Defining Czars

A czar is typically an executive branch official who is not confirmed by the Senate and is exercising final decision-making authority that often entails controlling budgetary programs, administering/coordinating a policy area, or otherwise promulgating rules, regulations, and orders that bind either government officials or the private sector. However, as our coverage of the history of czars shows, there are also some officials who have held, for example, cabinet-level appointments and then been given additional substantial duties outside the framework of their confirmed positions. Such additional duties pose no problem when they are in conformity with the framework that Congress set in place in 1950 with the Presidential Subdelegation Act, which permits a president to delegate to Senate-confirmed officers statutory authority unless otherwise prohibited from doing so.Footnote ⁹ Yet in some cases, presidents have assigned to Senate-confirmed officials and even vice presidents additional, nonstatutorily authorized duties that have included the ability to coordinate, regulate, or otherwise direct the outcomes of certain policy areas. Since such extralegal duties are not authorized by Congress, they do not fall under the Subdelegation Act. Therefore it is possible that an official may simultaneously possess both legitimate and czar authority. Finally, any persons who carry out the traditional functions of an ambassador or consul—some of whom qualify as czars—similarly need to be confirmed by the Senate, although many are not.

We do not consider government officials or employees who merely advise or assist in the formation of policy to be czars, as they do not require Senate confirmation. A czar’s duties go well beyond merely advising and often entail supervising statutory programs, administering a policy area, controlling appropriated funds, or regulating industries. Neither do we believe the staff of czars should be considered as such. Staff members provide support to their superiors. They do not make final decisions and therefore they are in a support role and a similar position as presidential advisers. The length of service of czars is not a factor as government officials can, and do, certainly serve for short periods of time or for many years.

The Origins and Growth of Executive Branch Czars

The term czar for U.S. government positions dates to at least the early nineteenth century, when politicians began using it in a pejorative manner to describe their political enemies. In the 1830s, President Andrew Jackson and his allies called Bank of the United States’ president Nicholas Biddle a czar.Footnote ¹⁰ In the 1860s, President Andrew Johnson’s Republican opponents referred to him as Czar Andrew.Footnote ¹¹ By the late nineteenth and early twentieth centuries, political rivals of Speakers Thomas Reed (1889–91 and 1895–99) and Joseph Cannon (1903–11) named them czars during their respective reigns over the House of Representatives.Footnote ¹² All of those individuals were not czars but were labeled as such for political reasons.

The origins of czars date back to the George Washington presidency. Washington used special envoys without input or formal sanction from Congress to represent and negotiate agreements with other countries. For example, in October 1789 Washington named Gouverneur Morris as a “private agent” to represent the United States to the British government.Footnote ¹³ Five years later, Washington made Supreme Court Chief Justice John Jay a special envoy to Great Britain and later the president sent two different sets of commissioners to negotiate a treaty with France.Footnote ¹⁴

Such officials posses no statutorily created position and serve purely at the pleasure of the president. Presidents have used special envoys to negotiate treaties and even manage potential or actual international crises. Doing so has resulted in displacing Senate-confirmed ambassadors, which is likely one of the reasons such positions are often used for patronage purposes. E. Wilder Spaulding wrote: “It has been too easy for the White House to appoint a whole bevy of second-rate chiefs of mission and fill the near-vacuum later on when an emergency arose with special agents. Little wonder that the skeptics look upon the ambassador as a non-essential.”Footnote ¹⁵ The use of special envoys by presidents does more damage than lessening the prestige of a few ambassadors; it creates an end around in our constitutional system where presidents can conduct foreign policy with agents that have not been vetted or approved by the Senate.

During World War I, President Woodrow Wilson’s close adviser and friend, Colonel Edward M. House, became a roving unofficial ambassador to Britain, Germany, and France.Footnote ¹⁶ President Franklin D. Roosevelt also employed special envoys: steel industrialist Myron C. Taylor to the Vatican and White House adviser Harry L. Hopkins as a representative of the president to conduct high-level discussions with Winston Churchill and Joseph Stalin.Footnote ¹⁷ More recently, President Bill Clinton made former Florida representative “Buddy” Mackay his special envoy to the Americas with a particular focus on Peru. He also named the Rev. Jesse Jackson the special envoy to Africa, and Bill Richardson became a roving envoy managing high-level negotiations in Iraq and North Korea. President George W. Bush named special envoys for Northern Ireland (Richard Haass) and Afghanistan (Zalmay Khalilzad). President Obama has employed special envoys to the Middle East (former Democratic senator George Mitchell), Afghanistan and Pakistan (Richard Holbrooke, now deceased), North Korea (Stephen W. Bosworth), Sudan (J. Scott Gration, now ambassador to Kenya), Guantanamo Bay (Daniel Fried), the Persian Gulf and Southwest Asia (Dennis Ross, currently a National Security Council staff member), and for climate change (Todd D. Stern).Footnote ¹⁸

