September 7, 2009

Some Questions about the Nature and Constitutionality of the Position of Czar

Monique Chartier

In explaining why former Green Jobs Czar Van Jones was not vetted for the position, an exercise that might have prevented the brouhaha that arose out of revelations of certain of his extreme political positions and his eventual resignation, the White House downplayed the power and importance of the position of the Green Jobs Czar.

If this is so, why did Van Jones have to go? If the position is, indeed, relatively low level, what difference does it make, for example, that he signed on to the 911 "truth" movement or that he subsumed communist beliefs into the green movement?

Under Justin's somewhat undiplomatically titled post, commenter Steadman questions why there is now an outcry about the position of czar when prior presidents engaged in the practice. First of all, not everyone has been crazy about the existence of the constitutionally questionable position. But the biggest source of the current unease can be traced to the current president's expansion of the unofficial department: when President Obama entered office, there were eight czars. The Executive Office now has thirty two czars. President Obama has presided over a four fold increase in the number of czars, each with their own budgets and special influence over the president and his choice of policies.

Commenter Steadman is correct on one level. Tolerance for the actions of prior presidents, dem and elephant, as they created or continued the practice of employing czars has set the stage for a considerable expansion - it's very tempting to say "abuse" - of power by the current president in the form of a czar explosion.

Now, if the Green Jobs Czar is a relatively low level job in the federal government, as the White House has averred, does that hold true for all czars? If so, why are we expending precious resources by paying them a salary and handing them budgets to spend? [The budget for the Green Jobs czarship was $80 billion.] Why does the position exist at all?

If power and importance do accrue to the job, why does it have a para-constitutional position, exempt from Senate advise-and-consent and Congressional oversight as to expenditure of federal tax dollars? Hasn't it been a way for the Executive Branch to take and exercise power in a manner not comprehended by the Constitution?

In fact, isn't abolishing the position of czar the only real way to bring it in line with the Constitution?

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There is no Constitutional problem here; it's entirely political and, but for Sen. Robert Byrd (who has regularly criticized the expanded powers of the White House staff regardless of the party of the President), Congressional critics seem only to recognize any problem when the opposing party sits in the White House.

Article II, sec. 2 of the Constitution establishes the President's powers of appointment:

". . . he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

Congress has, in statutes such as 3 U.S.C. sec. 105, conferred largely unbridled power upon the President to appoint his White House staff.

If Congress doesn't like how the President is exercising this power it might consider amending these statutes to limit the size of the White House staff or curtail the President's unbridled appointment power.

Could Congress make the entire White House staff subject to the "advise and consent" requirement? Art. II, sec. 2 would seem to permit that, but there's also an argument that a President's has to have at least some staff over whom he as nearly complete authority.

Anyway, since many members of the Senate probably think they'll be living in the White House some day, don't expect much activity from that quarter to change the status quo.

Posted by: brassband at September 7, 2009 8:21 PM

Thank you, Brassband, for bringing some common sense and constitutional knowledge to this "issue".

Now, if only you can convince Glenn Beck and his devotees.

Posted by: Thomas Schmeling at September 7, 2009 11:58 PM

Prof.Schmeling-It may be legal,but that doesn't necessarily make it a good idea to have all these "czars".apparently Van Jones was exempted from filling out the infamous exhaustive questionnaire supposedly applicable to all prospective Obama appointees.You know,the one with numerous,intrusive questions about firearms ownership?
"Animal Farm"at work.Jones is a racist and a lunatic,and I don't need half a nitwit ex-junkie like Glenn Beck to tell me that.It's very condescending of you to imply that those of us who oppose Obama and his programs somehow hang on every word of nationally syndicated "pundits".Do you depend on Keith Olbermann and Rrachel Maddow for your opinions and ideas?I can't believe you would.
I guess RIC is back in session.

Posted by: joe bernstein at September 8, 2009 6:03 AM

HI Joe,

I think you're looking for a fight where there is none.

I don't disagree with you about Jones. I am concerned about expanded executive power, whoever exercises it, and generally prefer more Senate oversight to less. Brass is making that important point that saying something is "unconstitutional" is different from saying it's a bad idea.

I was in no way implying that all who oppose Obama hang on the words of Beck, etc. Reasonable people will read Brass' comment and understand. But there is clearly a group, including Beck, who aren't interested in reason or argument. Such people exist on the left too, of course.

FWIW, I watch neither Olbermann nor Maddow.

Posted by: Thomas Schmeling at September 8, 2009 7:59 AM

I really didn't think you watched them.I watch Fox news and sometimes Neil Cavuto,but I really like CSpan the best,because you get all of it-not the mesmerizing repeat images and sound bites,which are really nothing more than the same kind of conditoning that keeps people in front of slot machines way past their ability to afford it.
Nationally syndicated radio is the same.Local talk radio usually mixes national issues with more nuts and bolts local issues of direct importance to the listeners.
I've been accused of repeating Rush's agenda so often(pretty hard as I don't listen to him)that I'm beginning to think maybe Rush is reading my blog entries(joke)instead.

Posted by: joe bernstein at September 8, 2009 8:19 AM

"Congressional critics seem only to recognize any problem when the opposing party sits in the White House."

Not me, Brassband. When Mitt and Sarah take office in three years, I hope the czars will have been long abolished.

Posted by: Monique at September 8, 2009 3:01 PM
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