[Senate Hearing 111-805]
[From the U.S. Government Printing Office]
S. Hrg. 111-805
PRESIDENTIAL ADVICE AND SENATE CONSENT:
THE PAST, PRESENT, AND FUTURE OF
POLICY CZARS
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
of the
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 22, 2009
__________
Available via http://www.gpoaccess.gov/congress/index.html
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
53-850 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office, http://bookstore.gpo.gov. For more information, contact the
GPO Customer Contact Center, U.S. Government Printing Office.
Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, gpo@custhelp.com.
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana ROBERT F. BENNETT, Utah
ROLAND W. BURRIS, Illinois
PAUL G. KIRK, JR., Massachusetts
Michael L. Alexander, Staff Director
Beth M. Grossman, Senior Counsel
Jeffrey E. Greene, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Amanda Wood, Minority Director for Governmental Affairs
Jennifer L. Tarr, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 2
Senator Bennett.............................................. 5
Senator McCaskill............................................ 6
Senator Burris............................................... 23
Prepared statements:
Senator Lieberman............................................ 35
Senator Collins.............................................. 37
Senator Burris............................................... 40
WITNESSES
Thursday, October 22, 2009
Hon. Thomas J. Ridge, Former Assistant to the President for
Homeland Security and Secretary of Homeland Security........... 7
James P. Pfiffner, Ph.D., University Professor, School of Public
Policy, George Mason University................................ 9
Lee A. Casey, Partner, Baker Hostetler; Former Attorney-Advisor
in the Office of Legal Counsel at the U.S. Department of
Justice........................................................ 12
Harold C. Relyea, Ph.D., Former Specialist in American National
Government at the Congressional Research Service............... 14
Alphabetical List of Witnesses
Casey, Lee A.:
Testimony.................................................... 12
Prepared statement........................................... 58
Pfiffner, James P., Ph.D.:
Testimony.................................................... 9
Prepared statement........................................... 53
Relyea, Harold C., Ph.D.:
Testimony.................................................... 14
Prepared statement........................................... 73
Ridge, Hon. Thomas J.:
Testimony.................................................... 7
Prepared statement........................................... 49
APPENDIX
Hon. Robert C. Byrd, a U.S. Senator from West Virginia, prepared
statement with attachments..................................... 41
PRESIDENTIAL ADVICE AND SENATE
CONSENT: THE PAST, PRESENT, AND
FUTURE OF POLICY CZARS
----------
THURSDAY, OCTOBER 22, 2009
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, McCaskill, Burris, Collins,
Coburn, Ensign, and Bennett.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Well, good morning. The hearing will
come to order. Welcome to this hearing, which has the title of
``Presidential Advice and Senate Consent: The Past, Present,
and Future of Policy Czars.'' The title ``czar'' has been used
more in Washington in recent years than anywhere, anytime since
1917, when Czar Nicholas II of Russia came to his unhappy
ending.
As one of our witnesses this morning will make clear,
President Obama is not the first of our national leaders to
bring non-Cabinet officials into the White House as policy
advisers or coordinators, though he has added a number of them.
Arguably and interestingly, it was that great populist Andrew
Jackson, way back in the early 19th Century, who was the first
President to rely on what he would be surprised and puzzled to
learn are today called ``White House czars.''
The main questions raised in what might be called the
current anti-czarist uprising seem to be: One, have Presidents
of both parties, including President Obama, consolidated power
excessively in the White House through the appointment of these
officials contrary to at least the spirit of the Constitution,
if not our laws, particularly as against the authority of
members of the Cabinet? And if so, is there anything Congress
can or should do about it?
Second, does the growing use of czars in the White House
and the Administration, this and past ones, frustrate Congress
in carrying out its constitutional responsibility to oversee
the expenditure of the public's money, which we appropriate,
and the decisions that are made by the so-called czars with
that money? Again, if so, what should we be doing about it?
I also hope our witnesses--and it is a great panel of
witnesses--will help us with the question of definition. Who is
deserving in this instance of the title of ``czar?'' Is it only
people in the White House or coordinators of policy, whether or
not their positions are authorized in statute and they are
confirmed by the Senate? Or does it include a larger group of
public officials, statutorily authorized or not, confirmed by
the Senate or not, working out of the White House, or not?
Finally, I cannot resist saying with all respect to the
aforementioned Nicholas II and his esteemed predecessors, I
will ask our witnesses if there isn't some more American title
that we can use instead of ``czar'' to describe these
government employees. The term ``czar'' seems to me not only
ethnically inappropriate, but the Federal officials to whom it
has been applied have far less autocratic power than the
Russian czars did, which may explain why, though some of the
current crop of White House czars have been subjected to harsh
media criticism, their time in office is unlikely to end as
violently as that of Nicholas II.
I am sure many people here will remember the moment in the
classic story ``Fiddler on the Roof '' when one of the citizens
of Anatevka, Russia, asks the local rabbi, ``Rabbi, is there a
prayer for the czar?'' And the local rabbi answers, ``Yes, my
son, there is. It is `God bless and keep the czar, far away
from us.' '' May I paraphrase that prayer this morning and ask
that God bless and keep the title of ``czar'' forevermore away
from the American Government. I am going to try to do my best
not to use the word ``czar'' in this regard again. So from now
on, I am going to try to call the drug czar the ``National
Anti-Drug Policy Coordinator,'' the environmental czar the
``National Environmental Advisor,'' and the pay czar, well,
today he probably should be called the ``National Pay Master.''
Regardless of what one calls them, the proliferation of these
positions really does raise serious questions that go right to
the heart of the allocation of power in our Constitution as
between the President and Congress, the authority and
responsibility of Congress to oversee the expenditure of the
money we appropriate to the executive, and, of course, the
right of the executive to executive privilege, which is
inherent in the presidency.
We have an excellent panel of witnesses with us this
morning who can help us answer these questions and then
ultimately help us decide whether we wish to propose corrective
legislation.
Senator Collins was really early in raising these important
questions in this Committee. I thank her for that, as I
recognize her now for her opening statement. Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman, and I want you to
know how much I enjoyed listening to your opening statement. I
had a long discussion in my office late yesterday with the
President's legal counsel, who also calls czars ``policy
coordinators,'' and I could not help but think that if that
were all that they did, I would be happy to join you in calling
them ``coordinators'' rather than ``czars.'' But, alas, my
conclusion is that they do much more, so for lack of another
term, despite the deficiencies that you have noted so
eloquently, I will continue to call them ``czars,'' at least to
the conclusion of this hearing and until a solution is found.
I, too, am turning back into history as I present my
statement today. When the Founding Fathers put down their
quills in Philadelphia on September 17, 1787, they had crafted
a Constitution--the framework for our representative democracy.
Their work established a system of government with three
separate branches, a government whose leaders were to be
accountable to the people through a carefully constructed
system of checks and balances.
The responsibility of Congress to oversee the Executive
Branch is fundamental to our constitutional system. That
responsibility is on display whenever the Senate performs its
explicit constitutional ``advice and consent'' role or whenever
Congress holds hearings on particular policy matters. This
oversight ensures the accountability and transparency our
Founding Fathers envisioned, and it is that oversight
obligation which brings us here today.
The proliferation of czars diminishes the ability of
Congress to conduct its oversight responsibilities and to hold
officials accountable for their actions. These czars can create
confusion about which officials are responsible for various
policy decisions. They can duplicate or dilute the statutory
authority and responsibilities that Congress has conferred on
Cabinet officers and other senior Executive Branch officials.
A perfect example is the health care debate underway right
now. Who is in charge? Who is making policy? Who is
accountable? Is it Kathleen Sebelius, the Secretary of Health
and Human Services? Or is it Nancy-Ann DeParle, the White House
czar or coordinator of health care policy?
In addition, the proliferation of czars can circumvent the
constitutionally mandated process of advice and consent. Czars
can exercise considerable power and influence over major policy
issues, and yet they are not required to clear the rigorous
Senate confirmation process. Czars bypass this important
constitutional protection through a unilateral grant of
authority from the President.
Some, including the White House--and I would note every
White House--have sought to diminish the significance of this
debate by declaring that the use of czars does not violate the
Appointments Clause in our Constitution. But even if the
appointment of all of the czars were consistent with the
Appointments Clause--and, frankly, I believe that the jury is
still out on that question--the proliferation of czars in the
Executive Branch encroaches on the more fundamental
constitutional principle of checks and balances.
Now, we all recognize that the President is entitled to
appoint and to rely on senior advisers such as his chief of
staff and his legal counsel, who are part of his personal
staff. And to be clear, not every position identified in
various media reports as a czar is problematic. And this is an
important distinction. Positions subject to Senate confirmation
or otherwise recognized by our laws, such as the Director of
National Intelligence, the National Security Advisor, and the
Chairman of the Recovery Accountability and Transparency Board,
do not raise the same concerns with accountability,
transparency, and oversight because they are recognized in law
and because many of these positions are subject to Senate
confirmation.
I would also note that czars are not new to the American
political landscape, but this is not merely a question of past
usage. The recent proliferation of czars is a cause for real
concern because they oversee a growing number of critical
policy areas that are already supposedly under the purview of
top Executive Branch officials.
Indeed, this Administration has appointed at least 18 new
czars. None of these officials was vetted through the Senate
confirmation process. Their authorities and duties remain
unclear. While some of them exercise authority pursuant to
executive orders, others have just been announced through press
releases. Their future plans have received little public
airing. Their relationship with Cabinet-level officials is
often undefined. They rarely, if ever, testify before
congressional committees. And, indeed, yesterday when I was
talking to Greg Craig, the President's legal counsel, he made
very clear that the White House would prohibit any of these
officials with significant policy responsibility from coming to
testify before us if they are located within the Executive
Office of the President.
In short, this bumper crop of czars has left the public and
the Congress with many worrisome, bottom-line questions:
Who is in charge?
Who is responsible for what?
Who is directing policy--the czar or the Cabinet official?
And, most important, whom can Congress and the American
people hold accountable for government decisions that affect
their lives?
This is not an academic exercise, although it is a
fascinating constitutional issue. Czars--not Cabinet
secretaries--are negotiating with Members of Congress even as
we speak on key policy issues. Where is the Cabinet official in
these talks?
As I have stated before, this is not a partisan issue,
despite the attempts of people in both parties to make it so.
This is not a political issue. It is an issue of institutional
imperative and constitutional prerogative.
It is also a question of effective management. The
proliferation of czars has created two separate tracks of top
management within our Federal Government. On the one hand, we
have Cabinet-level leaders with defined roles and clearly
assigned duties. On the second track, we have czars with fuzzy
roles and loosely defined functions. These separate tracks of
management authority can create duplication of effort, dilution
of responsibilities and focus, and management dysfunction.
I am looking forward to hearing the testimony of all of our
expert witnesses today. I particularly appreciate Secretary
Thomas Ridge joining us again. He has broad experience. He
served as the chief executive of a State, as a Member of
Congress, as a senior White House aide, and as a Cabinet-level
officer. That experience informs every aspect of the debate
over the use of ``czars.''