Aside from the occasional creation of special envoys, the country did not experience a full-fledged use of czars for non-diplomatic duties until Wilson’s presidency. The establishment of a “domestic” czar resulted from the U.S. entry into World War I. On April 13, 1917, President Wilson named George Creel as chair of the Committee on Public Information, an entity the president created in order to carry out a propaganda campaign that would persuade the American public to support the war along with ensuring that certain military information was not disseminated.Footnote ¹⁹ What makes Creel’s position as a presidentially established, non-Senate-confirmed czar so troubling is that he used the Espionage Act as statutory support for his propaganda and censorship campaign.Footnote ²⁰

Wilson also created czars for food (Herbert Hoover), exports (Vance McCormick), fuel (Harry Garfield), trade (Vance McCormick), labor (William H. Taft and Frank P. Walsh), and price-fixing (Robert S. Brookings). Each czar had the responsibility to coordinate, direct, or somehow control critical parts of the war effort or economy during World War I. The most vital presidentially created agency, and the one that best represents the unilateral and unchecked nature of czars, was the War Industries Board (WIB), which originally coordinated domestic production for the Council of National Defense—a statutory-established agency intended to advise the president on war production matters.Footnote ²¹

Once Wilson realized that the WIB had neither the statutory authority nor power to fulfill its duties, he asked Congress to give him the ability to reorganize and redistribute the functions of the executive branch departments, agencies, boards, and other entities to better meet the demands of war.Footnote ²² Congress answered Wilson’s request by passing the Overman Act, giving the president nearly all the authority he wanted.Footnote ²³ No provision in the law, however, permitted the president to create new government structure, excepting an agency to manage the production of aircraft. Almost immediately after receiving his reorganization authority, Wilson established the WIB as a new independent executive branch agency that would act under his direction with Wall Street financier Bernard Baruch as its chair.Footnote ²⁴ Wilson charged Baruch with increasing the production of materials needed for the war effort.

Wilson did not cite the Overman Act when creating the WIB, and at the time the legal status of the new agency was even questioned by its own general counsel, Albert C. Ritchie, who noted:

We agree and can find no legal basis for the WIB. Because of the position’s lack of Senate review and exercise of significant authority, we consider Baruch to have been a czar.

Wilson’s actions in creating more than half a dozen czars without clear statutory authority and with no legislative consent match up well with his vision of the presidency. In his book Constitutional Government, Wilson argued that the president is “predominant and the ‘center’ of national leadership and representation.” Wilson thought that the presidency was the only institution that could provide active political leadership by channeling public opinion “independent of any constitutional grant of authority, or of constitutional constraints.”Footnote ²⁶

Wilson placed independence and power of a president above all other considerations. Because the president represents the “whole people,” he should be free to govern with force since the “object of constitutional government is to bring the active, planning will of each part of the government into accord with the prevailing popular thought and need, and thus make it an impartial instrument of symmetrical national development.”Footnote ²⁷

Wilson could not fully implement his vision of the Constitution and presidency under normal conditions. However, during war he convinced Congress to give him more reorganization authority than any president had ever received. By using the Overman Act and other laws as statutory cover, Wilson claimed fidelity to the law while drastically expanding presidential power to create czars. Wilson not only independently set up the WIB; he also gave it a tremendous amount of power not authorized by Congress, which Baruch used to command the wartime economy. With no statutory basis for the WIB, Baruch would sometimes press the boundaries of the powers Wilson granted.Footnote ²⁸ In one case, WIB General Counsel Ritchie issued a legal opinion noting that Baruch “was operating beyond his legal authority and was personally vulnerable to lawsuit.”Footnote ²⁹ Some members of Congress were troubled by the methods used by the WIB,Footnote ³⁰ but more supported the measure for reasons that varied from making the executive branch more accountable to just not wanting to be responsible for hindering or embarrassing the president during an emergency.Footnote ³¹

Even by the early twentieth century, before the appearance of the modern presidency, lawmakers were willing to defer a great deal to the president under such conditions. With the Overman Act, Congress went from the branch with near-complete control over executive branch structure and powers to a nonexistent player that sat on the sidelines watching the president rearrange and redistribute government functions.Footnote ³² If the war would have continued, Baruch had plans, among other things, to reduce the number of shoe styles to three with fixed prices and require civilians to wear service uniforms.Footnote ³³ Baruch’s position and the other czars signified that Congress was willing to modify the traditional democratic controls established by the framers in order to meet emergency conditions.

