The Czar's Place in Presidential Administration, and What the Excepting Clause Teaches Us About Delegation
The Czar's Place in Presidential Administration, and What the Excepting Clause Teaches Us About Delegation

Author: Tuan Samahon

Publisher:

Published: 2012

Total Pages: 0

ISBN-13:

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Recent presidencies have developed new mechanisms to centralize the control of the executive branch in the White House, or what Elena Kagan has termed 'presidential administration.' Presidential administration means that agency heads, congressionally approved and tasked with certain statutory duties, may find themselves increasingly directed by powerful advisors assigned overlapping portfolios. These czars represent a new development in the challenge to transparency and accountability in the exercise of executive power, as it may be difficult to ascertain when czars are simply advising the president with political clout, acting pursuant to presidential delegation of functions with legal authority to bind in a bid to more tightly integrate executive agencies into presidential administration, or freelancing with ostensible authority to make binding decisions but without any delegated authority or presidential approval. This Article traces the problem to its source, namely, congressional delegation of rule making authority. It describes the process whereby: Congress delegates that authority horizontally to the executive branch pursuant to a high-level intelligible principle; the President, through a process of presidential administration, asserts ownership over the statutory authority congressionally delegated to an executive agency and its principal officer; the President, pursuant to a vertical intelligible principle, then subdelegates the execution of that authority to others, including non-Senate confirmed personnel such as White House staff; and the President evades the operation of the Appointments Clause by invoking a fiction that these recipients of authority are 'purely advisory' employees not governed by the Clause. I observe that the Excepting Clause's provision for delegation, which is the sole instance where the Constitution explicitly authorizes delegation, contrasts sharply with the general congressional delegations of rule making authority generally permitted in the post-New Deal settlement. The Excepting Clause evidences that the delegates to the Philadelphia Convention both contemplated and authorized congressional delegation of power but only on a limited and cabined basis. The Clause remains instructive for its recognition that there is not only a horizontal component to congressional delegation, but also a vertical dimension that reinforces congressional specification of the level of delegated authority. The Article concludes by briefly considering budget controls and REINS Act-type legislation as potential responses to the transparency and accountability problems presented by the use of czars in presidential administration. An early iteration of the manuscript was presented during the University of Chicago Legal Forum's symposium on 'Governance and Power,' October 22-23, 2010.

Reclaiming Accountability
Reclaiming Accountability

Author: Heidi Kitrosser

Publisher: University of Chicago Press

Published: 2015-01-06

Total Pages: 292

ISBN-13: 022619177X

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Americans tend to believe in government that is transparent and accountable. Those who govern us work for us, and therefore they must also answer to us. But how do we reconcile calls for greater accountability with the competing need for secrecy, especially in matters of national security? Those two imperatives are usually taken to be antithetical, but Heidi Kitrosser argues convincingly that this is not the case—and that our concern ought to lie not with secrecy, but with the sort of unchecked secrecy that can result from “presidentialism,” or constitutional arguments for broad executive control of information. In Reclaiming Accountability, Kitrosser traces presidentialism from its start as part of a decades-old legal movement through its appearance during the Bush and Obama administrations, demonstrating its effects on secrecy throughout. Taking readers through the key presidentialist arguments—including “supremacy” and “unitary executive theory”—she explains how these arguments misread the Constitution in a way that is profoundly at odds with democratic principles. Kitrosser’s own reading offers a powerful corrective, showing how the Constitution provides myriad tools, including the power of Congress and the courts to enforce checks on presidential power, through which we could reclaim government accountability.

To Serve the President
To Serve the President

Author: Bradley H. Patterson

Publisher: Rowman & Littlefield

Published: 2009-12-23

Total Pages: 464

ISBN-13: 0815701799

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Nobody knows more about the duties, the difficulties, and the strategies of staffing and working in the White House than Brad Patterson. In To Serve the President, Patterson combines insider access, decades of Washington experience, and an inimitable style to open a window onto closely guarded Oval Office turf. The fascinating and entertaining result is the most complete look ever at the White House and the people that make it work. Patterson describes what he considers to be the whole White House staff, a larger and more inclusive picture than the one painted by most analysts. In addition to nearly one hundred policy offices, he draws the curtain back from less visible components such as the Executive Residence staff, Air Force One and Marine One, the First Lady's staff, Camp David, and many others—135 separate offices in all, pulling together under often stressful and intense conditions. This authoritative and readable account lays out the organizational structure of the full White House and fills it out the outline with details both large and small. Who are these people? What exactly do they do? And what role do they play in running the nation? Another exciting feature of To Serve the President is Patterson's revelation of the total size and total cost of the contemporary White House—information that simply is not available anywhere else. This is not a kiss-and-tell tale or an incendiary exposé. Brad Patterson is an accomplished public administrator with an intimate knowledge of how the White House really works, and he brings to this book a refreshingly positive view of government and public service not currently in vogue. The U.S. government is not a monolith, or a machine, or a shadowy cabal; above all, it is people, human beings doing the best they can, under challenging conditions, to produce a better life for their fellow citizens. While there are bad apples in every bunch, the vast majority