Finally, let me say that until the administration answers
important questions about the role of its czars and makes all
of them available to testify before Congress, I personally
believe that it is undermining the promises that President
Obama has made to the American people for increased
transparency and accountability.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins, for a very
thoughtful statement.
I do want to, with unanimous consent, enter into the record
a statement that our colleague Senator Robert C. Byrd asked
that we enter into the record.\1\ He has thought a lot about
this. He includes a letter that he wrote to President Obama on
February 23rd and the response of White House Counsel Greg
Craig to that letter. I think this exchange says that the
issues at play here are not partisan; they are really
institutional. And I am going to ask the witnesses some of the
questions that Senator Byrd raises with what you would expect
of him, characteristic thoughtfulness and passion for the
institution of Congress.
---------------------------------------------------------------------------
\1\ The prepared statement of Senator Byrd with attachments appears
in the Appendix on page 41.
---------------------------------------------------------------------------
Senator Bennett. Mr. Chairman.
Chairman Lieberman. Senator Bennett.
Senator Bennett. I know it is the pattern that the Chairman
and the Ranking Member give the opening statement and we do
not. Could I request, as a point of personal privilege, a few
moments in an opening statement? Because the White House has
specifically identified me as being hypocritical on this issue
by virtue of my position with respect to a Year 2000 (Y2K)
czar, and I would like to make that clear. If it would not be
appropriate, I will wait until after the panel.
Chairman Lieberman. No. Go right ahead. Since we are
upholding the institution of Congress, I suppose that suggests
we should uphold the institution of an individual member to
defend himself.
Senator Bennett. Thank you very much, Mr. Chairman. I
appreciate that.
OPENING STATEMENT OF SENATOR BENNETT
Senator Bennett. In November 1997, I requested that
President Clinton appoint a Y2K czar. I was the Chairman of the
Y2K Committee created by the Minority Leader, Senator Tom
Daschle, and the Majority Leader, Senator Trent Lott, here in
the Congress to deal with the problem that cut across
departmental lines. It did not have a legitimate home in any
one committee. It cut across the entire government. Senator
Lott and Senator Daschle decided to create a special committee
to deal with it. I was appointed its chair. Senator Chris Dodd
was appointed its vice chair. And we proceeded with our
hearings and came to the conclusion that we, the Committee,
needed a counterpart in the Executive Branch, someone that
would cut across departmental lines, who had the authority
behind him or her to speak for the President in focusing on
this issue. And in February 1998, President Clinton appointed a
Y2K czar, John Koskinen.
One of the first things John Koskinen did as the Y2K czar
for the Executive Branch was to call me as the chairman of the
Y2K Committee in the Senate and set up a pattern of regular
consultation, every Wednesday afternoon, and we compared notes.
I told him what we were doing in the Legislative Branch; he
told me what he was doing in the Executive Branch. He invited
me to go to a variety of activities with which he was engaged
in the Executive Branch. I invited him to come deal with those
of us that were trying to solve the problem in the Legislative
Branch. We worked hand in glove together.
I agree with you, Mr. Chairman, that the title ``czar'' was
not necessary, but it did give a sense of focus to what we were
doing. And when it was all over and the Y2K problem turned out
to be a non-problem--vice chairman, Senator Dodd, said, ``You
know, we are in a no-win position, because if there is no
problem, they will say, `You raised concern about something
that did not have any difficulty.' And if there is a problem,
it will be, `Well, you did not do anything about it.' So either
way we are going to get criticized.'' And we were after it was
over. The New York Times wondered why we had spent all that
money when, in fact, none of the computers failed.
That is a very different situation than the situation
described by Senator Collins and the letter which I signed, and
I do not feel in any way it is hypocritical for me to have
taken the role I did with respect to Y2K and now to say there
is something that needs investigating because the kind of
circumstance we created then was very different from the kind
of circumstance that we see now. And I think the record should
be very clear that I am not changing positions just for
political purposes, as some members of the White House press
office may have suggested.
I thank you, Mr. Chairman, for allowing me to get that off
my chest.
Chairman Lieberman. Thank you, Senator Bennett.
Senator McCaskill. Mr. Chairman.
Chairman Lieberman. I notice an outbreak of democracy here,
which is very unsettling.
Senator McCaskill. There is an outbreak of democracy.
Chairman Lieberman. Go ahead, Senator McCaskill.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. I just want to say I think it is great
you guys have called the hearing. I think the oversight of this
Committee is essential to the balance of power between the
different branches of government, and I welcome the testimony.
But I had to think, while my friend Senator Bennett was talking
about the Y2K czar that he recommended, that was not confirmed
by the Senate, and that was created out of whole cloth because
of a problem that had arisen, the way he described that czar,
how ubiquitous the czar was, working with the legislature, that
he was constantly around, I kept thinking of Nancy-Ann DeParle.
I mean, we cannot walk down the hall without seeing her. She is
in the chairmen's offices constantly of the committees and the
ranking members, and she has visited across the aisle time
after time after time.
So I think there are situations where a special adviser is
created, and that does not mean they are not working closely
with Congress in order to solve a problem. And I think the
description that Senator Bennett made of the Y2K czar was very
similar to what Nancy-Ann DeParle is doing. I hope that the
outcome is as good.
Chairman Lieberman. Thank you. Let us leave it at that. I
am going to recognize Governor Ridge. Senator Collins
acknowledged your unique service to our country and to your
State. You are in a really excellent position to comment on
this, having been both Assistant to the President for Homeland
Security--our first post-September 11, 2001--and then our first
Secretary of Homeland Security. So we really thank you for
taking the time to be here and welcome your testimony now.
TESTIMONY OF HON. THOMAS J. RIDGE,\1\ FORMER ASSISTANT TO THE
PRESIDENT FOR HOMELAND SECURITY AND SECRETARY OF HOMELAND
SECURITY
Mr. Ridge. Thank you. Well, Mr. Chairman, Ranking Member
Collins, and Members of the Committee, thank you for inviting
me to spend some time with you this morning.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Ridge appears in the Appendix on
page 49.
---------------------------------------------------------------------------
As you have alluded to, Mr. Chairman, I have been
privileged to hold a variety of public service positions
throughout my career.
As I was then, I am now a citizen of a country that
embraces its Constitution, its Bill of Rights, its values, the
greatness of our victories, the lessons learned from our
mistakes, and a 230-year desire to uphold the tenets of our
Founding Fathers.
I take equal pride and awe in a government that today, as
reflected in this hearing, remains committed to a recurring
review of its structure, its function, and its fundamental
tenets of checks and balances.
So I appreciate the discussion that Members of this
Committee are having this morning. It seems to be one of those
rare issues these days that overrides partisanship in favor of
a serious willingness to consider all points of view.
First, I must tell you that, having been a congressman, a
governor, a so-called czar, and a Cabinet secretary, I have
empathy for everyone involved in today's discussion.
The huge complexities associated with good governance are
real; they are to be respected. The good intentions of good
people are not to be demeaned, but rather clarified for all
involved, and hopefully informed and assisted by ongoing
communication and civil debate.
Second, I am of the belief that Presidents have the
discretion and authority to appoint advisers who can assist
them in carrying out their presidential obligations.
My interests, rather, reside in the issues of effective
management, transparency, and lines of authority.
Who's reporting to whom? How specific is the job
description? Does the individual initiate, coordinate, or
execute policy? To whom does that individual report? Is it the
same person to whom the individual is accountable?
While my own White House experience cannot match all of the
issues you are addressing today, I hope that sharing them will
help the Committee as it examines the role of White House
czars.
As we all know too painfully, the events of September 11,
2001, set in motion a series of events and actions--made by
President George W. Bush, his staff, but also, I would say, by
a united Congress and a united country.
My appointment came under those extraordinary times, under
exceptional stress and grief and yet also, with a singular
purpose. The people and its government, at its best, joined
together in full throttle to rebuild in those early days and to
secure the country from another attack.
When I received the call from President Bush asking me to
take on a new role, there was no job description. Yet 2 weeks
later, on the same day of my swearing-in as Homeland Security
Advisor, October 8, 2001, President Bush issued Executive Order
13228, establishing the Office of Homeland Security and
defining with great specificity the responsibilities and
authorities of the new White House Office and my role as its
director.
Understandably there were legitimate questions and concerns
about what I was doing, and many of those concerns came from my
former congressional colleagues.
It was at the instruction of my President that I would not
testify and did not testify; typically and historically,
assistants to the President did not do so. But many in Congress
on both sides of the aisle took exception to this.
I offered to speak to congressional members privately.
However, on a couple of occasions, when I visited Senator
Robert Byrd, in his gentlemanly manner, he would slip from his
coat pocket, as you are aware, a copy of the Constitution. If I
could paraphrase your colleague, he would observe that the
Congress of the United States has the exclusive authority over
appropriations and broad oversight responsibility. ``Private
briefings,'' he would utter, ``are not a substitute for public
hearings,'' he would say.
My responsibilities were detailed out for everyone to see
from day one. Still, regardless of the Executive Order, no
matter how specific, Congress was legitimately concerned about
my role, the extent of what I was doing, and what influence I
was having.
The unique distinction for me was that when I was
appointed, no Cabinet agency existed. I was reporting to a
President, not a secretary. But my role was a broad one--
cutting across Federal jurisdictional lines and departmental
lines as well as coordinating activity with State and local
governments.
It was only after discussions began between the White House
and Congress about establishing a new department that President
Bush decided I should testify about those plans. And I did.
After I went over to the Department, I came to benefit from
the work of my White House successors, General John Gordon and
later, Fran Townsend.
In both these principals, I had advocates who assisted in
developing policy but not setting it. In both, I had good
counsel who worked closely with me and department officials to
generate and coordinate measures that advanced the security of
the Nation.
I think this offers up a significant point. Some of today's
White House czars have come to their positions with little
public clarification of duty, and they already have a
department of subject authority, led by a Senate-approved
secretary.
Are those roles as respected and beneficial to agency
progress and management effectiveness as my successors' roles
were to me?
And, again, do these individuals, these so-called czars,
direct or develop policy? Are they accountable to the
President, to the Secretary, or to both? To whom do private
constituencies look to provide input, guidance, or opinion? Who
resolves the conflict between the two?
My concern is that without a clear delineation of
responsibilities and reporting authority, this creates both a
potential management problem and clearly the appearance of
potential conflict.
It can diminish the capacity--I will say this again. It can
diminish the capacity of both adviser and secretary to operate
effectively in accordance with the department's missions. And I
certainly think from time to time it can cause confusion for
those under the chain of command of the secretary as well as
outside the departmental purview.
Greater transparency and communication about role
delineation and reporting structure will promote greater
collaboration and management effectiveness, which, in my
judgment, promotes good governance.