Once Wilson left office, the executive branch saw the elimination of many of the agencies created during World War I and the near-absence of czars until the FDR era.Footnote ³⁴ That most likely resulted from a period of normalcy that returned after the war when the country was in no mood for expansive actions by the federal government.Footnote ³⁵ Both Presidents Warren Harding and Calvin Coolidge sought a return to a less energetic chief executive and the restoration of Congress to its traditional place in the governing system.Footnote ³⁶

Upon taking office, Franklin D. Roosevelt expanded the role and powers of the presidency, which also included a heavy reliance on executive branch czars. The ongoing Great Depression at the start of Roosevelt’s presidency created the perfect political environment for the reestablishment of czars. The World War I experience proved to be a useful model for FDR’s administration to follow when deciding the breadth and scope of the New Deal agencies.Footnote ³⁷ As William E. Leuchtenburg has noted: “There was scarcely a New Deal act or agency that did not owe something to the experience of World War I.”Footnote ³⁸ FDR created two czars, one for industry (Hugh Johnson) and another for railroads (Joseph Eastman) during the early years of his administration. Neither position resulted in legislative pushback as the president’s agenda made effective oversight and reflection on what had been done almost impossible.

Czars did not significantly increase until the early 1940s and the lead-up to World War II, when, over the course of a year, Roosevelt created eleven czar positions. The attack on Pearl Harbor not only prompted the United States to enter World War II but also convinced Congress to delegate to Roosevelt substantial wartime authority under the First War Powers Act. Throughout the war, FDR repeatedly cited the law as justification for creating executive branch agencies along with czars. On December 19, 1941, Roosevelt, through an executive order, created the Office of Censorship with Bryon Price as its director.Footnote ³⁹ FDR justified his actions under Title III of the First War Powers Act, which amended the Trading with the Enemy Act of 1917 and provided the president authority to issue such rules that he deemed necessary to censor communications between the United States and any foreign country.Footnote ⁴⁰ No provision within Title III, however, authorized Roosevelt to establish an agency or create new federal positions. In so acting, FDR unilaterally created a censorship czar, a position that had no legislative approval or chance for Senate review.

The primary vehicle Roosevelt used, however, to justify additional czars was Title I of the First War Powers Act, which was a reenactment of the Overman Act.Footnote ⁴¹ As with Wilson, Congress did not authorize the president to create new agencies or offices. Edward S. Corwin argued that the act “authorize[d] the President, not to create new offices, but only to ‘make such redistribution of functions among executive agencies as he may deem necessary.’”Footnote ⁴² Albert L. Sturm as well said of the new law that “there is no power here to create new agencies with new functions.”Footnote ⁴³ Despite the absence of any statutory language to set up new government structure, Roosevelt used the First War Powers Act as the legal justification to establish new czar positions. During the war, Roosevelt created twenty czar positions—thirty-three overall during his presidency and the most of any president.

Only by the end of the war did Congress begin to somewhat curtail Roosevelt’s use of czars by passing the Independent Offices Appropriation Act along with the War Mobilization and Reconversion Act. The first law limited Roosevelt’s ability to create new government structure by denying appropriated funds to any presidentially created agency that had been in existence for one year and lacked a clear statutory basis.Footnote ⁴⁴ Next, Congress statutorily established what had been a presidentially created war-mobilization czar—a position of such power that its officeholder, James Byrnes, was even referred to as the “assistant president.” The law required Senate confirmation of the new mobilization director with a two-year term.Footnote ⁴⁵ Although each law attempted to check the president’s power, only a year later Congress revisited the limitations placed on the presidential creation of government structure by permitting appropriations from executive departments and agencies to be used for interagency groups as long as they are “engaged in authorized activities of common interest of such departments and establishments and composed in whole or in part of representatives thereof.”Footnote ⁴⁶ The change blew a hole in the earlier prohibition and would be used by future presidents to create czars by calling the new government structure “groups” instead of “agencies.”

Harry Truman came into the presidency and went about adopting his predecessor’s practice of unilaterally creating czars (eight czar positions). Indeed, FDR’s use of emergency-based powers to set up various czars had a lasting impact on the system of separated powers. His immediate successors institutionalized the practice of appointing executive branch czars, even in nonemergency situations. With Roosevelt’s precedents and then Truman’s actions, the exception slowly developed into a norm, as presidents over time normalized the practice of appointing czars as an ongoing feature of the executive branch.

By the 1960s, presidents became accustomed to centralizing power and moving away from a reliance on department heads and the traditional cabinet governing system.Footnote ⁴⁷ In fact, White House aides even began to issue orders to cabinet heads and their assistants. As Frederick Mosher noted: “Presidential aides afflicted with hubris, from at least the Johnson administration on, have given orders to Cabinet departments, sometimes contradictory orders from different assistants. Often they have given orders directly to subordinate officials in the departments, bypassing the secretaries.”Footnote ⁴⁸ During this time, members of Congress made little effort to bring oversight and accountability to the White House Office and more broadly the executive branch. For the most part, there was a great deal of deference from Congress to the president’s agenda and the executive branch’s administration of policy.

