Surely one of the factors arming fears that, promises or not, President Obama is continuing in the central-power-hungry ways of his predecessor(s) is the rate at which he is creating White House positions that appear to duplicate, or at least compete with, responsibilities Congress has assigned to departments or agencies, but which enjoy a stronger shield of executive privilege and perhaps do not even require Senate approval for their personnel. Paul Light, writing in the New York Times on Monday, March 23, opened an OpEd, “Nominate and Wait,” with this:
ROBERT C. BYRD, the Democratic senator from West Virginia, chastised the Obama administration last month for using White House policy czars to undermine the president’s own cabinet. “At the worst,” he wrote to President Obama, “White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials.”
Light then went on to tie the development to congressional failures of responsibility in relation to executive appointments – both in lagging in the confirmation process, and in tolerating (viz., through appropriations) presidential and departmental creation of at will political appointees not requiring Senate confirmation.
One hardly knows where to start here. The very first Senate refusal to confirm a presidential nominee to a cabinet position, Andrew Jackson’s nomination of Roger Taney to serve as Secretary of the Treasury, came as punishment for what appeared to be the President’s insistence on controlling the execution of a duty Congress had assigned elsewhere. A statute gave the Secretary of the Treasury “discretion” to remove government funds from the U.S. Bank and put them elsewhere. Jackson’s vehement opposition to the Bank made him eager to have this happen, and his re-election in 1832, with the Bank’s future as a major issue in the campaign, appeared to pave the way. The Secretary of Treasury then serving found no adequate reason to exercise that congressionally conferred discretion, and Jackson replaced him. His confirmed successor as Secretary, William Duane, came to the same conclusion and was also sacked. Jackson named Taney Acting Secretary and, as Robert Bork would about a century and a half later, Taney did what he was told. His nomination was rejected.
In one of the sillier communications of the later Bush years, responding to a House bill that would have denied funding for enforcing the new powers given “regulatory policy officers” by President Bush’s EO 13422, White House spokesmen told Congress with a straight face that it would be acting unconstitutionally if it refused adequate funding for White House offices, as an interference with the President’s inherent executive authority.
The White House Briefing Room site on Nominations and Appointments lists only 42 names, some withdrawn. But it seems to have been abandoned, as only one postdates the inauguration; although there are more important things to do, this is perhaps itself one of the mixed signals on transparency the Administration seems to be sending. Thomas, the Library of Congress site, returns 260 nominations, including nominees for such positions as Associate Judge of the Superior Court of the District of Columbia and Colonel of the Army alongside Assistant Secretaries and other important officials the White House site omits. No nomination has yet been submitted for the person to head the Office of Information and Regulatory Affairs, since Ronald Reagan our regulatory “czar,” an appointment that does require Senate confirmation; nor does the name of Carol Browner, former EPA Administrator and now climate “czar” appear there. Light reports roughly 2500 presidential at-will appointees. There is a glacial pace of confirmation in the Senate, as Light rightly remarks; and there is a glacial pace of nominations as well.
In a piece that has just appeared on SSRN, Prof. Nina Mendelson persuasively analyses the opaque disconnect between agency reasoning and White House influence.
Wide reading in and Westlaw searching of Federal Register statements, how-ever, has yet to reveal an agency stating that executive supervision has resulted in it revising its final decision, choosing one option over another, or electing one interpretation of a statute as opposed to another. [N. 3]
How this underscores Senator Byrd’s concern. Knowledge what the czars are doing, surely a prerequisite for presidential political responsibility, indeed for arming the political response that met Roger Taney, just is not there.
Perhaps our President’s promises of transparency will change all this – lift the veil of privilege, expose the influence of values on decision as Prof. Mendelson urges. Or perhaps not. It could make one a little wistful about parliamentary systems in which ministers are themselves elected, and must, with the government as a whole, regularly to answer to the legislative body in which they sit.
March 28, 2009 at 1:12 pm
A very unhealthy cycle is at work here: the Senate makes the confirmation process ever more arduous so, in order to get work done, the White House concentrates power in the Executive Office of the President where aides whodon’t need confirming can hit the ground
running. With beefed up staffing in the White House, it places less relative priority on getting people confirmed as compared to getting policies generated by its own staff. Dissenters in the Senate can then exploit the relative lessening of Presidential push on nominations to encumber the process further and so on. All this results in decisions being made by WH aides who are less subject to congressional oversight than agency heads and their deputies are, weakening the role of Congress in policy making, but that consequence does not seem to motivate the Senate to work more cooperatively with the WH to get the administration in place. There is more to be said about the untoward consequences of the confirmation process being so burdensome and slow.