[Senate Hearing 111-562]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-562

      EXAMINING THE HISTORY AND LEGALITY OF EXECUTIVE BRANCH CZARS

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 6, 2009

                               __________

                          Serial No. J-111-54

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel









                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     3
Cornyn, Hon. John, a U.S. Senator from the State of Texas, 
  prepared statement.............................................    37
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois, prepared statement...................................    40
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     1
    prepared statement...........................................    42

                               WITNESSES

Halstead, T.J., Deputy Assistant Director, American Law Division, 
  Congressional Research Service, Library of Congress, 
  Washington, D.C................................................    13
Harrison, John C., James madison Distinguished Professor of Law, 
  Henry L. and Grace Doherty Charitable Foundation Research 
  Professor, University of Virginia School of Law, 
  Charlottesville, Virginia......................................    11
Patterson, Bradley H., Jr., Author, ``To Serve the President: 
  Continuity and Innovation in the White House Staff'' (2008), 
  Bethesda, Maryland.............................................     5
Samahon, Tuan, Associate Professor, Villanova University School 
  of Law, Villanova, Pennsylvania................................     9
Spalding, Matthew, Director, B. Kenneth Simon Center for American 
  Studies, The Heritage Foundation, Washington, D.C..............     7

                       SUBMISSIONS FOR THE RECORD

Byrd, Robert C., a U.S. Senator from the State of West Virginia..    29
Congressional Research Service, Daniel P. Mulhollan, Director, 
  Washington, DC, letter.........................................    36
Halstead, T.J., Deputy Assistant Director, American Law Division, 
  Congressional Research Service, Library of Congress, 
  Washington, D.C., statement....................................    44
Harrison, John C., James madison Distinguished Professor of Law, 
  Henry L. and Grace Doherty Charitable Foundation Research 
  Professor, University of Virginia School of Law, 
  Charlottesville, Virginia, statement...........................    58
Patterson, Bradley H., Jr., Author, ``To Serve the President: 
  Continuity and Innovation in the White House Staff'' (2008), 
  Bethesda, Maryland, statement..................................    65
Samahon, Tuan, Associate Professor, Villanova University School 
  of Law, Villanova, Pennsylvania, statement.....................    72
Spalding, Matthew, Director, B. Kenneth Simon Center for American 
  Studies, The Heritage Foundation, Washington, D.C., statement..    77
U.S. House, Thomas Alexander, Senior Counsel, letter.............    87
U.S. Senate, Committee on Homeland Security and Government 
  Affairs Committee, letter......................................    91
White House, Gregory B. Craig, Counsel to the President:
    May 19, 2009 Letter to Senator Byrd..........................    94
    October 5, 2009 Letter to Senator Feingold...................    96

 
      EXAMINING THE HISTORY AND LEGALITY OF EXECUTIVE BRANCH CZARS

                              ----------                              


                        TUESDAY, OCTOBER 6, 2009

                               U.S. Senate,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 1:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Russell D. 
Feingold, Chairman of the Subcommittee, presiding.
    Present: Senators Feingold, Whitehouse, and Coburn.

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Chairman Feingold. The Committee will come to order, and I 
want to welcome everyone to the Constitution Subcommittee's 
hearing on ``Examining the History and Legality of executive 
branch Czars.''
    I think it is fair to acknowledge that there has been a lot 
of discussion about the Obama administration's appointment of 
so-called czars to various positions in the White House and 
other departments or agencies. I called this hearing today 
because I think this is a serious issue that deserves serious 
study. But I want to be clear that I have no objection either 
to the people serving as advisers to the president, or to the 
policy issues they are addressing. These are some very talented 
people working on some very important issues that this 
administration absolutely should be addressing, from climate 
change to health care. So I hope that this hearing will enable 
us to get beyond some of the rhetoric out there and have an 
informed, reasoned, thoughtful discussion about the 
constitutional issues surrounding the President's appointment 
of certain executive branch officials.
    I should note that while the term ``czar'' has taken on a 
somewhat negative connotation in the media in the past few 
months, several Presidents, including President Obama, have 
used the term themselves to describe the people they have 
appointed. I assume they have done so to show the seriousness 
of their effort to address a problem and their expectations of 
those that they have asked to solve it. But, historically, a 
czar is an autocrat, and it is not surprising that some 
Americans feel uncomfortable about supposedly all-powerful 
officials taking over areas of the Government.
    While there is a long history of the use of White House 
advisers and czars, that does not mean we can assume they are 
constitutionally appropriate. It is important to understand the 
history for context, but often constitutional problems creep up 
slowly. It is not good enough to simply say, ``Well, George 
Bush did it too.''
    Determining whether these czars are legitimate or whether 
they will thwart Congressional oversight requires analysis of 
the Constitution's Appointments Clause and a discussion of some 
complicated constitutional and administrative law principles. I 
am, therefore, very pleased that we have such an accomplished 
group of witnesses who can help us determine whether there is a 
basis for concern here or not, and if so, what are the possible 
remedies that Congress ought to consider. I want to thank very 
much the Ranking Member, Senator Coburn, for helping us to put 
together this distinguished panel and for his cooperation on 
the difficult timing of the hearing.
    I think it is helpful to break down the officials whose 
legitimacy has been questioned into three categories to better 
understand the potential legal issues. The first group are 
positions that I have no concerns about, and, frankly, no one 
else should either. These positions were created by statute and 
are subject to advice and consent from the Senate. For example, 
some have called Dennis Blair the ``intelligence czar.'' But he 
is the Director of National Intelligence, a position created by 
Congress based on the recommendation of the 9/11 Commission. 
Like his predecessors Mike McConnell and John Negroponte, he 
was confirmed by the Senate. Calling him a ``czar'' does not 
make him illegitimate or extra-constitutional. And there are 
roughly nine officials that fall into this category, yet 
somehow have appeared on some lists of czars. Any serious 
discussion of this issue has to conclude that there is no 
problem with these posts.
    The second category of positions also does not appear to be 
problematic, at least on its face. These are positions that 
report to a Senate-confirmed officer, for example, a Cabinet 
Secretary. All of these positions are housed outside of the 
White House, and all of these officials' responsibilities are 
determined by a superior who Congress has given the power to 
prescribe duties for underlings. I will leave it to our 
distinguished constitutional law experts to further discuss 
this category, but as I understand it, these officials are 
likely to be considered ``inferior officers'' under the 
Appointments Clause, and, therefore, they are not automatically 
required to be subject to advice and consent of the Senate. 
Most of these positions are also housed within parts of the 
Government that are subject to open records laws like the 
Freedom of Information Act, and many of them have already 
appeared to testify before Congress. Indeed, of the 32 czars on 
a prominent media list, 16 have testified this year, and two 
others are in positions where their predecessors under 
Presidents Bush or Clinton testified. There does not appear to 
be a constitutional problem with these positions in theory, 
although it is possible people could identify one in practice 
if, for example, some of the people were determined to be 
taking away authority or responsibility from a Senate-confirmed 
position. However, I do not have any reason at this point to 
believe that that is the case.
    Now, what I am most interested here is in the third 
category of positions, and I think we are talking about fewer 
than 10 people, in part because we know the least about these 
positions. These officials are housed within the White House 
itself. Three weeks ago, I wrote to the President and requested 
more information about these positions, such as the Director of 
the White House Office of Health Reform and the Assistant to 
the President for Energy and Climate Change. The response to 
that letter finally came yesterday, and I will put the response 
in the record and plan to question our witnesses about it if 
there is no objection.
    [The response appears as a submission for the record.]
    Chairman Feingold. The White House decided not to accept my 
invitation to send a witness to this hearing to explain its 
position on the constitutional issues we will address today. I 
think that is unfortunate. It is also a bit ironic since one of 
the concerns that has been raised about these officials is that 
they will somehow thwart Congressional oversight of the 
executive branch.
    The White House seems to want to fight the attacks against 
it for having too many ``czars'' on a political level rather 
than a substantive level. I do not think that is the right 
approach. If there are good answers to the questions that have 
been raised, why not give them instead of attacking the motives 
or good faith of those who have raised questions?
    No one disputes that the President is allowed to hire 
advisers and aides. In fact, the President is entitled, by 
statute, to have as many as 50 high-level employees working for 
him and making top salaries. But Congress and the American 
people have the right to ensure that the positions in our 
Government that have been delegated legal authority are also 
the positions that are exercising that authority. If--and I am 
not saying this is the case--individuals in the White House are 
exercising legal authority or binding the executive branch 
without having been given that power by Congress, now, that is 
a problem. And Congress also has the right to verify that any 
directives given by a White House czar to a Cabinet member are 
directly authorized by the President.
    So I look forward to an open dialog on these important 
questions. I thank the witnesses for their time they devoted 
and the effort they have made to be here with us today. And 
with that, let me recognize Senator Coburn, who I want to thank 
again for his cooperation in helping us set this up.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Well, Mr. Chairman, thank you. As you 
noticed, I have not been outspoken on this issue. I do not see 
it as a partisan issue. And I would also compliment your 
opening statement.
    One of the reasons I like to work with Senator Feingold is 
he is absolutely honest intellectually. He has raised the 
important questions. It is not in a partisan manner but, in 
fact, to protect the very document that he and I are sworn to 
protect. And so I thank you for your opening statement.
    I would say there is another application to this question 
that I would think the President would want to address, and he 
spoken a lot about it in his campaign, this idea of an open, 
transparent Government. And when you create doubt or you sow 
doubt--and by not having a witness here today does not uphold 
any strengthening of knowledge by the American public--I think 
he does himself and his administration a disservice.
    I do not know the qualifications, I do not know what these 
people are actually doing, whether or not--as Senator Feingold 
outlined, whether they are actually binding the administration. 
But the fact is that what the American people lack today in 
Government is confidence, and the President ought to be about--
and I think that is what Senator Feingold is attempting to do 
with this hearing--is to re-establish the confidence that the 
American people that everything is aboveboard, that it is 
transparent, that we can see it is working, and if people truly 
do have significant authority and are not confirmed by the 
Senate, then that is a problem.
    And so I do not know whether that is the case or not, and I 
am very delighted that you are having this hearing. I know 
Senator Collins is going to have a similar hearing, and I look 
forward to being in attendance at that since I am ranking on a 
Subcommittee in that Committee as well.
    So I thank you, Mr. Chairman. I thank you all for coming. 
It is not easy to take the time to come down here and do this, 
so I appreciate very much your efforts on that behalf.
    I yield back.
    Chairman Feingold. Thank you, Senator.
    Will the witnesses please stand and raise your right hand 
to be sworn in? Do you swear or affirm that the testimony you 
are about to give before the Committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Mr. Halstead. I do.
    Mr. Harrison. I do.
    Mr. Patterson. I do.
    Mr. Samahon. I do.
    Mr. Spalding. I do.
    Chairman Feingold. Thank you, and you may be seated.
    Our first witness this afternoon is Bradley Patterson, an 
expert on the organization and functioning of the White House 
staff. A graduate of the University of Chicago, Mr. Patterson 
served 14 years in the White House, including as the Deputy 
Cabinet Secretary under President Eisenhower, as executive 
assistant to Leonard Garment under President Nixon, and as an 
Assistant Director of the Office of Presidential Personnel 
under President Ford. He also served in the Department of State 
for many years and as the Executive Secretary of the Peace 
Corps. Mr. Patterson is a senior staff member of the Brookings 
Institution's Center for Public Policy Education and the author 
of three books about the White House staff, including most 
recently ``To Serve the President: Continuity and Innovation in 
the White House Staff.''
    So we would ask each of you to limit your remarks to 5 
minutes and would be, of course, delighted to place your entire 
statement in the record. But let us begin with Mr. Patterson. 
We appreciate your presence here today.

