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As predicted after the 2010 elections, the new Republican-led House of Representatives is wasting no time trying to undo many of the initiatives of the Obama administration. Nothing unusual there, as midterm elections almost always reconfigure the national policy agenda.
It is therefore tempting for observers to attribute every interbranch battle in these circumstances to partisan politics and even grandstanding to set up issues for the next presidential election. The House-led effort to reverse health care reform and promises by the chairman of the House Oversight and Government Reform Committee to investigate various White House initiatives are the most evident examples.
Another is a recent legislative proposal by Rep. Steve Scalise (R-La.) to eliminate all government funding for “executive branch czars.” The cleverly named Sunset All Czars Act (H.R. 59) proposes that the various nonconfirmed and unaccountable executive branch officials with substantial authority to coordinate policies across agencies be eliminated through budgetary starvation. To the casual observer, it may look like a bill channeled by Glenn Beck himself and designed to continue to stoke the flames of tea party anger, as surely this effort will stall in a Democratic Senate or easily face the presidential veto pen.
So should this bill be dismissed as just another partisan maneuver by GOP Members to demonstrate to their constituencies that they take their “mandate” seriously? That would be a mistake, as the issue of the role of executive branch czars in a system of separated and balanced powers needs to be taken seriously on its merits. Whether this bill is a panacea is open to honest debate. But at the least, it should be acknowledged that the proposal raises a critical constitutional issue that needs to be addressed.
Although it was mostly Democrats who charged during the George W. Bush era that the trend toward expanded presidential powers had thwarted the core principles of our constitutional system, many Republicans made that argument as well. And certainly today Members of Congress, regardless of party affiliation, have every right, and we would say a duty, to debate whether the legislative branch should cut off funding for high-level executive branch positions and agencies that have not been legislatively authorized.
To be sure, by appointing czars, presidents are circumventing the normal process of accountability that depends on Senate confirmation and on appointed senior officials being subject to testimony before Congress. Unlike statutorily established positions that carry over from one administration to another, such as the national security adviser, czars hold temporary posts, but nonetheless ones that sometimes have exercised more policymaking power than many of the established positions and even Cabinet secretaries.
Although the position of czar is not new, Obama has made the most appointments of such officials in U.S. presidential history — nearly 50 — thus raising the level of partisan discord over the powers of czars. In the past, Americans have come to know about drug czars and energy czars, among others. Today there are czars for clean energy, nonproliferation, urban affairs, the Troubled Asset Relief Program and the auto recovery. There is a Great Lakes czar and even a Chesapeake Bay czar. The proliferation of czars in the past two administrations has been staggering. We wonder whether one day there will be a czar to coordinate czars.
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.