Testimony before the
United State Senate
Committee on the Judiciary
October 6,
2009
Let me begin by commending the Senate Judiciary Committee, and
especially Senator Feingold, for calling this hearing and giving
serious consideration to this issue. Who would have thought that
over 200 years after the Declaration of Independence indicted
George III for having "erected a multitude of New Offices, and sent
hither swarms of Officers to harass our people and eat out their
substance" we would be debating the number and proliferation of
"czars" in the administration of American government?
The very word, of course, is itself a significant part of the
problem. An endless source of humor, it is both confusing and
revealing. It is a confusing term because no one officially holds
the title; it is a shorthand popularization used by the media and
commentators, as well as individuals in government, to describe
certain individuals in the administration who seem to be
coordinating national policy and particular policy issues across
agencies and programs. We don't know how many there are, as there
is no official list. Complicating the matter further is that, of
those who have been dubbed "czars," some are in positions created
by Congress and have been confirmed by the Senate while others are
not in such positions and have not been confirmed.
Yet the term is also revealing. While it is a clever label meant
to simplify the proliferation of long, formal job titles it clearly
was meant as well to imply in certain positions a breadth of
authority and level of status beyond the particulars of the formal
title, and seemingly beyond the confines of the normal
administrative process. Americans have always bristled at such
claims of undefined authority, and calling it by a title
historically associated with lawlessness and despotism only serves
to underscore the problem.
The use of the term is not new, of course. Nixon seems to have
had the first in the modern era, and there were a couple under both
Ronald Reagan and George Herbert Walker Bush and President Clinton
had a few more. But there seems to have been a proliferation of the
title in the previous and the current administration. I say "seems"
because there is significant information we do not know about these
positions, their duties and responsibilities, and their line of
authority. This is why Congress--and here I note the letters from
Senator Feingold, as well as a letter from Representatives Issa and
Smith--is absolutely correct is asking for more information about
the activities and authority of several of the individual
czars.
My guess is that there are actually many more individuals that
could fairly be called "czars" in the administration. I say that
because the problem is not in the title per se, or who made
or didn't make the czar list, but with the activities associated
with the particular position, and whether there is a general trend
toward a centralization of czar power in White House. Congress,
both in terms of preserving its own powers and checking those of
the executive as well as encouraging open deliberation and
responsibility in government, ought to be keenly interested in this
question.
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 an unsolvable 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 and the executive branch. The
rise of government by bureaucrats--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 parties to get the bureaucratic
state under control through various mechanisms. The rise of "czars"
in the current administration is just another
manifestation--albeit, an unfortunate one--of this phenomenon.
To understand this argument, a quick synopsis of some background
history is necessary. During the late nineteenth and early
twentieth centuries (also known as the "Progressive Era"), leading
intellectuals and politicians sought to transform American
government, which they believed was set up to circumvent the public
interest for the sake of narrow and parochial interests.
The problem, in their view, was that policy was being made
politically--that is, by inexpert officials chosen by the people,
who were unfamiliar with the practicalities of modern society. The
solution they devised was to transfer policymaking authority to
administrative experts, removed from day-to-day politics and
political control, who would be social scientists, educated at top
universities and trained to apply cutting-edge scientific research
to modern problems. As one leading Progressive, John Dewey, argued,
"the question of method in formation and execution of policies is
the central thing in liberalism. The method indicated is that of
maximum reliance upon intelligence."
Technical intelligence, rather than the will of the people
expressed through elected representatives, would be the basis for
policymaking in the Progressives' new state. Authority to make
policy would have to be transferred out of the elected
branches of government and into newly created administrative
boards and commissions, which would be staffed with these experts
and tasked with making policy appropriate for a modern society.
The result of this movement was to transfer the authority to
make law from Congress, filled with inexpert politicians, to
administrative experts housed in administrative agencies. But
politics would still exert a pernicious influence on these agencies
unless they were also insulated from the control of the President,
who was also an elected official and tied to the political impulses
of his constituency. Therefore, two things had to be achieved: the
delegation of legislative power to agencies, and the removal of
presidential control over these new institutions. Both were
achieved before and during the New Deal, with the creation of
"independent regulatory commissions" which were not located within
the executive branch. Rather, they would be outside of the
traditional branches of government and not directly accountable to
any of those traditional branches.
