Former Assistant to the President for 
  Homeland Security and Secretary of Homeland Security...........     7
James P. Pfiffner, Ph.D., University Professor, School of Public 
  Policy, George Mason University................................     9
Lee A. Casey, Partner, Baker Hostetler; Former Attorney-Advisor 
  in the Office of Legal Counsel at the U.S. Department of 
  Justice........................................................    12
Harold C. Relyea, Ph.D., Former Specialist in American National 
  Government at the Congressional Research Service...............    14

                     Alphabetical List of Witnesses

Casey, Lee A.:
    Testimony....................................................    12
    Prepared statement...........................................    58
Pfiffner, James P., Ph.D.:
    Testimony....................................................     9
    Prepared statement...........................................    53
Relyea, Harold C., Ph.D.:
    Testimony....................................................    14
    Prepared statement...........................................    73
Ridge, Hon. Thomas J.:
    Testimony....................................................     7
    Prepared statement...........................................    49

                                APPENDIX

Hon. Robert C. Byrd, a U.S. Senator from West Virginia, prepared 
  statement with attachments.....................................    41


                     PRESIDENTIAL ADVICE AND SENATE
                    CONSENT: THE PAST, PRESENT, AND
                         FUTURE OF POLICY CZARS

                              ----------                              


                       THURSDAY, OCTOBER 22, 2009

                                     U.S. Senate,  
                           Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:03 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Joseph I. 
Lieberman, Chairman of the Committee, presiding.
    Present: Senators Lieberman, McCaskill, Burris, Collins, 
Coburn, Ensign, and Bennett.

            OPENING STATEMENT OF CHAIRMAN LIEBERMAN

    Chairman Lieberman. Well, good morning. The hearing will 
come to order. Welcome to this hearing, which has the title of 
``Presidential Advice and Senate Consent: The Past, Present, 
and Future of Policy Czars.'' The title ``czar'' has been used 
more in Washington in recent years than anywhere, anytime since 
1917, when Czar Nicholas II of Russia came to his unhappy 
ending.
    As one of our witnesses this morning will make clear, 
President Obama is not the first of our national leaders to 
bring non-Cabinet officials into the White House as policy 
advisers or coordinators, though he has added a number of them. 
Arguably and interestingly, it was that great populist Andrew 
Jackson, way back in the early 19th Century, who was the first 
President to rely on what he would be surprised and puzzled to 
learn are today called ``White House czars.''
    The main questions raised in what might be called the 
current anti-czarist uprising seem to be: One, have Presidents 
of both parties, including President Obama, consolidated power 
excessively in the White House through the appointment of these 
officials contrary to at least the spirit of the Constitution, 
if not our laws, particularly as against the authority of 
members of the Cabinet? And if so, is there anything Congress 
can or should do about it?
    Second, does the growing use of czars in the White House 
and the Administration, this and past ones, frustrate Congress 
in carrying out its constitutional responsibility to oversee 
the expenditure of the public's money, which we appropriate, 
and the decisions that are made by the so-called czars with 
that money? Again, if so, what should we be doing about it?
    I also hope our witnesses--and it is a great panel of 
witnesses--will help us with the question of definition. Who is 
deserving in this instance of the title of ``czar?'' Is it only 
people in the White House or coordinators of policy, whether or 
not their positions are authorized in statute and they are 
confirmed by the Senate? Or does it include a larger group of 
public officials, statutorily authorized or not, confirmed by 
the Senate or not, working out of the White House, or not? 
Finally, I cannot resist saying with all respect to the 
aforementioned Nicholas II and his esteemed predecessors, I 
will ask our witnesses if there isn't some more American title 
that we can use instead of ``czar'' to describe these 
government employees. The term ``czar'' seems to me not only 
ethnically inappropriate, but the Federal officials to whom it 
has been applied have far less autocratic power than the 
Russian czars did, which may explain why, though some of the 
current crop of White House czars have been subjected to harsh 
media criticism, their time in office is unlikely to end as 
violently as that of Nicholas II.
    I am sure many people here will remember the moment in the 
classic story ``Fiddler on the Roof '' when one of the citizens 
of Anatevka, Russia, asks the local rabbi, ``Rabbi, is there a 
prayer for the czar?'' And the local rabbi answers, ``Yes, my 
son, there is. It is `God bless and keep the czar, far away 
from us.' '' May I paraphrase that prayer this morning and ask 
that God bless and keep the title of ``czar'' forevermore away 
from the American Government. I am going to try to do my best 
not to use the word ``czar'' in this regard again. So from now 
on, I am going to try to call the drug czar the ``National 
Anti-Drug Policy Coordinator,'' the environmental czar the 
``National Environmental Advisor,'' and the pay czar, well, 
today he probably should be called the ``National Pay Master.'' 
Regardless of what one calls them, the proliferation of these 
positions really does raise serious questions that go right to 
the heart of the allocation of power in our Constitution as 
between the President and Congress, the authority and 
responsibility of Congress to oversee the expenditure of the 
money we appropriate to the executive, and, of course, the 
right of the executive to executive privilege, which is 
inherent in the presidency.
    We have an excellent panel of witnesses with us this 
morning who can help us answer these questions and then 
ultimately help us decide whether we wish to propose corrective 
legislation.
    Senator Collins was really early in raising these important 
questions in this Committee. I thank her for that, as I 
recognize her now for her opening statement. Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you, Mr. Chairman, and I want you to 
know how much I enjoyed listening to your opening statement. I 
had a long discussion in my office late yesterday with the 
President's legal counsel, who also calls czars ``policy 
coordinators,'' and I could not help but think that if that 
were all that they did, I would be happy to join you in calling 
them ``coordinators'' rather than ``czars.'' But, alas, my 
conclusion is that they do much more, so for lack of another 
term, despite the deficiencies that you have noted so 
eloquently, I will continue to call them ``czars,'' at least to 
the conclusion of this hearing and until a solution is found.
    I, too, am turning back into history as I present my 
statement today. When the Founding Fathers put down their 
quills in Philadelphia on September 17, 1787, they had crafted 
a Constitution--the framework for our representative democracy. 
Their work established a system of government with three 
separate branches, a government whose leaders were to be 
accountable to the people through a carefully constructed 
system of checks and balances.
    The responsibility of Congress to oversee the Executive 
Branch is fundamental to our constitutional system. That 
responsibility is on display whenever the Senate performs its 
explicit constitutional ``advice and consent'' role or whenever 
Congress holds hearings on particular policy matters. This 
oversight ensures the accountability and transparency our 
Founding Fathers envisioned, and it is that oversight 
obligation which brings us here today.
    The proliferation of czars diminishes the ability of 
Congress to conduct its oversight responsibilities and to hold 
officials accountable for their actions. These czars can create 
confusion about which officials are responsible for various 
policy decisions. They can duplicate or dilute the statutory 
authority and responsibilities that Congress has conferred on 
Cabinet officers and other senior Executive Branch officials.
    A perfect example is the health care debate underway right 
now. Who is in charge? Who is making policy? Who is 
accountable? Is it Kathleen Sebelius, the Secretary of Health 
and Human Services? Or is it Nancy-Ann DeParle, the White House 
czar or coordinator of health care policy?
    In addition, the proliferation of czars can circumvent the 
constitutionally mandated process of advice and consent. Czars 
can exercise considerable power and influence over major policy 
issues, and yet they are not required to clear the rigorous 
Senate confirmation process. Czars bypass this important 
constitutional protection through a unilateral grant of 
authority from the President.
    Some, including the White House--and I would note every 
White House--have sought to diminish the significance of this 
debate by declaring that the use of czars does not violate the 
Appointments Clause in our Constitution. But even if the 
appointment of all of the czars were consistent with the 
Appointments Clause--and, frankly, I believe that the jury is 
still out on that question--the proliferation of czars in the 
Executive Branch encroaches on the more fundamental 
constitutional principle of checks and balances.
    Now, we all recognize that the President is entitled to 
appoint and to rely on senior advisers such as his chief of 
staff and his legal counsel, who are part of his personal 
staff. And to be clear, not every position identified in 
various media reports as a czar is problematic. And this is an 
important distinction. Positions subject to Senate confirmation 
or otherwise recognized by our laws, such as the Director of 
National Intelligence, the National Security Advisor, and the 
Chairman of the Recovery Accountability and Transparency Board, 
do not raise the same concerns with accountability, 
transparency, and oversight because they are recognized in law 
and because many of these positions are subject to Senate 
confirmation.
    I would also note that czars are not new to the American 
political landscape, but this is not merely a question of past 
usage. The recent proliferation of czars is a cause for real 
concern because they oversee a growing number of critical 
policy areas that are already supposedly under the purview of 
top Executive Branch officials.
    Indeed, this Administration has appointed at least 18 new 
czars. None of these officials was vetted through the Senate 
confirmation process. Their authorities and duties remain 
unclear. While some of them exercise authority pursuant to 
executive orders, others have just been announced through press 
releases. Their future plans have received little public 
airing. Their relationship with Cabinet-level officials is 
often undefined. They rarely, if ever, testify before 
congressional committees. And, indeed, yesterday when I was 
talking to Greg Craig, the President's legal counsel, he made 
very clear that the White House would prohibit any of these 
officials with significant policy responsibility from coming to 
testify before us if they are located within the Executive 
Office of the President.
    In short, this bumper crop of czars has left the public and 
the Congress with many worrisome, bottom-line questions:
    Who is in charge?
    Who is responsible for what?
    Who is directing policy--the czar or the Cabinet official?
    And, most important, whom can Congress and the American 
people hold accountable for government decisions that affect 
their lives?
    This is not an academic exercise, although it is a 
fascinating constitutional issue. Czars--not Cabinet 
secretaries--are negotiating with Members of Congress even as 
we speak on key policy issues. Where is the Cabinet official in 
these talks?
    As I have stated before, this is not a partisan issue, 
despite the attempts of people in both parties to make it so. 
This is not a political issue. It is an issue of institutional 
imperative and constitutional prerogative.
    It is also a question of effective management. The 
proliferation of czars has created two separate tracks of top 
management within our Federal Government. On the one hand, we 
have Cabinet-level leaders with defined roles and clearly 
assigned duties. On the second track, we have czars with fuzzy 
roles and loosely defined functions. These separate tracks of 
management authority can create duplication of effort, dilution 
of responsibilities and focus, and management dysfunction.
    I am looking forward to hearing the testimony of all of our 
expert witnesses today. I particularly appreciate Secretary 
Thomas Ridge joining us again. He has broad experience. He 
served as the chief executive of a State, as a Member of 
Congress, as a senior White House aide, and as a Cabinet-level 
officer. That experience informs every aspect of the debate 
over the use of ``czars.''
    Finally, let me say that until the administration answers 
important questions about the role of its czars and makes all 
of them available to testify before Congress, I personally 
believe that it is undermining the promises that President 
Obama has made to the American people for increased 
transparency and accountability.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Collins, for a very 
thoughtful statement.
    I do want to, with unanimous consent, enter into the record 
a statement that our colleague Senator Robert C. Byrd asked 
that we enter into the record.\1\ He has thought a lot about 
this. He includes a letter that he wrote to President Obama on 
February 23rd and the response of White House Counsel Greg 
Craig to that letter. I think this exchange says that the 
issues at play here are not partisan; they are really 
institutional. And I am going to ask the witnesses some of the 
questions that Senator Byrd raises with what you would expect 
of him, characteristic thoughtfulness and passion for the 
institution of Congress.
---------------------------------------------------------------------------
    \1\ The prepared statement of Senator Byrd with attachments appears 
in the Appendix on page 41.
---------------------------------------------------------------------------
    Senator Bennett. Mr. Chairman.
    Chairman Lieberman. Senator Bennett.
    Senator Bennett. I know it is the pattern that the Chairman 
and the Ranking Member give the opening statement and we do 
not. Could I request, as a point of personal privilege, a few 
moments in an opening statement? Because the White House has 
specifically identified me as being hypocritical on this issue 
by virtue of my position with respect to a Year 2000 (Y2K) 
czar, and I would like to make that clear. If it would not be 
appropriate, I will wait until after the panel.
    Chairman Lieberman. No. Go right ahead. Since we are 
upholding the institution of Congress, I suppose that suggests 
we should uphold the institution of an individual member to 
defend himself.
    Senator Bennett. Thank you very much, Mr. Chairman. I 
appreciate that.

