Comparative Administrative Law Blog

[News] Czarist Washington?

In an op-ed published in the Washington Post of September 13, 2009 (available here, Sen. Kay Bailey Hutchison (R-Tex.) argues that the deployment of a great number of White House "czars" "sets a dangerous precedent that undermines the Constitution's guarantee of separated powers." The White House czars are presidential assistants charged with responsibility for given policy areas. Sen. Hutchison's argument is that these officials hold unknown levels of power over broad swaths of policy; therefore, President Obama should submit each of his policy czars to the Senate so that the latter can review their qualifications, roles and the limits on their authority.

In response to this op-ed, David B. Rivkin Jr. and Lee A. Casey suggest, to the contrary, that "far from undermining the separation of powers the president's right to organize his White House policymaking apparatus is protected by that very constitutional principle." (Washington Post, September 19, 2009 available here) They explain that however much the czars may drive the policymaking process at the White House, they cannot determine what that policy will be. This is the critical difference between the White House czars and federal officials who must be confirmed by the Senate under the "appointments clause" of the U.S. Constitution. In the absence of legislation the only power exercised by White House czars comes from their proximity to the president and the access this provides. As they note, this might be power, but does not constitute "significant authority" under U.S. law and thus is not subject to the requirements of the "appointments clause."

 

 

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