The creation and use of czar positions worked well with the greater hierarchal structure of the executive branch. Presidents no longer justified the concentration of power and the creation of czars by citing an economic crisis or war. By Johnson’s administration, presidents had a much larger White House staff that could develop and implement their policy goals. Stephen Hess explained some of the reasons for these changes:

President Johnson served well in representing the centralization tendencies in modern chief executives.Footnote ⁵⁰ Like Johnson, President Richard Nixon became comfortable with the expanded use of presidential power.Footnote ⁵¹ The beginning of the temporary halt to the use of executive branch czars, however, came with Nixon’s overreach of presidential powers and then the Watergate scandal, which brought down his presidency.

In the aftermath of Watergate and Nixon’s resignation, lawmakers, academics, and the public pushed back against the trend toward expansive presidential powers. There would be much less acceptance of unilateral presidential governance in the years immediately following Nixon’s exit from office. As a result, presidents Gerald R. Ford and Jimmy Carter cautiously exercised presidential powers. Neither created any czars during their tenures, largely because of their desire to reverse the trends of the Nixon presidency, and also because they clearly understood the limits of their powers in the post-Watergate environment.

But even in this environment, Congress made only a halfhearted attempt to rein in the White House staff when it passed the White House Authorization Act of 1978.Footnote ⁵² Future presidents therefore would be free to create czars, even if Ford and Carter chose not to do so. The post-Watergate backlash had thus only temporarily interrupted the trend-line of expanding presidential powers and declining democratic controls.

Presidents Ronald Reagan (three czar positions), George H. W. Bush (two czar positions), and Bill Clinton (two czar positions) did not aggressively use czars. The 1980s–90s period demonstrates that the mass creation of executive branch czars is not a necessary outcome of an administration that seeks to strengthen presidential powers. All three of these presidents believed in a strong presidency possessing substantial independent powers. But czars are only one among many tools that presidents might employ in an attempt to act independently or to wall themselves off from traditional democratic controls. Some presidents have chosen to limit their use of czars or refused to create them at all while expanding presidential powers in various other ways.

The stigma of Watergate greatly aided in the cautious use of presidential powers. As Andrew Rudalevige noted regarding presidential powers more generally during this period: “Certainly the [president’s] office had rebounded since Watergate and Vietnam. But that process had further to go.”Footnote ⁵³ Reagan’s administration preferred to maintain central control of the executive branch; Bush’s favored a return to cabinet governance; and Clinton’s worked through the legislative process and undoubtedly was constrained by the distraction of scandals and impeachment. However, czars were created during this period, which indicates that the practice had not fallen into disuse after Watergate and, perhaps, was being reinvigorated.

A complete revival only needed a president truly committed to the notion of unconstrained executive powers and willing to act outside normal legislative and constitutional constraints. With such a person in the White House, the possibilities of unilateral action by czars are limitless. There is no stronger proof of that fact than the presidencies of George W. Bush (eight czar positions) and Barack Obama (twenty czar positions).Footnote ⁵⁴ Both men took advantage of the acceptance, or at least acquiescence by Congress and the public, of czars as an ongoing feature of the executive branch. Indeed, both presidents pushed the limits of the use of such positions to the degree that there finally has begun a serious examination of the propriety of having executive branch czars. Critics of the Bush presidency had expressed alarm at what they perceived as the president’s vast overreaches in the exercises of various independent presidential powers. Obama, despite many promises to reverse the growing use of independent presidential powers, instead found utility in many Bush-era practices and continued and then expanded them.

Despite the prominence placed on this issue in recent years, the number of legislative-based reforms has been few. Since winning control of the House of Representatives, the Republicans have offered up a handful of anti-czar measures.Footnote ⁵⁵ In the Senate, Republicans have sought information about eighteen positions in the Obama administration that they considered czars and asked that the president “refrain from creating any new czar-type posts.”Footnote ⁵⁶ Finally, in early 2011, congressional Republicans succeeded in securing passage of an anti-czar measure as part of the budget compromise law. The provision specifically prohibited using appropriations for the salaries and expenses of the czars of energy, health reform, auto recovery, and urban affairs. In a controversial signing statement, President Obama effectively nullified the anti-czar provision by noting that he considered it “abrogated.”Footnote ⁵⁷ Congress has so far taken no action to address Obama’s signing statement, most likely because the Democrats control the Senate and House Republicans do not have a veto-proof majority.

Presidential Powers and the Modern Czars

The contemporary debate over czars is an outgrowth of a long-standing dispute over the powers of the presidency. Many leading studies extol the unity and “energy” inherent in the executive and maintain that the constitutional framers purposefully gave broad discretionary authority to presidents to act in the national interest.Footnote ⁵⁸ In this view, despite the constraints built into a system of separated powers, the founders created a strong and dignified presidency that would provide the kind of leadership that Congress is incapable of achieving.

