Short answer: Yes, I now believe they are
Long answer: see below
In light of the unfortunate degeneration of the discussion of this issue on another thread, I spent a solid hour and a quarter tonight (what else am I going to do on a Saturday night? 😉) researching and penning the following analysis of this issue:
Article 2, Section 2 of the United States Constitution says the following, in relevant part:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, [/b]and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
I have bolded the phrases that I consider relevant to this debate.
I think we can all agree that each czar is under the Executive branch of the government and is therefore either simply a federal employee or an "officer of the United States."
Basically, under these provisions:
1) The President can appoint anyone he likes to serve under him as an officer in an Executive capacity
2) Officers of the United States can only be appointed with the advice and consent of the Senate
3) "Inferior" officers can be appointed without the advice and consent of the Senate if the authority to appoint them has been delegated to the President by Congress. This delegation is typically in the enabling acts involved in the creation of administrative agencies.
As the President clearly has the power to appoint all the Executive officials he likes and the controversy seems to be whether the czars need Senate approval (http://thehill.com/blogs/blog-briefing-room/news/57627-republicans-push-for-senate-confirmation-of-czars), I think we can confine our analysis to these questions:
1) Are the czars principal officers of the United States? If so, it would seem to be unconstitutional to appoint them without Senate approval.
2) If they are inferior officers of the United States, has any Act of Congress given the President the authority to appoint these czars?
3) Are the czars not "officers of the United States" at all? If so, then there really isn't even much of a controversy.
I took the liberty of doing a bit of research for some case law on these issues, so far as it exists.
Let's deal with issue 3 first, as it is probably the easiest to settle.
[The] term "Officers of the United States," as used in appointments clause (Art II, § 2, cl 2), does not include all employees of United States; employees are lesser functionaries subordinate to Officers of United States; term "Officers of the United States" includes all persons who can be said to hold office under government; any appointee exercising significant authority pursuant to laws of United States is "Officer of the United States," and must, therefore, be appointed in manner prescribed by appointments clause. Buckley v. Valeo,424 U.S. 1 (1976)
Unless a person in the service of the Government, therefore holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States. United States v. Mouat, 124 US 303
Examples of officers who HAVE NOT been considered “officers of the United States” include:
- Merchant appraisers. Auffmordt v. Hedden, 137 U.S. 310
- Members of interstate planning council created to address regional energy planning and conservation. Seattle Master Builders Asso. v. Pacific Northwest Electric Power..., 786 F.2d 1359
- Attorneys who work for the commerce commission. United States ex rel. Crow v. Mitchell, 89 F.2d 805
Examples of officers who HAVE been considered “officers of the United States” include:
- Official stenographic reporter of district court of United States for Territory of Hawaii. Oswald v. United States, 96 F.2d 10
- Member of House of Representatives. Lamar v United States, 241 US 103
I don’t think I’m going out on a limb when I conclude that the czars are clearly officers of the United States. They are appointed by the President himself and they are charged with determining policy and determining manners in which policy should be enforced. Whether they can act without approval of other agencies or Congressional law is immaterial. The level of executive employee not considered executive officers is far, far below the level of these czars. Appointment by the President also militates in favor of the czar being an officer of the United States under the language in Mouat, above.
Okay; so the next issue is whether the czars are principal officers, who always require Senate approval, of inferior officers, who do not require Senate confirmation if Congress has delegated the authority for their appointment to the President.
Are the czars principal officers?
Well, first, that depends on what the czars do. The LA Times described the czars as “high-level staff members who will help oversee the administration's top initiatives.” http://articles.latimes.com/2009/mar/05/nation/na-obama-czars5 That’s as good a definition as any I’ve seen, So, I’ll go with it.
Some articles that describe the jobs that various jobs have been hired to do can be found here:
http://investigatingobama.blogspot.com/2009/08/compleat-list-of-czars.html
Although this is clearly a biased anti-Obama site, you can view a list of czars there, with links to info about them and their powers. I’d take the information on that site with a grain of salt, but their list and links seems to be for the most part accurate. Certainly, you can follow the links and make your own determination.
Examples of principals officers, of course, include cabinet members and heads of administrative agencies.
Examples of “inferior officers” include:
- Post master first class. Buckley v Valeo 424 US 1
- Commissioners of Federal Election Commission. Buckley v Valeo 424 US 1
- Members of Health and Human Services Appeals Board. Pennsylvania Dep't of Pub. Welfare v United States HHS, 80 F3d 796.
- United States Attorneys United States v Hilario 218 F3d 19
- Cadet of military academy Hoeppel v United States 85 F2d 237
However, the most telling distinction that I can find between a principal officer and an inferior officer comes from the Supreme Court case. Edmond v. United States, 520 U.S. 651 (1997).
In that case, the Court said:
Generally speaking, the term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: whether one is an "inferior" officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a clause designed to preserve political accountability relative to important government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.
This understanding of the Appointments Clause conforms with the views of the first Congress. On July 27, 1789, Congress established the first executive department, the Department of Foreign Affairs. In so doing, it expressly designated the Secretary of the Department as a "principal officer," and his subordinate, the Chief Clerk of the Department, as an "inferior officer.