              OPENING STATEMENT OF SENATOR BENNETT

    Senator Bennett. In November 1997, I requested that 
President Clinton appoint a Y2K czar. I was the Chairman of the 
Y2K Committee created by the Minority Leader, Senator Tom 
Daschle, and the Majority Leader, Senator Trent Lott, here in 
the Congress to deal with the problem that cut across 
departmental lines. It did not have a legitimate home in any 
one committee. It cut across the entire government. Senator 
Lott and Senator Daschle decided to create a special committee 
to deal with it. I was appointed its chair. Senator Chris Dodd 
was appointed its vice chair. And we proceeded with our 
hearings and came to the conclusion that we, the Committee, 
needed a counterpart in the Executive Branch, someone that 
would cut across departmental lines, who had the authority 
behind him or her to speak for the President in focusing on 
this issue. And in February 1998, President Clinton appointed a 
Y2K czar, John Koskinen.
    One of the first things John Koskinen did as the Y2K czar 
for the Executive Branch was to call me as the chairman of the 
Y2K Committee in the Senate and set up a pattern of regular 
consultation, every Wednesday afternoon, and we compared notes. 
I told him what we were doing in the Legislative Branch; he 
told me what he was doing in the Executive Branch. He invited 
me to go to a variety of activities with which he was engaged 
in the Executive Branch. I invited him to come deal with those 
of us that were trying to solve the problem in the Legislative 
Branch. We worked hand in glove together.
    I agree with you, Mr. Chairman, that the title ``czar'' was 
not necessary, but it did give a sense of focus to what we were 
doing. And when it was all over and the Y2K problem turned out 
to be a non-problem--vice chairman, Senator Dodd, said, ``You 
know, we are in a no-win position, because if there is no 
problem, they will say, `You raised concern about something 
that did not have any difficulty.' And if there is a problem, 
it will be, `Well, you did not do anything about it.' So either 
way we are going to get criticized.'' And we were after it was 
over. The New York Times wondered why we had spent all that 
money when, in fact, none of the computers failed.
    That is a very different situation than the situation 
described by Senator Collins and the letter which I signed, and 
I do not feel in any way it is hypocritical for me to have 
taken the role I did with respect to Y2K and now to say there 
is something that needs investigating because the kind of 
circumstance we created then was very different from the kind 
of circumstance that we see now. And I think the record should 
be very clear that I am not changing positions just for 
political purposes, as some members of the White House press 
office may have suggested.
    I thank you, Mr. Chairman, for allowing me to get that off 
my chest.
    Chairman Lieberman. Thank you, Senator Bennett.
    Senator McCaskill. Mr. Chairman.
    Chairman Lieberman. I notice an outbreak of democracy here, 
which is very unsettling.
    Senator McCaskill. There is an outbreak of democracy.
    Chairman Lieberman. Go ahead, Senator McCaskill.

             OPENING STATEMENT OF SENATOR MCCASKILL

    Senator McCaskill. I just want to say I think it is great 
you guys have called the hearing. I think the oversight of this 
Committee is essential to the balance of power between the 
different branches of government, and I welcome the testimony. 
But I had to think, while my friend Senator Bennett was talking 
about the Y2K czar that he recommended, that was not confirmed 
by the Senate, and that was created out of whole cloth because 
of a problem that had arisen, the way he described that czar, 
how ubiquitous the czar was, working with the legislature, that 
he was constantly around, I kept thinking of Nancy-Ann DeParle. 
I mean, we cannot walk down the hall without seeing her. She is 
in the chairmen's offices constantly of the committees and the 
ranking members, and she has visited across the aisle time 
after time after time.
    So I think there are situations where a special adviser is 
created, and that does not mean they are not working closely 
with Congress in order to solve a problem. And I think the 
description that Senator Bennett made of the Y2K czar was very 
similar to what Nancy-Ann DeParle is doing. I hope that the 
outcome is as good.
    Chairman Lieberman. Thank you. Let us leave it at that. I 
am going to recognize Governor Ridge. Senator Collins 
acknowledged your unique service to our country and to your 
State. You are in a really excellent position to comment on 
this, having been both Assistant to the President for Homeland 
Security--our first post-September 11, 2001--and then our first 
Secretary of Homeland Security. So we really thank you for 
taking the time to be here and welcome your testimony now.

 TESTIMONY OF HON. THOMAS J. RIDGE,\1\ FORMER ASSISTANT TO THE 
   PRESIDENT FOR HOMELAND SECURITY AND SECRETARY OF HOMELAND 
                            SECURITY

    Mr. Ridge. Thank you. Well, Mr. Chairman, Ranking Member 
Collins, and Members of the Committee, thank you for inviting 
me to spend some time with you this morning.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Ridge appears in the Appendix on 
page 49.
---------------------------------------------------------------------------
    As you have alluded to, Mr. Chairman, I have been 
privileged to hold a variety of public service positions 
throughout my career.
    As I was then, I am now a citizen of a country that 
embraces its Constitution, its Bill of Rights, its values, the 
greatness of our victories, the lessons learned from our 
mistakes, and a 230-year desire to uphold the tenets of our 
Founding Fathers.
    I take equal pride and awe in a government that today, as 
reflected in this hearing, remains committed to a recurring 
review of its structure, its function, and its fundamental 
tenets of checks and balances.
    So I appreciate the discussion that Members of this 
Committee are having this morning. It seems to be one of those 
rare issues these days that overrides partisanship in favor of 
a serious willingness to consider all points of view.
    First, I must tell you that, having been a congressman, a 
governor, a so-called czar, and a Cabinet secretary, I have 
empathy for everyone involved in today's discussion.
    The huge complexities associated with good governance are 
real; they are to be respected. The good intentions of good 
people are not to be demeaned, but rather clarified for all 
involved, and hopefully informed and assisted by ongoing 
communication and civil debate.
    Second, I am of the belief that Presidents have the 
discretion and authority to appoint advisers who can assist 
them in carrying out their presidential obligations.
    My interests, rather, reside in the issues of effective 
management, transparency, and lines of authority.
    Who's reporting to whom? How specific is the job 
description? Does the individual initiate, coordinate, or 
execute policy? To whom does that individual report? Is it the 
same person to whom the individual is accountable?
    While my own White House experience cannot match all of the 
issues you are addressing today, I hope that sharing them will 
help the Committee as it examines the role of White House 
czars.
    As we all know too painfully, the events of September 11, 
2001, set in motion a series of events and actions--made by 
President George W. Bush, his staff, but also, I would say, by 
a united Congress and a united country.
    My appointment came under those extraordinary times, under 
exceptional stress and grief and yet also, with a singular 
purpose. The people and its government, at its best, joined 
together in full throttle to rebuild in those early days and to 
secure the country from another attack.
    When I received the call from President Bush asking me to 
take on a new role, there was no job description. Yet 2 weeks 
later, on the same day of my swearing-in as Homeland Security 
Advisor, October 8, 2001, President Bush issued Executive Order 
13228, establishing the Office of Homeland Security and 
defining with great specificity the responsibilities and 
authorities of the new White House Office and my role as its 
director.
    Understandably there were legitimate questions and concerns 
about what I was doing, and many of those concerns came from my 
former congressional colleagues.
    It was at the instruction of my President that I would not 
testify and did not testify; typically and historically, 
assistants to the President did not do so. But many in Congress 
on both sides of the aisle took exception to this.
    I offered to speak to congressional members privately. 
However, on a couple of occasions, when I visited Senator 
Robert Byrd, in his gentlemanly manner, he would slip from his 
coat pocket, as you are aware, a copy of the Constitution. If I 
could paraphrase your colleague, he would observe that the 
Congress of the United States has the exclusive authority over 
appropriations and broad oversight responsibility. ``Private 
briefings,'' he would utter, ``are not a substitute for public 
hearings,'' he would say.
    My responsibilities were detailed out for everyone to see 
from day one. Still, regardless of the Executive Order, no 
matter how specific, Congress was legitimately concerned about 
my role, the extent of what I was doing, and what influence I 
was having.
    The unique distinction for me was that when I was 
appointed, no Cabinet agency existed. I was reporting to a 
President, not a secretary. But my role was a broad one--
cutting across Federal jurisdictional lines and departmental 
lines as well as coordinating activity with State and local 
governments.
    It was only after discussions began between the White House 
and Congress about establishing a new department that President 
Bush decided I should testify about those plans. And I did.
    After I went over to the Department, I came to benefit from 
the work of my White House successors, General John Gordon and 
later, Fran Townsend.
    In both these principals, I had advocates who assisted in 
developing policy but not setting it. In both, I had good 
counsel who worked closely with me and department officials to 
generate and coordinate measures that advanced the security of 
the Nation.
    I think this offers up a significant point. Some of today's 
White House czars have come to their positions with little 
public clarification of duty, and they already have a 
department of subject authority, led by a Senate-approved 
secretary.
    Are those roles as respected and beneficial to agency 
progress and management effectiveness as my successors' roles 
were to me?
    And, again, do these individuals, these so-called czars, 
direct or develop policy? Are they accountable to the 
President, to the Secretary, or to both? To whom do private 
constituencies look to provide input, guidance, or opinion? Who 
resolves the conflict between the two?
    My concern is that without a clear delineation of 
responsibilities and reporting authority, this creates both a 
potential management problem and clearly the appearance of 
potential conflict.
    It can diminish the capacity--I will say this again. It can 
diminish the capacity of both adviser and secretary to operate 
effectively in accordance with the department's missions. And I 
certainly think from time to time it can cause confusion for 
those under the chain of command of the secretary as well as 
outside the departmental purview.
    Greater transparency and communication about role 
delineation and reporting structure will promote greater 
collaboration and management effectiveness, which, in my 
judgment, promotes good governance.
    Good governance is what the President and this country 
require to address today's serious challenges. And good 
governance is what the American people deserve and what I know 
Members of the Committee, by your civil, thoughtful 
consideration to this issue, want to ensure.
    Again, I thank the Members of this Committee for inviting 
me to join you today, and I look forward to your questions. 
Thank you.
    Chairman Lieberman. Thanks very much, Governor Ridge. That 
was a great statement to begin this deliberation.
    Our next witness is Dr. James Pfiffner, University 
Professor, School of Public Policy at George Mason, 
specializing in the subject of the American Presidency. Dr. 
Pfiffner has written or edited 12 books and dozens of articles 
on our national government. He was also a Special Assistant in 
the Office of the Director of the Office of Personnel 
Management during the Carter Administration.
    Dr. Pfiffner, thanks very much for being here.

