Experts say policy 'czars' fall within presidential authority

Constitutional experts mostly defended the legality of President Obama's practice of naming policy "czars" who are not subject to confirmation by the Senate and not readily accountable to congressional oversight committees.

Bradley Patterson, a senior analyst for the Brookings Institution who served on the White House staffs of Presidents Eisenhower, Nixon and Ford, said Obama clearly had the power to appoint such top-level aides under the historic prerogative of a president to hire White House personnel without benefit of the Senate's advice and consent.

"The president's staff are personally responsible only to the president, and in the end he is the only 'czar' that is," said Patterson in testimony before the Senate Judiciary Constitution Subcommittee. "And he is accountable to the American people."

The White House, meanwhile, brushed off a request from Judiciary Constitution Subcommittee Chairman Russell Feingold, D-Wis., to send a witness to the hearing.

In a letter to Feingold, White House Counsel Gregory Craig insisted that none of the czar appointments raised valid concerns about accountability and congressional oversight. "Neither the purpose nor the effect of these positions is to supplant existing federal agencies or departments, but rather to help coordinate their efforts," Craig wrote.

Feingold said he considered the White House's refusal to send a witness "unfortunate. It's also a bit ironic, since one of the concerns that's been raised about these officials is that they will somehow thwart congressional oversight of the executive branch."

The expert witnesses at the hearing agreed that the president's use of White House czars did not represent an abuse of power as long as they did not attempt to give orders to agency heads or issue regulations on their own.

University of Virginia law professor John Harrison noted that it was not unprecedented for appointed government officials to wield great influence within an administration while possessing no independent power to implement policy.

"There is nothing legally problematic with that," Harrison said.

Matthew Spalding, director of American Studies at the Heritage Foundation, bemoaned the rise of czars in the Obama administration as continuation of a trend that has seen presidents of both parties try to govern through policy wonks at the expense of the democratic process.

He also suggested that climate czar Carol Browner, officially assistant to the president for energy and climate change, may have encroached on the authority of the EPA by serving as the administration's point person in developing automobile emissions standards.

Another witness, Villanova University law professor Tuan Samahon, qualified his backing of the president's czar appointments by warning that lawmakers should exercise vigilance to make sure that the "sorcerer's apprentice does not become the sorcerer."

Feingold said he was mainly concerned about the small number of czars operating within the White House itself and vowed to keep pressing the administration for a detailed accounting of their missions.