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Presidential Appointments

March 11th, 2009

I’ve largely avoided discussing the individual appointments made in these early days of the Obama Administration — with notable exception — because the appointments have all been more or expected and get tons of ink already. But a couple of news items have been floating around that inspire me to comment on the process as a whole, in particular as it applies to White House advisors.

The outcry began with the Sen. Byrd of West Virgina, long the defender of Senatorial privilege. The thrust of the complaint is that Obama has, or is planning to, appoint a number of Presidential Assistants to handle particular policy areas… so called policy czars. Covering issues like health reform, urban affairs policy, and energy and climate change, these new White House offices are charged with crafting White House policy positions and working with Congress. These positions are not required to go before the Senate for confirmation, they serve entirely at the pleasure of the President who may hire and fire them at will.

Senator Byrd says this is a power grab. By appointing presidential advisors that skip the Senate confirmation process, the White House is avoiding an important constitutional check on executive power and denying the peoples’ representatives a chance to review the credentials of those who will be trusted with power. A Washington Post oped today by Prof. Ackerman of Yale argues the same, complete with historical evidence.

Seems the idea of the presidential assistant started with FDR, who lobbied for the right to appoint six such assistants for the purpose of information gathering. Prior to that, the President really only had personal secretaries for clerical work and had to rely on his Cabinet for any policy muscle. The positions were not put to Senate confirmation because “[the] aides would have no power to make decisions or issue instructions in their own right.”

My personal opinion is that nothing has changed. The offices in question still have no legal authority to act and rely entirely on the President. In contrast to the Department Secretaries who have individual statutory authority which they can exercise independent of the President (though, if you a big believer in the unitary executive theory, that may not be the entire story).

The point is that the White House Office on Health Care Reform is an extension of President Obama, nothing more and nothing less. It does not speak for the Department of Health and Human Services nor can it order any legal or governmental action. The office has as much power as the President decides to give and as much clout as Congress wishes to bestow. If Senators wish to only speak to Secretaries, such is their right and privilege. They don’t need to take the call from an internal White House office… but my guess is they will, because it’s as if the call is coming from the President.

The distinction here is an important one. There is a difference between governing and advising. The secretaries do both. They govern sprawling executive departments, promulgate regulation that impact millions of Americans, and render judgments in Article 1 courts. They also advise the President in his executive decisions and the Congress in their legislative process. The White House offices do not govern. Their sole role is to advise… and it is up to those whom they advise to listen or ignore.

If there is fault with the current system it is not that we fail to vet these advisors, or that the Senate doesn’t get a chance to confirm them, it’s that those who listen to their advice give them too much agency. For each of these offices, the buck stops at the President’s desk. Obama must be held accountable for the advice given, whether right or wrong… but if we instead fall into the trap of placing the blame of failure (or the praise of success) at the feet of those who do not actually decide, then we truly have broken the appointment process.

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  1. ethan
    March 12th, 2009 at 21:06 | #1

    i’m not sure i get everything that’s going on here, but my gut says that even if this is a “power grab,” it’s a much better, more palatable power grab than Bush being granted emergency executive power for more than a year.

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