TESTIMONY OF JAMES P. PFIFFNER, PH.D.,\1\ UNIVERSITY PROFESSOR, 
        SCHOOL OF PUBLIC POLICY, GEORGE MASON UNIVERSITY

    Mr. Pfiffner. Mr. Chairman, Senator Collins, other Members 
of the Committee, I want to thank you for your invitation to 
appear before you and be able to present my testimony. It is an 
honor for me to do so.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Pfiffner appears in the Appendix 
on page 53.
---------------------------------------------------------------------------
    The term ``czar'' in the United States has no generally 
accepted definition in the context of American Government. It 
is a term loosely used by journalists. For my purposes, 
however, the definition of ``czar'' refers to members of the 
White House staff who have been designated by the President to 
coordinate specific policy areas that involve more than one 
department or agency. Czars do not hold Senate-confirmed 
positions, nor are they officers of the United States. Officers 
of the United States--presidential appointees with Senate 
confirmation (PAS)--are created in law, and most of them 
exercise legal authority to commit to the United States. In 
contrast, members of the White House staff are appointed by the 
President without Senate confirmation. They are legally 
authorized only to advise the President; they cannot make 
authoritative decisions for the Government of the United 
States, such as hiring, firing, and committing budgetary 
resources.
    For practical purposes, however, White House staff 
personnel certainly may have considerable power or influence, 
as opposed to authority. But this power is entirely derivative 
of the President. White House staffers may communicate orders 
from the President, but they cannot legally give those orders 
themselves.
    In the real world, of course, White House staffers often 
make important decisions, but the weight of their decisions 
depends entirely on the willingness of the President to back 
them up. As the White House staff has grown, so has the power 
of czars. White House czars play essential roles that lift the 
burden of coordination from the President. They help to reduce 
the range of options. But if the number of czars proliferates, 
they can clog and confuse the presidential authority. Somebody 
then must coordinate the czars and their access to the 
President. Czars may create layers between the President and 
Cabinet secretaries, and too many czars can result in 
managerial overload and confusion.
    From the President's perspective, a proliferation of czars 
raises the questions of who is in charge of policy short of the 
President. Members of Congress, as well as other national 
leaders, may be confused as to the locus of authoritative 
decisions. Foreign leaders may not know who speaks for the 
President. Unfortunately, czars can pull problems into the 
White House that could be and should be settled at the Cabinet 
level. But only those issues that are central to the 
President's policy agenda should be in the White House; others 
should be delegated to the Cabinet secretaries.
    From the czar's perspective, the title is a mixed blessing. 
Prestige and perks of the White House staff are there, but 
czars are often frustrated because they are supposed to be in 
charge of policy area, but they do not have the authority 
commensurate with their responsibilities. Czars cannot enforce 
decisions on departments or agencies. Czars control neither 
personnel nor budgets. For these they must depend on Cabinet 
secretaries.
    But from the perspective of a departmental secretary, 
having czars in the White House is most often frustrating. 
White House staffers have historically been the natural enemy 
of Cabinet secretaries. Each vies for the President's ear; each 
resents the other's ``interference.'' White House staffers 
enjoy proximity to the President, but Cabinet secretaries have 
to worry about managing their departments and the many policies 
and programs for which they are responsible. Cabinet 
secretaries are often at a disadvantage in securing 
presidential attention.
    In the real world, Presidents have to balance their desire 
for centralized control with the managerial imperatives of 
delegation. No President can do an effective job without 
talented people on the White House staff. But if Presidents 
allow White House staffers to shut out Cabinet secretaries, 
they will lose the institutional memory of Cabinet secretaries, 
their operational point of view, and a broader political 
sensitivity than Cabinet secretaries can provide.
    So the real impact of czars must be judged by the role that 
they play and their approach to their responsibilities rather 
than to merely counting their numbers. Thus, insofar as 
President Obama's czars take active roles in policymaking--as 
opposed to policy advising--attempt to shut out Cabinet 
secretaries, or exercise power in their own right, they dilute 
authority and confuse the chain of command. But if they work 
closely with Cabinet secretaries and help coordinate policy, 
they can be very useful. It all depends on their behavior.
    That said, the larger the White House staff and the more 
czars that the President designates, the more likely White 
House staffers will be difficult to manage, and relations 
between Cabinet secretaries and White House staff will be 
strained.
    The keys to congressional control of Administrations are 
congressional authority to create agencies, to authorize 
programs, to appropriate money, and to oversee the faithful 
execution of the law. As a matter of comity, however, the 
President is entitled to the confidentiality of his or her own 
staff, just as Members of Congress are entitled to the 
confidentiality of their own staff and Supreme Court Justices 
are entitled to the confidentiality of their clerks.
    In closing, I would like to step back from the immediate 
question of czars to the broader purpose of this hearing, which 
is the appropriate role of Congress in our constitutional 
system. The Framers of the Constitution placed Congress in 
Article I of the Constitution for a reason. In republican 
governments, the legislature should predominate in 
policymaking, as James Madison made clear in Federalist 51. The 
Framers understood that executives tend aggrandize power. From 
classical times of Greece and Rome, to King George III, to the 
21st Century United States, Democrats or Republicans, 
executives want more power. Thus, it is the prerogative and the 
duty of Congress to assert its own constitutional role. I think 
that several issues, aside from the role of czars in the White 
House, are fundamental to the role of Congress in our 
democracy.
    The explosion of signing statements to imply that a 
President might not faithfully execute the law presents a 
fundamental threat to the constitutional role of Congress, 
which possesses all legislative powers. If presidents create 
secret programs that effectively nullify or circumvent the 
laws, they are placing themselves above the law and claiming 
the authority to suspend the laws which the Framers explicitly 
rejected. If presidents use the State secrets privilege to 
avoid the disclosure of or accountability for their actions, 
the role of the courts is undercut. And if the President claims 
the right to suspend habeas corpus, he treads on Article I of 
the Constitution.
    The use of czars by presidents presents serious questions 
of policymaking and management, but the constitutional 
prerogatives of Congress are more seriously undermined by the 
claims of Presidents to have the right to set aside the laws in 
favor of their own policy priorities.
    Thank you, Mr. Chairman, Senator Collins, and other Members 
of the Committee.
    Chairman Lieberman. Thanks, Dr. Pfiffner. Interesting 
statement. I appreciate your attempt at a definition of these 
positions, too, and I look forward to question-and-answer time 
with you.
    Our next witness is Lee Casey. Mr. Casey is a partner in 
the law firm of Baker Hostetler specializing in constitutional, 
environmental, and international law. He served in the 
Department of Justice in the Ronald Reagan and George H.W. Bush 
Administrations, including in both the Office of Legal Counsel 
and the Office of Legal Policy, and also served as Deputy 
Associate General Counsel at the Department of Energy in the 
Administration of President George H.W. Bush.
    I have been reading your stuff for a long time, and so it 
is a pleasure to meet you and have you here as a witness. 
Please proceed.

TESTIMONY OF LEE A. CASEY,\1\ PARTNER, BAKER HOSTETLER; FORMER 
  ATTORNEY-ADVISOR IN THE OFFICE OF LEGAL COUNSEL AT THE U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Casey. Thank you very much, Mr. Chairman. And, indeed, 
thank you and Senator Collins and the rest of the Committee for 
allowing me the opportunity to address you today on what is 
indeed a very important issue.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Casey appears in the Appendix on 
page 58.
---------------------------------------------------------------------------
    I should first emphasize, of course, that I am speaking 
here on my own behalf, and I would also like to ask that my 
written statement be included in the record.
    Chairman Lieberman. Without objection, so ordered. And that 
will be the case for all the witnesses.
    Mr. Casey. Thank you, Mr. Chairman.
    As you will see in the written statement, my position is 
that the use of White House policy czars--and, again, I think 
we should and need to focus not on the offices created by 
Congress or on a number of the individuals who are called 
``czars'' who actually hold agency positions. It is the White 
House adviser that I think has caused people the concern. The 
fact is, however, those advisers are just that. They have no 
power beyond the fact that they are close to the President. 
They cannot transform Executive Branch policy into the policy 
of the United States. They cannot sign regulations. They cannot 
submit legislation to Congress. Their authority is very 
limited, and, indeed, it has been the consistent position of 
the Justice Department under both Republican and Democratic 
Administrations that people in those advisory roles need not be 
appointed in accordance with the Appointments Clause--that is, 
by and with the advice and consent of the Senate. And most 
importantly of all, they cannot take action that would create a 
legal obligation either on behalf of the government or on 
behalf of the citizenry at large. The President can implement 
policy and transform it into government policy only through 
officers that have been appointed under the Appointments Clause 
and who are responsible through the oversight process to 
Congress.
    However, I do understand the feeling of unease that many 
people have with the idea that there are presidential advisers 
with such great power. And, indeed, I think anyone educated in 
the Anglo-American legal tradition will feel a little bit of 
unease, and there is a reason for that.
    I think it is important to understand why the Framers did 
what they did and made the distinction between advisory 
functions and actual lawmaking functions. Executive advisers, 
in other words, have a history, and the Framers were working 
within that context.
    If you look back over the history of the efforts to limit 
the power of the British Crown, those efforts were almost 
invariably directed at limiting who the advisers to the monarch 
were, who were the people that were closest and who had his or 
her ear. There were efforts to impose such limitations in the 
13th Century, in the 14th Century, in the 15th Century, not so 
much in the 16th Century since the monarchy was then at its 
apogee, but it came back with a vengeance in the 17th Century. 
And the fact is every single one of those efforts failed and 
usually failed miserably with the reformers either ending up 
dead or in exile.
    The Framers understood this. They knew this. And, indeed, 
at the Constitutional Convention in 1787, there were proposals 
that there should be a council of advice or a privy council 
appointed, possibly by the Senate, through which the President 
would have to work, whose advice he must take. Important 
members of the Convention supported this idea, among others 
George Mason and Benjamin Franklin, who actually knew about 
that sort of thing from his service in France. Franklin noted 
that experience showed that ``caprice, the intrigues of 
favorites, and mistresses'' were, nevertheless, ``the means 
most prevalent in monarchies,'' especially with respect to 
appointments. And he thought a council would not only be a 
check on a bad President, but a relief to a good one.
    His colleagues, however, did not agree, and the Framers 
rejected the entire model, the entire effort to control who is 
advising the President, and they cut to the chase. What they 
did was say no one can exercise actual government power unless 
they are appointed in accordance with the Appointments Clause, 
by and with the advice and consent of the Senate. Indeed, that 
is the default. All officers of the United States must be 
appointed with the Senate's consent unless Congress has vested 
the right to appoint inferior officers in the office of the 
President, the heads of departments, or the courts.
    And so as a result, if one of these individuals--
presidential advisers, czars--attempts to take an action with 
legal force, the action has no legal force. It does not bind 
the government. It does not bind individuals. That is the 
ultimate check.
    And I think if you need to look at a situation where the 
Framers' wisdom was vindicated, probably the most important is 
indeed the Saturday Night Massacre, when President Richard M. 
Nixon decided to fire Special Prosecutor Archibald Cox, which 
he had every legal right to do. The Attorney General refused 
and resigned. The Deputy Attorney General refused and resigned. 
The Solicitor General was about to refuse and resign, although 
the Attorney General convinced him that if he did that, the 
entire top leadership of the department would leave, and there 
would be no one in charge but a 26-year-old attorney-adviser 
who was waiting for the bar results. So Judge Robert Bork 
stayed, and he did fire Cox.
    There were prices to be paid for that. President Nixon, of 
course--that was the beginning of the end. But the issue 
actually haunted Judge Bork. It was raised at his confirmation 
hearings for the Supreme Court. I think that shows the system 
worked.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Fascinating. Thank you. You raise a lot 
of good questions, very helpful.
    The final witness is Dr. Harold Relyea, former Specialist 
in American National Government at the Congressional Research 
Service, specializing in the presidential office and powers, 
Executive Branch organization, and congressional oversight. 
Just within your own areas of expertise, perfectly suited to 
either be extremely conflicted or to give us good advice. Maybe 
both. [Laughter.]
    Mr. Relyea. Maybe both.
    Chairman Lieberman. Dr. Relyea.