Good governance is what the President and this country
require to address today's serious challenges. And good
governance is what the American people deserve and what I know
Members of the Committee, by your civil, thoughtful
consideration to this issue, want to ensure.
Again, I thank the Members of this Committee for inviting
me to join you today, and I look forward to your questions.
Thank you.
Chairman Lieberman. Thanks very much, Governor Ridge. That
was a great statement to begin this deliberation.
Our next witness is Dr. James Pfiffner, University
Professor, School of Public Policy at George Mason,
specializing in the subject of the American Presidency. Dr.
Pfiffner has written or edited 12 books and dozens of articles
on our national government. He was also a Special Assistant in
the Office of the Director of the Office of Personnel
Management during the Carter Administration.
Dr. Pfiffner, thanks very much for being here.
TESTIMONY OF JAMES P. PFIFFNER, PH.D.,\1\ UNIVERSITY PROFESSOR,
SCHOOL OF PUBLIC POLICY, GEORGE MASON UNIVERSITY
Mr. Pfiffner. Mr. Chairman, Senator Collins, other Members
of the Committee, I want to thank you for your invitation to
appear before you and be able to present my testimony. It is an
honor for me to do so.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Pfiffner appears in the Appendix
on page 53.
---------------------------------------------------------------------------
The term ``czar'' in the United States has no generally
accepted definition in the context of American Government. It
is a term loosely used by journalists. For my purposes,
however, the definition of ``czar'' refers to members of the
White House staff who have been designated by the President to
coordinate specific policy areas that involve more than one
department or agency. Czars do not hold Senate-confirmed
positions, nor are they officers of the United States. Officers
of the United States--presidential appointees with Senate
confirmation (PAS)--are created in law, and most of them
exercise legal authority to commit to the United States. In
contrast, members of the White House staff are appointed by the
President without Senate confirmation. They are legally
authorized only to advise the President; they cannot make
authoritative decisions for the Government of the United
States, such as hiring, firing, and committing budgetary
resources.
For practical purposes, however, White House staff
personnel certainly may have considerable power or influence,
as opposed to authority. But this power is entirely derivative
of the President. White House staffers may communicate orders
from the President, but they cannot legally give those orders
themselves.
In the real world, of course, White House staffers often
make important decisions, but the weight of their decisions
depends entirely on the willingness of the President to back
them up. As the White House staff has grown, so has the power
of czars. White House czars play essential roles that lift the
burden of coordination from the President. They help to reduce
the range of options. But if the number of czars proliferates,
they can clog and confuse the presidential authority. Somebody
then must coordinate the czars and their access to the
President. Czars may create layers between the President and
Cabinet secretaries, and too many czars can result in
managerial overload and confusion.
From the President's perspective, a proliferation of czars
raises the questions of who is in charge of policy short of the
President. Members of Congress, as well as other national
leaders, may be confused as to the locus of authoritative
decisions. Foreign leaders may not know who speaks for the
President. Unfortunately, czars can pull problems into the
White House that could be and should be settled at the Cabinet
level. But only those issues that are central to the
President's policy agenda should be in the White House; others
should be delegated to the Cabinet secretaries.
From the czar's perspective, the title is a mixed blessing.
Prestige and perks of the White House staff are there, but
czars are often frustrated because they are supposed to be in
charge of policy area, but they do not have the authority
commensurate with their responsibilities. Czars cannot enforce
decisions on departments or agencies. Czars control neither
personnel nor budgets. For these they must depend on Cabinet
secretaries.
But from the perspective of a departmental secretary,
having czars in the White House is most often frustrating.
White House staffers have historically been the natural enemy
of Cabinet secretaries. Each vies for the President's ear; each
resents the other's ``interference.'' White House staffers
enjoy proximity to the President, but Cabinet secretaries have
to worry about managing their departments and the many policies
and programs for which they are responsible. Cabinet
secretaries are often at a disadvantage in securing
presidential attention.
In the real world, Presidents have to balance their desire
for centralized control with the managerial imperatives of
delegation. No President can do an effective job without
talented people on the White House staff. But if Presidents
allow White House staffers to shut out Cabinet secretaries,
they will lose the institutional memory of Cabinet secretaries,
their operational point of view, and a broader political
sensitivity than Cabinet secretaries can provide.
So the real impact of czars must be judged by the role that
they play and their approach to their responsibilities rather
than to merely counting their numbers. Thus, insofar as
President Obama's czars take active roles in policymaking--as
opposed to policy advising--attempt to shut out Cabinet
secretaries, or exercise power in their own right, they dilute
authority and confuse the chain of command. But if they work
closely with Cabinet secretaries and help coordinate policy,
they can be very useful. It all depends on their behavior.
That said, the larger the White House staff and the more
czars that the President designates, the more likely White
House staffers will be difficult to manage, and relations
between Cabinet secretaries and White House staff will be
strained.
The keys to congressional control of Administrations are
congressional authority to create agencies, to authorize
programs, to appropriate money, and to oversee the faithful
execution of the law. As a matter of comity, however, the
President is entitled to the confidentiality of his or her own
staff, just as Members of Congress are entitled to the
confidentiality of their own staff and Supreme Court Justices
are entitled to the confidentiality of their clerks.
In closing, I would like to step back from the immediate
question of czars to the broader purpose of this hearing, which
is the appropriate role of Congress in our constitutional
system. The Framers of the Constitution placed Congress in
Article I of the Constitution for a reason. In republican
governments, the legislature should predominate in
policymaking, as James Madison made clear in Federalist 51. The
Framers understood that executives tend aggrandize power. From
classical times of Greece and Rome, to King George III, to the
21st Century United States, Democrats or Republicans,
executives want more power. Thus, it is the prerogative and the
duty of Congress to assert its own constitutional role. I think
that several issues, aside from the role of czars in the White
House, are fundamental to the role of Congress in our
democracy.
The explosion of signing statements to imply that a
President might not faithfully execute the law presents a
fundamental threat to the constitutional role of Congress,
which possesses all legislative powers. If presidents create
secret programs that effectively nullify or circumvent the
laws, they are placing themselves above the law and claiming
the authority to suspend the laws which the Framers explicitly
rejected. If presidents use the State secrets privilege to
avoid the disclosure of or accountability for their actions,
the role of the courts is undercut. And if the President claims
the right to suspend habeas corpus, he treads on Article I of
the Constitution.
The use of czars by presidents presents serious questions
of policymaking and management, but the constitutional
prerogatives of Congress are more seriously undermined by the
claims of Presidents to have the right to set aside the laws in
favor of their own policy priorities.
Thank you, Mr. Chairman, Senator Collins, and other Members
of the Committee.
Chairman Lieberman. Thanks, Dr. Pfiffner. Interesting
statement. I appreciate your attempt at a definition of these
positions, too, and I look forward to question-and-answer time
with you.
Our next witness is Lee Casey. Mr. Casey is a partner in
the law firm of Baker Hostetler specializing in constitutional,
environmental, and international law. He served in the
Department of Justice in the Ronald Reagan and George H.W. Bush
Administrations, including in both the Office of Legal Counsel
and the Office of Legal Policy, and also served as Deputy
Associate General Counsel at the Department of Energy in the
Administration of President George H.W. Bush.
I have been reading your stuff for a long time, and so it
is a pleasure to meet you and have you here as a witness.
Please proceed.
TESTIMONY OF LEE A. CASEY,\1\ PARTNER, BAKER HOSTETLER; FORMER
ATTORNEY-ADVISOR IN THE OFFICE OF LEGAL COUNSEL AT THE U.S.
DEPARTMENT OF JUSTICE
Mr. Casey. Thank you very much, Mr. Chairman. And, indeed,
thank you and Senator Collins and the rest of the Committee for
allowing me the opportunity to address you today on what is
indeed a very important issue.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Casey appears in the Appendix on
page 58.
---------------------------------------------------------------------------
I should first emphasize, of course, that I am speaking
here on my own behalf, and I would also like to ask that my
written statement be included in the record.
Chairman Lieberman. Without objection, so ordered. And that
will be the case for all the witnesses.
Mr. Casey. Thank you, Mr. Chairman.
As you will see in the written statement, my position is
that the use of White House policy czars--and, again, I think
we should and need to focus not on the offices created by
Congress or on a number of the individuals who are called
``czars'' who actually hold agency positions. It is the White
House adviser that I think has caused people the concern. The
fact is, however, those advisers are just that. They have no
power beyond the fact that they are close to the President.
They cannot transform Executive Branch policy into the policy
of the United States. They cannot sign regulations. They cannot
submit legislation to Congress. Their authority is very
limited, and, indeed, it has been the consistent position of
the Justice Department under both Republican and Democratic
Administrations that people in those advisory roles need not be
appointed in accordance with the Appointments Clause--that is,
by and with the advice and consent of the Senate. And most
importantly of all, they cannot take action that would create a
legal obligation either on behalf of the government or on
behalf of the citizenry at large. The President can implement
policy and transform it into government policy only through
officers that have been appointed under the Appointments Clause
and who are responsible through the oversight process to
Congress.
However, I do understand the feeling of unease that many
people have with the idea that there are presidential advisers
with such great power. And, indeed, I think anyone educated in
the Anglo-American legal tradition will feel a little bit of
unease, and there is a reason for that.
I think it is important to understand why the Framers did
what they did and made the distinction between advisory
functions and actual lawmaking functions. Executive advisers,
in other words, have a history, and the Framers were working
within that context.
If you look back over the history of the efforts to limit
the power of the British Crown, those efforts were almost
invariably directed at limiting who the advisers to the monarch
were, who were the people that were closest and who had his or
her ear. There were efforts to impose such limitations in the
13th Century, in the 14th Century, in the 15th Century, not so
much in the 16th Century since the monarchy was then at its
apogee, but it came back with a vengeance in the 17th Century.
And the fact is every single one of those efforts failed and
usually failed miserably with the reformers either ending up
dead or in exile.
The Framers understood this. They knew this. And, indeed,
at the Constitutional Convention in 1787, there were proposals
that there should be a council of advice or a privy council
appointed, possibly by the Senate, through which the President
would have to work, whose advice he must take. Important
members of the Convention supported this idea, among others
George Mason and Benjamin Franklin, who actually knew about
that sort of thing from his service in France. Franklin noted
that experience showed that ``caprice, the intrigues of
favorites, and mistresses'' were, nevertheless, ``the means
most prevalent in monarchies,'' especially with respect to
appointments. And he thought a council would not only be a
check on a bad President, but a relief to a good one.
His colleagues, however, did not agree, and the Framers
rejected the entire model, the entire effort to control who is
advising the President, and they cut to the chase. What they
did was say no one can exercise actual government power unless
they are appointed in accordance with the Appointments Clause,
by and with the advice and consent of the Senate. Indeed, that
is the default. All officers of the United States must be
appointed with the Senate's consent unless Congress has vested
the right to appoint inferior officers in the office of the
President, the heads of departments, or the courts.