STATEMENT OF BRADLEY H. PATTERSON, JR., AUTHOR, ``TO SERVE THE 
             PRESIDENT'' (2008), BETHESDA, MARYLAND

    Mr. Patterson. Thank you, Mr. Chairman. It is an honor to 
be with you this afternoon. I have six points to emphasize 
concerning the history and legality of executive branch czars.
    Point one, ``czar'' is not an official title of anybody. It 
is a vernacular of executive branch public administration 
harking back, in one account, at least to the Coolidge years. 
It is a label now used loosely hereabouts, especially by the 
media.
    Point two, to use the dictionary definition of ``czar'' as 
``one in authority'' leads us straight to the question: Who in 
today's executive branch is a czar? A September 16 Washington 
Post story makes a list of 30 with which I differ. My 
definition of ``czar'' means, first, that this person reports 
only to the President. If the so-called czar reports to 
somebody in between, then that intermediate person is the czar, 
and the appointee is only a subordinate assistant. Special 
Envoys Stern, Holbrooke, and Mitchell, for instance, report to 
the President through or with Secretary of State Clinton. 
``Both Mitchell and Holbrooke said she oversees their work 
closely,'' explains a September 19 story in the Washington 
Post.
    A careful reading of the White House announcement about so-
called Urban Affairs Czar Adolfo Carrion, Jr. reveals that he 
answers not directly to the President but reports ``jointly'' 
to White House Assistants Valerie Jarrett and Melody Barnes. 
Performance Czar Jeffrey Zients and Information Czar Vivek 
Kundra are subordinates in the Office of Management and Budget. 
National AIDS Policy Czar Jeffrey Crowley in the White House 
reports to Melody Barnes.
    My definition of ``czar'' also excludes appointees who have 
undergone Senate confirmation and are thus accountable to 
testify before congressional committees. This excludes from 
czardom the Director of National Intelligence and the Drug, 
Science, Technology, and Regulatory principals in the Executive 
Office of the President and the Domestic Violence Office 
Director in the Department of Justice. I note that the media 
constantly inject the adjectival words ``White House'' in front 
of the titles of most of the above-described czar officials. I 
regard this as misleading reporting.
    Point three, the implication of Senator Feingold's 
September 15 letter to the President is that policy officers of 
the executive branch, especially those in executive positions, 
who have never been appointed with the advice and consent of 
the Senate, may hold positions, which are not consistent with 
the Appointments Clause of the Constitution.
    Principal persons in the non-confirmable category are the 
24 top White House staff officers with the title of Assistant 
to the President. Examples are so-called Health Czar Nancy-Ann 
DeParle and Carol Browner for energy and climate change. These 
two officers, and all of their colleagues in the White House, 
are appointed pursuant to Public Law 95-570 of November 1978, 
which specifies that ``the President is authorized to appoint 
and fix the pay of employees in the White House Office without 
regard to any other provision of law regulating the employment 
or compensation of persons in the Government service.'' Public 
Law 95-570 is silent about any requirement for Senate 
confirmation of these appointments. I interpret this silence as 
evidencing the intent of Congress to reconfirm, in 1978, the 
historic practice of not requiring Senate approval of White 
House staff members, whether they are called ``czars'' or not. 
Likewise, White House staffers do not give formal testimony to 
congressional committees, unless, as in the Watergate instance, 
criminality is alleged.
    Point four, does that mean that senior White House staffers 
wall themselves off from the Congress, being ``anti-
democratic''--``a poor way to manage the Government?'' as 
Senator Lamar Alexander alleges (Washington Post September 16). 
Consider the example of Ms. DeParle (New York Times, September 
20). ``When Senator Dianne Feinstein...expressed misgivings 
about how expanding Medicaid would affect California's budget, 
Ms. DeParle gathered some charts and dropped by [the Senator's 
home] on a Saturday. They spent nearly 3 hours talking over 
coffee in Ms. Feinstein's den.'' Rather un-czar-like behavior. 
As subcommittee members are aware, White House officers 
constantly visit the Hill for informal conferences with members 
and staffs.
    Point five, the Post's September 16 story quotes Senator 
Byrd as having written the President criticizing White House 
staffers for ``their rapid and easy accumulation of power.'' 
Are they powerful? Are they ``czars''?
    Well, no. Let us remember Franklin Roosevelt's Executive 
Order 8248 of September 1939: These Assistants ``shall be 
personal aides to the President and shall have no authority 
over anyone in any department or agency.'' White House staff 
members have no legal responsibility other than to assist and 
advise the President. On occasion, when staff seniors 
communicate the President's instructions to Cabinet members, 
they sometimes do it in a forceful style. I have seen that 
happen.
    Point six, ``These guys don't get vetted,'' the Post quotes 
Republican Congressman Jack Kingston, ``they have staff and 
offices and immense responsibility. All that needs to come 
before Congress.'' I differ.
    Defending the new Constitution, and its three branches--
executive, legislative, and judicial--Madison's Federalist 51 
emphasized that ``the constant aim is to divide and arrange the 
several offices in such a manner as each may be a check on the 
other...''. This venerable tenet is as applicable to staff as 
well as to principals. It would be unthinkable that the law 
clerks of the Supreme Court should be in any way accountable to 
the President or to Congress. It would be unthinkable that the 
appointments of any of the personal legislative or committee 
staff here at the Capitol should be approved by the White 
House. And likewise vice versa.
    The independence of these three groups of staff is 
indispensable to the separation of powers--which, as this 
subcommittee knows, is an implied mandate of the Constitution.
    The President's personal staff are independently 
responsible only to the President, and in the end he is the 
only czar that is. And he is accountable to the American 
electorate.
    Thank you.
    [The prepared statement of Mr. Patterson appears as a 
submission for the record.]
    Chairman Feingold. Thank you very much, sir.
    We also have with us this afternoon Matthew Spalding, the 
Director of the B. Kenneth Simon Center for American Studies at 
the Heritage Foundation. Mr. Spalding is a graduate of 
Claremont McKenna College with a Ph.D. in Government from the 
Claremont Graduate School whose scholarship has concentrated in 
Government, political philosophy, and early American political 
thought. He has taught an American Government course at George 
Mason University, Catholic University, Claremont McKenna 
College, and Hillsdale College. He is co-editor of the best-
selling book, ``The Heritage Guide to the Constitution.''
    Mr. Spalding, we certainly appreciate your presence here 
today, and you may proceed.

   STATEMENT OF MATTHEW SPALDING, DIRECTOR, B. KENNETH SIMON 
     CENTER FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION, 
                        WASHINGTON, D.C.

