[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
U.S. GOVERNMENT PRINTING OFFICE
57-708 PDF WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
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.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]