At 1:30 p.m. today, in Room 226 of the Dirksen Building, Senator Russ Feingold, D-Wisc., will hold a hearing on the “History and Legality of Executive Branch Czars.” Since Feingold is a liberal Democrat, this raises eyebrows. Why would Feingold embrace a topic–so often distorted and misunderstood–that has been the purview of Fox News and sundry other detractors of President Obama?
The answer may be as simple as: Feingold believes we are better than all that. To explain what I mean, allow me to excerpt from Michelle Cottle’s compelling take down of the conservative scaremonger Betsy McCaughey in The New Republic.
In the piece, Cottle quotes Stuart Butler, the vice president of domestic policy at the conservative Heritage Foundation, saying this about McCaughey’s misleading attack on Ezekiel “Zeke” Emanuel, a White House adviser whom I have also written about: “Personal attacks on good people like Zeke are outrageous. There are real policy issues that should be debated vigorously, but slandering a good person’s name is beyond the pale.”
What Butler is pleading for here is not an end to debate, but a return to a more basic standard of fair play. The idea that we can talk about improving the health care system by re-aligning incentives, and even thinking reasonably about how to distribute scarce resources like donated organs, without effectively accusing each other, as McCaughey does, of murderous intent.
In the same way, the debate over “czars” has come to resemble not a reasoned discussion but a knife fight in a back alley.
To hear Glenn Beck, and others on Fox News tell it, the so-called “czars” that Obama has appointed are a nefarious, extra-constitutional force, about whom little is known about agendas or motivation. The Beck line is complicated by the fact that no one has a clear definition of what distinguishes a “czar” from any of the thousands of other executive branch employees; the list of 32 czars most often circulated includes 9 officials who are subject to Senate confirmation, and therefore constitutional checks and balances.
For many on the right, and for those in the conserv0-tainment world of Beck, Hannity and Limbaugh, the czars are a means to an end, a way of dramatizing the unseen, mendacious plots and agendas that President Obama is said to, knowingly or unknowingly, harbor. They are, in other words, a plot device, a MacGuffin in the great battle for ratings, public opinion and power. It doesn’t matter if we actually know a lot about what these czars do; it’s better to say we don’t know what we don’t know. It doesn’t matter that many of these czars bear virtually no relation to a Russian monarch; it sounds better, vaguely socialistic even, to call them after terrible despots like Nicholas II, Emperor and Autocrat of All The Russias.
Which returns us to Feingold. What is he up to? In September, at the height of the czar pandemonium, Feingold sent a letter to the White House asking for more information on the assignation of “apparently significant policy-making responsibilities to White House and other executive positions.” In raising the concern, Feingold points to language in the Constitution:
The Constitution gives the Senate the duty to oversee the appointment of Executive officers through the Appointments Clause in Article II, section 2. The Appointments Clause states that the President “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 proved for, and which shall be established by law.” This clause is an important part of the constitutional scheme of separation of powers, empowering the Senate to weigh in on the appropriateness of significant appointments and assisting in its oversight of the Executive Branch.
As a member of the Senate with the duty to oversee executive appointments and as the Chairman of the Senate Constitution Subcommittee, I respectfully urge you to disclose as much information as you can about these policy advisors and “czars.” Specifically, I ask that you identify these individuals’ roles and responsibilities, and provide the judgment(s) of your legal advisors as to whether and how these positions are consistent with the Appointments Clause. I hope that this information will help address some of the concerns that have been raised about new positions in the White House and elsewhere in the Executive Branch, and will inform any hearing that the Subcommittee holds on this topic.
Now in an alternate universe–where Van Jones was just an activist who made some bad decisions (not a Communist infiltrator) and where Zeke Emanuel was just a highly accomplished academic with some provocative academic work (not a miserly bureaucrat after your grandma)–such a request would seem reasonable, if not a little bit overly cautious. (The issue of unconfirmed executive appointments with significant power dates back decades before Obama, after all.)
So the question then arises: Is it possible to have a reasonable discussion in what Glenn Beck likes to call, without irony, “unreasonable times”? I am doubtful. But it seems to me that Feingold, if he can stick to the straight and narrow and avoid the populist distortions that surround this issue, should not be criticized for trying. If he plays it right, he might even be able to elevate the debate, and thereby improve us all.
UPDATE: Greg Sargent notes that the White House responded to Feingold’s letter, mostly dismissing the issue of “czars.” For his part, Feingold has incorporated the White House critique into his opening statement, as prepared for delivery, which follows below.
“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 advisors 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. 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 they have asked to solve it. But historically, a czar is an autocrat, and it’s 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 advisors 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’s 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 possible remedies that Congress ought to consider. I want to thank the Ranking Member, Senator Coburn, for helping to put together this distinguished panel.
“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. There are roughly nine officials that fall into this category, yet 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 President 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 these 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 to be the case.
“I am most interested 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.
“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. That’s unfortunate. It’s also a bit ironic since one of the concerns that has been raised about these officials is that they will 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 don’t think that’s 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 advisors and aides. In fact, the president is entitled, by statute, to have as many as fifty 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, that’s 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.”