And there is even one person, Kenneth Feinberg, who holds two czar positions — claims czar and pay czar. Unelected and in positions that do not require Senate confirmation, Feinberg is exercising some of the most significant power of any government official, with the ability to promulgate executive pay of companies that received government loans through TARP and with discretion over the distribution of once unimaginable sums of taxpayer and also private industry money. He possesses vastly expansive policy powers, yet his position does not fit anywhere in the constitutional scheme of checks and balances.
Since — unlike Feinberg — most of these executive branch officials and their duties are obscure, few Americans have paid close enough attention to understand why czars are constitutionally troublesome. Indeed, the loudest carping against czars has come from the most intense anti-Obama constituencies, thus leaving the impression that it is disdain for this president that is driving the opposition to czars.
The continued practice of appointing czars raises vital separation of powers issues that should be confronted outside the usual context of partisan charges and countercharges. The Sunset All Czars Act in particular raises the important question of whether Congress needs to finally step up its efforts to confront the expansion of unchecked executive powers. Members of Congress, regardless of partisan affiliation, should not stand by silent as presidents appoint high-level officials to exercise substantial regulatory and policy authority without any system of normal democratic controls in place.
Mark J. Rozell is professor of public policy at George Mason University. Mitchel A. Sollenberger is assistant professor of political science at University of Michigan-Dearborn. They are writing a book on executive branch czars.