Of ‘Czars’ and History

The recent Senate hearing on the Obama administration’s ‘czars’ deserves more attention than the facetious comments of Dana Milbank. We see now the latest instance of a bi-partisan and recurrent problem, last seriously discussed at the time of Watergate. At that time the constitutional scholar Alexander Bickel observed “In opposing cant of ‘not men, but measures’, Burke therefore resisted rule by non-party ministers who lack the confidence of the Commons. . . we may today oppose excessive White House staff- government by private men whom Congress never sees. It was not for nothing that the American Constitution provided for ‘executive departments’ and for Senate confirmation of the appointment of great officers of state.” His contemporary constitutional scholar Philip Kurland described Watergate as the consequence of “court locusts. . . [who] instill in the President’s mind a divine right of authority to command his subjects. This is a most fitting description of the Executive Office of the President under Nixon.”

The next major constitutional embarrassment was the Iran-Contra affair, arising from the machinations of three unconfirmed White House aides, Mc Farlane, Poindexter and North, undertaken over the objections of Secretary of Defense Weinberger and Secretary of State Shultz., the constitutionally responsible cabinet officers. There was then the Clinton health care proposal, conceived in secrecy by a 500-member staff directed by an unconfirmed first lady and unconfirmed presidential aide, Ira Magaziner, the knowledgable Secretary of Health and Human Services, Donna Shalala and her bureaucracy being marginalized. This experience was such a great success that it is now being replicated, the unconfirmed directors of the administration’s efforts being Rahm Emanuel and Nancy De Parle.

The requirement of Senate confirmation of principal officers was not a cosmetic provision, but involved conscious rejection of theories of the unitary executive now apparently embraced by the Obama administration. The Constitutional Convention proposed a single President with reluctance, after a plural Council of State on the Swiss model had been urged by Benjamin Franklin, George Mason and others. The Senate confirmation provision as explained by Alexander Hamilton in Federalist 74 sought to guard against the duplication here of abuses in the royal courts of Europe; it “would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment or from a view to popularity. . . He would be both ashamed and afraid to bring forward candidates who had no other merit than. . . possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Morrison v. Olson (1988), the leading Supreme Court case on the confirmation requirement, upheld appointment of a special prosecutor without confirmation on the stated ground that she had no “authority to formulate policy for the Government or the Executive Branch.” This does not describe Emanuel, De Parle, or General Jones, let alone such past National Security Advisors as Mc George Bundy and Henry Kissinger, who marginalized the Secretary of State. In the post-Watergate era, Congress wisely provided for confirmation of both the Director and Deputy Director of the Office of Management and Budget, as well as the Director of the Office of National Procurement Policy; in 1949 the antecedent of the Director of the Office of Federal Personnel Management was made subject to Senate confirmation. Many current unconfirmed White House aides like the National Security Advisor and Assistants for Domestic Policy and Economic Policy have duties and powers defined by statute. President Truman’s Director of Mobilization, John R. Steelman, recommended discontinuance of his office on the stated ground that “I do not think the President needs anyone with power to act between the resident and his Cabinet or the President and anybody else who is supposed to report directly to the President.” The unconfirmed Presidential chief of staff recommended by the First Hoover Commission in 1949 was supposed to be a career civil servant on the British model who “would not himself be an adviser to the President on any issue of policy.” Does this describe Rahm Emanuel?

Justice Story once observed, in the leading constitutional treatise of his time, that offices in a republic “are established and are to be filled, not to gratify private interests and private attachments; not as a means of corrupt influence or individual profit; not for cringing favorites or court sycophants, but . . . to give dignity, strength, purity and energy to the administration of the laws.” The Bush-Cheney administration to the contrary notwithstanding, important public officers, including prosecutors, were not to be doppelgangers and apparatchiks, but persons of independent standing. Consider, for example, the composition of President Washington’s cabinet. The limits on recess appointments, which the Bush administration sought to avoid, were intended to give appointees some security of tenure by rendering their replacement difficult, as explained by Hamilton in Federalist No. 77. The recent hearing should lead the Congress to enact statutes extending the requirement of Senate confirmation to the heads of the principal branches of the President’s staff. If this operates as a dis-incentive to continued expansion of the staff, many if not most of whose members are political veterans engaged in the operation of 24-hour ‘war rooms’ and perpetual campaigns, that is a consummation devoutly to be wished.

George Liebmann, a Baltimore lawyer, is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005), and of Diplomacy Between the Wars: Five Diplomats and the Shaping of the Modern World (Palgrave Macmillan, 2008).

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