 TESTIMONY OF HAROLD C. RELYEA, PH.D.,\1\ FORMER SPECIALIST IN 
  AMERICAN NATIONAL GOVERNMENT AT THE CONGRESSIONAL RESEARCH 
                            SERVICE

    Mr. Relyea. Mr. Chairman, Senator Collins, and Members of 
the Committee, thank you for your invitation to appear here 
today.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Relyea appears in the Appendix on 
page 73.
---------------------------------------------------------------------------
    My prepared statement reviews the historical antecedents of 
the presidential czars, the conditions contributing to their 
creation, their initial use during the World War II period, 
their congressional accountability at that time, some later 
developments, and some considerations regarding their future 
relationships with Congress. Let me summarize.
    Presidents initially utilized their department heads as 
advisers and the Cabinet as a means of coordination. Soon, 
however, they turned to circles of informal advisers and 
confidants who were often personal and political friends. These 
were called ``Kitchen Cabinets'' during the presidencies of 
Andrew Jackson and John Tyler. In more recent memory, President 
Franklin D. Roosevelt brought to the White House a group of 
advisers and agents known as the ``Brains Trust,'' which was 
composed of intellectuals and other ideas people from the 
academic world. Their numbers and roles prompted the President 
to seek more White House staff positions and improved 
arrangements for Executive Branch coordination and management.
    The result was the Reorganization Act of 1939 which 
empowered the President to create, by reorganization plan, the 
Executive Office of the President, but also the White House 
Office, and a subsequent Office for Emergency Management, and 
to appoint as well six new administrative assistants.
    Thus, in 1940, on the eve of the United States' entry into 
World War II, the President had at least three havens for his 
agents, special assistants, and closest advisers, including 
coordinators who would come to be known in some instances as 
``czars.''
    For war mobilization, President Roosevelt had at least 
three successive primary czars: William S. Knudsen at the 
Office of Production Management, who was not given enough 
authority to be successful; Donald Nelson, Chairman of the War 
Production Board, who allowed his authority to become diluted; 
and James F. Byrnes, who led the Office of War Mobilization 
with great confidence, great ability, and great accomplishment.
    But it also appears that these czars were accountable to 
Congress. An examination of the April 1941 to April 1943 
hearings of the respected Senate Special Committee 
investigating the National Defense Program--this was the panel 
chaired by Senator Harry S Truman--indicate that Knudsen 
appeared once, his deputy appeared twice, and Nelson thrice. 
Moreover, lesser officials from Knudsen's agency made 17 
appearances, and those from Nelson's board made 24 appearances. 
This all in just 2 years. There was, indeed, cooperation with 
the Truman Committee.
    In conclusion, let me just offer a couple of considerations 
that are in my statement.
    When the President prohibits congressional testimony by a 
czar or other presidential agent, efforts should be made to 
obtain the desired information in some other way, such as the 
provision of responsive factual documents, like a Freedom of 
Information Act (FOIA) request, or written answers to 
interrogatories, testimony by a department or agency official 
heading the unit in which the czar or presidential agent is 
located, or a briefing of congressional committee leaders or 
staff.
    Also let me note that in 1978 Congress established 
personnel authorizations for the White House Office, for two 
other Executive Office of the President units, and for the 
Executive Office of the Vice President. This authorization 
might be revisited with a view to the adequacy of its 
allotments, with a view to its reporting requirements, and its 
scope--should it be extended to other Executive Office 
entities.
    Mr. Chairman, thank you again for your invitation to appear 
here today. I welcome the questions of Members.
    Chairman Lieberman. Thank you, Dr. Relyea.
    For those who are interested, I think your description of 
the history here and your prepared testimony is really quite 
illuminating, and it is worth reading.
    Mr. Relyea. Thank you.
    Chairman Lieberman. So I am sure people will be waiting for 
the transcript of this hearing to appear.
    Mr. Relyea. Best-seller. [Laughter.]
    Chairman Lieberman. We will have 7-minute rounds of 
questions.
    Dr. Pfiffner and Mr. Casey in different ways tried to 
define what we should be focused on, and if I heard you right, 
Dr. Pfiffner, you started with a kind of disclaimer I think is 
valid, which is, there is no generally accepted definition of 
what we are exactly talking about, but your definition of the 
category of employee that we should be concerned about are 
members of the White House staff who are not officers of the 
government within the definition, not statutorily authorized, 
not confirmed, and they are coordinators of policy. To some 
extent, Mr. Casey, I think you agreed with that.
    Am I hearing that right? And let me ask first--perhaps I 
should wait for Senator Collins, but I know she feels that some 
of those working in executive agencies are also czars because 
of the role they play. But you would say at the outset that 
what we should be concerned about are the people in the White 
House?
    Mr. Pfiffner. They maybe have responsibility to coordinate, 
do interagency coordination and so forth, but they report to a 
Cabinet secretary, so they can report to Congress and they are 
responsible if they are not in the White House and if they are 
either PAS or report to a PAS position.
    Chairman Lieberman. Just define PAS for the record.
    Mr. Pfiffner. Presidential appointment with consent of the 
Senate. Those in the White House staff usually are just 
preisdentially appointed (PA).
    Chairman Lieberman. So in response to the direct question 
of their accountability to Congress and to--actually, there is 
a wonderful phrase that Senator Byrd quoted from President 
Obama: ``A democracy requires accountability, and 
accountability requires transparency.''
    So in regard to that, you would say that someone in an 
executive agency who may be acting like the people in the White 
House we are concerned about is, nonetheless, accountable to us 
and can be called to testify or produce documents. Is that the 
distinction you would make?
    Mr. Pfiffner. Yes.
    Chairman Lieberman. Mr. Casey, go ahead.
    Mr. Casey. I generally agree with that, although, again, 
there is always a question of what testimony and which 
documents. Whenever you start getting close to advice that is 
prepared for and given to the President, you start, obviously, 
getting into some very difficult separation-of-powers issues. 
But to the extent that the czars who actually hold offices at 
the agencies, some of which have been confirmed by the Senate, 
undertake a policymaking role in addition to the role they 
serve in in their office, that is fine--again, so long as they 
do not attempt to exercise authority that was not otherwise 
properly delegated to them.
    Chairman Lieberman. So let us go back to the people in the 
White House, the category we are concerned about. What if the 
people that we are describing here are not just advisers but, 
as one might argue in some cases, both in this Administration 
and previous Administrations, actually begin to act like 
officers, that they are making decisions, they are forcing 
decisions on Cabinet secretaries, for instance? What should our 
response be? Because they will claim, as they have in this 
Administration and previous ones, that we do not have a right 
to call them to testify or to ask them to produce documents.
    Mr. Casey. Sure. I think, frankly, that is the key, and I 
think that is the key to the concern, that White House policy 
czars, White House advisers, will force the agencies to do 
things that they do not want to do.
    I think in answer to the first question, to the extent they 
act like officers, their actions are not valid. Their actions 
are not legally enforceable. A court will not enforce an order 
or a rule signed by a presidential adviser.
    With respect to whether they over-awing the agencies, in my 
limited experience, frankly, it is actually quite difficult for 
the White House to force an agency to do what it does not want 
to do. But assuming that is done, then I think your concern 
should be with the officers, with the Secretary, with the Under 
Secretaries, whoever actually signs the document that makes it 
law. They are the ones who must defend it. You sign it, you buy 
it. And if they believe, as Attorney General Elliott Richardson 
believed, that what the President wants them to do is wrong, 
they can resign.
    Chairman Lieberman. Yes. From your perspective, both of 
you--and all of the witnesses, having studied this--we have 
gone through it back and forth, over and over again with people 
in the White House, not just this one, but previously too--
where they will not testify based on the claim of executive 
privilege, that they have to be free to give the President 
advice and not have it become a matter of public testimony. 
And, generally speaking, we all agree with that. We always say, 
``Yes, but you are playing an independent policy coordination 
role, and we want to question you on that.''
    So I guess I would ask you a two-part question on that. Is 
there validity to their claim that they should not be called to 
testify on their policy coordination as opposed to the advice 
to the President? And either way, is there some way we should 
legislate to compel people in the White House holding these 
positions to come before Congress to testify about--not about 
the advice they have given the President, but about the policy 
coordination role that they are playing?
    Mr. Casey. Well, the thing is you start very quickly 
getting into difficulties of definition. Obviously, the advice 
someone gives directly to the President, the actual speech, 
what you tell the President is clearly privileged. But, in 
addition, to have an effective privilege, your activities, what 
you do for the President also needs to be privileged; 
otherwise, the privilege does not mean that much.
    Again, these individuals, whatever independent authority 
they have is entirely based on the President's authority. They 
are his assistants. They can do nothing that he does not permit 
them to do, and there are things that he may not delegate to 
them.
    In terms of possible legislation, Congress has regulated 
the White House Office, but it is difficult to think of a 
system where you are regulating the independence of 
presidential advisers that would not raise serious separation-
of-powers issues.
    Chairman Lieberman. Governor Ridge, do you want to get into 
this? Actually, my time has expired, but do you have any 
responses to the back-and-forth that we have just had?
    Mr. Ridge. Just, first of all, I am very pleased to be with 
such a distinguished panel of historians and constitutional 
experts. I think one of the challenges associated with the 
ability of Congress to even have a legitimate basis for inquiry 
would be resolved if in making the appointment there was a 
public revelation of precisely the function that the adviser 
was going to play within the White House. And my sense is a lot 
of these have been appointed by virtue of a press release. And 
obviously the President can appoint whatever advisers he wants, 
but in terms of your ability to make inquiry, perhaps not of 
the adviser but of the Cabinet secretaries with whom this 
individual has coordinated responsibility would certainly be a 
very positive step. But right now I do not even think Congress 
is in a position to do that because the President has not 
outlined specifically what those coordinating responsibilities 
are.
    Chairman Lieberman. Thank you. I am going to yield to 
Senator Collins. I just want to read you a paragraph from 
Senator Byrd's letter. It is a very interesting argument, and 
maybe we will come back to it. ``Whether an executive official 
is confirmed by the full Senate or appointed by the President 
alone to serve on the White House staff, that official holds 
the position by virtue of the authority that the Congress has 
granted to the President. Such White House staffers receive a 
salary by virtue of the spending authority that Congress has 
granted to the Executive Branch. Even presidential assistants 
and advisers have a constitutional obligation to answer 
questions before the Congress if it is necessary for the 
Congress to fulfill its constitutional oversight and 
investigative functions.''
    That is something really to think about. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    I want to give the panel an actual example of a czar 
position that I think is very troubling. In 2007, this 
Committee wrote legislation that became law that created within 
the Executive Office of the President a Senate-confirmed 
position to be coordinator for the prevention of weapons of 
mass destruction (WMD), and the coordinator's role, which is 
defined in this law, says that this individual should serve as 
the principal adviser to the President on all matters relating 
to the prevention of weapons of mass destruction proliferation 
and terrorism. And, again, I am going to stress this was to be 
a Senate-confirmed coordinator located within the Executive 
Office of the President.
    Now, neither President Bush nor President Obama ever filled 
this statutorily created position, but both of them created and 
filled a White House policy czar for weapons of mass 
destruction. That individual, the WMD czar, has exactly the 
same functions that were set forth in the law that the Chairman 
and I wrote. And to me, this is a prime example of both 
Presidents--this is not a partisan issue--appointing a White 
House policy czar, which completely circumvents a statutorily 
Senate-confirmed position created by Congress.
    So I would like to get your reaction to this, because to 
me, this is a prime example of what troubles me. Secretary 
Ridge.
    Mr. Ridge. I was afraid you were going to call on me. 
[Laughter.]
    Senator Collins. Would you like me to call on you last?
    Mr. Ridge. With that intervention, I am prepared to answer 
the question. I think it is fundamental to the inquiry that you 
are making today. The brilliance of the Founding Fathers years 
and years ago to create the three branches of government, the 
separation of powers, and one can say--and, remember, I used to 