    Mr. Spalding. Thank you, Senator, Senator Coburn. Let me 
begin by commending you for looking into this serious issue and 
writing about it.
    ''Czar'' is a very confusing and also revealing term. No 
one officially holds the title. We do not know how many there 
are. There is no list. As you have pointed out, some are in 
positions that are created by Congress and confirmed; some are 
not.
    But the word is quite revealing. It is a clever label. It 
is clearly meant to imply in certain positions a breadth of 
authority and level of status beyond the particulars of the 
formal title, seemingly beyond the confines of the normal 
process.
    It is not new, either. In the modern era, Nixon had the 
first one. There were a few in the administrations of Ronald 
Reagan and George Herbert Walker Bush, and President Clinton 
had a few more. But there seems to have been a proliferation in 
the previous and in the current administration. At the very 
least, Congress--and here I note the letter you have sent, also 
the letters of Representatives Issa and Smith in the House and 
Senators Collins and Alexander and others--is absolutely right 
in calling for more information.
    I believe the issue is not whether the proliferation of 
czars amounts to a usurpation of power by the executive branch. 
Rather, the fundamental issue is how the rise of modern 
administrative government has put us in this insoluble dilemma: 
whether policy should be made by technical experts, insulated 
from public accountability and control, or whether policy 
should be made by our elected representatives in Congress as 
well as the executive branch. The rise of government by 
bureaucrats--largely due to the delegation of power from 
Congress to administrative agencies, combined with the removal 
of those agencies from the President's control--has given rise 
to efforts by Presidents from both political parties to get the 
bureaucratic state under control through various mechanisms. 
The rise of czars in the current administration is merely 
another manifestation, albeit an unfortunate one, of this 
phenomenon.
    My testimony goes into some history of this, concluding 
that the early 20th century reforms essentially shifted the 
authority to make policy, transferring it out of the elected 
branches of government and into these newly created 
administrative boards and commissions.
    In practice, this meant that the expansion of 
administrative agencies appeared to involve an expansion of 
executive power, but it actually resulted in a decline of 
executive control and, therefore responsibility for 
administrative policy, leading to the paradox of the expansion 
of administrative agencies, but the decline of Presidential 
control over those agencies.
    Congress has always had several tools for controlling 
administrative officials--most notably the powers to authorize 
and fund agencies and through oversight.
    Presidents have tried, the best they can, administrative 
reorganization, going back to FDR and under Richard Nixon. 
Ronald Reagan created the Office of Information and Regulatory 
Affairs, OIRA, currently occupied by the Clinton regulatory 
czar, Cass Sunstein, who was approved by Congress.
    President Obama's attempt to centralize control over 
administrative agencies is, therefore, nothing new, nor is it 
peculiar to either of the two major parties in America. It is a 
symptom of a much more serious sickness, in my opinion--the 
fact that Congress has transferred a great deal of its 
authority to administrative agencies, and neglected to put 
anyone in charge of the whole structure. The Constitution does 
give us a few pointers to guide by.
    The President has the authority to appoint his own staff 
and advisers to assist in the work of his office. It is 
perfectly legitimate for him to do so, and Congress cannot 
infringe on that authority.
    Nevertheless, through its legislative and oversight 
functions, and more specifically through the Senate's 
participation in the appointment of officers under Article II, 
Congress also has significant responsibilities over the general 
activities of the administration in carrying out the operations 
of the government.
    If executive authority is being used as a subterfuge to 
thwart confirmation requirements and accountability, and so 
evade constitutional requirements for individuals performing 
operational and managerial functions normally the 
responsibility of Cabinet Secretaries and department and agency 
executives who require Senate confirmations, that would 
certainly in my mind violate the spirit and probably the letter 
of the Constitution. A possible example of this, according to 
reports--and I note that heavily--was the fact that the climate 
czar was the lead negotiator in establishing new automobile 
emissions standards, all stemming from the Supreme Court's 
interpretation of the Clean Air Act.
    As the number of czars expands, and the President's policy 
staff grows, and there are more and more individuals acting 
more and more seemingly as administrative heads rather than 
advisers, Congress should raise questions as to whether and to 
what extent they are protected by executive privilege.
    There are numerous managerial problems with this that I 
raise in my paper, looking back to the Nixon administration, 
the lessons of the Tower Commission, the possibility of 
political influence over decisionmaking. And I conclude by 
noting that we have a dilemma between the current Congress that 
tends to give away large amounts of authority--for instance, 
under the TARP bill, which gave the Secretary of the Treasury 
extensive delegation of power, $700 billion to purchase 
troubled assets. Lo and behold, we now own General Motors and 
we have a car czar. Setting aside the policy, was that 
Congress' intention?
    The modern executive, on the other hand, attempts to get 
control of this vast bureaucracy under their authority, as they 
can, and we are seeing the current iteration of that battle.
    But, in general, the combination of these two trends leads 
to a situation where more and more laws--in the form of 
rulemaking, regulations, and policy pronouncements--are made by 
administrative agencies not only outside of the open and 
transparent requirements of responsible government, without 
congressional approval and oversight, but generally beyond the 
principle that legitimate government arises out of the consent 
of the governed. And the more government regularly operates as 
a matter of course outside of popular consent, the more we 
become clients rather than rulers of a vast and distant 
government, the less we are self-governing, and the less we 
control our own fate. And as Alexis de Tocqueville warned in 
``Democracy in America,'' that is the recipe for a benign form 
of despotism that truly imperils our democratic experiment.
    Thank you.
    [The prepared statement of Mr. Spalding appears as a 
submissions for the record.]
    Chairman Feingold. Thank you very much, Mr. Spalding.
    Our next witness is Tuan Samahon, Associate Professor at 
Villanova Law School where he teaches constitutional law, 
Federal courts, and administrative law issues. He previously 
taught at the University of Nevada-Las Vegas Boyd School of 
Law, where he was named Professor of the Year in 2007. 
Professor Samahon is a graduate of Georgetown University Law 
Center. Following law school, he clerked for the U.S. District 
Court for the Eastern District of Virginia and for the U.S. 
Court of Appeals for the Ninth Circuit.
    Professor, thank you for being here today, and you may 
proceed.

   STATEMENT OF TUAN SAMAHON, ASSOCIATE PROFESSOR, VILLANOVA 
       UNIVERSITY SCHOOL OF LAW, VILLANOVA, PENNSYLVANIA

    Mr. Samahon. Thank you, Senator Feingold and Senator 
Coburn, for inviting me to participate.
    I have been asked to address the question of whether the 
President's use of so-called czars violates the Appointments 
Clause. My testimony will be limited to the general 
appointments issue presented by the use of these positions. I 
will explain the constitutional framework that the Senate 
should consider in addressing this question.
    First, some generalities about the Appointments Clause. It 
is well established that the Appointments Clause controls the 
appointment of officers. There are at least two ways to think 
of this power. We could conceive of it either as being a 
specific grant of power to the President, that the President 
may nominate, shall nominate, and with the advice and consent 
of the Senate, appoint; or, alternatively, we might view the 
Appointments Clause as a qualification of the President's power 
to appoint, in which case in those circumstances in which the 
President appoints officers, he may do so only with the 
Senate's advice and consent.
    Either way, if one of the positions that has been 
colloquially termed ``czar'' proves to be an office, the 
Appointments Clause or its Excepting Clause controls.
    If a position is an office, the President must appoint the 
officer consistent with the Appointments Clause. The Supreme 
Court has interpreted that clause to distinguish between so-
called principal officers and inferior officers. The President 
must secure the Senate's advice and consent to appoint 
principal officers. This requirement is non-negotiable. On the 
other hand, inferior officers may be opted out of Presidential 
nomination and Senate advice and consent. The choice to opt out 
or not is a Congressional prerogative. There, of course, is a 
built-in disincentive to opt out. When Congress exercises this 
option, Congress effectively eliminates itself from the formal 
appointments process. It, however, may opt back into the 
default arrangement of Presidential appointment with Senate 
advice and consent. To opt out, Congress need only by law, by 
statute, vest the appointment authority in one of three groups 
of authorized officers: the President alone, the heads of 
executive departments, or the courts of law.
    Now, returning to the specific question of so-called czars, 
one way to think of a czar is as an inferior officer whose 
appointment Congress vested in the President alone. The three 
questions to ask in making this determination are:
    First, is this czar even an officer at all, as a threshold 
matter? Second, if so, did Congress by statute vest the 
appointment power in the President alone if appointed by the 
President or in a head of an executive department if appointed 
by a department secretary or similar official appointed by 
Senate advice and consent? And, third, if so, is the officer 
inferior to the appointing authority? If all three conditions 
are met, the czar is an inferior officer whose appointment was 
vested by Congress outside the default process and is 
consistent, perfectly consistent, with the Appointments Clause. 
Alternatively, if the czar is not an officer at all but a non-
officer, then the President has the power to appoint the non-
officer without regard to the Appointments Clause.
    So let us first talk about the threshold inquiry, the 
officer versus non-officer.
    First, it is necessary to draw the line. This line between 
non
-officer and officer is not defined by the Appointments Clause 
itself, but we do have some authority. Recently under the Bush 
Administration, the Justice Department's Office of Legal 
Counsel in April of 2007 issued an opinion that synthesized and 
harmonized the Supreme Court's opinions on who is an officer 
for Appointments Clause purposes. This OLC opinion boiled down 
the definition of ``officer'' to two requirements that are 
necessary; that is, in order to be an officer, you must hold an 
office, which in turn is defined as a position to which is 
delegated by legal authority a portion of the sovereign powers 
of the Federal Government--what the Supreme Court in Buckley v. 
Valeo termed ``significant authority? '' The second requirement 
is that this position must be continuing.
    So as to this first requirement that a position be 
delegated sovereign authority, OLC provided us with some 
definition of what exactly constitutes sovereign authority. 
Delegated strategy authority is that power to bind the 
Government or third parties for the benefit of the public, such 
as by administering, executing, or authoritatively interpreting 
the laws. And I quote here, ``Delegated sovereign authority 
also includes other activities of the executive branch 
concerning the public that might not necessarily be described 
as the administration, execution, or authoritative 
interpretation of the laws but nevertheless have long been 
understood to be sovereign functions, particularly the 
authority to represent the United States to foreign nations or 
to command military force on behalf of the Government.''
    Now, OLC excludes as an office any purely advisory 
position. These purely advisory positions present a potential 
problem for Congress. Even if one is a non-officer, we do have 
to worry that powerful ``advisers'' in theory become final in 
fact.
    If we have an officer, we can then determine whether 
Congress gave that power to the President alone to appoint, and 
then we must determine whether that officer is inferior. As my 
time has expired, I will save any elaboration of what 
constitutes an inferior officer for questions.
    Thank you, Senator.
    [The prepared statement of Mr. Samahon appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Professor, and I appreciate 
your testimony. Of course, your full statement will be placed 
in the record, and I would ask unanimous consent that Senator 
Durbin's statement be placed in the record as well. Thank you.
    [The prepared statement of Senator Durbin appears as a 
submission for the record.]
    Chairman Feingold. Now we will turn to John Harrison, a 
professor at the University of Virginia School of Law. 
Professor Harrison teaches constitutional history, Federal 
courts, civil procedure, and a number of other courses. He was 
Deputy Assistant Attorney General of the Justice Department's 
Office of Legal Counsel under President George H.W. Bush and 
recently served as counselor on international law in the Office 
of the Legal Adviser at the Department of State. Professor 
Harrison earned his J.D. from Yale Law School and served as 
editor of the Yale Law Journal. He clerked for Judge Robert 
Bork on the U.S. Court of Appeals for the District of Columbia 
Circuit.
    Mr. Harrison, we welcome you, too, and thank you for making 
the time to be here this afternoon. You may proceed.