And so as a result, if one of these individuals--
presidential advisers, czars--attempts to take an action with
legal force, the action has no legal force. It does not bind
the government. It does not bind individuals. That is the
ultimate check.
And I think if you need to look at a situation where the
Framers' wisdom was vindicated, probably the most important is
indeed the Saturday Night Massacre, when President Richard M.
Nixon decided to fire Special Prosecutor Archibald Cox, which
he had every legal right to do. The Attorney General refused
and resigned. The Deputy Attorney General refused and resigned.
The Solicitor General was about to refuse and resign, although
the Attorney General convinced him that if he did that, the
entire top leadership of the department would leave, and there
would be no one in charge but a 26-year-old attorney-adviser
who was waiting for the bar results. So Judge Robert Bork
stayed, and he did fire Cox.
There were prices to be paid for that. President Nixon, of
course--that was the beginning of the end. But the issue
actually haunted Judge Bork. It was raised at his confirmation
hearings for the Supreme Court. I think that shows the system
worked.
Thank you, Mr. Chairman.
Chairman Lieberman. Fascinating. Thank you. You raise a lot
of good questions, very helpful.
The final witness is Dr. Harold Relyea, former Specialist
in American National Government at the Congressional Research
Service, specializing in the presidential office and powers,
Executive Branch organization, and congressional oversight.
Just within your own areas of expertise, perfectly suited to
either be extremely conflicted or to give us good advice. Maybe
both. [Laughter.]
Mr. Relyea. Maybe both.
Chairman Lieberman. Dr. Relyea.
TESTIMONY OF HAROLD C. RELYEA, PH.D.,\1\ FORMER SPECIALIST IN
AMERICAN NATIONAL GOVERNMENT AT THE CONGRESSIONAL RESEARCH
SERVICE
Mr. Relyea. Mr. Chairman, Senator Collins, and Members of
the Committee, thank you for your invitation to appear here
today.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Relyea appears in the Appendix on
page 73.
---------------------------------------------------------------------------
My prepared statement reviews the historical antecedents of
the presidential czars, the conditions contributing to their
creation, their initial use during the World War II period,
their congressional accountability at that time, some later
developments, and some considerations regarding their future
relationships with Congress. Let me summarize.
Presidents initially utilized their department heads as
advisers and the Cabinet as a means of coordination. Soon,
however, they turned to circles of informal advisers and
confidants who were often personal and political friends. These
were called ``Kitchen Cabinets'' during the presidencies of
Andrew Jackson and John Tyler. In more recent memory, President
Franklin D. Roosevelt brought to the White House a group of
advisers and agents known as the ``Brains Trust,'' which was
composed of intellectuals and other ideas people from the
academic world. Their numbers and roles prompted the President
to seek more White House staff positions and improved
arrangements for Executive Branch coordination and management.
The result was the Reorganization Act of 1939 which
empowered the President to create, by reorganization plan, the
Executive Office of the President, but also the White House
Office, and a subsequent Office for Emergency Management, and
to appoint as well six new administrative assistants.
Thus, in 1940, on the eve of the United States' entry into
World War II, the President had at least three havens for his
agents, special assistants, and closest advisers, including
coordinators who would come to be known in some instances as
``czars.''
For war mobilization, President Roosevelt had at least
three successive primary czars: William S. Knudsen at the
Office of Production Management, who was not given enough
authority to be successful; Donald Nelson, Chairman of the War
Production Board, who allowed his authority to become diluted;
and James F. Byrnes, who led the Office of War Mobilization
with great confidence, great ability, and great accomplishment.
But it also appears that these czars were accountable to
Congress. An examination of the April 1941 to April 1943
hearings of the respected Senate Special Committee
investigating the National Defense Program--this was the panel
chaired by Senator Harry S Truman--indicate that Knudsen
appeared once, his deputy appeared twice, and Nelson thrice.
Moreover, lesser officials from Knudsen's agency made 17
appearances, and those from Nelson's board made 24 appearances.
This all in just 2 years. There was, indeed, cooperation with
the Truman Committee.
In conclusion, let me just offer a couple of considerations
that are in my statement.
When the President prohibits congressional testimony by a
czar or other presidential agent, efforts should be made to
obtain the desired information in some other way, such as the
provision of responsive factual documents, like a Freedom of
Information Act (FOIA) request, or written answers to
interrogatories, testimony by a department or agency official
heading the unit in which the czar or presidential agent is
located, or a briefing of congressional committee leaders or
staff.
Also let me note that in 1978 Congress established
personnel authorizations for the White House Office, for two
other Executive Office of the President units, and for the
Executive Office of the Vice President. This authorization
might be revisited with a view to the adequacy of its
allotments, with a view to its reporting requirements, and its
scope--should it be extended to other Executive Office
entities.
Mr. Chairman, thank you again for your invitation to appear
here today. I welcome the questions of Members.
Chairman Lieberman. Thank you, Dr. Relyea.
For those who are interested, I think your description of
the history here and your prepared testimony is really quite
illuminating, and it is worth reading.
Mr. Relyea. Thank you.
Chairman Lieberman. So I am sure people will be waiting for
the transcript of this hearing to appear.
Mr. Relyea. Best-seller. [Laughter.]
Chairman Lieberman. We will have 7-minute rounds of
questions.
Dr. Pfiffner and Mr. Casey in different ways tried to
define what we should be focused on, and if I heard you right,
Dr. Pfiffner, you started with a kind of disclaimer I think is
valid, which is, there is no generally accepted definition of
what we are exactly talking about, but your definition of the
category of employee that we should be concerned about are
members of the White House staff who are not officers of the
government within the definition, not statutorily authorized,
not confirmed, and they are coordinators of policy. To some
extent, Mr. Casey, I think you agreed with that.
Am I hearing that right? And let me ask first--perhaps I
should wait for Senator Collins, but I know she feels that some
of those working in executive agencies are also czars because
of the role they play. But you would say at the outset that
what we should be concerned about are the people in the White
House?
Mr. Pfiffner. They maybe have responsibility to coordinate,
do interagency coordination and so forth, but they report to a
Cabinet secretary, so they can report to Congress and they are
responsible if they are not in the White House and if they are
either PAS or report to a PAS position.
Chairman Lieberman. Just define PAS for the record.
Mr. Pfiffner. Presidential appointment with consent of the
Senate. Those in the White House staff usually are just
preisdentially appointed (PA).
Chairman Lieberman. So in response to the direct question
of their accountability to Congress and to--actually, there is
a wonderful phrase that Senator Byrd quoted from President
Obama: ``A democracy requires accountability, and
accountability requires transparency.''
So in regard to that, you would say that someone in an
executive agency who may be acting like the people in the White
House we are concerned about is, nonetheless, accountable to us
and can be called to testify or produce documents. Is that the
distinction you would make?
Mr. Pfiffner. Yes.
Chairman Lieberman. Mr. Casey, go ahead.
Mr. Casey. I generally agree with that, although, again,
there is always a question of what testimony and which
documents. Whenever you start getting close to advice that is
prepared for and given to the President, you start, obviously,
getting into some very difficult separation-of-powers issues.
But to the extent that the czars who actually hold offices at
the agencies, some of which have been confirmed by the Senate,
undertake a policymaking role in addition to the role they
serve in in their office, that is fine--again, so long as they
do not attempt to exercise authority that was not otherwise
properly delegated to them.
Chairman Lieberman. So let us go back to the people in the
White House, the category we are concerned about. What if the
people that we are describing here are not just advisers but,
as one might argue in some cases, both in this Administration
and previous Administrations, actually begin to act like
officers, that they are making decisions, they are forcing
decisions on Cabinet secretaries, for instance? What should our
response be? Because they will claim, as they have in this
Administration and previous ones, that we do not have a right
to call them to testify or to ask them to produce documents.
Mr. Casey. Sure. I think, frankly, that is the key, and I
think that is the key to the concern, that White House policy
czars, White House advisers, will force the agencies to do
things that they do not want to do.
I think in answer to the first question, to the extent they
act like officers, their actions are not valid. Their actions
are not legally enforceable. A court will not enforce an order
or a rule signed by a presidential adviser.
With respect to whether they over-awing the agencies, in my
limited experience, frankly, it is actually quite difficult for
the White House to force an agency to do what it does not want
to do. But assuming that is done, then I think your concern
should be with the officers, with the Secretary, with the Under
Secretaries, whoever actually signs the document that makes it
law. They are the ones who must defend it. You sign it, you buy
it. And if they believe, as Attorney General Elliott Richardson
believed, that what the President wants them to do is wrong,
they can resign.
Chairman Lieberman. Yes. From your perspective, both of
you--and all of the witnesses, having studied this--we have
gone through it back and forth, over and over again with people
in the White House, not just this one, but previously too--
where they will not testify based on the claim of executive
privilege, that they have to be free to give the President
advice and not have it become a matter of public testimony.
And, generally speaking, we all agree with that. We always say,
``Yes, but you are playing an independent policy coordination
role, and we want to question you on that.''
So I guess I would ask you a two-part question on that. Is
there validity to their claim that they should not be called to
testify on their policy coordination as opposed to the advice
to the President? And either way, is there some way we should
legislate to compel people in the White House holding these
positions to come before Congress to testify about--not about
the advice they have given the President, but about the policy
coordination role that they are playing?
Mr. Casey. Well, the thing is you start very quickly
getting into difficulties of definition. Obviously, the advice
someone gives directly to the President, the actual speech,
what you tell the President is clearly privileged. But, in
addition, to have an effective privilege, your activities, what
you do for the President also needs to be privileged;
otherwise, the privilege does not mean that much.
Again, these individuals, whatever independent authority
they have is entirely based on the President's authority. They
are his assistants. They can do nothing that he does not permit
them to do, and there are things that he may not delegate to
them.
In terms of possible legislation, Congress has regulated
the White House Office, but it is difficult to think of a
system where you are regulating the independence of
presidential advisers that would not raise serious separation-
of-powers issues.
Chairman Lieberman. Governor Ridge, do you want to get into
this? Actually, my time has expired, but do you have any
responses to the back-and-forth that we have just had?
Mr. Ridge. Just, first of all, I am very pleased to be with
such a distinguished panel of historians and constitutional
experts. I think one of the challenges associated with the
ability of Congress to even have a legitimate basis for inquiry
would be resolved if in making the appointment there was a
public revelation of precisely the function that the adviser
was going to play within the White House. And my sense is a lot
of these have been appointed by virtue of a press release. And
obviously the President can appoint whatever advisers he wants,
but in terms of your ability to make inquiry, perhaps not of
the adviser but of the Cabinet secretaries with whom this
individual has coordinated responsibility would certainly be a
very positive step. But right now I do not even think Congress
is in a position to do that because the President has not
outlined specifically what those coordinating responsibilities
are.
