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Summary of Hearings on the Presidential Administration

(10-13-2009)

  • October 6, 2009: Senate Judiciary Committee Constitution Subcommittee Hearing on “Examining the History and Legality of Executive Branch Czars"

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Senate Judiciary Committee Constitution Subcommittee Hearing on “Examining the History and Legality of Executive Branch Czars”
October 6, 2009

Witnesses
T.J. Halstead
Deputy Assistant Director, American Law Division, Congressional Research Service
John C. Harrison
Law Professor, James Madison
Research Professor, University of Virginia School of Law
Bradley H. Patterson, Jr.
Author, To Serve the President
Tuan Samahon
Associate Professor, Villanova University School of Law
Matthew Spalding
Director, B. Kenneth Simon Center for American Studies, The Heritage Foundation

Committee Members Present
Russ Feingold, Chair (D-WI)
Tom Coburn, Ranking Member (R-OK)
Sheldon Whitehouse (D-RI)

On October 6, 2009 the Senate Judiciary Committee Constitution Subcommittee held a hearing on “Examining the History and Legality of Executive Branch Czars.” Although czar is not their official title, the term is being used more and more. For example, Carol Browner’s official title is Director of White House Office of Energy and Climate Change Policy, but she is often referred to as the “Climate Czar.” Because the word czar alludes to someone with authority, and she is only supposed to be in an advisory role, this can lead to confusion. There are concerns that the title is might be fitting and that people in such president-appointed positions may have unconstitutional authority. The purpose of this hearing was to discuss if this is the case.

Chairman Russ Feingold declared that he had no objections to the president having advisors and aides and said that many of them are talented people working on important issues. He said the concerns rest in the suspicion that advisors may be exercising authority they do not have. He added that the American people have a right to know that those that have been given authority, through the Senate confirmation process, are the ones exercising that authority. Ranking Member Tom Coburn agreed with Feingold, saying that it would be a problem if these advisors have authority and were not vetted by the Senate. He suggested that the president needs to be addressing these issues and re-establishing confidence.

Bradley H. Patterson, author of To Serve the President, stated that a “czar” is not an official title and that the actual definition of the word is “one in authority.” Because this term is often used to describe the President’s personal aides and advisors who should have no authority of their own, it can be misleading. Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation, agreed with Patterson. Spalding called the word “czar” confusing because there is no one that officially holds that title and revealing because it brings with it a level of status and authority. He said it is completely legitimate for the President to have these aides and for them to advance his objectives in the administration, but is worried about where the line can be drawn “between executive privilege and legislative responsibility.” As an example of this problem, he referred to “Climate Czar” Carol Browning and how she was the lead negotiator in the establishment of new automobile emissions standards, which he thought seems to circumvent the authority of the EPA Administrator.

Tuan Samahon, Associate Professor at Villanova University School of Law, discussed the President’s use of czars and whether or not it violates the Constitution’s Appointments Clause. He stated that this depends upon whether or not the czars are considered officers. He said that if a czar is an officer, the Appointments Clause applies and the President would need the advice and consent of the Senate to appoint the officer. He added that the Department of Justice’s Office of Legal Counsel (OLC) excludes “any purely advisory position” as an office, therefore the appointment of people in advisory positions do not violate the Appointments Clause. John C. Harrison, Professor at James Madison and University of Virginia School of Law, agreed with Samahon and said that it is entirely appropriate for an employee with no statutory authority to be hired by the President without being appointed in the manner outlined in the Appointments Clause. T.J. Halstead, Deputy Assistant Director of the American Law Division at Congressional Research Service, also shared these sentiments and added that there is no evidence that the advisors have been given any actual authority. He reasoned that any constitutional challenge to the advisors would have to be based on an argument that the President’s reliance on them is unconstitutional.

Feingold asked the panel what an advisor could do that would trigger an Appointments Clause issue. Harrison replied that they would have to give an order to someone that has the legal authority  to carry it out without orders from the President. Coburn followed up and asked what should be done if a czar exerts statutory authority when they have none. Harrison said the people receiving presidential mandates would need to stand up for themselves and make sure the orders they have received do in fact come from the President.

Feingold asked if he should be concerned that special envoys and other staff members will infringe on issues beyond their jurisdiction. Samahon and Harrison replied that an eye should be kept on the legal authority of envoys. Spalding added that a serious issue we have is when a presidential advisor essentially takes on the job of an individual that has been approved by Congress.

Testimony from the chair, panelists, and some members who were not present can be found here.

-MMP


Sources: Hearing testimony.

Contributed by Mollie Pettit, 2009 AGI/AAPG Fall Intern

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on October 6, 2009.

 

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