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 responsibility for administrative policy. This led to the
paradox of the expansion of administrative agencies, but the
decline of presidential control over those agencies. Harry Truman
famously predicted the difficulty that Dwight Eisenhower would have
in setting policy priorities for the administration: "He will sit
here and he will say, 'Do this!, Do that!' And nothing will happen.
Poor Ike--it won't be a bit like the Army." It was President Truman
who breathlessly complained, "I thought I was the President, but
when it comes to these bureaucrats, I can't do a damn thing." The
Progressive impulse to put technical experts in charge of national
policy led to the unfortunate consequence of popularly elected
Presidents being unable to change national policy. The ideal of
scientific policy had been elevated over the principle of the
consent of the governed.
This created a fundamental dilemma: how can the bureaucratic
state the Progressives created be organized and controlled? Is it
destined to result in a collection of disconnected, uncoordinated
independent agencies that each pursue a focused goal such as
workplace safety or the regulation of communications? How will
these bureaucrats be held accountable to the people, if they do not
answer to the President?
From the perspective of the domestic policy agenda of the
President, the story of the twentieth century is the history of
attempts by individual Presidents to regain control of agencies
which are ostensibly executive and which are primarily staffed with
officials that the President cannot remove.
Nearly every President, from both parties, has devised a plan
for bringing the bureaucracy under the control of the chief
executive. Congress has always had several tools for controlling
administrative officials--most notably the powers to authorize and
fund agencies. But without the power to remove administrative
officials, how can the vast administrative state be controlled?
Presidents have tried many devices for bringing agencies under
their supervision. Administrative re-organization was a prominent
agenda, employed both by the FDR and Nixon Administrations. The
President's control over the administration was expanded by
Presidents Carter and Reagan, most notably in the latter's creation
of a regulatory review process in the Office of Information and
Regulatory Analysis (OIRA), which is now headed by the legal
scholar Cass Sunstein, otherwise known as President Obama's
"regulatory czar." (Incidentally, Sunstein's nomination was
approved by the Senate, despite the "czar" moniker.) Elena Kagan,
the current Solicitor General, wrote a famous law review article
outlining the ways in which President Clinton had established a
firmer grip on administrative agencies.
President Obama's attempt to centralize control over
administrative agencies is therefore nothing new, nor is it
peculiar to one of the two major parties in America. It is a
symptom of a much more serious sickness--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. This entire framework is in tension with the original
Constitution, but the Constitution nevertheless can give us some
basic principles for thinking about the question of "czars" in the
White House.
The United States Constitution does not create or require
a cabinet under the executive branch, though it clearly anticipates
the managerial structure and recognizes the significance of
department heads to assist the President in overseeing the
executive branch. From the very beginning, every President has used
such a structure to manage the executive branch. The most recent
example of strong cabinet government, revived after the failed
executive models of the Nixon administration's heavy-handed
centralization of White House authority as well as the Carter
administration's small-minded micromanaging style, was the
presidency of Ronald Reagan, who regularly turned to cabinet
secretaries directly for advice and to carry out policy and who
created "cabinet councils" to coordinate the activities of the
cabinet and respective departments. Presidents since, however, seem
to be moving away from the cabinet structure and more in the
direction of centralizing more authority directly in the Executive
Office of the President.
The President has the authority to appoint his own staff and
advisors to assist in the work of his office. It is perfectly
legitimate for presidential staff to advance the president's policy
objectives within the administration as a matter of course, and
Presidents often appoint particular advisors to advance particular,
high-level policies. The executive has this authority as a separate
and independent matter from officers created by the legislature to
carry out the law, 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 federal
government. With this legislative power in mind, a number of
Senators have focused their attention on eighteen czar positions in
the administration that may overstep Congress's express statutory
assignment of responsibility and its oversight
responsibilities.
