What Can Obama's Czars Legally Do?

By

Published September 08, 2009

Van Jones' resignation over the weekend as green jobs czar in the Obama administration was not the only recent change among these secret advisers. No sooner was he out the door than the administration appointed Ron Bloom, the auto czar, to the new post of "manufacturing czar." A former United Auto Workers executive, Bloom will continue to advise Treasury Secretary Timothy Geithner on the auto business.

The czars are really presidential assistants; and never mind that the Constitution grants no power to the federal government on matters such as green jobs, automobiles, or manufacturing. The Constitution is rarely an impediment for modern White Houses which seek to regulate areas of personal and group behavior that the Founding Fathers could never have imagined. The czars may be hired without FBI background checks or Senate confirmations and they serve at the pleasure of the president. Because they work in the West Wing and directly for the president, they enjoy almost total immunity from any accountability to Congress. Supreme Court decisions even immunize presidential assistants from replying to subpoenas from Congress for documents or testimony, under the claim of executive privilege.

The modern czar system actually flourished under former President George W. Bush who persuaded a Republican Congress to authorize the president to share classified information with anyone of his choosing. Prior to this law, only persons confirmed by the Senate could have such privileges; and, so, prior to this law, there were few czars as federal law limited what documents they could see or secrets that could be shared with them. President Obama now enjoys this and other unconstitutional, yet congressionally-created, Bush-era presidential powers.

The heads of the executive departments, such as the Secretaries of Transportation or Energy, must undergo FBI background checks and Senate confirmations. They also must comply with federal transparency statutes that mandate the publication of their proposed behavior in advance of engaging upon the proposed behavior; they are, as well, subject to congressional subpoenas about any matters whatsoever occurring in their departments. They cannot claim executive privilege and must answer any questions put to them by Congress and furnish any documents or tangible things that Congress subpoenas from them. This Obama czar system, concocted no doubt by the crafty Rahm Emanuel ("A crisis is a terrible thing to waste."), permits the White House to by-pass the executive departments, and all the laws that regulate them and all the transparency required of them, in order to effectuate the president's will.

So, is this constitutional and is it lawful? That depends on what the czars actually do for the government. If the czars merely advise the president, there is no constitutional impediment. The president can ask their advice, they can give it, and the taxpayers can pay their salaries. If, however, the czars actually do the work that the federal statutes lay out for cabinet secretaries to do (so as to avoid the transparency and accountability requirements), or exercise presidential power in President Obama's name, that would be unconstitutional. The president cannot assign a czar to do the work of a cabinet secretary or delegate to a czar his own powers without violating the Constitution and federal law. But if the czars are not asked questions under oath, we may never learn just what it is that they do.

Judge Andrew Napolitano is the senior judicial analyst for FOX News.

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http://www.foxnews.com/opinion/2009/09/08/judge-napolitano-czars-obama