A Canadian ambassador to the U.S. told a National Press Club audience upon his departure that he had finally “cracked the code— to Washington after two years. “There is not one national government,— he observed, “but two: the Congress and the executive.—
[IMGCAP(1)]Today, he might identify a third (non-judicial) branch: a burgeoning policymaking division of the White House positioning itself over the others as the supreme policy arm of government.
Nothing better illustrates this development than the proliferation of policy czars in the White House under President Barack Obama. According to a recent Washington Post survey, 18 new, nonconfirmable policy czars have been added under Obama on top of the four carry-over czars from the previous administration. (They must be packing them in like czardines.)
The media are paying increased attention to this trend. On the positive side, the president is seen as out to make a transformative difference by appointing the best and brightest to develop bold and comprehensive policy solutions to every imaginable problem, from health care and urban affairs to automobiles (two “car czars—) and climate change. (White House energy and environment chief Carol Browner recently joked that she prefers “empress— to “czar.—) On the negative side, the covert policy shops do not live up to Obama’s promise of greater transparency, and the media and Congress do not like to be kept in the dark.
The evolution of a White House staff to develop and coordinate administration policies is nothing new, to be sure. Every president in modern times has recognized the need to appoint trusted political and policy advisers. Cabinet government is no longer considered a practical model. Cabinet secretaries, after all, have their own departments to run. Presidents need smart, capable and fiercely loyal people to assist them daily in implementing their campaign promises.
However, the bigger the White House policy apparatus becomes, the more Congress is suspicious of the policies being devised, offended they’ve been left out of the loop and outraged about being denied information essential to good oversight. The reason for this is that nonconfirmable presidential advisers are protected by the doctrine of executive privilege from having to disclose anything to Congress. Policy czars are anathema to Congress.
The potential for an overly powerful White House staff was flagged early in the Obama administration by Sen. Robert Byrd (D-W.Va.). In a Feb. 23 letter to the president, Byrd warned that presidential staff often assume too much programmatic power at the expense of their Cabinet counterparts and Congress. “The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances,— Byrd wrote, and “in too many instances … [has] been allowed to inhibit openness and transparency, and reduce accountability.—
Maine Sen. Susan Collins, the top Republican on the Homeland Security and Governmental Affairs Committee, sent a similar letter to the president in mid-September. She followed it up with a floor amendment to an appropriations bill on Sept. 22 to deny funding for any nonstatutory staff responsible for the interagency development or coordination of any rule, regulation or policy unless the president certifies the staff will respond to reasonable Congressional requests for testimony or information. The amendment failed on a point of order.
More recently the issue came to a head when Sen. Russ Feingold (D-Wis.), chairman of the Judiciary Subcommittee on the Constitution, called a hearing on Oct. 6 to examine “the History and Legality of Executive Branch Czars.’— The administration refused to send any witnesses to explain its position on the constitutional issues involved. Feingold said in his opening statement that the administration’s refusal to appear was “unfortunate— and “ironic— because “one of the concerns that has been raised about these officials is that they will thwart Congressional oversight of the executive branch.—
The most the subcommittee got from the administration was a three-page letter from White House Counsel Gregory Craig denying that the positions raised any legitimate concerns about “accountability, transparency or Congressional oversight.— The policy staff are there, he wrote, to provide advice and coordinate activities between the departments to “help devise comprehensive solutions to complex problems.— There is no constitutional problem, he concluded, because they are not officers of the United States who are “invested by legal authority with a portion of the sovereign powers of the federal government.—
The pitfalls of policy czars are perhaps best captured by the 1993 debacle surrounding the first lady’s secret White House task force on health care. The health plan was unveiled by the president before a joint session of Congress on Sept. 22. A week later, to great fanfare, plaudits and kudos, the health care czarina testified before five Congressional committees in three days. Health and Human Services Secretary Donna Shalala was left to testify in October on the details, of which she had little part in developing and which were still in a state of flux. (The White House bill was not introduced until Nov. 20.) As she told me a few years ago: “I vowed after that, Never again.’—
The failure of the Clinton health care effort led the current president to make a similar vow not to repeat the mistakes of the past, and so far he has kept his distance (to the dismay of many in Congress). Rumors persist, however, that the White House is secretly developing compromise health care provisions should Congress stall and wish upon a czar after all. Timing is everything.
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.