Sen. Collins questions constitutionality of czars

Posted Oct. 06, 2009, at 9:33 p.m.

WASHINGTON — Lawmakers on Tuesday heard from a panel of legal experts on whether President Barack Obama’s appointment of so-called czars in the executive branch sidesteps the Constitution.

The hearing followed a letter Sen. Susan Collins, R-Maine, sent to Obama last month raising questions about the positions.

The letter, co-signed by five other Senate Republicans, said 18 “czar” positions, which have not been confirmed by the Senate or established by law, fall into a gray area that raises “serious issues of accountability, transparency and oversight” and circumvents Congress’ “constitutionally established process of ‘advise and consent.’”

The Senate Judiciary Subcommittee on the Constitution gathered five constitutional law experts to examine the positions’ constitutionality, titling the hearing “Examining the History and Legality of Executive Branch ‘Czars.’”

“I want to be clear that I have no objections either to the people serving as advisers to the president, or to the policy issues they are addressing,” Sen. Russell Feingold, D-Wis., chairman of the subcommittee, said in his opening statement. “I hope that this hearing will enable us to get beyond some of the rhetoric out there and have an informed, reasoned, thoughtful discussion about the constitutional issues surrounding the president’s appointment of certain executive officials.

“While there is a long history of the use of White House advisers and czars, that does not mean we can assume they are constitutionally appropriate,” he said. “It is important to understand the history for context, but often constitutional problems creep up slowly. It’s not good enough to simply say, ‘Well, George Bush did it, too.’”

None of the academics said they had a problem with Obama’s appointment of policy czars when Feingold asked them.

John Harrison, a professor at the University of Virginia School of Law, said czars have no legal power and therefore do not violate the Constitution and would not need to be confirmed by Congress.

“A member of the White House staff who is referred to for descriptive purposes as a ‘czar’ but who has no statutory authority cannot take actions with any legal effect,” Harrison said. “As long as such officers exercise only their statutory powers, and exercise them in a lawful manner, it is a matter of indifference from a legal standpoint what terminology, official or unofficial, is used to describe the people who exercise these powers.”

White House counsel Gregory Craig also responded to Feingold’s concerns in a letter that was passed out at the hearing, calling the positions constitutional.

“Neither the purpose nor the effect of these new positions is to supplant or replace existing federal agencies or departments,” Craig wrote, “but rather to help coordinate their efforts and help devise comprehensive solutions to complex problems. Every president has structured his staff in this manner … to help him address the most pressing challenges facing his administration.”

Collins, the senior Republican on the Senate Homeland Security and Governmental Affairs Committee, has scheduled her own hearing for next Wednesday.

“Czar positions within the Executive Office of the President are largely insulated from effective congressional oversight,” Collins said in a statement Tuesday. “And many ‘czars’ appointed by this administration seem either to duplicate or dilute the statutory responsibilities that Congress already has conferred upon Cabinet-level officers and other senior executive branch officials.”

Sen. Tom Coburn, R-Okla., the top Republican on the judiciary subcommittee, said at the hearing: “None of us want to handicap our president in terms of the advisers he can have. We want him to have the best and the brightest.

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