  STATEMENT OF JOHN C. HARRISON, JAMES MADISON DISTINGUISHED 
    PROFESSOR OF LAW, HENRY L. AND GRACE DOHERTY CHARITABLE 
FOUNDATION RESEARCH PROFESSOR, UNIVERSITY OF VIRGINIA SCHOOL OF 
                 LAW, CHARLOTTESVILLE, VIRGINIA

    Mr. Harrison. Thank you, Mr. Chairman, Ranking Member 
Coburn.
    There are two governing legal principles here. Professor 
Samahon just set out the first one, the Appointments Clause. It 
is a necessary condition for the exercise of actual legal 
authority in the Government for someone in the executive branch 
for anyone other than the President to have been appointed to 
an office pursuant to the Appointments Clause. You have to be 
either a superior officer or an inferior officer.
    The other necessary condition for the exercise of power by 
anyone other than the President is some source of statutory 
authority, because only the President has constitutional power 
and the President's constitutional powers are essentially non-
delegable.
    The consequence of those two principles is that it is 
extremely doubtful whether anyone on the White House staff, the 
sort of person sometimes called a ``czar,'' could actually 
exercise legal authority, at least as a formal matter. Those 
are the first two points about the governing legal principles.
    The next point I want to make is that there is a difference 
between actual legal power between formal authority and 
influence and importance in the Government. There are a great 
many people in all three branches of Government who do not have 
any actual legal authority but who, nevertheless, are quite 
important to the process of formulating policy or in the 
judicial branch, thinking of law clerks, to the process of 
deciding cases.
    There is nothing legally problematic about that because the 
rules governing sources of authority and status of an officer 
look to actual legal authority. They do not look to informal 
power, what is sometimes called ``clout.'' And I think that is 
appropriate as it is much easier to understand and, hence, make 
legal rules about actual formal authority than about clout.
    As a consequence, it is not surprising that the legal rules 
do not seek to govern that. They seek to govern what people can 
actually do, whether they can genuinely bind the Government.
    So that is the question with respect to anybody who does 
not have a source of authority or is not appointed consistent 
with the Appointments Clause, whether that person has ever 
purported to take a legally effective action. That is something 
that certainly needs to be thought about. I doubt that it has 
happened, because the legal principles governing this matter 
are relatively well established.
    The last thing I would point out is that although it is 
common for there to be a divergence between influence in the 
Government and actual formal legal authority, especially with 
respect to the White House staff, it is extremely common for 
members of the White House staff to be extremely influential 
even though they cannot take any genuinely legal binding 
decision. Whether that division between legal authority and 
informal practical influence is a good thing is a difficult 
question of policy. It is one that the Government has been 
wrestling with as long as the Constitution has been in 
operation. It is a hard question both for Congress and for the 
President. But the important thing, I think, to understand is 
that that is a policy question; whereas, the fundamental legal 
question is, Is anybody who does not have Government authority 
seeking to exercise it?
    Thank you.
    [The prepared statement of Harrison appears as a submission 
for the record.]
    Chairman Feingold. Thank you very much, Professor.
    Our final witness is T.J. Halstead, Deputy Assistant 
Director of the American Law Division of the Congressional 
Research Service at the Library of Congress. Prior to assuming 
his current position, Mr. Halstead served both as a legislative 
attorney and section research manager in the American Law 
Division. Mr. Halstead, a graduate of the University of Kansas 
School of Law, specializes in the areas of constitutional law, 
administrative law and process, Congressional practice and 
procedure, and Congressional-executive relations.
    Mr. Halstead.

STATEMENT OF T.J. HALSTEAD, DEPUTY ASSISTANT DIRECTOR, AMERICAN 
   LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF 
                   CONGRESS, WASHINGTON, D.C.