sit up on that side of the dais--that the Congress of the 
United States has effectively said for public policy purposes 
there is a need for a position and you want it Senate-
confirmed. Everybody agrees with that. That is circumvented by 
not filling a position but giving somebody else the exact same 
responsibilities.
    Here is why I think that whole notion of transparency 
essential to the functioning of a democracy probably gives 
precedent to that individual testifying simply because it was 
apparently done in response to a statutorily--there was no 
position. You created the position. It was filled as an 
adviser. The name was not sent to the Hill. I guess I would put 
on my congressional hat and say that is sleight of hand that it 
would seem to me to be very troubling, because the basic 
strength of our country, of a democracy, is transparency. Here 
the conditions are so raw, so evident, in my judgment, that 
your claim for this individual to testify before you should be 
legitimized since you created the position. They filled it but 
did not send a name to the Hill.
    Senator Collins. Dr. Pfiffner.
    Mr. Pfiffner. I agree. I think the Senate----
    Mr. Ridge. Good. [Laughter.]
    Mr. Pfiffner. The Congress can certainly create whatever 
positions in the U.S. Government that it wants to, setting 
aside the President's right to confidential advice and so 
forth. The fact that confidential responsibility overlaps or 
duplicates a position that is supposed to be PAS I think is 
very troubling. So I agree on that issue.
    Senator Collins. Mr. Casey, you have been a strong advocate 
for a strong presidency, but does this specific example trouble 
you?
    Mr. Casey. Well----
    Senator Collins. The answer is, ``Yes.'' [Laughter.]
    Mr. Casey. With respect to this example, I think the 
question really is: Did Congress have the authority to create a 
position, the role of which is to act as chief adviser to the 
President on a particular topic area? Obviously, Congress is 
free to create offices and to vest those offices with whatever 
power it thinks necessary. But when you start getting to a 
point where you are effectively choosing the President's 
advisers--as I understand the way you described this office, 
this person will act as the President's chief adviser. That 
raises very serious separation-of-powers concerns simply 
because you are purporting to say this is the person the 
President has to listen to.
    So in this instance, I do not actually find it troubling. 
In fact, I kind of wonder what the Administration statement on 
the proposed bill was when it came through and whether there 
was an objection to that office. Perhaps there was not, but it 
would be interesting.
    Senator Collins. I do not believe there was.
    Mr. Casey. It would be interesting to find out.
    But I think that is why the office has not been filled, 
because there is a feeling that it is simply too close to the 
President's own authority.
    Senator Collins. We were just talking up here as you were 
responding that you could say that about almost any position. 
If the President disagrees with the creation of a Senate-
confirmed position, he obviously could have vetoed the bill, 
and did not do so. Instead, it is being circumvented.
    I want to get to the final witnesses' comments on this.
    Mr. Relyea. I have two points I would make. I am not in 
disagreement with what has been said, but I am reminded that in 
1944, with Mr. Byrnes as the head of the Office of War 
Mobilization (OWM), that position was seen as too powerful in 
some regards. He was the President's agent. He was appointed 
without Senate confirmation. OWM had been created by executive 
order. Congress said, ``We are going to reconstitute the 
office,'' and they did, by statute. Technically abolishing 
Byrnes' office and his role, Congress set it up as a Senate-
confirmed position, in a statutorily created entity. I think 
that might be an answer here, that you eliminate either its 
funding or its role as a White House unit and go for something 
that is a congressional creation.
    Now, there is another point here, too, and that is, on 
occasion, when Congress has created an Executive Office unit, 
the White House has played sleight of hand and put that unit 
for funding purposes--and by implication for managerial 
purposes--within the White House Office. The Homeland Security 
Council had that budgetary type of role. The Privacy and Civil 
Liberties Oversight Board, before it was made an independent 
agency--and that is why it was made an independent agency--was 
also put behind that facade, creating a whole array of 
problems, czar or otherwise.
    Senator Collins. Unfortunately, my time has already expired 
even though I have lots more questions. Let me just make a 
final point on this issue.
    When Congress passed the Intelligence Reform and Terrorism 
Prevention Act, which we wrote in 2004, we created by statute a 
Director of National Intelligence. That individual acts as the 
chief adviser to the President on intelligence matters. When we 
made the powers of the Federal Emergency Management Agency 
(FEMA) Administrator stronger, we specifically designated that 
individual as being the principal adviser to the President. So 
this is done all the time. And I think it creates a real 
problem when Congress specifically creates in law a position 
that is Senate-confirmed, that is accountable to us, thus a 
person we can call up before us, and then the White House--and 
both President Bush and President Obama did this with the WMD 
coordinator position--does not fill the statutorily created 
position and instead creates a czar with exactly the same 
duties and who is not accountable to us at all.
    Chairman Lieberman. Well done. Very important question.
    As you know, we call Senators in order of appearance. Just 
for your information, that is Senators Bennett, Burris, 
McCaskill, Coburn, and Ensign. Senator Bennett.
    Senator Bennett. Thank you very much, and thank you to the 
panel. Very well done and fascinating. Let me pick out a few 
comments that you made, however, to disagree with and see what 
your response is.
    The comment, Mr. Casey, that it is difficult to force an 
agency to do what they do not want to do, anybody who has dealt 
with the Office of Management and Budget (OMB) who is a Cabinet 
officer will disagree with that. And they are now both dead, so 
I can tell the incident. When I was serving in the Executive 
Branch and we were at the White House making a very strong 
pitch for something we very significantly wanted to do to Cappy 
Weinberger, who was the head of OMB, it was very rough sailing. 
Cappy was called out of the meeting to meet with the President. 
We sat there waiting. He came back grinning like the Cheshire 
cat and said, ``I just ran into John Ehrlichman, and he told me 
no. So you cannot do it. That is the Nixon Administration, 
period. You have gone to the highest possible authority. There 
is no point in our continuing the meeting.''
    Well, this is an unconfirmed presidential assistant who 
made the firm decision.
    Now, you are correct in that he was able to do that because 
President Nixon allowed him to do that. I worked for John 
Volpe. I saw the circumstance where John Volpe offended John 
Ehrlichman, as a result of which Mr. Volpe did not see the 
President of the United States for 2 years.
    So let us not kid ourselves that these unconfirmed folks 
only have the authority to advise. The reality is the White 
House is a court. The President is the king. The White House 
staffers are courtiers, and it is the century-long duty of 
every courtier to keep anybody else from access to the king. 
And the White House courtiers do a very good job of that, 
regardless of which party is in charge or which Administration 
is doing it. And in President Nixon's case, he paid a very 
serious price for allowing his courtiers to keep people who 
would tell him the things he needed to hear away from him. But 
let us understand that is the case.
    Now, one other quick comment, responding to my colleague 
and the comment that says, well, the Congress cannot tell the 
President who his principal adviser is going to be. Congress 
passed a law creating the Council of Economic Advisers, and yet 
there is an economic czar, Paul Volcker, at the current moment. 
Who has the President's ear on the economy? And then there is 
the other adviser, Larry Summers, and if you want to influence 
the President, if you are a Member of the Congress, whom do you 
call? Do you call the Council of Economic Advisers? Do you call 
Mr. Summers? Or do you call Mr. Volcker?
    Reference has been made to Nancy-Ann DeParle, for whom I 
have enormous respect. I think she is terrific, and I have had 
a lot of conversations with her about health care. But we do 
happen to have a Cabinet officer of Health and Human Services 
with whom I have never had a conversation about health care--
not because I have any opposition to her, but because it is my 
perception that Nancy-Ann DeParle is calling the shots rather 
than Secretary Sebelius.
    We have an Energy Secretary with whom I have had a number 
of conversations about energy because that is an area now of my 
responsibility here in the Congress. But I think the person 
calling the shots here is Carol Browner.
    This is the management issue that this whole thing raises. 
I said what I said about Y2K because that was a circumstance 
that cut across Department lines. There was no way you could 
raise that issue within existing White House or congressional 
staff. But in this circumstance, you have a Council of Economic 
Advisers, but the President has a czar. You have a Secretary of 
Health and Human Services, and the President has a czar. You 
have a Secretary of Energy, but the President has a czar. And 
somewhere in this circumstance, at OMB or surrounding OMB, 
there is a John Ehrlichman from Chicago who is going to say no, 
and that is going to end it.
    Mr. Casey. Actually, Senator, if I can respond.
    First, with respect to the question of how difficult it is 
to make an agency do what it does not want to do, obviously the 
White House can and does make agencies do what they do not want 
to do. But it is a heavy lift, as they say. Not every issue can 
be elevated to the President. The agencies deal, obviously, 
with hundreds and hundreds of important issues. And, yes, if 
you get to John Ehrlichman, then ultimately you can probably 
close down debate. But you cannot do that on every issue 
because there are simply too many.
    With respect to the question of whether John Ehrlichman was 
speaking for the President, to the extent the President wanted 
Ehrlichman to deliver the message, that is fine. But the 
Cabinet officers who were responsible for that issue had 
absolutely every right to say, ``We want to hear that from the 
President.''
    Senator Bennett. Let me hear from Secretary Ridge. Mr. 
Secretary, can you respond to that?
    Mr. Ridge. Well, I can appreciate people in the White House 
saying no, Senator, based on personal experience. Whether or 
not they would be considered as czars, I do not know. It is 
very interesting. A true incident has come to mind. I remember 
right after the anthrax incident--I was sworn in on October 8, 
2004. The first anthrax death had been reported. We had that 
series of letters and deaths and just a horribly anxious time 
for this country post-September 11, 2001. The Executive Branch 
was not speaking with one voice. There was a cacophony of well-
intentioned people going forward, but for 3 or 4 days there, we 
had the Centers for Disease Control and Prevention (CDC) 
speaking, the National Institutes of Health (NIH) speaking, 
everybody speaking. I must commend the present Administration 
getting around H1N1. They did a much better job of having a 
single point of focus.
    But in my coordinating role as Assistant to the President 
for Homeland Security, I remember calling everybody together in 
the Roosevelt Room and saying, ``We have got to do a better job 
than this, and from now on, we are going to coordinate the 
message. We are going to do it through the White House.'' So 
that worked very effectively.
    But there were other occasions when, then as Secretary 
stepping in, I guess my concern was there were some 
organizational matters that I thought we had greater 
familiarity with, better understood than perhaps somebody in 
the White House in terms of the effectiveness of the proposal 
we had, just on an organizational chart, and was told no.
    And so I guess the challenge you have is distinguishing 
those times when this individual, a confidant of the President, 
gives exclusively bad advice, and then occasionally, when 
whomever it is around the President has actually veto 
authority, can actually influence what that Cabinet secretary 
wants to do. So that is the gray area that I think the 
Executive and Legislative Branches have dealt with for 200-plus 
years, and you continue to deal with it. So I have had 
experiences in both directions.
    Chairman Lieberman. Thanks, Senator Bennett. I think you 
were here for my opening statement. I expressed some concern 
about the use of the term ``czar.'' You have offered in its 
place ``courtier.'' That actually describes more appropriately 
the power exercised here, although it is not yet quite American 
enough. [Laughter.]
    Let us work on that together.
    If I may, just to supplement your story, you brought to 
mind a story when you told the Ehrlichman story, it is not 
quite as direct, but Abraham A. Ribicoff was a governor of 
Connecticut and a Senator. He was a great inspiration and 
mentor to me. In between, he was in the Kennedy Cabinet for 2 
years, and he left surprisingly quickly to run for the Senate. 
And I remember being at a dinner with him. Somebody said, 
``Abe, why did you leave the Cabinet so quickly?'' ``Oh,'' he 
said, ``there were several reasons, but its wonderful to think 
about being a Senator.'' But he said, ``You know, I just got 
tired of having these kids from the White House call me and 
tell me what to do.''
    Now, of course, he had been, as Governor Ridge knows, 
previously a governor, so no one tells a governor what to do. 
Senators are more accustomed to that. [Laughter.]
    But those stories give us a certain degree of humility 
here, hopefully, in trying to deal with this, because whether 
they are called ``czars'' or special positions are created, 
there is no question that inherent in the people around the 
President--Ehrlichman, who had a high office, or ``these 
kids,'' as Abe Ribicoff said--there is power. And it has over 
the years concentrated much more in the White House and away, 
unfortunately, from the Cabinet secretaries.
    Senator Burris, do you want to say a word of defense on 
behalf of Chicago?