To me it seems fairly clear then, that if an “officer of the United States” works directly under the President, that person is a principal officer of the United States, regardless of the authority vested in him or lack thereof.
If, as I assumed above, the czars are officers of the United States, then, under Edmond, they are necessarily principal officers, as they report to no one other than the President, and certainly not to another principal officer of the United States
In any case, even if they were considered inferior officers, since many of them do not work for administrative agencies, and thus were not appointed pursuant to an enabling act, I don’t see where Congress has delegated the authority to the President to appoint these officers. Although, this is irrelevant until someone can explain how they are not principal officers, of course.
Based on this, and until I see an explanation that counters these points, I am forced to conclude that President Obama’s appointment of the czars without the advice and consent of the Senate is a violation of Article 2, Section 2 of the Constitution. Yes, the Supreme Court has not ruled on this question yet, but the only way I see for the Court to uphold the appointments is to overrule Edmond and thus to change existing law as it stands now.
Originally posted by sh76Has the Senate asserted its Constitutional right to give or withhold consent or at least signalled its intention to do so?
President Obama’s appointment of the czars without the advice and consent of the Senate is a violation of Article 2, Section 2 of the Constitution.
Originally posted by sh76Thanks for the work you put into that!!
Short answer: Yes, I now believe they are
Long answer: see below
In light of the unfortunate degeneration of the discussion of this issue on another thread, I spent a solid hour and a quarter tonight (what else am I going to do on a Saturday night? 😉) researching and penning the following analysis of this issue:
Article 2, Section 2 of the United Sta ...[text shortened]... to overrule Edmond and thus to change existing law as it stands now.
Originally posted by FMFYES.
Are czars on the public payroll?
Rep. Jack Kingston, R-Ga., has introduced the Czar Accountability and Reform Act to cut off the salaries of these czars (estimated at $172,000 plus their staffs of 10-plus people). It's unlikely that the Democratic Congress will let this bill see the light of day.
So far, Obama has appointed 34 czars. Afghanistan czar, aids czar, border czar, car czar, climate czar, copyright czar, cyberspace czar, drug czar, economic czar, education czar, energy czar, executive pay czar, faith-based czar, Great Lakes czar, green jobs czar, Guantanamo closure czar, health reform czar, infotech czar, intelligence czar, Iran czar, Middle East peace czar, non-proliferation czar, Persian Gulf/Southeast Asia czar, regulatory czar, science czar, stimulus accountability czar, Sudan czar, TARP czar, terrorism czar, urban czar, war czar, and WMD and terrorism czar.
That adds up to a pretty penny at the taxpayers expense.
Originally posted by utherpendragonI agree. But is a "Czar Accountability and Reform Act" the way to test the constitutionality of czars?. Should a Democratic Congress be able to decide in this way? Why isn't a case coming before the Supreme Court so that it can rule either way - and so that czars can either get on with their work as is, or they can be made to conform to the constitution (or the constitution can be amended)? Surely an Act before Congress that's doomed to fail (as you suggest) is political theatre rather than a genuine attempt to address this issue?
YES.
Rep. Jack Kingston, R-Ga., has introduced the Czar Accountability and Reform Act to cut off the salaries of these czars (estimated at $172,000 plus their staffs of 10-plus people). It's unlikely that the Democratic Congress will let this bill see the light of day. [...] That adds up to a pretty penny at the taxpayers expense.
Originally posted by FMFI don't know for certain, but I don't think that would matter. Unless the Senate specifically renounces its advice and consent power (which would, in itself, be a dubious constitutional move), the confirmation process is the default.
Has the Senate asserted its Constitutional right to give or withhold consent or at least signalled its intention to do so?
Originally posted by FMFI do think the case will come before the courts eventually, though I don't know whether the Supreme Court will grant certiorari (agree to hear the case), as the Supreme Court agrees to hear only about 2% of the cases appealed to it.
I agree. But is a "Czar Accountability and Reform Act" the way to test the constitutionality of czars?. Should a Democratic Congress be able to decide in this way? Why isn't a case coming before the Supreme Court so that it can rule either way - and so that czars can either get on with their work as is, or they can be made to conform to the constitution (or the ...[text shortened]... l (as you suggest) is political theatre rather than a genuine attempt to address this issue?
It probably won't happen for at least another year or two, though. US federal courts are not allowed to issue advisory opinions or decide cases that are not brought by people with standing.
For this issue to get to court, someone injured by something a czar did in his executive authority would have to bring a federal lawsuit to nullify the action. If a Congressman sued to enforce the advice and consent requirement, it's unlikely that the court would accept that case, as in the past, the Supreme Court has not found a Congressman's' challenge to Presidential action to be a case or controversy under Article III (the best example is when members of Congress have sued over Presidents having ignored the War Powers Resolution; those challenges have routinely been dismissed by the Supreme Court on "case or controversy" grounds).
Incidentally, when I started my research, I had no idea which side I was going to end up on. As I mentioned in the other thread, the czars don't particularly bother me and if the Supreme Court rules that the appointments are unconstitutional, I'm not going to be calling for Obama's impeachment. Presidents get their wrists slapped by the Supremes all the time. No big deal. But the precedents are what they are.