    Mr. Halstead. Mr. Chairman, Mr. Coburn, I am pleased to be 
here today to discuss the Subcommittee's consideration of 
historical and constitutional issues pertaining to Presidential 
advisers.
    In my testimony I will address in a slightly different 
manner two interrelated issues that are relevant to today's 
hearing that have been touched upon by my fellow panelists--the 
first dealing with those Appointments Clause implications that 
are posed by the service of Presidential advisers, and then 
looking to identify the contours of an effective Congressional 
response to concerns raised by the apparent influence that is, 
in fact, exerted by those advisers.
    As has been stated, the first issue with regard to the 
Appointments Clause centers on concerns that have been raised 
that the use of these advisers may circumvent the requirements 
of that clause by allowing persons who have not been subjected 
to the Senate confirmation process to exert significant, if not 
determinative, influence over important policy issues. Those 
concerns are certainly valid from a practical political 
perspective, but there does not appear to be any substantive 
basis for a determination that this is, in fact, a violation of 
the Appointments Clause, at least as a facial matter. I have 
laid this out in more detail in my prepared statement, but 
there is no indication that these advisers, particularly those 
serving in unconfirmed positions within the Executive Office of 
the President, have been vested with any actual executive 
authority, and that precludes a categorical conclusion that the 
requirements of the Appointments Clause apply to their service.
    As a result of that dynamic, any constitutional challenge 
to these advisers, even assuming that someone could establish 
standing to mount such a challenge, would rest on a generalized 
argument that Presidential reliance on these advisers offends 
constitutional principles to such a degree as to be 
impermissible.
    Now, given that these advisers are viewed widely as 
exerting wide and broad power over actions taken at the 
executive branch level, at the department level, and so on, 
that argument might have a certain intuitive appeal, especially 
in light of the care with which Congress has structured the 
modern administrative state. However, under current 
jurisprudential principles, it is difficult to discern a basis 
upon which a reviewing court would conclude, as a legal matter, 
that the existence of these advisers runs contrary to our 
constitutional system.
    It is important to note that even assuming that a 
substantive argument against the service of such advisers could 
be forwarded, the traditional reluctance of the judiciary to 
intervene in conflicts of this type between the Congress and 
the executive branch make a non-political resolution to the 
controversy unlikely. Also, it is not clear that legislative 
proposals, even if enacted, would have much, if any, effect on 
Presidential utilization of advisers as it does not appear 
possible for Congress to prohibit, either implicitly or 
explicitly, a President from relying upon personal advisers 
irrespective of whether they are confirmed or draw a salary.
    Given the limitations that are inherent in any judicial or 
legislative response to this controversy, it seems that the 
most effective Congressional response may be one that is based 
simply on persistent and aggressive assertion of the oversight 
prerogatives of the House and Senate. Longstanding Supreme 
Court precedent recognizes the power of Congress to engage in 
oversight of any matter related to its legislative function, 
and even while there is no explicit provision in the 
Constitution authorizing Congressional oversight, the Supreme 
Court has declared that that power is so essential as to be 
implicit in the general vesting of legislative authority in the 
Congress.
    And, furthermore, despite reports to the contrary, 
Congress' power in the oversight context certainly extends to 
the receipt of testimony from Presidential advisers. Research 
conducted by my colleagues at CRS has revealed numerous 
instances where such advisers have testified before committees, 
effectively disposing of the argument that separation of powers 
principles impose a structural bar to the appearance of these 
advisers before Congress.
    This is not to say that the oversight process is easy. It 
requires sustained and focused effort from Members of Congress 
and their staff. However, a robust oversight regime, focusing 
on specific, substantive executive action taken in areas over 
which such advisers have political influence, could be an 
extremely effective approach and would enable Congress as an 
institution to more forcefully assert its constitutional 
prerogatives and to ensure compliance with its enactments.
    That concludes my personal statement. I would be happy to 
answer any questions that the Committee might have, and I look 
forward to working with you on this issue in the future.
    [The prepared statement of Mr. Halstead appears as a 
submission for the record.]
    Chairman Feingold. Thank you, Mr. Halstead. I thank all the 
witnesses. We will begin with 7-minute rounds for questions, 
and this is for all of you.
    White House Counsel Gregory Craig responded to my letter to 
the President yesterday, and I forwarded a copy of that 
response to all of you.
    First of all, do any of you disagree with the White House's 
conclusion that there is no Appointments Clause issue for so-
called czars that are housed in Federal agencies and report to 
Senate-confirmed officials? Does anyone have any difficulty 
with that?
    I will note that no one has indicated any difficulty.
    White House Counsel Craig's letter states that with respect 
to the four new White House positions that have been called 
``czars'' by some in the areas of health, energy and the 
environment, urban affairs, and domestic violence, they 
``assist the President in the formulation of executive branch 
policy and exercise no independent legal authority.'' Later in 
the letter, he states of the White House and the NSC officials 
that none of them ``exercise any independent authority or 
sovereign power.''
    Professor Harrison and Professor Samahon, I take it that 
this is a key fact in the legal analysis determining whether 
these individuals are officers of the United States implicating 
the Appointments Clause. Am I right about that?
    Mr. Harrison. That is absolutely correct. That is the 
question whether they are exercising legal power.
    Chairman Feingold. Professor.
    Mr. Samahon. I would concur with Professor Harrison. Those 
individuals would not be officers of the United States.
    Chairman Feingold. So what would it take to change that 
analysis? In other words, what would these advisers have to be 
doing, how would they have to be acting that would trigger an 
Appointments Clause issue? And, specifically, how should we 
analyze the widely reported duty that some of these officials 
have to ``coordinate policy development'' between two or more 
departments? I will start with Professors Harrison and Samahon 
and then ask the others to respond.
    Mr. Harrison. I think the sort of thing that would be 
problematic would be if someone like that were to do one of two 
things: one, to give an order to someone with actual legal 
authority that did not simply represent carrying forward the 
President's order, that was not just communicating the 
President's order; or were that person--and I think this is 
highly unlikely--to purport to take some actual binding measure 
himself or herself, for example, issuing a regulation or 
authorizing an expenditure, an exercise of formal legal 
authority. That I think is the sort of thing that would be 
problematic.
    Chairman Feingold. Professor Samahon.
    Mr. Samahon. I would agree with Professor Harrison. I think 
we are on the same page here, and so is the Bush 
administration's OLC on this particular point. Binding the 
Government, that would be an act where we would say that an 
assistant to the President is no longer an employee--
administering, executing, authoritatively interpreting the 
laws, issuing regulations--I think those would be problematic.
    Chairman Feingold. Do any of the rest of you wish to 
respond? Mr. Halstead.
    Mr. Halstead. Just to make a tangential point on this 
issue. These individuals are exercising very significant--
presumably significant political influence, and even if you had 
allegations that these folks were giving orders to agency heads 
to take certain action, I just want to touch back on this 
notion of the very small likelihood of any judicial resolution 
to this type of conflict.
    You have, by way of analogy, a situation that is similar to 
this dynamic, that has been employed since 1981, where the 
Office of Information and Regulatory Affairs at OMB exercises 
significant control over actual regulatory decisions that are 
made by executive branch agencies. And in the mid-1980s, there 
were, in fact, allegations that they had effectively usurped 
the authority that had been vested in agency heads to make 
rulemaking decisions. And the court in one case, Public 
Citizens v. Tyson, I believe, there was substantial evidence 
presented that that, in fact, had occurred. And the court just 
effectively refused to address the constitutional implications 
raised by that dynamic and addressed the issue in a manner that 
simply enabled it to ascribe the decision as, in fact, being 
that of the agency head.
    Chairman Feingold. Mr. Craig writes the following--yes, 
please, go ahead. I did not realize you wanted to respond.
    Mr. Spalding. Sorry, Senator. I agree with the technical 
points that have been raised here in terms of the questions at 
issue, and I also note we are working with a lack of 
information; hence, the letter is trying to get more 
information. So we are working on what we have here.
    But the one example I did give in my testimony that I find 
to be somewhat troubling concerning the climate czar being a 
chief negotiator during automobile emission standards based on 
a Supreme Court interpretation of the Clean Air Act, that seems 
to me that you are now at several stages of separation, getting 
into some operational regulatory questions--not the EPA 
Administrator whom you have approved. That kind of thing, that 
kind of question, at least in my mind, is something that should 
be taken seriously from the point of view of Congress, because 
an individual who is operating--and I make the distinction 
between an adviser, someone who is going into an operational 
mode, who is more administering things, separated from 
legislative advice--this is an act of Congress from 1970 now 
being interpreted by the courts, Congress chose not to change 
when the current czar was the EPA Administrator in a previous 
administration, now actually doing that. I think there are some 
questions which do raise some serious consideration along those 
lines. And there might be others, but that is the one that has 
been reported.
    Chairman Feingold. Thank you, Mr. Spalding.
    Mr. Craig writes the following concerning the number of 
alleged czars who are part of the staff of the National 
Security Council, or NSC. ``According to Federal statute, the 
function of the NSC is to advise the President and to 
coordinate, subject to the President's discretion, the policies 
and functions of the departments and agencies of the Government 
relating to the national security. The NSC is supported by 
numerous professional staff members who have no independent 
legal authority. Their sole function is to advise the President 
often through recommendations that are formulated by NSC 
principals and deputies committees. NSC staff members have 
always had expertise in particular subject matters so they can 
most effectively advise these committees and ultimately the 
President.''
    Now, given their expertise and their role in advising NSC 
committees, it seems reasonable to suppose that NSC staffers 
can have significant influence whether or not they have ever 
been called ``czars.'' While the NSC plays an important role in 
coordinating the work of different departments and agencies, 
should the Senate be concerned about the possibility that an 
NSC staffer may end up having more ability to influence foreign 
policy decisions than, say, a Senate-confirmed Assistant 
Secretary of State? Is there a solution to this problem or even 
a way of finding out whether and to what extent it is a 
problem?
    Let us start with Mr. Patterson. Would you like to respond 
to that?
    Mr. Patterson. Mr. Chairman, you will recall a year ago a 
group of 22 people called the Project on National Security 