Advocates for a strong presidency find support in the ideas of the leading thinkers of modern constitutionalism: Locke and Montesquieu.Footnote ⁵⁹ Although Locke seemed unequivocal in his discussion of legislative supremacy, a careful reading of his Second Treatise of Government reveals that he invested much thought into the necessity of executive power. He placed the “federative power”—to make peace, war, treaties, and alliances—solely in the executive.Footnote ⁶⁰ His chapter “Of Prerogative” is the most revealing. In times of emergency, when the legislature is not in session, or of where the laws are silent, he proposes to give the executive “the power of doing public good without a rule.”Footnote ⁶¹ The supreme law of the land is self-preservation, and only the executive can act with power and “dispatch” in an emergency. Like Locke, Montesquieu advocated a constrained executive, but he also allowed room for discretionary authority, especially in cases of emergencies. Lacking action by the legislature, the executive—the “monarch”—is empowered to decide.Footnote ⁶²

The proponents of a strong presidency maintain that the constitutional framers were heavily influenced by the writings of Locke and Montesquieu and thus had appropriated the ideas of discretionary power in the executive. They point further to writings in the Federalist Papers, in particular those known to have been penned by Alexander Hamilton, the broad language of Article II, and the grants of power such as the Take Care Clause and the Vesting Clause, as well as the many examples of presidential exercises of independent powers over the years. Out of the theories of leading thinkers of modern constitutionalism, the debates over the U.S. Constitution, and the many precedents established by chief executives going back to George Washington, advocates of a strong presidency find what they consider much support for their view that our system of separated powers provides considerable leeway for the president to take the initiative to act in the national interest. Their arguments are reminiscent of Theodore Roosevelt’s “stewardship theory” of the presidency—the belief that the chief executive possesses a broad residuum of authority to act, as he sees fit, in the national interest.Footnote ⁶³ Regarding the founding period in particular, Paul Peterson wrote: “The doctrines of separation of powers and checks and balances allowed the advocates of a strong executive to carry the day and allowed them to construct an energetic executive within the framework of republican liberty.”Footnote ⁶⁴

The defense of executive branch czars is in part an outgrowth of the belief in a strong presidency. In this view, separation of powers is not germane because unless the legislature acts, the president may do so in its place. Modern presidents claim that their duty to execute the law validates the necessity to appoint, and even create, high-level officials who can replace the functions of department and agency heads. Czars, in this formulation, merely facilitate the constitutionally intended role of the presidency. Support for this view of presidential powers is most often found among advocates of the unitary executive theory.Footnote ⁶⁵

Scholars nonetheless generally agree that the constitutional framers were suspicious of executive power and therefore placed constraints on the presidency. Thus, in opposition to the arguments for a strong or unitary executive, some emphasize the limited powers of the presidency. Louis Fisher writes: “Presidential unity and accountability were important values to the framers, but they looked even more intently to a vigorous system of checks and balances to minimize the inevitable abuses of power that would occur.”Footnote ⁶⁶ If that is so, then presidential use of czars does not look to be a mere extension of the constitutionally intended role of presidents, but rather a mechanism by which the executive can maintain independent control and avoid constraints on his powers.

Proponents of a constrained presidency also point to influential theorists, the constitutional founding, and precedents for their arguments, but of course they interpret the evidence differently. In their view, Locke and Montesquieu emphasized legislative controls and only empowered the executive to act independently in extraordinary circumstances. Presidential power was the exception, not the rule. The constitutional framers placed the most important powers of government in Article I and gave little independent authority to the president in Article II. In challenging Theodore Roosevelt’s view, William Howard Taft wrote: “There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest.”Footnote ⁶⁷

The struggle over presidential powers is as old as the Republic, although the controversy over czars is mostly a modern phenomenon. Nonetheless, the current dispute is a direct outgrowth of the debate regarding the scope and limits of the president’s authority. We cannot settle that larger debate, but here we describe and analyze an important manifestation of it. We offer an argument that is against the grain of contemporary scholarship, which has been increasingly deferential to the position that presidents possess broad discretionary authority to act on their own. Our analysis leads us to conclude that executive branch czars lack legitimacy. We posit that czars violate the Appointments Clause, but they can also run into conflict with the Nondelegation Doctrine and the principle that a president cannot unilaterally establish offices without legislative support. In an earlier work, we detailed the issues surrounding the need of presidents to receive legislative authorization for establishment of offices.Footnote ⁶⁸

The Appointments Clause

The Appointments Clause provides the framework for understanding a central part to our definition of czars: the requirement that executive branch officials who exercise authority to issue regulations that bind either government officials or the private sector must be confirmed by the Senate. If such officials do not receive confirmation, then they are czars. This proposition stems from the constitutional dictate that all federal offices established by the Congress and president must adhere to the Article II, Section 2, Clause 2, which stipulates that the president “shall nomine, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, 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.”Footnote ⁶⁹ There are two primary appointment methods contemplated by this clause. First, the president may nominate by and with the advice and consent of the Senate several named positions and all other principal officers of the United States. This appointment process is referred to as “presidential appointed and Senate confirmed” (PAS). The second method permits Congress to establish “inferior Officers” that can be appointed by the default PAS process; by the president alone (PA); federal courts; or department and agency heads (Schedule C and noncareer SES [Senior Executive Service]).