Where can the line be drawn between executive privilege and
legislative responsibility? 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 that require Senate confirmation, that would
certainly violate the spirit and probably the letter of the
Constitution. A possible example of this problem may be Climate
Czar Carol Browner who, according to reports, was the lead
negotiator in establishing new automobile emissions standards,
stemming from the Supreme Court's interpretation of the Clean Air
Act. In addition to seeming to be beyond congressional legislative
intent, it also seems to circumvent the authority of the EPA
administrator.
As the number of czars expands, and the President's policy staff
grows, and there are more and more individuals acting more and more
as administrative heads rather than advisors, Congress should raise
questions as to whether those individuals should be subject to
executive privilege or can be compelled to testify before Congress.
The President cannot have it both ways.
In addition to the constitutional questions, I would also like
to note concerns about the administrative problems inherent in this
new executive management paradigm. Having policy operations run out
of the White House causes confusion of responsibility for one
thing. Who is in charge of health care reform: Kathleen Sebelius,
the Secretary of Health and Human Services, or Nancy DeParle, the
health care czar? In general, running operations out of the White
House can become very problematic: recall again the Nixon
Administration, and the activities of Mr. Haldeman and Mr.
Erlichman. More recently, the Tower Commission warned against White
House staff acting outside of the regular structure of policy
decision-making. There will always be a temptation to use White
House authority--real or implied--to exercise political influence
over normal departmental activities. As long as that influence is
not accountable, and thus responsible--which seems to have been the
case in recent stories concerning a conference call with the
National Endowment for the Arts encouraging policy-oriented art or
the issuance of curricula to accompany the President's recent
speech to students--it is more likely than not to be
inappropriate.
In all of these cases, congressional oversight would serve as an
important and legitimate check on executive authority. But
additional oversight, with the requirement for approval of and
testimony from as many presidential staff as possible, will not
solve the fundamental problem behind the current czar wars, which I
think has more to do with the general nature of modern
administrative government and a growing popular concern about the
limits (or lack thereof) on its activities.
For some time now, Congress has developed the habit of
delegating vast amounts of authority to the executive branch to
address a problem and after the fact looks to manage the exercise
of that authority, as opposed to writing clear and detailed laws to
be executed by the President. The Troubled Asset Relief Program
(TARP), meant to purchase assets and equity from financial
institutions as a way to address the subprime mortgage crisis, is a
perfect example. Unbounded delegations allowed the Secretary of the
Treasury to spend up to $700 billion at will to purchase "troubled"
assets of any financial institution. Lo and behold, the United
States is now majority owner of General Motors and there is a Car
Czar. Setting aside the wisdom of the policy, can it fairly be said
that this was the intention of Congress?
And in some cases the delegation of czar-like authority is even
clearer. The health care legislation in the House of
Representatives creates a "Health Choices Commissioner" at the head
of a new Health Choices Administration. This duly created, and
presumably Senate confirmed, Health Insurance Czar would exercise
enormous control over the nation's insurance industry, an enormous
concentration of power in one person.
The modern executive, on the other hand, increasingly attempts
to get control of the vast bureaucracy under their authority and,
in the most recent iteration of the battle, appoints
uber-bureaucrats to shift that bureaucracy in the
President's policy directions. This is partly a misconception of
executive authority that seems to see cabinet officers as
independent of that authority, or at least an unwillingness to
exert authority over executive branch policy through the cabinet.
But it also seems to be a general attempt to circumvent
congressional oversight (or interference, depending on how you look
at it) in shaping policies within the discretion of the executive
branch. An executive desire to do more and more things outside of
legislative authority, and with vast sums of money appropriated by
Congress to do more and more things, makes matters all the
worse.
The combination of these two trends creates a situation where
more and more laws--in the form of rulemaking, regulations, and
policy pronouncements--are made by administrative agents not only
outside of the open and transparent requirements of responsible
government, and 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 that, as Alexis de Tocqueville
warned in Democracy in America, is the recipe for a benign
form of despotism that truly imperils our democratic
experiment.