Chairman Lieberman. Thank you. I am going to yield to
Senator Collins. I just want to read you a paragraph from
Senator Byrd's letter. It is a very interesting argument, and
maybe we will come back to it. ``Whether an executive official
is confirmed by the full Senate or appointed by the President
alone to serve on the White House staff, that official holds
the position by virtue of the authority that the Congress has
granted to the President. Such White House staffers receive a
salary by virtue of the spending authority that Congress has
granted to the Executive Branch. Even presidential assistants
and advisers have a constitutional obligation to answer
questions before the Congress if it is necessary for the
Congress to fulfill its constitutional oversight and
investigative functions.''
That is something really to think about. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
I want to give the panel an actual example of a czar
position that I think is very troubling. In 2007, this
Committee wrote legislation that became law that created within
the Executive Office of the President a Senate-confirmed
position to be coordinator for the prevention of weapons of
mass destruction (WMD), and the coordinator's role, which is
defined in this law, says that this individual should serve as
the principal adviser to the President on all matters relating
to the prevention of weapons of mass destruction proliferation
and terrorism. And, again, I am going to stress this was to be
a Senate-confirmed coordinator located within the Executive
Office of the President.
Now, neither President Bush nor President Obama ever filled
this statutorily created position, but both of them created and
filled a White House policy czar for weapons of mass
destruction. That individual, the WMD czar, has exactly the
same functions that were set forth in the law that the Chairman
and I wrote. And to me, this is a prime example of both
Presidents--this is not a partisan issue--appointing a White
House policy czar, which completely circumvents a statutorily
Senate-confirmed position created by Congress.
So I would like to get your reaction to this, because to
me, this is a prime example of what troubles me. Secretary
Ridge.
Mr. Ridge. I was afraid you were going to call on me.
[Laughter.]
Senator Collins. Would you like me to call on you last?
Mr. Ridge. With that intervention, I am prepared to answer
the question. I think it is fundamental to the inquiry that you
are making today. The brilliance of the Founding Fathers years
and years ago to create the three branches of government, the
separation of powers, and one can say--and, remember, I used to
sit up on that side of the dais--that the Congress of the
United States has effectively said for public policy purposes
there is a need for a position and you want it Senate-
confirmed. Everybody agrees with that. That is circumvented by
not filling a position but giving somebody else the exact same
responsibilities.
Here is why I think that whole notion of transparency
essential to the functioning of a democracy probably gives
precedent to that individual testifying simply because it was
apparently done in response to a statutorily--there was no
position. You created the position. It was filled as an
adviser. The name was not sent to the Hill. I guess I would put
on my congressional hat and say that is sleight of hand that it
would seem to me to be very troubling, because the basic
strength of our country, of a democracy, is transparency. Here
the conditions are so raw, so evident, in my judgment, that
your claim for this individual to testify before you should be
legitimized since you created the position. They filled it but
did not send a name to the Hill.
Senator Collins. Dr. Pfiffner.
Mr. Pfiffner. I agree. I think the Senate----
Mr. Ridge. Good. [Laughter.]
Mr. Pfiffner. The Congress can certainly create whatever
positions in the U.S. Government that it wants to, setting
aside the President's right to confidential advice and so
forth. The fact that confidential responsibility overlaps or
duplicates a position that is supposed to be PAS I think is
very troubling. So I agree on that issue.
Senator Collins. Mr. Casey, you have been a strong advocate
for a strong presidency, but does this specific example trouble
you?
Mr. Casey. Well----
Senator Collins. The answer is, ``Yes.'' [Laughter.]
Mr. Casey. With respect to this example, I think the
question really is: Did Congress have the authority to create a
position, the role of which is to act as chief adviser to the
President on a particular topic area? Obviously, Congress is
free to create offices and to vest those offices with whatever
power it thinks necessary. But when you start getting to a
point where you are effectively choosing the President's
advisers--as I understand the way you described this office,
this person will act as the President's chief adviser. That
raises very serious separation-of-powers concerns simply
because you are purporting to say this is the person the
President has to listen to.
So in this instance, I do not actually find it troubling.
In fact, I kind of wonder what the Administration statement on
the proposed bill was when it came through and whether there
was an objection to that office. Perhaps there was not, but it
would be interesting.
Senator Collins. I do not believe there was.
Mr. Casey. It would be interesting to find out.
But I think that is why the office has not been filled,
because there is a feeling that it is simply too close to the
President's own authority.
Senator Collins. We were just talking up here as you were
responding that you could say that about almost any position.
If the President disagrees with the creation of a Senate-
confirmed position, he obviously could have vetoed the bill,
and did not do so. Instead, it is being circumvented.
I want to get to the final witnesses' comments on this.
Mr. Relyea. I have two points I would make. I am not in
disagreement with what has been said, but I am reminded that in
1944, with Mr. Byrnes as the head of the Office of War
Mobilization (OWM), that position was seen as too powerful in
some regards. He was the President's agent. He was appointed
without Senate confirmation. OWM had been created by executive
order. Congress said, ``We are going to reconstitute the
office,'' and they did, by statute. Technically abolishing
Byrnes' office and his role, Congress set it up as a Senate-
confirmed position, in a statutorily created entity. I think
that might be an answer here, that you eliminate either its
funding or its role as a White House unit and go for something
that is a congressional creation.
Now, there is another point here, too, and that is, on
occasion, when Congress has created an Executive Office unit,
the White House has played sleight of hand and put that unit
for funding purposes--and by implication for managerial
purposes--within the White House Office. The Homeland Security
Council had that budgetary type of role. The Privacy and Civil
Liberties Oversight Board, before it was made an independent
agency--and that is why it was made an independent agency--was
also put behind that facade, creating a whole array of
problems, czar or otherwise.
Senator Collins. Unfortunately, my time has already expired
even though I have lots more questions. Let me just make a
final point on this issue.
When Congress passed the Intelligence Reform and Terrorism
Prevention Act, which we wrote in 2004, we created by statute a
Director of National Intelligence. That individual acts as the
chief adviser to the President on intelligence matters. When we
made the powers of the Federal Emergency Management Agency
(FEMA) Administrator stronger, we specifically designated that
individual as being the principal adviser to the President. So
this is done all the time. And I think it creates a real
problem when Congress specifically creates in law a position
that is Senate-confirmed, that is accountable to us, thus a
person we can call up before us, and then the White House--and
both President Bush and President Obama did this with the WMD
coordinator position--does not fill the statutorily created
position and instead creates a czar with exactly the same
duties and who is not accountable to us at all.
Chairman Lieberman. Well done. Very important question.
As you know, we call Senators in order of appearance. Just
for your information, that is Senators Bennett, Burris,
McCaskill, Coburn, and Ensign. Senator Bennett.
Senator Bennett. Thank you very much, and thank you to the
panel. Very well done and fascinating. Let me pick out a few
comments that you made, however, to disagree with and see what
your response is.
The comment, Mr. Casey, that it is difficult to force an
agency to do what they do not want to do, anybody who has dealt
with the Office of Management and Budget (OMB) who is a Cabinet
officer will disagree with that. And they are now both dead, so
I can tell the incident. When I was serving in the Executive
Branch and we were at the White House making a very strong
pitch for something we very significantly wanted to do to Cappy
Weinberger, who was the head of OMB, it was very rough sailing.
Cappy was called out of the meeting to meet with the President.
We sat there waiting. He came back grinning like the Cheshire
cat and said, ``I just ran into John Ehrlichman, and he told me
no. So you cannot do it. That is the Nixon Administration,
period. You have gone to the highest possible authority. There
is no point in our continuing the meeting.''
Well, this is an unconfirmed presidential assistant who
made the firm decision.
Now, you are correct in that he was able to do that because
President Nixon allowed him to do that. I worked for John
Volpe. I saw the circumstance where John Volpe offended John
Ehrlichman, as a result of which Mr. Volpe did not see the
President of the United States for 2 years.
So let us not kid ourselves that these unconfirmed folks
only have the authority to advise. The reality is the White
House is a court. The President is the king. The White House
staffers are courtiers, and it is the century-long duty of
every courtier to keep anybody else from access to the king.
And the White House courtiers do a very good job of that,
regardless of which party is in charge or which Administration
is doing it. And in President Nixon's case, he paid a very
serious price for allowing his courtiers to keep people who
would tell him the things he needed to hear away from him. But
let us understand that is the case.
Now, one other quick comment, responding to my colleague
and the comment that says, well, the Congress cannot tell the
President who his principal adviser is going to be. Congress
passed a law creating the Council of Economic Advisers, and yet
there is an economic czar, Paul Volcker, at the current moment.
Who has the President's ear on the economy? And then there is
the other adviser, Larry Summers, and if you want to influence
the President, if you are a Member of the Congress, whom do you
call? Do you call the Council of Economic Advisers? Do you call
Mr. Summers? Or do you call Mr. Volcker?
Reference has been made to Nancy-Ann DeParle, for whom I
have enormous respect. I think she is terrific, and I have had
a lot of conversations with her about health care. But we do
happen to have a Cabinet officer of Health and Human Services
with whom I have never had a conversation about health care--
not because I have any opposition to her, but because it is my
perception that Nancy-Ann DeParle is calling the shots rather
than Secretary Sebelius.
We have an Energy Secretary with whom I have had a number
of conversations about energy because that is an area now of my
responsibility here in the Congress. But I think the person
calling the shots here is Carol Browner.
This is the management issue that this whole thing raises.
I said what I said about Y2K because that was a circumstance
that cut across Department lines. There was no way you could
raise that issue within existing White House or congressional
staff. But in this circumstance, you have a Council of Economic
Advisers, but the President has a czar. You have a Secretary of
Health and Human Services, and the President has a czar. You
have a Secretary of Energy, but the President has a czar. And
somewhere in this circumstance, at OMB or surrounding OMB,
there is a John Ehrlichman from Chicago who is going to say no,
and that is going to end it.
Mr. Casey. Actually, Senator, if I can respond.
First, with respect to the question of how difficult it is
to make an agency do what it does not want to do, obviously the
White House can and does make agencies do what they do not want
to do. But it is a heavy lift, as they say. Not every issue can
be elevated to the President. The agencies deal, obviously,
with hundreds and hundreds of important issues. And, yes, if
you get to John Ehrlichman, then ultimately you can probably
close down debate. But you cannot do that on every issue
because there are simply too many.
With respect to the question of whether John Ehrlichman was
speaking for the President, to the extent the President wanted
Ehrlichman to deliver the message, that is fine. But the
Cabinet officers who were responsible for that issue had
absolutely every right to say, ``We want to hear that from the
President.''
Senator Bennett. Let me hear from Secretary Ridge. Mr.
Secretary, can you respond to that?
Mr. Ridge. Well, I can appreciate people in the White House
saying no, Senator, based on personal experience. Whether or
not they would be considered as czars, I do not know. It is
very interesting. A true incident has come to mind. I remember
right after the anthrax incident--I was sworn in on October 8,
2004. The first anthrax death had been reported. We had that
series of letters and deaths and just a horribly anxious time
for this country post-September 11, 2001. The Executive Branch
was not speaking with one voice. There was a cacophony of well-
intentioned people going forward, but for 3 or 4 days there, we
had the Centers for Disease Control and Prevention (CDC)
speaking, the National Institutes of Health (NIH) speaking,
everybody speaking. I must commend the present Administration
getting around H1N1. They did a much better job of having a
single point of focus.
