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Posted at 3:00 PM ET, 01/ 7/2011

Czar legislation

By Jennifer Rubin

The plethora of Obama-appointed czars, who are not subject to Senate confirmation, has rankled conservatives and others wary of an overreaching executive branch. Rep. Steve Scalise (R-La.) and 28 other House Republicans, in response to that concern, have introduced a bill to try to eliminate the czars. The Hill reports:

The legislation, which was introduced in the last Congress but was not allowed to advance under Democratic control, would do away with the 39 czars Obama has employed during his administration.

The bill defines a czar as "a head of any task force, council, policy office within the Executive Office of the President, or similar office established by or at the direction of the President" who is appointed to a position that would otherwise require Senate confirmation.

But, wait. As troubling as the czars are, does Congress have the power to tell the president whom he can hire?

I talked to some smart conservative constitutional gurus. Although there are few definitive answers in this area, it is important to keep some parameters in mind. In the most general terms, the Constitution requires Senate confirmation of non-inferior "Officers." If a czar is an "Officer" rather than mere adviser, the czar-elimination bill should pass constitutional muster. The problem with the bill then is one of clarity -- which of the czars would "otherwise require Senate confirmation" -- that is, be considered an "Officer"?

Todd Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, e-mails this cautionary warning: "There are some steps Congress can take to limit the number of high-level Czars, including limiting the number of highly-paid staffers in the Executive Office of the President, but there are also some constitutional limits that Congress must be careful to avoid, such as intruding upon the advice the President receives from his subordinates or micro-managing his decision making process."

Congress, for example, can't prohibit the president from using staff members, whatever their job title, to communicate his wishes on many issues. Congress can't tell the president how to review regulations. In other words, the president is entitled to use his staff to communicate and impose his will on those who are subject to Senate confirmation. The process of ferreting out exactly what the czars do and how they do it would, I suspect, itself runs into all sorts of executive privilege concerns. (It is ironic that these general concepts on which the Obama team would rely are part and parcel of the dreaded "unitary executive" theory that riles up, so long as there is a Republican president, those on the left.)

So is there anything to be done? The power of the purse -- cutting salaries or cutting the agencies for which czars have been appointed to oversee -- is the primary tool at Congress's disposal. In the back-and-forth budget fights and in the confirmation of new cabinet members the legislative branch can try to work its will. The final check on an imperious president, however, is the electorate. Voters will ultimately decide in 2012 if Obama has overreached both in his policy decisions and his deployment of unaccountable czars.

By Jennifer Rubin  | January 7, 2011; 3:00 PM ET
Categories:  Obama White House  
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Comments

Americans should welcome a struggle between the executive, legislative and judiciary. that dynamic tension is exactly what the founders had in mind.

This should make for some really interesting stories in 2011. I think that views on this will vary widely depending on the political position of viewer.

If we look at the reaction to the reading of the constitution we can already see the layout. The liberals hated the idea and have not stopped saying so. The Conservatives loved it and are ready to move on to the hard work ahead.

the differences between the sides is stark. Let the games begin.

Posted by: skipsailing28 | January 7, 2011 4:02 PM | Report abuse

I'm willing to wait & see how the effort to oversee the czars falls out.

Posted by: RoscoeMB | January 7, 2011 6:23 PM | Report abuse

I would think someone whose role is merely advising is an advisor; however, someone who is making policy decisions and/or authorizing spending allocations is a “czar” subject to Congressional approval.

As I recall Van Camp, the ill-fated "Green Jobs Czar", was responsible for the allocation of 80 Billion. That nonsense must stop whether or not the Obama Administration wishes to continue to posture about being accountable. Also a large number of Obama’s “Czars “ are ludicrously ill-credentialed for the responsibilities that they hold, and are clearly in the White House because they are ideological soul brothers and sisters of Obama-Jarrett & Co.

Posted by: nvjma | January 7, 2011 8:00 PM | Report abuse

If senators, both Democrats and Republicans, would stop indefinitely holding up appointments to Executive Department positions for purely political reasons and personal snits, appointing czars would not be necessary.

Posted by: Lazarus40 | January 7, 2011 10:36 PM | Report abuse

I think any such legislation should also cover the women who are appointed to such positions, and not just men, which is what a "czar" is, by definition. Women are "czarinas."

Posted by: Martha10 | January 9, 2011 10:23 AM | Report abuse

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