Although the foregoing analysis of the Appointments Clause does not explicitly focus on czars, it does provide the general principles for understanding why Senate confirmation is required of certain types of executive branch officials. By covering the somewhat detailed and complex history of the Appointments Clause, we provide the foundation for understanding the executive branch czar position. All officers of the United States are subject to the Appointments Clause processes. However, not all government workers are officers. The practice has been that nonofficers and employees may secure their positions using other methods than PAS, PA, or appointment by the federal courts and department and agency heads. Many individuals enter government service after passing a civil-service exam. In 1823, Chief Justice John Marshall, sitting as a circuit court judge, presented one of the first statements on the distinction between officers and employees: “Although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to perform a service without becoming an officer.”Footnote ⁷⁰ More recently, the Supreme Court has stated that the term “officers” does not encompass everyone employed by the federal government. Instead, the Court reasoned, “Employees are lesser functionaries subordinate to officers of the United States.”Footnote ⁷¹

In 1867, the Supreme Court attempted to clarify the differences between an officer and an employee by arguing that the former “embraces the ideas of tenure, duration, emolument, and duties.”Footnote ⁷² The Court’s definition of an officer is vague. For example, employees and officers each receive some sort of emolument as compensation for service. The fact that an emolument is provided does not create a clear distinction. Later in United States v. Germaine (1878), the Court defined duties by noting that they should be “permanent, not occasional or temporary.”Footnote ⁷³ Many employees have permanent positions. Federal service can last twenty or thirty years or longer and the duties of an employment can remain regardless of the individual officeholder. In the end, the Germaine definition lacks clarity. Not until 1976, in Buckley v. Valeo, did the Supreme Court provide substantial guidance. In that case, the Court explained that an officer is “any appointee exercising significant authority pursuant to the laws of the United States” and as a result “must, therefore, be appointed in the manner prescribed by” the Appointments Clause.Footnote ⁷⁴ The Court did not provide a detailed assessment of what constituted significant authority.

In 2007, the Department of Justice’s Office of Legal Counsel (OLC) provided its own definition (the OLC was revisiting an earlier 1996 opinion that it had issued). The OLC noted that in order to be considered an officer there needs to be a delegation of sovereign authority and the position must be “continuing.”Footnote ⁷⁵ It explained that the sovereign-authority language is no different in meaning from the Supreme Court’s use of “significant authority” in Buckley.Footnote ⁷⁶ The OLC stated that sovereign/significant authority means “power lawfully conferred by the Government to bind third parties, or the Government itself, for the public benefit.” In addition, OLC said that it “primarily involves the authority to administer, execute, or interpret the law,” which includes the ability “to arrest criminals, impose penalties, enter judgments, and seize person or property.”Footnote ⁷⁷ As for the “continuing” requirement: First, the office must not be “limited by time or by being of such a nature that it will terminate ‘by the very fact of performance.’” Second, the office could be temporary so long as: (1) its functions continued regardless of the officeholder; (2) it is not “transient” and more likely to be seen as a “seat of power”; and (3) it should not exercise “incidental” duties “to the regular operations of government.” The OLC admitted that the transient and incidental aspects of the “continuing” definition, although referenced in the early case law, “escape precise definition” (32).

The OLC made what may be the first attempt to provide a substantial definition of significant/sovereign authority. We agree that actions that bind third parties or the federal government itself are functions of sovereign/significant authority and thus turn an executive branch official into a czar if he or she had not received Senate confirmation. The OLC detailed some of the specific responsibilities that such authority entails, including the ability to administer, execute, and interpret the law. Yet the OLC’s definition breaks down over the “continuing” characteristic. It defies logic that a position can be temporary but still “continuing.” The “incidental” feature also is bewildering as it has nothing to do with whether an office is continuing. This part of the OLC’s definition does not clarify the differences between officers and employees.Footnote ⁷⁸