But in my coordinating role as Assistant to the President
for Homeland Security, I remember calling everybody together in
the Roosevelt Room and saying, ``We have got to do a better job
than this, and from now on, we are going to coordinate the
message. We are going to do it through the White House.'' So
that worked very effectively.
But there were other occasions when, then as Secretary
stepping in, I guess my concern was there were some
organizational matters that I thought we had greater
familiarity with, better understood than perhaps somebody in
the White House in terms of the effectiveness of the proposal
we had, just on an organizational chart, and was told no.
And so I guess the challenge you have is distinguishing
those times when this individual, a confidant of the President,
gives exclusively bad advice, and then occasionally, when
whomever it is around the President has actually veto
authority, can actually influence what that Cabinet secretary
wants to do. So that is the gray area that I think the
Executive and Legislative Branches have dealt with for 200-plus
years, and you continue to deal with it. So I have had
experiences in both directions.
Chairman Lieberman. Thanks, Senator Bennett. I think you
were here for my opening statement. I expressed some concern
about the use of the term ``czar.'' You have offered in its
place ``courtier.'' That actually describes more appropriately
the power exercised here, although it is not yet quite American
enough. [Laughter.]
Let us work on that together.
If I may, just to supplement your story, you brought to
mind a story when you told the Ehrlichman story, it is not
quite as direct, but Abraham A. Ribicoff was a governor of
Connecticut and a Senator. He was a great inspiration and
mentor to me. In between, he was in the Kennedy Cabinet for 2
years, and he left surprisingly quickly to run for the Senate.
And I remember being at a dinner with him. Somebody said,
``Abe, why did you leave the Cabinet so quickly?'' ``Oh,'' he
said, ``there were several reasons, but its wonderful to think
about being a Senator.'' But he said, ``You know, I just got
tired of having these kids from the White House call me and
tell me what to do.''
Now, of course, he had been, as Governor Ridge knows,
previously a governor, so no one tells a governor what to do.
Senators are more accustomed to that. [Laughter.]
But those stories give us a certain degree of humility
here, hopefully, in trying to deal with this, because whether
they are called ``czars'' or special positions are created,
there is no question that inherent in the people around the
President--Ehrlichman, who had a high office, or ``these
kids,'' as Abe Ribicoff said--there is power. And it has over
the years concentrated much more in the White House and away,
unfortunately, from the Cabinet secretaries.
Senator Burris, do you want to say a word of defense on
behalf of Chicago?
OPENING STATEMENT OF SENATOR BURRIS
Senator Burris. I would, Mr. Chairman. I have been a
constitutional and political science student. I mean, this is
Political Science 101 or maybe Political Science 1000. The
panel has just been terrific. I have so many thoughts just
rolling through my head, I do not even know where to start.
This is the meat that causes us political scientists to even
exist because you are dealing with these major issues of the
separation of powers and the creation of this country, and
whether or not you want the President to really have the powers
that you granted him, and whether or not the Congress, which is
on similar or equal footing, can then control or muscle in on
those powers of the President based on the fact that--
especially the House of Representatives, since they stand for
re-election every 2 years, and Senators much longer. You have
this constant power struggle as to who is really representing
the people and what that representation is going to mean when
it gets to the policy decision that is going to impact the
public.
I do not think you can come up with a definition dealing
with this. Having served in a governor's cabinet and having
dealt with those staffers, it almost depends on how strong the
Cabinet member is as to just what and how he is going to deal
with those situations and those circumstances, because having
experienced that on the State level and knowledgeable to some
extent on the Federal level--I was very close to the Carter
Administration and had good insights into the workings of the
White House and all of those decisions that were being made and
how the gatekeepers really sought to filter the information
they got to the President. Every President is going to go
through it. I do not know how we in the Congress can legally--I
mean, I heard the distinguished Ranking Member say that we
passed a law. We can pass a law and say that there is going to
be a position in there, but I do not think the Congress can
tell the President who to put in that position. And if we do
that, then I think that we are violating the separation of
powers. I mean, this is what we get into. And you can create a
position--what happens if the President says, ``I do not want
to appoint anybody as Secretary of State. I am going to use the
Under Secretary as an Acting Secretary''? Is there a law that
would require a President to appoint a Secretary of State?
Mr. Casey. A law that requires the President to appoint a
Secretary of State?
Senator Burris. Yes.
Mr. Casey. Specifically, there would not be a law requiring
him to do that. Now, of course, if he wants the functions that
you vested in a Secretary of State performed, he probably has
to----
Senator Burris. But there is no law that says he has to
even appoint a Secretary of State. Am I correct? There is a
statute that says there is a Secretary of State position.
Mr. Casey. Right, shall be appointed in the following--yes,
I am unaware of any law to require it.
Senator Burris. But is there a law that says the President
has to make that appointment?
Mr. Casey. Not that I am aware of.
Senator Burris. That is the difficulty with which we are
dealing. Is there a law that says that the President can
appoint an acting person and how long can that person act?
Mr. Casey. Yes, there is actually a law that governs that.
Senator Burris. How long can that person act?
Mr. Casey. I would actually have to look at the statute,
but it is a matter of months.
Senator Burris. A matter of months. So that person has the
authority then should leave that position? And who then assumes
that authority in that position if the President refuses to
send a name up for confirmation to us?
Mr. Casey. Well, yes, there are many circumstances in which
an acting official can continue to serve, especially if they
are the normal principal deputy of the office that you are
talking about.
Senator Burris. And what about the midnight appointment of
judges in the interim time while Congress is in recess.
Mr. Casey. Recess appointments.
Senator Burris. The recess appointments, and they serve for
only a certain period of time, and otherwise that person would
have to leave the position? I mean, you can see all the
questions that are just flowing through my process here as we
try to talk about czars and policymakers. This is even bigger
than czars. You are wrestling with this wonderful document that
was created 200-plus years ago that created our Nation and this
thing called separation of powers. We have not even gotten into
the judiciary side of this, which could also raise a whole lot
of other questions.
I have more questions than I have answers, Mr. Chairman, in
reference to this because I just sit here and listen to the
experts talk, and every time there was a statement made, there
is a new question coming to my mind, well, what about this?
What if? And so I find this so fascinating, and I am certainly
going to read each and every testimony of the witnesses. I do
not know how I am going to get back to the hearing again to try
to follow up on this.
Mr. Chairman, I would imagine that our grandchildren are
going to be still wrestling with this same problem. I do not
know whether or not we want to have a weak President who is
going to kowtow to Congress or a weak Congress who is going to
let a President run all over us, which you see in some of these
cases. If you say that we are going to appropriate some money
and they do not want to spend it, they do not spend it. And you
just heard what the distinguished Senator from Utah said, who
the gatekeeper is to stop information from getting to the
President? I am more frustrated than I am with the questions.
Thank you, Mr. Chairman. I am done. [Laughter.]
Chairman Lieberman. Thank you, Senator Burris. No, I think
this is actually a subject that has received a lot of heat
lately, but I think there has been a lot of light shed this
morning, and it is due to the quality of the witnesses and, I
think, the interest of the Members of the Committee, including
yourself, in going at this thoughtfully. I thank you.
Senator McCaskill.
Senator McCaskill. Thank you, Mr. Chairman.
The job we have today is to try to separate genuine concern
over constitutional checks and balances versus the partisan
food fight. And I think we are in the right Committee to do
that. I think the Chairman and the Ranking Member have
repeatedly shown in their tenure in this Committee that they
are not partisan and that they are focused on accountability.
The context really is what is important here, and, really,
the question boils down to the simple nugget of truth: To what
extent is the President entitled to have advisers within the
White House? And what power does the Congress have to limit
those advisers in the White House? And I read every word of all
of your testimonies. They were fascinating. I am a student of
history, especially the Truman Committee because of my
connection to that particular President in my home State and my
interest in oversight in war contracting. So all of your
testimony--I have to tell you, I have been a little offended at
how frequently Richard Nixon's name has been used by members of
the other party in the last few days. I think that is a little
silly to be comparing the Obama Administration to some of the
shenanigans that went on in the Nixon White House, and I have
not appreciated that comparison.
And that is unfortunate for this studious look at this
issue. This all began, as my kids would say, in reference to
the Harry Potter series, from a rant by he who shall not be
named, and in the rant that this person did include nine people
who have been confirmed by the Senate in his list of czars. And
of the nine people who were confirmed by the Senate, all but
two of those were unanimously confirmed by the Senate.
Another large chunk of the czars that were identified
report to Cabinet secretaries. They do not have any power
outside of the power of the Cabinet secretary, as you all have
pointed out as experts in this area of constitutional law.
So if you whittle it down, there is a very small number of
White House advisers that we are really talking about here, and
even a smaller number that are new. And so I think you all have
done a very good job in a nonpartisan way, including you,
Secretary Ridge, talking about the challenges of us overseeing
White House advisers.
I was particularly interested in your testimony, Dr.
Pfiffner, about what is perhaps a bigger threat to the
constitutional checks and balances, which are things like
signing statements and things like secret programs and the
claim of executive privilege. And I find it a little ironic
that some of my Republican friends have righteous indignation
about White House policy advisers, especially in light of what
I would call the very strong, muscular attempt in the previous
Administration to embrace signing statements and some of the
other things I just talked about.
I would hope that this Committee would take a look at
signing statements and their constitutional foundation and what
we should be doing about signing statements. That is a direct
affront to the constitutional power of the Legislative Branch.
Let me ask and confirm again, Is there anyone on the panel
that believes we should be calling anyone outside of a White
House adviser the term ``czar''? Is it appropriate to anyone
who works directly and answers, for example, to National
Security Advisor Jim Jones or answers directly to Secretary of
State Hillary Clinton or answers directly to the Environmental
Protection Agency (EPA) Administrator or any of those? Is there
any appropriate nomenclature that would put them under the
rubric of the term ``czar''?
Mr. Relyea. I suspect what you are asking is to let us get
away from the label.
Senator McCaskill. Right.
Mr. Relyea. And let us see what these people are actually
doing.
Senator McCaskill. Right.
Mr. Relyea. Are they wielding power that someone else
should use?
There is another caution here, I think. The word ``czar,''
like the word ``kaiser,'' both come from Caesar. That was a
pretty authoritarian person.
Senator McCaskill. Right.
Mr. Relyea. If not a dictator. So it has a pejorative
quality to it, too. And where it is usually applied first is by
the press. This may be a member of the press who did not get
access to this person and so they labeled him a ``czar'' to
sting him back.
It also may be shorthand--to come full circle in my
comment, it falls on the part of the reporter or the journalist
to actually look at what the person is doing. They go, ``Oh,
this person has a lot of power. Must be a czar. That is my
story.''