Reform--Brent Scowcroft is one of them; General Jones was a 
member of that group--recommended in a 702-page volume issued a 
year ago--one of the recommendations--was that the Assistant to 
the President for National Security Affairs be confirmed by the 
Senate and be given a great deal more authority. That, of 
course, would presumably require legislation.
    It was interesting to me to notice that General Jones did 
not sign the covering letter of the President, took his name 
off. Maybe he knew he was about to be appointed. But President 
Obama in his May 26th statement about the National Security 
Council did not accept that recommendation. And I do not think 
any future President would either.
    So the NSC staff, to me, I regard them as part of the White 
House staff family, and there was a case a few years ago, the 
Armstrong case, which said, in effect the National Security 
Adviser is de facto a member of the White House staff. And so 
General Jones would be supervising all of the members of his 
staff, which numbers now well over 200. And so whatever 
recommendations they make would be through him to the 
President.
    Chairman Feingold. My time is up, but does anybody else 
want to respond to the NSC question? Professor Harrison.
    Mr. Harrison. Just quickly, Senator Feingold. My impression 
about the NSC process is that everyone involved in that process 
is well aware of their institutional prerogatives, that all of 
the agencies know what their jobs are, that the people at the 
State Department know that they alone conduct the foreign 
relations of the United States, and that the people at the NSC 
realize that they are uniquely close to the President and that 
something comes from that.
    So I think that as a practical matter, the participants in 
the process do take into account their various roles and their 
different legal authorities.
    Chairman Feingold. We will just have further responses, and 
then we will go to Senator Coburn.
    Mr. Samahon. Thank you, Senator Feingold. I did want to 
make clear that there are some legal alternatives, policy 
choices that Congress could make here. Again, the problem is 
powerful non-officers who might be more powerful than officers 
appointed with advice and consent.
    One choice is a budgetary choice to exercise a check. You 
could not fund influential non-officer advisers. Given our need 
for such people, though, a more reasonable alternative might be 
to create formal offices staffed by inferior officers, either 
appointed by the President alone or appointed with Senate 
advice and consent. They would have not only the traditional 
advisory role given to them, but they would also have suitable 
powers such that they occupy offices.
    Chairman Feingold. OK. I am going to go to Senator Coburn. 
When I get my time again, if somebody else wants to talk 
about----
    Senator Coburn. That is fine. Go ahead.
    Chairman Feingold. I did not see anybody raising their 
hand. Go ahead, Senator.
    Senator Coburn. Thank you, Mr. Chairman.
    Kenneth Feinberg, the current pay czar, recently stated, 
and I quote, ``I have the discretion, conferred upon by 
Congress, to attempt to recover compensation that has already 
been paid to executives.''
    Now, based on your testimony, that would tend to imply that 
he is in a position of binding authority. What is your 
response--he was not confirmed by the Senate. He was appointed. 
Give me a legal analysis of here is the statement that is made 
by the person in that position, and yet no advice and consent. 
Can you help me walk through the conflict that I see based on 
your testimony and then his statement about his authority? 
Professor Harrison.
    Mr. Harrison. Senator, the question there would be whether 
Mr. Feinberg is permissibly operating as an inferior officer, 
appropriately appointed pursuant to the second part of the 
Appointments Clause. The first part says officers shall be 
appointed by the President with the advice and consent of the 
Senate. The second part says inferior officers, as prescribed 
by statute, may be appointed by the President alone, the heads 
of departments, or the courts of law.
    So the question first would be whether the Secretary of the 
Treasury had the statutory authority to create that office 
pursuant to his authority under TARP or some other legislation, 
and then whether he has appropriately exercised it so as to 
constitute Mr. Feinberg an inferior officer. That is the first 
question.
    The second question, because he is an inferior officer, 
clearly not a principal or superior officer because the Senate 
did not confirm him, the next question would be whether he 
receives adequate supervision from a principal officer, someone 
who is Senate confirmed. And to know that, you would need to 
know the extent to which he is overseen, presumably by the 
Secretary of the Treasury, perhaps some other higher officer in 
the Department of the Treasury.
    There are a number of cases in the Supreme Court and the 
lower courts about how much supervision is required. The 
details remain somewhat unclear, but the basic principle is 
that for an inferior officer to operate permissibly, the 
inferior officer has to be subject to substantial supervision 
from somebody higher up. So that is the question you would need 
to answer about Mr. Feinberg.
    Senator Coburn. So the dilemma then comes: How do we find 
out if we cannot get him to testify?
    Mr. Harrison. I do not know that--well, you can ask the 
Secretary of the Treasury.
    Senator Coburn. Yes, but you are only getting one side of 
the story. The problem is--let us give them the benefit of the 
doubt. How do we do our oversight function to make sure we are 
not violating the Appointments Clause and that they are not? I 
think that is one of the key questions we are trying to find 
out here, is understanding superior officer versus inferior, 
understanding the ability to contract, understanding whether or 
not there is a statutory requirement that gives that authority, 
or there is statutory language to give that authority, how do 
we find out?
    Mr. Harrison. Senator, I do not think there is any 
difficulty with your calling an inferior officer to testify. 
And as I say, certainly you can call the Secretary of the 
Treasury so you can find out about the legal nature of the 
relationship. And I believe you could find out about both 
sides, about whether the Secretary thinks he is supervising Mr. 
Feinberg and how much supervision Mr. Feinberg thinks he is 
getting. I think it is entirely within your power to do that 
because both of them are officers of the United States. And I 
think the Treasury Department would have to take the position 
that Mr. Feinberg is an inferior officer, because I believe he 
is exercising some significant authority pursuant to the laws 
of the United States.
    Senator Coburn. OK, thank you.
    Mr. Spalding. Can I add something to that?
    Senator Coburn. Sure, I would be happy to hear it.
    Mr. Spalding. I would just like to underscore the fact that 
there is no reason why Congress cannot ask them to give 
testimony. I think the administration cannot have it both ways. 
Either these are individuals that they are going to claim fall 
under executive privilege, or they are not. And I think on the 
face of it, these individuals--almost all of them in some 
cases--seem to be doing the types of coordinating operational 
and administrative things that I think could legitimately fall 
under the requirement of testimony. It would be very hard for 
the executive to claim that they do not.
    The second thing I would add, just in light of your 
conversation, is that, again, I would underscore the broader 
point I made that Congress needs to be more careful in the 
types of legislative discretion it gives, which in many cases 
gave rise to the creation of these czars in the first place. 
The TARP legislation is a great example of that, both in terms 
of this question and the question of the purchase of General 
Motors.
    You know, do you give too much discretion, which then 
allows for the type of policy this person is pursuing, setting 
aside whether or not they do fall under the Appointments 
Clause. Is that actually violating your legislative direction 
to the officer, the Secretary of Treasury, in carrying out your 
legislative intent? I think that is an important question as 
well.
    Senator Coburn. Let me just interject and then I will come 
to you, Professor Samahon. I do not mean to imply--I have never 
been turned down significantly by any of these people for 
information, so I do not want that to be the predicate under 
which we operate. But I will go back to my statement before. 
Transparency is the thing that creates confidence in 
Government, and so the message ought to be that. Professor 
Samahon.
    Mr. Samahon. I would like to build on a point made by Mr. 
Spalding. When Congress intends to vest the appointment power 
(e.g. it might want to vest the appointment power in the 
President alone or the head of an executive department), this 
body might consider adopting its own clear statement rule as a 
matter of internal best legislative practices, i.e. it will 
actually parallel the language of grants of power under the 
Excepting Clause when it intends to vest that power elsewhere. 
The language is ``but the Congress may by law vest the 
appointment of such inferior officers.  .  .  .'' If the 
statute plainly says ``the Secretary is hereby vested with the 
authority to appoint,'' that will make for grant of appointment 
authority clear. Moreover, it will make clear your judgement of 
who is actually an inferior officer and who is not. At the end 
of the day, you can give the President (or other executive 
oficers) various tools to supervise the subordinates.''
    I should note also, building on what Professor Harrison 
said, that there is some incoherence, heaven forbid, in the 
Supreme Court's approach to this question of inferior officer. 
Some of this might be resolved by a pending case, Free 
Enterprise Fund v. PCAOB. But at the moment, I take the better 
law to be that to be an inferior officer is, as Professor 
Harrison stated, to be a subordinate to someone who is either 
the President alone or someone appointed with Senate advice and 
consent.
    There is a case out there, Morrison v. Olson, whose view of 
inferior is to in some sense be less powerful, in which case we 
might have problems, because under the subordinate formulation 
you can be extremely powerful, but just subordinate in the 
sense of hierarchically dependent upon a superior. But under 
the Morrison v. Olson approach, you could just be very, very 
powerful and, therefore, deemed not an inferior officer.
    Senator Coburn. OK, thank you. Just one other comment. None 
of us want to handicap our President in terms of the advisers 
that he can have, and to clarify, we want him to have the best 
and brightest. But we also want him to be as transparent as he 
can be as he does that.
    And so, Mr. Chairman, again, I am very appreciative of you 
having this hearing, and I will look forward to the hearing 
that we are going to have in Homeland Security and Governmental 
Affairs and see what kind of testimony we get there.
    Chairman Feingold. Thank you again, Senator Coburn, for 
your cooperation.
    Senator Coburn. I would ask unanimous consent to enter into 
the record the following items: a letter from Senators Collins, 
Alexander, Bond, and Crapo; a letter from Senator Byrd; a 
letter from Congressman Issa; and a statement of Senator 
Cornyn.
    Chairman Feingold. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Chairman Feingold. Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman, and thank you for 
holding this hearing.
    As I understand, we are talking about two different things 
so far. One, we have been talking about an inferior officer who 
is an appointee of an advice-and-consent principal officer. But 
the second is somebody who is a direct agent of the President 
and is, on the President's behalf, exerting the President's own 
authority, for instance, to sort out issues between Cabinet 
members to assure the smooth functioning of the President's own 
authority, to represent the President at meetings, to delivery 
decisions of the President, either finally or tentatively. That 
all strikes me as being very clearly within the Presidential 
authority. Those would tend to be people within the White 
House.
    Is there any constitutional hesitation about somebody 
exercising those sorts of functions irrespective of whether you 
give them the name ``czar'' or ``principal adviser'' or ``White 
House adviser'' or ``Presidential adviser'' ? Professor 
Harrison.
    Mr. Harrison. Senator, no. Again, as long as the person 