Did previous presidents have no advisors? Are czars unconstitutional because Obama calls them "czars"? Or should the previous advisors also have been approved by the Senate?
It would seem to me the constitution is extremely vague about who does and who does not need Senate approval. Maybe the constitution needs to change, then, to clarify this.
Originally posted by KazetNagorraThe National Security Advisor is not subject to confirmation by the Senate and that is deemed to be constitutional.
Did previous presidents have no advisors? Are czars unconstitutional because Obama calls them "czars"? Or should the previous advisors also have been approved by the Senate?
Originally posted by FMFThe constitutionality is only tested if someone challenges the appointment. I don't clearly see a mechanism where this would easily be done with the NSA, since the NSA makes no final decisions.
The National Security Advisor is not subject to confirmation by the Senate and that is deemed to be constitutional.
Czars, however, seemingly would make policy decisions that would have real life effects on real life people.
As such, I expect that we will see a challenge to the constitutionality of czar appointments at some point. I cannot be sure when though. It depends when and if the czars actually make decisions that impact people.
Originally posted by sh76But would czars ever be the ones to "officially" make a decision? I imagine that while a czar may make a lot of de facto decisions, the "actual de jure decision" would probably be made by the one or more of the Cabinet secretaries. It might be very difficult to prove that a given czar ever made any particular decision.
The constitutionality is only tested if someone challenges the appointment. I don't clearly see a mechanism where this would easily be done with the NSA, since the NSA makes no final decisions.
Czars, however, seemingly would make policy decisions that would have real life effects on real life people.
As such, I expect that we will see a challenge to the ...[text shortened]... sure when though. It depends when and if the czars actually make decisions that impact people.
So it would seem that it might be difficult for anyone to claim they were adversely impacted by the decision made by a czar. So would it ever be possible for anyone to bring a case before the Supreme Court? Or would the lack of any "official" decisions from these czars make them essentially "inferior officers"?
Originally posted by MelanerpesIt wouldn't make them inferior officers (at least, that's my interpretation of Edmond), but if they didn't make final official decisions, it would make their appointments difficult things to challenge.
But would czars ever be the ones to "officially" make a decision? I imagine that while a czar may make a lot of de facto decisions, the "actual de jure decision" would probably be made by the one or more of the Cabinet secretaries. It might be very difficult to prove that a given czar ever made any particular decision.
So it would seem that it might be ...[text shortened]... of any "official" decisions from these czars make them essentially "inferior officers"?
The case or controversy requirement does lead to the odd circumstance where arguably unconstitutional actions stand because there's simply no mechanism by which to challenge them.
The classic example is the War Powers Resolution, passed in 1973, which imposes certain requirements on the President regarding the sending of soldiers abroad on military missions. In general, the Executive position has been that the Act is unconstitutional. However, the issue has never been tested in the Supreme Court, as the Court has dismissed every challenge based on the WPR to a Presidential military actions based on "case or controversy" grounds.
It's strange, but an action can be unconstitutional and/or illegal, but not challengeable in court.
Originally posted by sh76I've always hated the idea that laws can't be challenged until some "harm has been done". There should be some way of being able to get the court's opinion, especially on constitutionality issues -- possibly a standard where there's a "sufficient degree of disagreement or doubt".
It wouldn't make them inferior officers (at least, that's my interpretation of Edmond), but if they didn't make final official decisions, it would make their appointments difficult things to challenge.
The case or controversy requirement does lead to the odd circumstance where arguably unconstitutional actions stand because there's simply no mechanism by whi ...[text shortened]... ge, but an action can be unconstitutional and/or illegal, but not challengeable in court.
The president is bound by oath to uphold the Constitution. But what if he and everyone else can't agree on exactly what is or isn't constitutional on a particular issue? Why should we be stuck in limbo regarding the status of the War Powers Act?
Another problem is that once a sufficient "case or controversy" does arise, it is often easy to make rulings that deal with the specifics of the case and avoid more general issues like the law's "constitutionality".
Originally posted by MelanerpesThe theory behind the case or controversy requirement is that if the party challenging the statute has no suffered an injury, then s/he will not have the incentive to marshal the best arguments and hire the best representation possible.
I've always hated the idea that laws can't be challenged until some "harm has been done". There should be some way of being able to get the court's opinion, especially on constitutionality issues -- possibly a standard where there's a "sufficient degree of disagreement or doubt".
The president is bound by oath to uphold the Constitution. But what if he ...[text shortened]... ics of the case and avoid more general issues like the law's "constitutionality".
Federal courts are not allowed to give "advisory opinions." Aside from the reason above, the Constitution specifically set up the judiciary to resolve disputes. If the courts would start getting involved in policy questions before they have led to disputes, this would expand the role of the judiciary beyond that which was originally intended.
Remember, the President and Congress are also supposed to follow the Constitution on their own accord. It's just that the SC has the final say in the matter if a Constitutional interpretation is in dispute. (And, even that, incidentally, was once far from clear.)