So I think it behooves us, wherever we see these actors,
these presidential agents--Dr. Pfiffner makes the point that
these are blessed somehow with access to and the authority of
the President. I think that is a beginning point. And then are
they doing somebody else's job, as Senator Collins was pointing
our in her example.
So labels are neither here nor there. Titles may not be
here or there. It is what are they doing, and that is the key
question.
Mr. Casey. I would agree. The real question is--``czar'' is
an unfortunate term. It has been with us for 30 years. The fact
that now we have 30 or 40 people being called ``czars'' frankly
debases what was already a debased currency. We really need to
look at the authority that people are exercising.
Senator McCaskill. Dr. Pfiffner.
Mr. Pfiffner. I think there is no doubt that some White
House staffers try to exert personal power rather than
representing the President, but only if and as long as the
President is willing to listen to them. But I think that is the
reality of power. Leaders need staff and advisers, and I think
even Members of Congress probably have staffers that
occasionally communicate with other staffers by delivering a
message of the principal person. So a certain amount of that
stuff I think is legitimate in the White House as it is in
Congress, as it is in the Supreme Court.
Mr. Ridge. Senator, if I might just comment, please, I
think I can put an exclamation point--and my colleagues are
much more versed in this than I am. But whether the term is
``czar'' or ``adviser,'' both defy definition. There is no
definition, unless accompanying the appointment there is a
specific delineation of responsibilities. If accompanying every
appointment there is that delineation, then there is some
functionality associated with the title. I think one of the
reasons there is so much confusion and perhaps a point of
delineation between those who should testify and those who
should not, is if the Congress and the public in a transparent
world understood completely what the authorities were.
Senator McCaskill. Right. I would just briefly also point
out, I think Senator Collins had a good example of where we
have to ask questions about the position that was created. I do
know, however--and I know you guys are aware of this--that the
Weapons of Mass Destruction Commission has recommended the
repeal of that position, and President Bush wrote a letter to
Congress in January requesting the repeal because the
Commission has indicated they do not think it is an appropriate
Senate-confirmed position.
I tend to agree with you, Senator Collins, that regardless
of what the Weapons of Mass Destruction Commission said, if
Congress has passed it, I think it would be incumbent to fill
it unless and until it is repealed. But I do think that there
has been some at least independent assessment concerning that
position that at least I think has come to the attention of
both the Bush Administration and the Obama Administration. But
I thought your example was a good one because it was not about
the Democrats versus theRepublicans; it was about Presidents
ignoring Congress.
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator McCaskill.
We will do one more round. There is a vote in about 10 or
15 minutes.
Let me pick up on this example that Senator Collins
mentioned and acknowledge it and acknowledge that attempts we
make to deal with the problem that concerns us can be
frustrated by executive action, but let me just focus in.
What really troubles me about this is the matter that we
have talked about, which is the difficulty and really
ultimately the impossibility of exercising our oversight
authority with regard to people in the White House. And the
elevation of some of these positions, which are really policy
coordinators and coordinating Cabinet officials, to me they
seem sometimes to be really acting as if they were officers of
the Federal Government, that is the concern I have. So the
question then is--because in the normal course of events, no
matter which party controls Congress, which controls the White
House, these are institutional conflicts that will go on, and
Congress will not have the ability to obtain information.
So one possibility is to take some of these positions that
are now within the White House, that appear to be policy
coordinating, not within the inner circle, if you will, of the
President, and make them statutory. And, again, I understand
the capacity of a President to frustrate this.
An interesting example here is the Office of National Drug
Control Policy. A so-called drug czar was actually created by
President Nixon. There we go again with President Nixon. Later
it was made statutory, and the Director of the Office of
National Drug Control Policy, statutorily authorized, confirmed
by the Senate, does respond to requests by Congress to testify
or produce documents.
So as we quite seriously search for some kind of answer to
what to me is the heart of this question from a congressional
point of view, how do we obtain testimony properly and exercise
our oversight authority? I want to ask you, is that history
that I have just described a good precedent for us? In other
words, should Congress, for instance, create a White House
office charged with coordinating national health policy, which
is essentially the position of Nancy-Ann DeParle? And should we
create a national adviser to the President for energy and
climate change policy--which is the one that Carol Browner is
in now--as a way to resolve this dilemma and subject these
positions to Senate confirmation and, therefore, make sure that
they will be responsive, acknowledging executive privilege, to
a request to come before Congress and testify? Dr. Relyea, I
think I will start with you.
Mr. Relyea. I think it is worth pointing out that the drug
czar, so-called, is in an agency which is within the Executive
Office of the President. It is not in the White House Office.
So there is a distinction that is important. Congress has on
occasion created entities within the Executive Office, and
those seem to be--up until the moment--far less of a problem
than people who are in the White House Office.
The National Security Advisor is actually on the White
House Office staff, not an official of the National Security
Council. And on various occasions, since as far back as I can
remember, like in the early 1970s, there had been attempts from
time to time to make that position subject to Senate
confirmation. We have come very close to the edge, but have
always backed away at the last minute.
Chairman Lieberman. Particularly around Henry Kissinger's
time, if I recall correctly.
Mr. Relyea. Yes, it was with Dr. Kissinger.
Chairman Lieberman. He was exercising too much authority.
Mr. Relyea. Yes, and it came up later.
Now, interestingly, out of Dr. Kissinger's experience, when
he was National Security Advisor, and Governor Ridge did the
same, while they were prohibited from coming before Congress,
they gave briefings. They met informally, confidentially, off
the record, with Members of Congress. So as I tried to point
out in my statement, there are means for getting accountability
or finding out what is going on and so forth. But I think, even
though Congress creates a staff authorization for the White
House Office, provides the funds for the White House Office
personnel, thus far Congress has not seen fit to invade that
domain and has left it to the President.
Now, a little saber rattling might cause a President to
think, ``Uh-oh, here they come. They are going to come in the
White House and start telling me how I can hire people.''
Chairman Lieberman. In general, you would counsel against
that?
Mr. Relyea. I counsel against it because I think you have
two great problems to overcome: A historical record, and I
think it would take an extraordinary majority in both chambers
to get that passed.
Chairman Lieberman. Yes. Incidentally, as you know,
Kissinger and Nixon solved that controversy by making Kissinger
Secretary of State.
Mr. Relyea. He had both roles for a while.
Chairman Lieberman. Yes, that is right. Mr. Casey.
Mr. Casey. I think the real question is whether by creating
one of these offices you can then effectively prevent the
President from looking to someone else to be his adviser on the
issue or to speak for him on the issue, and I think that,
frankly, is where the constitutional problem is.
There are certainly a lot of functions that you could
consolidate in a particular office, be it in the White House,
in the Executive Office of the President, or outside in an
agency. But the key question is: By doing that, can you keep
the President from looking to someone else? I do not think you
can. I think it raises very serious separation-of-powers
issues. I am not exactly sure what the courts would do,
although I will say that in many areas where the question is
whether legislation or regulations apply to the President's
personal staff and office, the courts do somersaults to avoid
answering the question.
Chairman Lieberman. Thanks. Dr. Pfiffner.
Mr. Pfiffner. I think Secretary Ridge is right, that the
key here is the functions that these people perform. If you
create an officer of the government, that person can exercise
the authority of that office, but they are also subject to the
Executive Branch chain of command.
Advisers to the President, on the other hand, can tell the
President whatever they want, and you can create the position,
but basically the President can listen to whomever he or she
wants.
So I think the real solution, if there is one, to this
problem is comity between the branches from both sides so that
the President does not keep trying to keep things away from
Congress, make things non-transparent, and that Congress does
not get too heavy-handed, on the other hand. That is a
difficult one, but I think that is the real solution.
Chairman Lieberman. Governor Ridge.
Mr. Ridge. Senator, a slightly different perspective. At
some point in time, while you are interested in the kind of
interaction and oversight incumbent upon you within the
Legislative Branch, the perspective I offer you as a former
Cabinet secretary, at what point in time does that assignment
of responsibilities or a function begin to interfere, overlap,
conflict, or create a real tension between the individual in
the White House and a Cabinet secretary? So does the
presidential nominee confirmed by the Senate have as much
authority in this domain as the President's adviser who is not
answerable to you right now under certain circumstances?
So I think if you would decide to legislate, I would just
encourage you to be very cautious that you do not undermine the
credibility and the function of the Secretary, who ultimately
is accountable to you.
Chairman Lieberman. That is a good point. As you respond,
it strikes me that the initial position you held in the White
House, Homeland Security Advisor, was created by executive
order.
Mr. Ridge. Correct.
Chairman Lieberman. And then made statutory. That is an
interesting case. Now, it was not done to compel the testimony
of the position. It was done as part of the creation of the
Department of Homeland Security, the reforms that we were
putting into effect over time to protect our country from
terrorism. So we wanted to give it that extra measure of
authority. And then--I think I am getting the time right--when
you were Secretary, we had given the Homeland Security Council
and Advisor statutory authority. In other words, you were
dealing with a statutorily authorized Homeland Security Advisor
when you were in the Cabinet.
Mr. Ridge. Right. As I recall the legislation, my position
within the White House as Assistant to the President for
Homeland Security was created, and now President Obama, I
think, has moved that within the National Security Council. I
think John Brennan basically now holds that title.
Chairman Lieberman. That is right.
Mr. Ridge. I do not know whether he is subject to public
inquiry from the Congress or not. I suspect the President is
protecting that domain. And I do not recall, frankly, Senator,
whether or not General Gordon or Fran Townsend were ever called
to testify. I do not think they did, although, again, to Dr.
Relyea, I think they are up here briefing constantly, but not
publicly. Big difference.
Chairman Lieberman. Thank you. Very good answers and
helpful.
Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
We have heard today, as well as from the President's legal
counsel, the argument that Congress cannot compel individuals
who fill these czar roles to testify before us because of the
argument Mr. Casey made today that the President has the right
to have personal assistants who advise him.
The problem for me is there is a big difference between the
traditional staff of the President--his chief of staff, his
legal counsel, his press secretary--and these czar positions
which have significant policy responsibilities. And that is why
I have been trying to come up with a reasonable approach to
resolve this issue.
For example, I think Congress should be able to call Carol
Browner, the President's energy and environmental czar, to ask
her about the negotiations that she conducted with the
automobile industry that led to very significant policy changes
with regard to emission standards. I think that is particularly
important because the Supreme Court in 2007 held that it was
the Environmental Protection Agency that had that very
responsibility under the Clean Air Act. And yet these
negotiations were not undertaken by the EPA Administrator but,
rather, by the White House czar.
Similarly, when Nancy-Ann Min DeParle was appointed to her
position in the White House, the executive order does not just
vest in her the authority to coordinate across Department
lines. It does not just say that her job is to advise the
President. It specifically says that she is charged ``to
develop and implement strategic initiatives under the
President's agenda'' with a relationship to health care.