involved does not claim, as we might say, ``genuinely to 
exercise'' any power of the President, because the President's 
constitutional authorities are almost certainly non-delegable. 
A phrase that occurs sometimes in the case law is that people 
like that advise and assist the President, and as long as they 
can find themselves to advising and assisting the President, as 
long as they can find themselves to coordination, to making 
sure that the agencies talk to one another and the President is 
fully apprised of what the agencies are doing, that is not 
legally problematic.
    Senator Whitehouse. And does anybody disagree with what 
Professor Harrison just said? That is a yes or no question 
before we get into other statements?
    Mr. Patterson. They also would be violating a Presidential 
Executive order of 1939, President Roosevelt's Executive order 
that I cited from, that assistants ``shall be personal aides 
and shall have no authority over anyone in any department or 
agency.'' That was the famous Roosevelt language which 
established the White House staff in that famous executive 
order. So that still controls.
    Senator Whitehouse. I think that is consistent with my 
question.
    Professor Spalding, do you want to----
    Mr. Spalding. I would disagree only to say that I would add 
one thing, which is it does strike me that if an agent of the 
President is actually doing things that go to the extent of 
seeming to step on an officer that has been approved by 
Congress----
    Senator Whitehouse. In a way that the President could not.
    Mr. Spalding. In a way that the President--well, give the 
legislative instructions from Congress to carry out the law, 
that strikes me as potentially raising a serious issue.
    Senator Whitehouse. That implies that in these statutorily 
created executive offices there are legal authorities and 
responsibilities that belong to the occupant of that office per 
se and that not only an agent or adviser or assistant to the 
President, but the President himself cannot direct.
    Mr. Spalding. Well, one of the dilemmas we have here is the 
extent to which--the larger mega question, the extent to which 
the Executive has control over those things by virtue of the 
fact that that is the executive power of the President. I think 
that is one of the dilemmas we have here. But where they rub up 
together as a practical matter is when you have an individual 
working through Congressional legislation in a created position 
that has been approved by Congress here----
    Senator Whitehouse. With duties given him or her by 
Congress----
    Mr. Spalding. Given him by Congress, and you have a 
Presidential adviser here who has seemed to go beyond advice 
and mere coordination to actually taking on the job of the 
other, that is something that I think is murky, partially 
because of the way the legislation is written, partially 
because of the way the executive office works----
    Senator Whitehouse. I have a different point about that, 
which is that, to the extent that there are duties that are 
specifically given to an office by Congress, even if that 
office holder is an appointee of the President, it may very 
well be that there are authorities that belong to that office 
that the President cannot simply direct.
    Mr. Spalding. The only thing I would add quickly for others 
is that I think partially there is--inherent in all this is a 
debate over the nature of Executive power, and my position 
would be that many of the particular agencies we are talking 
about here actually properly fall under the power of the 
Executive, which means the Executive has a lot more authority 
over those things. That does not mean that the President can 
ignore the actual way Congress has written the laws, which he 
is to execute.
    Senator Whitehouse. Professor Harrison.
    Mr. Harrison. Senator, the question of the extent to which 
the President can direct the exercise of statutory authority 
that is vested in someone else in the executive branch is one 
of the great questions of American constitutional law. The 
important thing for these purposes, I think, is to see that it 
is quite distinct from the question of any role that the 
President's advisers have because that power, if it arises 
under the Constitution, is the President's alone.
    Mr. Patterson. May I have the Chairman's permission to give 
an example that I lived through?
    Senator Whitehouse. I believe I still have the floor and 
the ability to ask questions.
    Chairman Feingold. The Senator----
    Mr. Patterson. Excuse me.
    Senator Whitehouse. The point that I am trying to make is 
that, to the extent that there is some question about the 
authority that the President can exercise through his 
assistants and advisers, that is a limitation that pertains to 
the President himself, i.e., a Presidential assistant or 
adviser with the full support of the President exercising the 
President's power has as much authority as the President cares 
to imbue that person with as to that decision in terms of the 
delivery of a Presidential decision. Correct?
    Mr. Harrison. It is certainly the case that the ultimate 
limits here would be the limits on the President himself. And 
one of the great questions is what are those limits.
    Senator Whitehouse. But one of those limits, although it is 
somewhat ill-defined, is the statutory authority that pertains 
to office holders and restrictions of the Administrative 
Procedures Act and Federal regulatory law and so forth. 
Correct?
    Mr. Harrison. Well, some of those questions are very much 
in dispute historically, and there are judicial opinions in 
different directions on that, and there is no scholarly 
consensus and never has been. So I would not be comfortable 
going beyond saying that is one of the central and very 
difficult questions of American constitutional law.
    Senator Whitehouse. Thank you very much.
    Chairman Feingold. Thank you. We will start another round, 
and I want to give Mr. Patterson a chance to say what he wants 
to say and then----
    Mr. Patterson. Mr. Chairman, I would like your permission 
to give a real example of a real-life situation which I 
experienced. It was November 20, 1969. I was executive 
assistant to Leonard Garment on the Nixon White House staff. 
The tickers came out with the news: ``Indians Seize Alcatraz.'' 
Mr. Garment turned to me and said, ``Patterson, who has 
Alcatraz? '' I said, ``Mr. Garment, I don't know, but I will 
find out.'' And it turned out to be the General Services 
Administration, which has authority over surplus Federal real 
property. Mr. Garment said, ``Who is the head of it? '' A 
gentleman named Robert Kunzig. Mr. Garment said, ``Get Kunzig 
on the phone'' or ``I will get him on the phone.''
    He talked to Mr. Kunzig, and he said, ``Mr. Administrator, 
what are you going to do about the Indians on Alcatraz? '' And 
the Administrator said, ``I am appointed by the President and 
confirmed by the Senate. This is my responsibility, in my 
agency, the General Services Administration. I am going to call 
in the marshals, and we are going to yank them out of there by 
noon tomorrow.''
    Mr. Garment said, ``Mr. Administrator, you will do no such 
thing. That is the wrong thing to do. It is a terrible policy 
to follow. I am countermanding you.''
    And the Administrator said, ``What do you mean? I am the 
Administrator here. I am responsible. I have the authority.'' 
Mr. Garment said, ``You will do exactly what I tell you to 
do.'' The Administrator said, ``I will never talk to you 
again,'' and slammed down the phone.
    We did not bring in the marshals, and we negotiated with 
the Indians on Alcatraz for 18 months and finally removed them 
peacefully without any violence.
    Chairman Feingold. Thank you, sir.
    Mr. Halstead, I understand that Mr. Feinberg has not yet 
testified before Congress, but if he is an inferior officer in 
the Treasury Department, is there any reason he cannot be asked 
to do so?
    Mr. Halstead. No, not at all. There are roughly 75 
instances since the end of the World War II era where 
Presidential advisers, high-level Presidential advisers have 
appeared before Congressional committees. Now, the fact that 
there is no structural separation of powers prohibition against 
the appearance of these individuals is a much different thing 
than saying it is going to be easy to get them to appear before 
Congress. Certainly as we saw today, the administration simply 
declined the invitation to supply a witness to today's hearing. 
And at that point, it becomes a question for a Committee and 
Congress as an institution as to whether or not to assert the 
institutional prerogatives and powers it has to compel 
testimony from certain individuals.
    Now, it is a road that is not gone down terribly often. 
Most recently, we saw with the ongoing inquiry into the 
dismissal of U.S. Attorneys during the Bush administration a 
very protracted effort to obtain the testimony of Harriet Myers 
and Karl Rove. They were held in contempt of Congress. The 
House of Representatives was given authority to pursue a civil 
action in the District Court for the District of Columbia to 
enforce those subpoenas. And it was not until the end of the 
Bush administration, well after the end of the Bush 
administration that those individuals, in fact, finally 
appeared to testify before the House Judiciary Committee.
    So it is not necessarily an easy thing to do or something 
that can be accomplished overnight, and so that raises a 
question of are there other avenues, less formal avenues, that 
Congress could employ to obtain testimony of advisers. And one 
option--and this is just conjectural. One complaint that I have 
heard voiced or concern that I have heard voiced relating to 
the service of these Presidential advisers is that they are, in 
effect, circumventing the roles that are served by Cabinet 
heads, agency heads, so on and so forth. And it is not uncommon 
as a practical matter for the Senate to obtain the commitment 
of a nominee to an advice-and-consent position that they will 
affirmatively agree to appear before the Committee when 
requested.
    And so one option during that type of process would be to 
get a commitment from the Secretary of the Treasury or any 
individual so appointed to any other position that they would 
not only adhere to that agreement in relation to their general 
duties, but also to inquiries from the Committee as to the 
impact that these advisers or other personnel are having on 
their carrying out or conduct of the legal authorities that are 
vested specifically in them.
    Chairman Feingold. Back to Mr. Patterson, I think your 
anecdote sort of relates to this matter. In your testimony 
regarding White House staffers, you stated that senior White 
House staff members often communicate the President's 
instructions to Cabinet members in a forceful manner. Would any 
recipient of an order from a White House adviser question 
whether the directive came directly from the President? And if 
not, don't these advisers end up having a lot of de facto 
authority? I would be curious, your response to that.
    Mr. Patterson. I cannot think of an example right away, but 
it is clearly open to a Cabinet officer to question a White 
House staffer request. He could do that. In fact, every senior 
White House staff officer is aware that that rebuttal could 
come back from a Cabinet officer, and he better be sure that he 
is representing the President.
    I think in the example I gave, my boss was quite sure, 
although he had not discussed this with the President. But he 
was confident that he was representing the President.
    But it is an option every Cabinet member has to go straight 
to the President and find out, and then the White House staff 
officer loses his authority promptly.
    Chairman Feingold. Mr. Spalding, do you have anything to 
say about that one?
    Mr. Spalding. Yes, that is actually a very good question. 
Here I make a distinction between the technical legal questions 
we have been discussing and what I would consider the 
managerial problems these things raise, because one of the 
temptations here is always exerting undue and improper 
influence.
    Now, I for one think the President has the prerogative to 
influence the administrative agencies below him as a matter of 
his authority. However, sometimes if that is not stemming from 
a legitimate source, it can sometimes cause practical problems. 
And the two examples I would give that are most recently in the 
current administration--although there are others previous to 
this; this is not unheard of--would be the story about the NEA 
conference calls with artists implying that somehow this would 