              OPENING STATEMENT OF SENATOR BURRIS

    Senator Burris. I would, Mr. Chairman. I have been a 
constitutional and political science student. I mean, this is 
Political Science 101 or maybe Political Science 1000. The 
panel has just been terrific. I have so many thoughts just 
rolling through my head, I do not even know where to start. 
This is the meat that causes us political scientists to even 
exist because you are dealing with these major issues of the 
separation of powers and the creation of this country, and 
whether or not you want the President to really have the powers 
that you granted him, and whether or not the Congress, which is 
on similar or equal footing, can then control or muscle in on 
those powers of the President based on the fact that--
especially the House of Representatives, since they stand for 
re-election every 2 years, and Senators much longer. You have 
this constant power struggle as to who is really representing 
the people and what that representation is going to mean when 
it gets to the policy decision that is going to impact the 
public.
    I do not think you can come up with a definition dealing 
with this. Having served in a governor's cabinet and having 
dealt with those staffers, it almost depends on how strong the 
Cabinet member is as to just what and how he is going to deal 
with those situations and those circumstances, because having 
experienced that on the State level and knowledgeable to some 
extent on the Federal level--I was very close to the Carter 
Administration and had good insights into the workings of the 
White House and all of those decisions that were being made and 
how the gatekeepers really sought to filter the information 
they got to the President. Every President is going to go 
through it. I do not know how we in the Congress can legally--I 
mean, I heard the distinguished Ranking Member say that we 
passed a law. We can pass a law and say that there is going to 
be a position in there, but I do not think the Congress can 
tell the President who to put in that position. And if we do 
that, then I think that we are violating the separation of 
powers. I mean, this is what we get into. And you can create a 
position--what happens if the President says, ``I do not want 
to appoint anybody as Secretary of State. I am going to use the 
Under Secretary as an Acting Secretary''? Is there a law that 
would require a President to appoint a Secretary of State?
    Mr. Casey. A law that requires the President to appoint a 
Secretary of State?
    Senator Burris. Yes.
    Mr. Casey. Specifically, there would not be a law requiring 
him to do that. Now, of course, if he wants the functions that 
you vested in a Secretary of State performed, he probably has 
to----
    Senator Burris. But there is no law that says he has to 
even appoint a Secretary of State. Am I correct? There is a 
statute that says there is a Secretary of State position.
    Mr. Casey. Right, shall be appointed in the following--yes, 
I am unaware of any law to require it.
    Senator Burris. But is there a law that says the President 
has to make that appointment?
    Mr. Casey. Not that I am aware of.
    Senator Burris. That is the difficulty with which we are 
dealing. Is there a law that says that the President can 
appoint an acting person and how long can that person act?
    Mr. Casey. Yes, there is actually a law that governs that.
    Senator Burris. How long can that person act?
    Mr. Casey. I would actually have to look at the statute, 
but it is a matter of months.
    Senator Burris. A matter of months. So that person has the 
authority then should leave that position? And who then assumes 
that authority in that position if the President refuses to 
send a name up for confirmation to us?
    Mr. Casey. Well, yes, there are many circumstances in which 
an acting official can continue to serve, especially if they 
are the normal principal deputy of the office that you are 
talking about.
    Senator Burris. And what about the midnight appointment of 
judges in the interim time while Congress is in recess.
    Mr. Casey. Recess appointments.
    Senator Burris. The recess appointments, and they serve for 
only a certain period of time, and otherwise that person would 
have to leave the position? I mean, you can see all the 
questions that are just flowing through my process here as we 
try to talk about czars and policymakers. This is even bigger 
than czars. You are wrestling with this wonderful document that 
was created 200-plus years ago that created our Nation and this 
thing called separation of powers. We have not even gotten into 
the judiciary side of this, which could also raise a whole lot 
of other questions.
    I have more questions than I have answers, Mr. Chairman, in 
reference to this because I just sit here and listen to the 
experts talk, and every time there was a statement made, there 
is a new question coming to my mind, well, what about this? 
What if? And so I find this so fascinating, and I am certainly 
going to read each and every testimony of the witnesses. I do 
not know how I am going to get back to the hearing again to try 
to follow up on this.
    Mr. Chairman, I would imagine that our grandchildren are 
going to be still wrestling with this same problem. I do not 
know whether or not we want to have a weak President who is 
going to kowtow to Congress or a weak Congress who is going to 
let a President run all over us, which you see in some of these 
cases. If you say that we are going to appropriate some money 
and they do not want to spend it, they do not spend it. And you 
just heard what the distinguished Senator from Utah said, who 
the gatekeeper is to stop information from getting to the 
President? I am more frustrated than I am with the questions.
    Thank you, Mr. Chairman. I am done. [Laughter.]
    Chairman Lieberman. Thank you, Senator Burris. No, I think 
this is actually a subject that has received a lot of heat 
lately, but I think there has been a lot of light shed this 
morning, and it is due to the quality of the witnesses and, I 
think, the interest of the Members of the Committee, including 
yourself, in going at this thoughtfully. I thank you.
    Senator McCaskill.
    Senator McCaskill. Thank you, Mr. Chairman.
    The job we have today is to try to separate genuine concern 
over constitutional checks and balances versus the partisan 
food fight. And I think we are in the right Committee to do 
that. I think the Chairman and the Ranking Member have 
repeatedly shown in their tenure in this Committee that they 
are not partisan and that they are focused on accountability.
    The context really is what is important here, and, really, 
the question boils down to the simple nugget of truth: To what 
extent is the President entitled to have advisers within the 
White House? And what power does the Congress have to limit 
those advisers in the White House? And I read every word of all 
of your testimonies. They were fascinating. I am a student of 
history, especially the Truman Committee because of my 
connection to that particular President in my home State and my 
interest in oversight in war contracting. So all of your 
testimony--I have to tell you, I have been a little offended at 
how frequently Richard Nixon's name has been used by members of 
the other party in the last few days. I think that is a little 
silly to be comparing the Obama Administration to some of the 
shenanigans that went on in the Nixon White House, and I have 
not appreciated that comparison.
    And that is unfortunate for this studious look at this 
issue. This all began, as my kids would say, in reference to 
the Harry Potter series, from a rant by he who shall not be 
named, and in the rant that this person did include nine people 
who have been confirmed by the Senate in his list of czars. And 
of the nine people who were confirmed by the Senate, all but 
two of those were unanimously confirmed by the Senate.
    Another large chunk of the czars that were identified 
report to Cabinet secretaries. They do not have any power 
outside of the power of the Cabinet secretary, as you all have 
pointed out as experts in this area of constitutional law.
    So if you whittle it down, there is a very small number of 
White House advisers that we are really talking about here, and 
even a smaller number that are new. And so I think you all have 
done a very good job in a nonpartisan way, including you, 
Secretary Ridge, talking about the challenges of us overseeing 
White House advisers.
    I was particularly interested in your testimony, Dr. 
Pfiffner, about what is perhaps a bigger threat to the 
constitutional checks and balances, which are things like 
signing statements and things like secret programs and the 
claim of executive privilege. And I find it a little ironic 
that some of my Republican friends have righteous indignation 
about White House policy advisers, especially in light of what 
I would call the very strong, muscular attempt in the previous 
Administration to embrace signing statements and some of the 
other things I just talked about.
    I would hope that this Committee would take a look at 
signing statements and their constitutional foundation and what 
we should be doing about signing statements. That is a direct 
affront to the constitutional power of the Legislative Branch.
    Let me ask and confirm again, Is there anyone on the panel 
that believes we should be calling anyone outside of a White 
House adviser the term ``czar''? Is it appropriate to anyone 
who works directly and answers, for example, to National 
Security Advisor Jim Jones or answers directly to Secretary of 
State Hillary Clinton or answers directly to the Environmental 
Protection Agency (EPA) Administrator or any of those? Is there 
any appropriate nomenclature that would put them under the 
rubric of the term ``czar''?
    Mr. Relyea. I suspect what you are asking is to let us get 
away from the label.
    Senator McCaskill. Right.
    Mr. Relyea. And let us see what these people are actually 
doing.
    Senator McCaskill. Right.
    Mr. Relyea. Are they wielding power that someone else 
should use?
    There is another caution here, I think. The word ``czar,'' 
like the word ``kaiser,'' both come from Caesar. That was a 
pretty authoritarian person.
    Senator McCaskill. Right.
    Mr. Relyea. If not a dictator. So it has a pejorative 
quality to it, too. And where it is usually applied first is by 
the press. This may be a member of the press who did not get 
access to this person and so they labeled him a ``czar'' to 
sting him back.
    It also may be shorthand--to come full circle in my 
comment, it falls on the part of the reporter or the journalist 
to actually look at what the person is doing. They go, ``Oh, 
this person has a lot of power. Must be a czar. That is my 
story.''
    So I think it behooves us, wherever we see these actors, 
these presidential agents--Dr. Pfiffner makes the point that 
these are blessed somehow with access to and the authority of 
the President. I think that is a beginning point. And then are 
they doing somebody else's job, as Senator Collins was pointing 
our in her example.
    So labels are neither here nor there. Titles may not be 
here or there. It is what are they doing, and that is the key 
question.
    Mr. Casey. I would agree. The real question is--``czar'' is 
an unfortunate term. It has been with us for 30 years. The fact 
that now we have 30 or 40 people being called ``czars'' frankly 