Implementation should be the job of the Secretary of Health
and Human Services, so that is why I am troubled. And I am not
proposing that the President be barred from creating these new
positions to focus on important policy priorities. I am not
saying that he should not be able to appoint whomever he wants
to these positions. But if we are going to have these
individuals in the White House have the ability to negotiate
emission standards with the automobile industry or
implementation health care policy initiatives, to me that is
totally different. That goes far beyond a position responsible
for advising the President where I would agree that we do not
have the right to call them before us--in the vast majority of
cases. I realize I need an out there just in case.
So what I have proposed--and what I offered on the Senate
floor, but it fell to a point of order unrelated to the
merits--is that the President make available to Congress to
testify upon a reasonable request individuals who have
responsibility for interagency development or coordination of
any rule, regulation, or policy, and that it would apply to
only those individuals who are without statutory authority. So
I am narrowly defining who I believe should come and testify
before us.
The second half of the amendment also called on the
President to provide us twice a year with a written summary of
the activities of these officers within the White House. That
strikes me as a reasonable approach that would allow us to
exercise our oversight responsibilities, that would introduce
far more transparency and accountability into the process,
while not infringing upon the ability of the President to
create special policy advisers, to fill them with the people he
wants without congressional confirmation, without Senate
confirmation.
So I would like to get your judgment on whether you think
that would be a reasonable compromise to a difficult issue for
those of us who believe in a strong Congress. Secretary Ridge.
Or would you like me to start on the other end of the panel,
then work down.
Mr. Ridge. Well, I would start if you let me finish.
[Laughter.]
Revise and extend, whatever.
Senator Collins. Absolutely.
Mr. Ridge. The operative word--I mean, it does make sense,
if you can identify in your legislation the ability--and,
again, language will be very important, as it always is--of
these individuals within the White House, within the
President's staff, who actually, as you pointed out, are told
to implement and execute policy. I am there, then I think
clearly you have that--I would favor your amendment.
The coordination role I have often viewed as a little
different, if it is truly coordination. Because I think the
notion that the President would have someone around him
overlooking--because there is so much overlapping jurisdiction,
to bring people together to coordinate existing policy--not to
create it but to coordinate whatever Congress has said the
Administration is obliged to do, whether or not--I am agnostic
on that. I cannot quite get there right now, but clearly on
implementing and execution, you got me.
Senator Collins. Thank you. Dr. Pfiffner.
Mr. Pfiffner. With respect to policy responsibilities of
advisers and whether they can negotiate for the President, they
can, I think, only do that with the President's permission. I
think even Senators' staffs sometimes do something like
negotiate with other staffs and so forth.
With respect to the implementation of health policy, I
think that is very troubling, but I think that person cannot,
with any personal authority, do any implementation.
The President I think can give permission to his or her
staff to come and testify. I think that is a matter of comity
usually rather than forcing the President to do that.
With respect to requiring a report from the President, I
think you can absolutely require a report on the policies, but
whether you can require a report on personal advice and
activities, I am less certain about that.
Senator Collins. Thank you. Mr. Casey.
Mr. Casey. Certainly with respect to the question of
implementation, it raises a fair question for Congress to ask.
It is absolutely true that an Assistant to the President cannot
propose a rule, cannot finalize a rule. They cannot by law
implement. But it would be a reasonable question to say what
exactly did you mean by ``implement.''
With respect to negotiating on the outside, again, I agree,
the individual acts solely as the President's personal
representative. If you disagree with the policy that eventually
came out of that, you have every right to call the
Administrator and the Secretary of Transportation up here and
say, ``What made you think this was a good idea? Why did you
sign it?'' And in that way you can certainly oversee it.
With respect to legislation, again, the court analyzes this
based not on hermetically sealed departments, but how much
would it actually intrude upon the President's ability to do
his job. And so it is not exactly clear what the result would
be.
Senator Collins. The problem, if I may interrupt just
briefly, is that we could call the Secretary of Transportation,
the head of EPA, and the Secretary of Energy on the automobile
emissions issue before us. You are right. But they are not the
ones who made the deal. That is what troubles me. They are not
going to be able to address the issues.
Mr. Casey. If I may, you see, they did not negotiate the
deal, but they did actually make the deal. They are the ones
that had to act in order for that deal to become law, to be
binding. And that I think is indeed the important issue.
Senator Collins. Not in terms of transparency. Mr. Relyea.
Mr. Relyea. On your amendment that you were talking about,
I think a central problem is the hair splitting of the
functions that are legitimate and thought not to be legitimate.
So I am basically sort of in agreement with what you are trying
to do, but the beauty is in how it is crafted legislatively.
As to a report from the President, I am less hopeful. I
have read many reports supposedly from the President, and they
can be pretty mushy. Nicely phrased, but they do not tell you
much when you back away from them. A hollow meal.
I have a question, though. In your example you gave of
Carol Browner's activity, did you ever consider asking her for
a briefing on the issue of how she was negotiating and doing
that?
Senator Collins. Let me say that I have talked with both
Nancy-Ann DeParle and Carol Browner, not on the automobile
emissions but other issues. But I agree with Senator Byrd that
private meetings are not the same as public hearings. And they
are not. The public cannot see them.
Mr. Relyea. Right. There is no transparency.
Senator Collins. There is no transparency, and that is why
this is difficult.
I know that my time is more than expired, and a vote has
started.
Mr. Relyea. Could I ask you one other question? You asked
about the implementation point. This is a point for many
Members of the Senate, or the House, for that matter. Did you
consider legislation that would overturn the implementation
capacity in that executive order?
Senator Collins. Well, we are going through the executive
order with a fine-toothed comb, but, see, one of the problems
is that several of the czars were just announced through press
releases. There is not an executive order. But let me indicate
that we are halfway through a vote, so I know we need to
conclude this.
I just want to thank the Chairman for holding this hearing.
This issue has been of concern to me for many months. I first
raised it at a public hearing back in April when we were
discussing whether there should be a cyber security czar, and I
thought, ``Here we go again.'' And it is of great concern to
me. It implicates fundamental constitutional issues and
responsibilities of the Congress, and I just want to thank the
Chairman for putting together a superb hearing with excellent
witnesses so that we could have a serious look at this issue.
So thank you very much, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins. You did
raise it long before it got to be a hot topic on the airwaves,
particularly from he whose name shall not be mentioned, who is
my constituent and long-time acquaintance since he had a
morning radio show in New Haven, Connecticut. But you raised
it. I remember when you raised it earlier, and I am very
grateful to you for your help in putting this hearing together,
and to the four witnesses who have testified, this has been
very informative, very provocative really, and I think we both
share a desire to do something about this to help Congress
uphold our constitutional responsibility for oversight. But we
understand the balance here as reflected in the Constitution.
So thank you very much. The reward for your good testimony
is that we will probably bother you again.
The record of the hearing will remain open for 15 days for
additional statements and questions. With that, the hearing is
adjourned.
[Whereupon, at 12:04 p.m., the Committee was adjourned.]
A P P E N D I X
----------
[GRAPHIC] [TIFF OMITTED] T3850.001
[GRAPHIC] [TIFF OMITTED] T3850.002
[GRAPHIC] [TIFF OMITTED] T3850.003
[GRAPHIC] [TIFF OMITTED] T3850.004
[GRAPHIC] [TIFF OMITTED] T3850.005
[GRAPHIC] [TIFF OMITTED] T3850.006
[GRAPHIC] [TIFF OMITTED] T3850.007
[GRAPHIC] [TIFF OMITTED] T3850.008
[GRAPHIC] [TIFF OMITTED] T3850.009
[GRAPHIC] [TIFF OMITTED] T3850.010
[GRAPHIC] [TIFF OMITTED] T3850.011
[GRAPHIC] [TIFF OMITTED] T3850.012
[GRAPHIC] [TIFF OMITTED] T3850.013
[GRAPHIC] [TIFF OMITTED] T3850.014
[GRAPHIC] [TIFF OMITTED] T3850.015
[GRAPHIC] [TIFF OMITTED] T3850.016
[GRAPHIC] [TIFF OMITTED] T3850.017
[GRAPHIC] [TIFF OMITTED] T3850.018
[GRAPHIC] [TIFF OMITTED] T3850.019
[GRAPHIC] [TIFF OMITTED] T3850.020
[GRAPHIC] [TIFF OMITTED] T3850.021
[GRAPHIC] [TIFF OMITTED] T3850.022
[GRAPHIC] [TIFF OMITTED] T3850.023
[GRAPHIC] [TIFF OMITTED] T3850.024
[GRAPHIC] [TIFF OMITTED] T3850.025
[GRAPHIC] [TIFF OMITTED] T3850.026
[GRAPHIC] [TIFF OMITTED] T3850.027
[GRAPHIC] [TIFF OMITTED] T3850.028
[GRAPHIC] [TIFF OMITTED] T3850.029
[GRAPHIC] [TIFF OMITTED] T3850.030
[GRAPHIC] [TIFF OMITTED] T3850.031
[GRAPHIC] [TIFF OMITTED] T3850.032
[GRAPHIC] [TIFF OMITTED] T3850.033
[GRAPHIC] [TIFF OMITTED] T3850.034
[GRAPHIC] [TIFF OMITTED] T3850.035
[GRAPHIC] [TIFF OMITTED] T3850.036
[GRAPHIC] [TIFF OMITTED] T3850.037
[GRAPHIC] [TIFF OMITTED] T3850.038
[GRAPHIC] [TIFF OMITTED] T3850.039
[GRAPHIC] [TIFF OMITTED] T3850.040
[GRAPHIC] [TIFF OMITTED] T3850.041
[GRAPHIC] [TIFF OMITTED] T3850.042
[GRAPHIC] [TIFF OMITTED] T3850.043
[GRAPHIC] [TIFF OMITTED] T3850.044
[GRAPHIC] [TIFF OMITTED] T3850.045
[GRAPHIC] [TIFF OMITTED] T3850.046
[GRAPHIC] [TIFF OMITTED] T3850.047
[GRAPHIC] [TIFF OMITTED] T3850.048
[GRAPHIC] [TIFF OMITTED] T3850.049
[GRAPHIC] [TIFF OMITTED] T3850.050
[GRAPHIC] [TIFF OMITTED] T3850.051
[GRAPHIC] [TIFF OMITTED] T3850.052
[GRAPHIC] [TIFF OMITTED] T3850.053
[GRAPHIC] [TIFF OMITTED] T3850.054
[GRAPHIC] [TIFF OMITTED] T3850.055
[GRAPHIC] [TIFF OMITTED] T3850.056
[GRAPHIC] [TIFF OMITTED] T3850.057
[GRAPHIC] [TIFF OMITTED] T3850.058
[GRAPHIC] [TIFF OMITTED] T3850.059
[GRAPHIC] [TIFF OMITTED] T3850.060
[GRAPHIC] [TIFF OMITTED] T3850.061
|
NEWSLETTER
|
|
Join the GlobalSecurity.org mailing list
|
|
|
