The Czar's Place in Presidential Administration, and What the Excepting Clause Teaches Us About Delegation
40 Pages Posted: 8 Sep 2011 Last revised: 16 May 2012
Date Written: September 1, 2011
Recent presidencies have developed new mechanisms to centralize the control of the executive branch in the White House, or what Elena Kagan has termed 'presidential administration.' Presidential administration means that agency heads, congressionally approved and tasked with certain statutory duties, may find themselves increasingly directed by powerful advisors assigned overlapping portfolios. These czars represent a new development in the challenge to transparency and accountability in the exercise of executive power, as it may be difficult to ascertain when czars are simply advising the president with political clout, acting pursuant to presidential delegation of functions with legal authority to bind in a bid to more tightly integrate executive agencies into presidential administration, or freelancing with ostensible authority to make binding decisions but without any delegated authority or presidential approval.
This Article traces the problem to its source, namely, congressional delegation of rule making authority. It describes the process whereby: Congress delegates that authority horizontally to the executive branch pursuant to a high-level intelligible principle; the President, through a process of presidential administration, asserts ownership over the statutory authority congressionally delegated to an executive agency and its principal officer; the President, pursuant to a vertical intelligible principle, then subdelegates the execution of that authority to others, including non-Senate confirmed personnel such as White House staff; and the President evades the operation of the Appointments Clause by invoking a fiction that these recipients of authority are 'purely advisory' employees not governed by the Clause.
I observe that the Excepting Clause's provision for delegation, which is the sole instance where the Constitution explicitly authorizes delegation, contrasts sharply with the general congressional delegations of rule making authority generally permitted in the post-New Deal settlement. The Excepting Clause evidences that the delegates to the Philadelphia Convention both contemplated and authorized congressional delegation of power but only on a limited and cabined basis. The Clause remains instructive for its recognition that there is not only a horizontal component to congressional delegation, but also a vertical dimension that reinforces congressional specification of the level of delegated authority.
The Article concludes by briefly considering budget controls and REINS Act-type legislation as potential responses to the transparency and accountability problems presented by the use of czars in presidential administration.
An early iteration of the manuscript was presented during the University of Chicago Legal Forum's symposium on 'Governance and Power,' October 22-23, 2010.
Keywords: separation of powers, presidential administration, czars, delegation, appointments, excepting clause
Suggested Citation: Suggested Citation