be connected to NEA grants to pursue policy. That probably was 
a bad call that someone made. But the question, did they seem 
to suggest they were doing so on behalf of the White House or 
the President?
    Another example would be the controversy not over President 
Obama's speech to the students, which is itself not 
controversial at all, but the issuance of what is implied to be 
curriculum being--was that a call from the White House over the 
Department of Education? And if so, was that an undue 
implication that somehow this was coming from the authority of 
the President? Which odds are it probably was not.
    I think these questions actually raise some managerial 
processes that probably more likely than not--not technical 
legal problems at all, but will probably raise questions about 
who has the authority, where is this coming from, and in many 
cases probably are bad political calls on top of everything 
else.
    Chairman Feingold. Thank you. Senator--oh, excuse me. 
Professor? And then we will go to Senator Coburn.
    Mr. Samahon. Thank you. I want to build on Mr. Spalding's 
point, namely, the problem that the sorcerer's apprentice then 
becomes the sorcerer. And there is a legal consequence here 
because OLC had excluded from the definition of officer--that 
is, you are a non-officer--if you are in a purely advisory 
position. What if you are not in a purely advisory position 
such that you hold forth that you have power to make final 
decisions?
    I think that is probably a legislative question and subject 
to legislative oversight. Perhaps you make these people 
officers by marrying the policy and the legal authority.
    Chairman Feingold. Senator Coburn.
    Senator Coburn. I just wanted to make one statement about 
Mr. Patterson's statement, that his boss had not checked with 
the President, but yet took a position otherwise. Now, he 
happened to be right. The question we should be worried about 
is how often do they make those same statements and they are 
not speaking for the President.
    So I think it proves the point that there is a problem for 
us in terms of really line structure. If you go and look at 
management and styles of management and line authority and 
where we have line authority and where we do not, and I think 
our panel has pretty well testified there are some fairly murky 
areas out there that need to be distinguished.
    Professor Harrison, if, in fact, one of these so-called 
czars exerts statutory authority when, in fact, they have 
none--let us say one does and they have no statutory authority, 
in your testimony you indicated that their actions have no 
legal effect. So if that is the case, how do you stop that from 
happening? What can be done?
    Mr. Harrison. Well ultimately, there could be circumstances 
under which there would be legal effect on some private person, 
and the private person would be able to take the position that 
what had happened was invalid and ineffective, in, for example, 
the extreme situation where someone who did not have the 
authority to issue a regulation, somehow it purported to issue 
the regulation, the person subject to the regulation could 
simply object to it on the grounds that it was invalid.
    I think that the more practical likelihood is exactly what 
we have been talking about, that someone who does not have the 
authority to bind someone else in the executive branch would 
purport to give one of those orders that claim to come from the 
President and that did not really. And I think there probably 
the primary enforcement mechanism is Congress, because you do 
have access to the people who have the actual practical 
authority. And what ought to happen--this is sort of 51st 
Federalist inside the executive branch. What ought to happen is 
that the people who have the practical authority need to stand 
up for it and make sure that the orders are coming from the 
President, and you can, when you talk to them, as you routinely 
do, both in formal and in informal settings, make sure that 
they are standing up for the distinction between staff and 
line, which as an administrative matter is very important.
    Senator Coburn. Which would go back to Mr. Patterson. 
Obviously, the GSA Administrator figured out that he was, in 
fact, speaking for the President.
    Mr. Patterson. He made that assumption.
    Senator Coburn. But the GSA Administrator ultimately did 
not send the marshall at noon tomorrow, and so he understood 
that your boss was speaking for the President.
    Mr. Patterson. That is correct. I could give a couple of 
other examples that do occur to me. Help me a little bit on my 
history. I believe President Carter had an Assistant on Aging, 
and I believe he testified before Congress in opposition to the 
President. And he also had an assistant name Costanza, a woman 
named Costanza, who I think participated in a television 
program opposing the President. In both cases, their tenure at 
the White House was very brief.
    Senator Coburn. Professor Spalding.
    Mr. Spalding. I just wanted to add and underscore what I 
think we are implying here is the main question at issue is 
responsibility and accountability. One of the problems with the 
modern administrative state, it is not oftentimes clear who is 
actually responsible and, thus, who is accountable, especially 
from a Congressional or executive point of view. And that is 
why some of these things are muddled.
    It seems to me that two broad things that could be done is 
that Congress could write clear laws that make these things 
known. The car czar did not exist when TARP was written. If you 
can see things coming that ought to be taken care of in the 
legislation that ought to be done, you should be careful not to 
give away--to delegate so much authority that implies a much 
wider swath of delegation that gives rise to these kinds of 
things.
    The second point I would make from an administrative point 
of view--that is, from the point of view of the Executive--is 
that I think these are touching on managerial questions that 
raise managerial style issues. And there I would point back to 
the fact that strong Presidents--the most successful 
Presidents, I would argue--tend to use Cabinet-style processes 
of management. And most recently we see a good example of that 
in President Reagan who had Cabinet Councils, which have been 
widely noted for being very successful; that is, he operated as 
much as possible through his Cabinet and, thus, down through 
the structure of management that coincides with positions 
approved by Congress and through Congressional legislation.
    That seems to me to be a stronger way of management. That 
is not the style that is being followed in this administration 
or the previous administration, I would point out. As a result, 
it is no coincidence that we are seeing the rise of these 
individuals that seem to be outside of that management 
structure and in many cases raise questions as to the 
distinction between whether that person is within that 
structure or falls into the advisory category, is actually 
operating things, is actually coordinating. Thus, all of this 
blurriness occurs.
    Mr. Patterson. With respect to President Reagan, I cannot 
help thinking of Ollie North and his operations.
    Mr. Spalding. Which was a great lesson of the Tower 
Commission, which was precisely when you start operational 
procedures within the White House structure, it tends to cause 
problems. That was the great lesson of the Tower Commission, 
and I would actually point out--I do not cover it in my 
testimony, but Ed Meese at great length talks about this 
operational problem from a managerial point of view in his own 
autobiography.
    Senator Coburn. All right. Well, Mr. Chairman, thank you. 
You all have been fantastic in terms of giving us insight, both 
in terms of the Constitution as well as your advice, and I 
would like very much to be able to submit additional questions 
for the record, if possible.
    Chairman Feingold. Of course. Without objection.
    [The questions appears in the questions and answers.]
    Senator Coburn. I want to thank you for being here.
    Chairman Feingold. Let me just--potential constitutional 
issues that could arise in a circumstance where a czar or other 
executive branch adviser is charged with the same or some of 
the same duties and responsibilities as an inferior officer in 
an agency or department. For example, as Chairman of the 
African Affairs Subcommittee of the Foreign Relations 
Committee, I have supported the appointment of a special envoy 
to Sudan. There is also a Senate-confirmed inferior officer who 
is the Assistant Secretary for the Bureau of African Affairs. 
Should I be concerned that this special envoy and his staff may 
unconstitutionally infringe and/or ignore the Assistant 
Secretary's authority?
    Mr. Harrison. Senator, I doubt an arrangement like that 
would create a constitutional question, provided that the 
special envoy was appointed appropriately as an inferior 
officer and the lines of authority were clearly drawn both in 
the statute and in whatever the President and the State 
Department set up. You have to be careful sort of about the 
plumbing in these things, but it can be done.
    I think in a situation like that the real concern is less 
constitutional and more practical. Any time you have 
overlapping responsibilities, it is extremely important that 
people know who makes what decisions and ultimately who is in 
charge of actually acting for the United States.
    Chairman Feingold. And I take it a legitimate concern for 
Congressional oversight regardless of whether it raises legal 
issues.
    Mr. Harrison. Making sure that the Government is set up 
properly and is functioning properly is a central role of the 
Congress.
    Chairman Feingold. Professor.
    Mr. Samahon. I am going to be a little hesitant here 
because I think there is potentially a problem. I think, first 
of all, going back to the OLC April 2007 opinion, if one is 
exercising diplomatic functions, one would plainly seem to be 
an officer. What the question would then be is whether being a 
special envoy position is a continuing office such that the 
second requirement for officer-hood is met.
    If that is the case, then we have someone who should be 
subject to Presidential nomination with Senate advice and 
consent. There is no opt-out for these principal officers. 
Ambassadors, as I would potentially consider even one 
denominated a ``special envoy,'' must go through Senate advice 
and consent.
    I am not certain what the contours of this particular 
office or position would be ``special envoy''--but it does 
raise some cause for concern, certainly to learn more about 
what this special envoy does so you can make a judgment.
    Chairman Feingold. Well, I want to thank all of you--oh, I 
am sorry. Professor Harrison.
    Mr. Harrison. Yes, I do just want to stress that in a 
situation like that, Professor Samahon is exactly right. It is 
necessary to have an eye on the precise legal authority of the 
officers involved and, in particular, any special envoy.
    Chairman Feingold. Mr. Halstead.
    Mr. Halstead. Just a brief point. With regard to 
Congressional oversight prerogatives in such a context, the 
Supreme Court has stated that the oversight prerogatives of 
Congress are at their peak when looking into allegations of 
mal-administration, governmental inefficiency, et cetera. So it 
would clearly be something that would be very suited for 
Congressional inquiry.
    Chairman Feingold. Well, I thank all of you. The hearing I 
think was very informative. I think we cut through a lot of the 
rhetoric that has been flying back and forth and started to 
really examine not only the serious underlying constitutional 
issues, but also some of the policy issues that we should be 
looking at. Administrations going back decades have created 
positions with important portfolios that are not subject to 
Senate approval. This is certainly not an isolated issue of the 
Obama administration, as you have all been fair enough to point 
out. And Congress may need to act to make sure that, going 
forward, the proper checks and balances are in place.
    And as Senator Coburn indicated, both the Chairman and the 
Ranking Member of the Homeland Security and Governmental 
Affairs Committee, Senators Lieberman and Collins, are 
interested in this issue as well. I will work with them as well 
as Senator Coburn, who is the Ranking Member of this 
Subcommittee, on possible next steps.
    My thanks to all the witnesses, and that concludes the 
hearing.
    [Whereupon, at 2:55 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.] 
    

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