The Constitution also does not define the responsibilities or duties of principal and inferior officers. In 1988, the Supreme Court tried to draw a line between principal and inferior officers in Morrison v. Olson. The Court cited four factors that would help to determine if an officer is inferior. Those factors were that the officer is subject to removal by a higher-level executive branch official other than the president, and that the scope of the office is limited in duty, jurisdiction, and tenure.Footnote ⁷⁹ What exactly are limited duties, jurisdiction, and tenure? The tenure component even parallels the “continuing” requirement that is supposed to distinguish officers from employees. The Court’s definition remained imprecise. One legal scholar commented that “the Court declined to give much content to these four factors” and “discussed neither the amount of supervision required nor the limits on duties, jurisdiction, or tenure necessary to qualify as an inferior officer appointable without the advice and consent of the Senate.”Footnote ⁸⁰ Indeed, the Court even acknowledged that it would “not attempt here to decide exactly where the line falls between the two types of officers.”Footnote ⁸¹

Nearly a decade later, the Supreme Court tried again. In Edmond v. United States, the Court ruled: “Morrison did not purport to set forth a definitive test for whether an office is ‘inferior’ under the Appointments Clause.”Footnote ⁸² For that reason, it crafted another standard: “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. . . . [W]e think it evident that ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by President nomination with the advice and consent of the Senate.”Footnote ⁸³

The Court’s new focus places less emphasis on the duties, jurisdiction, or even tenure of an office and more on whether there is a supervisor between an officeholder and the president. If the position does have a supervisor, then, according to the Court, most likely it is an inferior officer. The Supreme Court tried further to clarify the differences between principal and inferior officers; however, as in Morrison, much of its definition lacked substantive details.Footnote ⁸⁴ There are lingering issues concerning the Appointments Clause that the Court has left open. First, is the “significant authority” requirement provided in Buckley still good law? If so, then does it remain a key element in defining a principal officer? Second, to what extent would direction and supervision need to be given to make an officer inferior? Finally, how long does an office have to remain in existence to be of suitable tenure to actually be considered an office?

The Supreme Court’s current standard is difficult to follow. The focus on a supervisor allows for the appointment of individuals who exercise any type of authority by the president alone, or by courts, and heads of departments and agencies, as long as they are supervised by a PAS officer or the president.Footnote ⁸⁵ There is a danger in maintaining an appointment system that does not attempt to ensure that certain officeholders remain answerable to more than just the president or their immediate supervisors.

A consequence of the Supreme Court’s analysis is that Congress could be left out of the appointment process for positions exercising significant government functions and that defeats the purpose of checks and balances. Congress has traditionally required Senate confirmation for department and agency heads. Presidential advisers have typically been appointed by the president alone, but their functions were considered to be only advisory. In establishing the Executive Office of the President (EOP), even President Roosevelt confirmed this view by noting that his assistants would “have no authority” and they could not interpose themselves between him and the heads of departments and agencies.Footnote ⁸⁶ Congress has supported this understanding since not only did it accept the creation of the EOP, but it did not provide non-PAS presidential personnel with the authority to issue orders, regulations, or otherwise direct policy areas.Footnote ⁸⁷ The current federal law still reflects this view on presidential personnel.Footnote ⁸⁸ In addition, traditionally the heads of executive branch departments, agencies, and other high-level administrators must receive Senate confirmation in order to serve in office. Long-standing practice has shown that when Congress delegates important functions to executive branch officials, it also incorporates necessary checks, which includes Senate confirmation, reporting requirements, and other controls.

The Nondelegation Doctrine

Although not the central component to our definition, executive branch officials should be considered czars if they come into conflict with the nondelegation doctrine. This part of our analysis is a delicate matter because many academics have concluded that the nondelegation doctrine is an inoperative concept for purposes of constitutional analysis. Yet the principle remains germane to constitutional analysis today and does impact the exercise of delegated functions carried out by presidents and various executive branch officials. Article I, section 2 of the Constitution provides the textual basis for this doctrine: “All legislative powers herein granted shall be vested in a Congress of the United States.”Footnote ⁸⁹ The underlining principle from that clause is that no one branch of government should have absolute power. In a system of government that separates powers between the branches, any unnecessary concentration could be potentially dangerous, which is why Locke cautioned that the “legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.”Footnote ⁹⁰

By the start of the twentieth century, however, Congress had already begun to delegate some of its legislative authority to various departments, agencies, and commissions. This movement away from a strict reading of the nondelegation doctrine had much to do with the necessities of the modern world with the need of government to regulate a rapidly growing industrial economy. Necessity did not altogether outstrip the Constitution. By 1928, the Supreme Court settled on a compromise between a strict reading of the nondelegation doctrine and a need to keep up with the modern age: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”Footnote ⁹¹ In short, the Court left to Congress the duty of determining the proper guidance to give executive branch officials when delegating its powers.