debases what was already a debased currency. We really need to 
look at the authority that people are exercising.
    Senator McCaskill. Dr. Pfiffner.
    Mr. Pfiffner. I think there is no doubt that some White 
House staffers try to exert personal power rather than 
representing the President, but only if and as long as the 
President is willing to listen to them. But I think that is the 
reality of power. Leaders need staff and advisers, and I think 
even Members of Congress probably have staffers that 
occasionally communicate with other staffers by delivering a 
message of the principal person. So a certain amount of that 
stuff I think is legitimate in the White House as it is in 
Congress, as it is in the Supreme Court.
    Mr. Ridge. Senator, if I might just comment, please, I 
think I can put an exclamation point--and my colleagues are 
much more versed in this than I am. But whether the term is 
``czar'' or ``adviser,'' both defy definition. There is no 
definition, unless accompanying the appointment there is a 
specific delineation of responsibilities. If accompanying every 
appointment there is that delineation, then there is some 
functionality associated with the title. I think one of the 
reasons there is so much confusion and perhaps a point of 
delineation between those who should testify and those who 
should not, is if the Congress and the public in a transparent 
world understood completely what the authorities were.
    Senator McCaskill. Right. I would just briefly also point 
out, I think Senator Collins had a good example of where we 
have to ask questions about the position that was created. I do 
know, however--and I know you guys are aware of this--that the 
Weapons of Mass Destruction Commission has recommended the 
repeal of that position, and President Bush wrote a letter to 
Congress in January requesting the repeal because the 
Commission has indicated they do not think it is an appropriate 
Senate-confirmed position.
    I tend to agree with you, Senator Collins, that regardless 
of what the Weapons of Mass Destruction Commission said, if 
Congress has passed it, I think it would be incumbent to fill 
it unless and until it is repealed. But I do think that there 
has been some at least independent assessment concerning that 
position that at least I think has come to the attention of 
both the Bush Administration and the Obama Administration. But 
I thought your example was a good one because it was not about 
the Democrats versus theRepublicans; it was about Presidents 
ignoring Congress.
    Thank you, Mr. Chairman.
    Chairman Lieberman. Thanks, Senator McCaskill.
    We will do one more round. There is a vote in about 10 or 
15 minutes.
    Let me pick up on this example that Senator Collins 
mentioned and acknowledge it and acknowledge that attempts we 
make to deal with the problem that concerns us can be 
frustrated by executive action, but let me just focus in.
    What really troubles me about this is the matter that we 
have talked about, which is the difficulty and really 
ultimately the impossibility of exercising our oversight 
authority with regard to people in the White House. And the 
elevation of some of these positions, which are really policy 
coordinators and coordinating Cabinet officials, to me they 
seem sometimes to be really acting as if they were officers of 
the Federal Government, that is the concern I have. So the 
question then is--because in the normal course of events, no 
matter which party controls Congress, which controls the White 
House, these are institutional conflicts that will go on, and 
Congress will not have the ability to obtain information.
    So one possibility is to take some of these positions that 
are now within the White House, that appear to be policy 
coordinating, not within the inner circle, if you will, of the 
President, and make them statutory. And, again, I understand 
the capacity of a President to frustrate this.
    An interesting example here is the Office of National Drug 
Control Policy. A so-called drug czar was actually created by 
President Nixon. There we go again with President Nixon. Later 
it was made statutory, and the Director of the Office of 
National Drug Control Policy, statutorily authorized, confirmed 
by the Senate, does respond to requests by Congress to testify 
or produce documents.
    So as we quite seriously search for some kind of answer to 
what to me is the heart of this question from a congressional 
point of view, how do we obtain testimony properly and exercise 
our oversight authority? I want to ask you, is that history 
that I have just described a good precedent for us? In other 
words, should Congress, for instance, create a White House 
office charged with coordinating national health policy, which 
is essentially the position of Nancy-Ann DeParle? And should we 
create a national adviser to the President for energy and 
climate change policy--which is the one that Carol Browner is 
in now--as a way to resolve this dilemma and subject these 
positions to Senate confirmation and, therefore, make sure that 
they will be responsive, acknowledging executive privilege, to 
a request to come before Congress and testify? Dr. Relyea, I 
think I will start with you.
    Mr. Relyea. I think it is worth pointing out that the drug 
czar, so-called, is in an agency which is within the Executive 
Office of the President. It is not in the White House Office. 
So there is a distinction that is important. Congress has on 
occasion created entities within the Executive Office, and 
those seem to be--up until the moment--far less of a problem 
than people who are in the White House Office.
    The National Security Advisor is actually on the White 
House Office staff, not an official of the National Security 
Council. And on various occasions, since as far back as I can 
remember, like in the early 1970s, there had been attempts from 
time to time to make that position subject to Senate 
confirmation. We have come very close to the edge, but have 
always backed away at the last minute.
    Chairman Lieberman. Particularly around Henry Kissinger's 
time, if I recall correctly.
    Mr. Relyea. Yes, it was with Dr. Kissinger.
    Chairman Lieberman. He was exercising too much authority.
    Mr. Relyea. Yes, and it came up later.
    Now, interestingly, out of Dr. Kissinger's experience, when 
he was National Security Advisor, and Governor Ridge did the 
same, while they were prohibited from coming before Congress, 
they gave briefings. They met informally, confidentially, off 
the record, with Members of Congress. So as I tried to point 
out in my statement, there are means for getting accountability 
or finding out what is going on and so forth. But I think, even 
though Congress creates a staff authorization for the White 
House Office, provides the funds for the White House Office 
personnel, thus far Congress has not seen fit to invade that 
domain and has left it to the President.
    Now, a little saber rattling might cause a President to 
think, ``Uh-oh, here they come. They are going to come in the 
White House and start telling me how I can hire people.''
    Chairman Lieberman. In general, you would counsel against 
that?
    Mr. Relyea. I counsel against it because I think you have 
two great problems to overcome: A historical record, and I 
think it would take an extraordinary majority in both chambers 
to get that passed.
    Chairman Lieberman. Yes. Incidentally, as you know, 
Kissinger and Nixon solved that controversy by making Kissinger 
Secretary of State.
    Mr. Relyea. He had both roles for a while.
    Chairman Lieberman. Yes, that is right. Mr. Casey.
    Mr. Casey. I think the real question is whether by creating 
one of these offices you can then effectively prevent the 
President from looking to someone else to be his adviser on the 
issue or to speak for him on the issue, and I think that, 
frankly, is where the constitutional problem is.
    There are certainly a lot of functions that you could 
consolidate in a particular office, be it in the White House, 
in the Executive Office of the President, or outside in an 
agency. But the key question is: By doing that, can you keep 
the President from looking to someone else? I do not think you 
can. I think it raises very serious separation-of-powers 
issues. I am not exactly sure what the courts would do, 
although I will say that in many areas where the question is 
whether legislation or regulations apply to the President's 
personal staff and office, the courts do somersaults to avoid 
answering the question.
    Chairman Lieberman. Thanks. Dr. Pfiffner.
    Mr. Pfiffner. I think Secretary Ridge is right, that the 
key here is the functions that these people perform. If you 
create an officer of the government, that person can exercise 
the authority of that office, but they are also subject to the 
Executive Branch chain of command.
    Advisers to the President, on the other hand, can tell the 
President whatever they want, and you can create the position, 
but basically the President can listen to whomever he or she 
wants.
    So I think the real solution, if there is one, to this 
problem is comity between the branches from both sides so that 
the President does not keep trying to keep things away from 
Congress, make things non-transparent, and that Congress does 
not get too heavy-handed, on the other hand. That is a 
difficult one, but I think that is the real solution.
    Chairman Lieberman. Governor Ridge.
    Mr. Ridge. Senator, a slightly different perspective. At 
some point in time, while you are interested in the kind of 
interaction and oversight incumbent upon you within the 
Legislative Branch, the perspective I offer you as a former 
Cabinet secretary, at what point in time does that assignment 
of responsibilities or a function begin to interfere, overlap, 
conflict, or create a real tension between the individual in 
the White House and a Cabinet secretary? So does the 
presidential nominee confirmed by the Senate have as much 
authority in this domain as the President's adviser who is not 
answerable to you right now under certain circumstances?
    So I think if you would decide to legislate, I would just 
encourage you to be very cautious that you do not undermine the 
credibility and the function of the Secretary, who ultimately 
is accountable to you.
    Chairman Lieberman. That is a good point. As you respond, 
it strikes me that the initial position you held in the White 
House, Homeland Security Advisor, was created by executive 
order.
    Mr. Ridge. Correct.
    Chairman Lieberman. And then made statutory. That is an 
interesting case. Now, it was not done to compel the testimony 
of the position. It was done as part of the creation of the 
Department of Homeland Security, the reforms that we were 
putting into effect over time to protect our country from 
terrorism. So we wanted to give it that extra measure of 
authority. And then--I think I am getting the time right--when 
you were Secretary, we had given the Homeland Security Council 
and Advisor statutory authority. In other words, you were 
dealing with a statutorily authorized Homeland Security Advisor 
when you were in the Cabinet.
    Mr. Ridge. Right. As I recall the legislation, my position 
within the White House as Assistant to the President for 
Homeland Security was created, and now President Obama, I 
think, has moved that within the National Security Council. I 