The President's Czars
The President's Czars

Author: Mitchel A. Sollenberger

Publisher: University Press of Kansas

Published: 2012-04-27

Total Pages: 312

ISBN-13: 0700618368

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Faced with crises that would challenge any president, Barack Obama authorized "pay czar" Kenneth Feinberg to oversee the $20 billion fund for victims of the BP oil spill and to establish—and enforce—executive pay guidelines for companies that received $700 billion in federal bailout money. Feinberg's office comes with vastly expansive policy powers along with seemingly deep pockets; yet his position does not formally fit anywhere within our government's constitutional framework. The very word "czar" seems inappropriate in a constitutional republic, but it has come to describe any executive branch official who has significant authority over a policy area, works independently of agency or Department heads, and is not confirmed by the Senate-or subject to congressional oversight. Mitchel Sollenberger and Mark Rozell provide the first comprehensive overview of presidential czars, tracing the history of the position from its origins through its initial expansion under FDR and its dramatic growth during the presidencies of George W. Bush and Barack Obama. The President's Czars shows how, under pressure to act on the policy front, modern presidents have increasingly turned to these appointed officials, even though by doing so they violate the Appointments Clause and can also run into conflict with the nondelegation doctrine and the principle that a president cannot unilaterally establish offices without legislative support. Further, Sollenberger and Rozell contend that czars not only are ill-conceived but also disrupt a governing system based on democratic accountability. A sobering overview solidly grounded in public law analysis, this study serves as a counter-argument to those who would embrace an excessively powerful presidency, one with relatively limited constraints. Among other things, it proposes the restoration of accountability—starting with significant changes to Title 3 of the U.S. Code, which authorizes the president to appoint White House employees "without regard to any other provision of law." Ultimately, the authors argue that czars have generally not done a good job of making the executive branch bureaucracy more effective and efficient. Whatever utility presidents may see in appointing czars, Sollenberger and Rozell make a strong case that the overall damage to our constitutional system is great-and that this runaway practice has to stop.

Unorthodox Lawmaking
Unorthodox Lawmaking

Author: Barbara Sinclair

Publisher: CQ Press

Published: 2016-06-22

Total Pages: 330

ISBN-13: 1506322859

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Most major measures wind their way through the contemporary Congress in what Barbara Sinclair has dubbed “unorthodox lawmaking.” In this much-anticipated Fifth Edition of Unorthodox Lawmaking, Sinclair explores the full range of special procedures and processes that make up Congress’s work, as well as the reasons these unconventional routes evolved. The author introduces students to the intricacies of Congress and provides the tools to assess the relative successes and limitations of the institution. This dramatically updated revision incorporates a wealth of new cases and examples to illustrate the changes occurring in congressional process. Two entirely new case study chapters—on the 2013 government shutdown and the 2015 reauthorization of the Patriot Act—highlight Sinclair’s fresh analysis and the book is now introduced by a new foreword from noted scholar and teacher, Bruce I. Oppenheimer, reflecting on this book and Barbara Sinclair’s significant mark on the study of Congress.

Congressional Record
Congressional Record

Author: United States. Congress

Publisher:

Published: 1952

Total Pages: 1414

ISBN-13:

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The Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published daily when Congress is in session. The Congressional Record began publication in 1873. Debates for sessions prior to 1873 are recorded in The Debates and Proceedings in the Congress of the United States (1789-1824), the Register of Debates in Congress (1824-1837), and the Congressional Globe (1833-1873)

Debate Over Selected Presidential Assistants and Advisors
Debate Over Selected Presidential Assistants and Advisors

Author: Barbara L. Schwemle

Publisher: DIANE Publishing

Published: 2010-11

Total Pages: 70

ISBN-13: 1437924689

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Are some of Pres. Obama¿s appointments (particularly some of those to the White House Office), made outside of the advice and consent process of the Senate, circumvent the Constitution? Are the activities of such appointees subject to oversight by, and accountable to, Congress? This report provides info. and views on the role of some of these appointees and discusses selected appointments in the Obama Admin. It discusses some of the constitutional concerns that have been raised about presidential advisors. These include, for ex., the kinds of positions that qualify as the type that must be filled in accordance with the Appointments Clause, with a focus on examining a few existing positions established by statute, exec. order, and regulation.