There has been a lot of coverage in the press and the blogosphere of President Obama's appointment of Professor Elizabeth Warren as special adviser to the White House to oversee the development of the new Consumer Financial Protection Bureau (for one example of the many articles on this appointment, see this piece published in the New York Times).
In a recent op-ed published in the Wall Street Journal ("Obama, Warren and The Imperial Presidency") Professor Bruce Ackerman points to the fact that it is increasingly the case that White House appointees are exempted from the Constitution's requirement of "advice and consent" from the Senate (an earlier post on this blog on these White House czars is available here). This was achieved through the "legal fiction that they were merely advisers without decision-making powers." As Ackerman notes, the trick in this case was to give Prof. Warren a second appointment. In addition to serving as President Obama's special assistant, she will also serve as a special adviser to Treasury Secretary Timothy Geithner thus not requiring Senate confirmation.
Ackerman describes this development as President Obama's "contribution to the ongoing construction of an imperial presidency." At the same time Ackerman acknowledges that, in the existing system, senators have the power to hold up nominations to blackmail the administration into approving their pet projects. His recommendation to break through this impasse is that both sides negotiate a "grand bargain": The Senate should change its rules to require an up-or-down vote on all executive branch appointments within 60 days. In exchange, the President should sign legislation to require Senate approval of all senior White House appointments. By reaching this agreement, the President regains the powers to govern effectively and the Senate regains its authority to approve all major appointments-regardless of their location in the executive branch.