Congress has not always followed the practice of including clear or even general guidance when it delegates. That certainly was the case when it granted economic powers to President Richard Nixon in the early 1970s.Footnote ⁹² Through two executive orders, Nixon created a number of czar positions, which included the heads of the Cost of Living Council, Pay Board, and Price Commission to exercise those powers.Footnote ⁹³ Aware of its mistake, Congress quickly amended the economic powers delegated to Nixon, but it still fell short of clarifying the extent of the president’s authority.Footnote ⁹⁴

As delegation relates to czars, the central issue is not often about whether an “intelligible principle” has been provided in law. Instead, it focuses on the redelegation of authority that presidents grant to executive branch officials. The framework for understanding and adhering to this aspect of the nondelegation doctrine is in the Presidential Subdelegation Act of 1950, which is still reflected in current federal law. The law authorizes a president to delegate his statutory authority only to Senate-confirmed officers.Footnote ⁹⁵ A violation of the Subdelegation Act arose after Congress had reorganized and expanded the powers of the Bureau of the Budget. In that case, Nixon delegated to Director George P. Shultz of the renamed and retailored Office of Management and Budget (OMB) authority that was in conflict with the Subdelegation Act.Footnote ⁹⁶ Although other issues arose directly impacting the OMB (including the improper impounding of appropriated funds), Shultz should be considered a czar as he held a non-Senate-confirmed position when Nixon delegated statutory authority to him. Congress quickly acted to require Senate confirmation of the OMB director and several other agency officials primarily out of concern for the abuse of power experienced during the impoundment crisis.

The risks of a loss of accountability and oversight are much greater when the president delegates authority to non-Senate-confirmation officials, especially ones placed within the White House or the EOP. To take one example, we revisit Nixon’s decision to delegate his statutorily based economic powers to various officials including the Cost of Living Council Executive Director Donald Rumsfeld, who also served as counselor to the president. As a dual appointee, Rumsfeld used his status as a White House adviser to refuse to appear before Congress.Footnote ⁹⁷ On at least two occasions, Rumsfeld argued that he did not have to testify before a congressional committee in his role as executive director because of his “confidential relationship” with Nixon.Footnote ⁹⁸ Other examples abound of White House aides refusing to testify despite possessing more than just advisory powers.Footnote ⁹⁹

Currently, the lack of even clear delegation of authority is a troubling occurrence with czars. For example, in 2009 President Obama made Kenneth Feinberg his pay czar, a position that would establish and enforce executive pay guidelines for companies—including banks, insurance companies, and automobile makers—that had received federal bailout money from the $700 billion Troubled Asset Relief Program. A year later Obama made Feinberg his claims czar to control a $20 billion fund established by British Petroleum (BP) in order to pay victims of the Gulf of Mexico oil spill of 2010. Neither position received Senate approval despite controlling billions of dollars of public and private money (BP paid out the oil spill fund account). Another example is Nancy-Ann DeParle, who served as Obama’s health czar, charged with integrating “the President’s policy agenda concerning health reform across the Federal Government . . . ; work[ing] with State, local, and community policymakers and public officials to expand coverage . . . ; [and] develop[ing] and implement[ing] strategic initiatives under the President’s agenda to strengthen the public agencies.”Footnote ¹⁰⁰ Although DeParle’s duties were stated in an unclear manner, her position placed her in a similar role as the Health and Human Services (HHS) Secretary. Congress, by statute, chose to delegate certain powers to the HHS Secretary, not to an unaccountable White House aide who does not have the same requirements to appear before Congress and report on various department programs and initiatives. By allowing nonelected and nonconfirmed officials who have little if any congressional oversight to exist through executive whim, Congress diminishes the accountability and checks built into our governing system.

The delegation of Congress’s appropriations power is especially troubling. No one person, particularly someone who is in a nonstatutorily created position that does not require either Senate confirmation, routine testimony before Congress, or periodic reporting, should have complete discretion over public funds. Again the pay/claims czar is only the most prominent example. In September 2009, Obama appointed Ron Bloom as White House counselor for manufacturing policy, or, the car czar. In addition, Bloom had an appointment within the Treasury Department as a senior adviser to Secretary Timothy Geithner. As car czar, Bloom took over for Steven Rattner, who left the administration when New York Attorney General Andrew Cuomo’s investigation into a state pension fund scandal began to heat up.Footnote ¹⁰¹ As Obama’s second car czar, Bloom had the primary role in negotiating a deal to provide government loans to General Motors and Chrysler. After negotiations fell apart between Chrysler and Fiat, Bloom made a call to Fiat CEO Sergio Marchionne, at which time the lingering issues were resolved.Footnote ¹⁰² As a sign of the power and influence Bloom held in the Obama administration, Time magazine named him one of the world’s 100 most influential people for 2010. Obama also appointed Adolfo Carrion as Urban Affairs czar “to ensure that Federal Government dollars targeted to urban areas are effectively spent on the highest impact programs.”Footnote ¹⁰³ Senator John Cornyn (R-Tex.) protested that “it is inappropriate for them to steer the distribution of taxpayer funds without congressional oversight.”Footnote ¹⁰⁴