think John Brennan basically now holds that title.
    Chairman Lieberman. That is right.
    Mr. Ridge. I do not know whether he is subject to public 
inquiry from the Congress or not. I suspect the President is 
protecting that domain. And I do not recall, frankly, Senator, 
whether or not General Gordon or Fran Townsend were ever called 
to testify. I do not think they did, although, again, to Dr. 
Relyea, I think they are up here briefing constantly, but not 
publicly. Big difference.
    Chairman Lieberman. Thank you. Very good answers and 
helpful.
    Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    We have heard today, as well as from the President's legal 
counsel, the argument that Congress cannot compel individuals 
who fill these czar roles to testify before us because of the 
argument Mr. Casey made today that the President has the right 
to have personal assistants who advise him.
    The problem for me is there is a big difference between the 
traditional staff of the President--his chief of staff, his 
legal counsel, his press secretary--and these czar positions 
which have significant policy responsibilities. And that is why 
I have been trying to come up with a reasonable approach to 
resolve this issue.
    For example, I think Congress should be able to call Carol 
Browner, the President's energy and environmental czar, to ask 
her about the negotiations that she conducted with the 
automobile industry that led to very significant policy changes 
with regard to emission standards. I think that is particularly 
important because the Supreme Court in 2007 held that it was 
the Environmental Protection Agency that had that very 
responsibility under the Clean Air Act. And yet these 
negotiations were not undertaken by the EPA Administrator but, 
rather, by the White House czar.
    Similarly, when Nancy-Ann Min DeParle was appointed to her 
position in the White House, the executive order does not just 
vest in her the authority to coordinate across Department 
lines. It does not just say that her job is to advise the 
President. It specifically says that she is charged ``to 
develop and implement strategic initiatives under the 
President's agenda'' with a relationship to health care.
    Implementation should be the job of the Secretary of Health 
and Human Services, so that is why I am troubled. And I am not 
proposing that the President be barred from creating these new 
positions to focus on important policy priorities. I am not 
saying that he should not be able to appoint whomever he wants 
to these positions. But if we are going to have these 
individuals in the White House have the ability to negotiate 
emission standards with the automobile industry or 
implementation health care policy initiatives, to me that is 
totally different. That goes far beyond a position responsible 
for advising the President where I would agree that we do not 
have the right to call them before us--in the vast majority of 
cases. I realize I need an out there just in case.
    So what I have proposed--and what I offered on the Senate 
floor, but it fell to a point of order unrelated to the 
merits--is that the President make available to Congress to 
testify upon a reasonable request individuals who have 
responsibility for interagency development or coordination of 
any rule, regulation, or policy, and that it would apply to 
only those individuals who are without statutory authority. So 
I am narrowly defining who I believe should come and testify 
before us.
    The second half of the amendment also called on the 
President to provide us twice a year with a written summary of 
the activities of these officers within the White House. That 
strikes me as a reasonable approach that would allow us to 
exercise our oversight responsibilities, that would introduce 
far more transparency and accountability into the process, 
while not infringing upon the ability of the President to 
create special policy advisers, to fill them with the people he 
wants without congressional confirmation, without Senate 
confirmation.
    So I would like to get your judgment on whether you think 
that would be a reasonable compromise to a difficult issue for 
those of us who believe in a strong Congress. Secretary Ridge. 
Or would you like me to start on the other end of the panel, 
then work down.
    Mr. Ridge. Well, I would start if you let me finish. 
[Laughter.]
    Revise and extend, whatever.
    Senator Collins. Absolutely.
    Mr. Ridge. The operative word--I mean, it does make sense, 
if you can identify in your legislation the ability--and, 
again, language will be very important, as it always is--of 
these individuals within the White House, within the 
President's staff, who actually, as you pointed out, are told 
to implement and execute policy. I am there, then I think 
clearly you have that--I would favor your amendment.
    The coordination role I have often viewed as a little 
different, if it is truly coordination. Because I think the 
notion that the President would have someone around him 
overlooking--because there is so much overlapping jurisdiction, 
to bring people together to coordinate existing policy--not to 
create it but to coordinate whatever Congress has said the 
Administration is obliged to do, whether or not--I am agnostic 
on that. I cannot quite get there right now, but clearly on 
implementing and execution, you got me.
    Senator Collins. Thank you. Dr. Pfiffner.
    Mr. Pfiffner. With respect to policy responsibilities of 
advisers and whether they can negotiate for the President, they 
can, I think, only do that with the President's permission. I 
think even Senators' staffs sometimes do something like 
negotiate with other staffs and so forth.
    With respect to the implementation of health policy, I 
think that is very troubling, but I think that person cannot, 
with any personal authority, do any implementation.
    The President I think can give permission to his or her 
staff to come and testify. I think that is a matter of comity 
usually rather than forcing the President to do that.
    With respect to requiring a report from the President, I 
think you can absolutely require a report on the policies, but 
whether you can require a report on personal advice and 
activities, I am less certain about that.
    Senator Collins. Thank you. Mr. Casey.
    Mr. Casey. Certainly with respect to the question of 
implementation, it raises a fair question for Congress to ask. 
It is absolutely true that an Assistant to the President cannot 
propose a rule, cannot finalize a rule. They cannot by law 
implement. But it would be a reasonable question to say what 
exactly did you mean by ``implement.''
    With respect to negotiating on the outside, again, I agree, 
the individual acts solely as the President's personal 
representative. If you disagree with the policy that eventually 
came out of that, you have every right to call the 
Administrator and the Secretary of Transportation up here and 
say, ``What made you think this was a good idea? Why did you 
sign it?'' And in that way you can certainly oversee it.
    With respect to legislation, again, the court analyzes this 
based not on hermetically sealed departments, but how much 
would it actually intrude upon the President's ability to do 
his job. And so it is not exactly clear what the result would 
be.
    Senator Collins. The problem, if I may interrupt just 
briefly, is that we could call the Secretary of Transportation, 
the head of EPA, and the Secretary of Energy on the automobile 
emissions issue before us. You are right. But they are not the 
ones who made the deal. That is what troubles me. They are not 
going to be able to address the issues.
    Mr. Casey. If I may, you see, they did not negotiate the 
deal, but they did actually make the deal. They are the ones 
that had to act in order for that deal to become law, to be 
binding. And that I think is indeed the important issue.
    Senator Collins. Not in terms of transparency. Mr. Relyea.
    Mr. Relyea. On your amendment that you were talking about, 
I think a central problem is the hair splitting of the 
functions that are legitimate and thought not to be legitimate. 
So I am basically sort of in agreement with what you are trying 
to do, but the beauty is in how it is crafted legislatively.
    As to a report from the President, I am less hopeful. I 
have read many reports supposedly from the President, and they 
can be pretty mushy. Nicely phrased, but they do not tell you 
much when you back away from them. A hollow meal.
    I have a question, though. In your example you gave of 
Carol Browner's activity, did you ever consider asking her for 
a briefing on the issue of how she was negotiating and doing 
that?
    Senator Collins. Let me say that I have talked with both 
Nancy-Ann DeParle and Carol Browner, not on the automobile 
emissions but other issues. But I agree with Senator Byrd that 
private meetings are not the same as public hearings. And they 
are not. The public cannot see them.
    Mr. Relyea. Right. There is no transparency.
    Senator Collins. There is no transparency, and that is why 
this is difficult.
    I know that my time is more than expired, and a vote has 
started.
    Mr. Relyea. Could I ask you one other question? You asked 
about the implementation point. This is a point for many 
Members of the Senate, or the House, for that matter. Did you 
consider legislation that would overturn the implementation 
capacity in that executive order?
    Senator Collins. Well, we are going through the executive 
order with a fine-toothed comb, but, see, one of the problems 
is that several of the czars were just announced through press 
releases. There is not an executive order. But let me indicate 
that we are halfway through a vote, so I know we need to 
conclude this.
    I just want to thank the Chairman for holding this hearing. 
This issue has been of concern to me for many months. I first 
raised it at a public hearing back in April when we were 
discussing whether there should be a cyber security czar, and I 
thought, ``Here we go again.'' And it is of great concern to 
me. It implicates fundamental constitutional issues and 
responsibilities of the Congress, and I just want to thank the 
Chairman for putting together a superb hearing with excellent 
witnesses so that we could have a serious look at this issue.
    So thank you very much, Mr. Chairman.
    Chairman Lieberman. Thank you, Senator Collins. You did 
raise it long before it got to be a hot topic on the airwaves, 
particularly from he whose name shall not be mentioned, who is 
my constituent and long-time acquaintance since he had a 
morning radio show in New Haven, Connecticut. But you raised 
it. I remember when you raised it earlier, and I am very 
grateful to you for your help in putting this hearing together, 
and to the four witnesses who have testified, this has been 
very informative, very provocative really, and I think we both 
share a desire to do something about this to help Congress 
uphold our constitutional responsibility for oversight. But we 
understand the balance here as reflected in the Constitution.
    So thank you very much. The reward for your good testimony 
is that we will probably bother you again.
    The record of the hearing will remain open for 15 days for 
additional statements and questions. With that, the hearing is 
adjourned.
    [Whereupon, at 12:04 p.m., the Committee was adjourned.]


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