Late U.S. Senator Robert Byrd, the longest serving US Senator at the time and a stern constitutional scholar, expressed concerns that Obama’s dozens of czars appointed in 2009 might violate the U.S. Constitution and were a clear attempt to replace Congress as the major rule-making body by appointing these Czars who create policy and manage programs in areas where the president has no Constitutional authority as outlined in Article II, Sections II and III. Moreover, these appointments are made without the “advice and consent,” of the U.S. Senate as is required by the Constitution. They function much like cabinet officers but are unconfirmed and are accountable only to the president. They also are not required to swear allegiance to the U.S. Constitution. Senator Byrd said that these appointments violate both the constitutional system of checks and balances and the constitutional separation of powers, and is a clear attempt to evade congressional oversight.
Senator Byrd is exactly correct. The Constitution commands that government officers with significant authority (called “principal officers”) are nominated by the president but then are subject to a confirmation vote by the U.S. Senate. And principal officers include not only cabinet-level department heads, but go five levels deep in executive appointments, to include assistant secretaries and deputy undersecretaries.
Inferior officers are appointed either by the president, cabinet-level officers, or the courts. But even then, the Constitution specifies that only Congress can authorize the making of such appointments. For these inferior officers, only Congress can create their offices, and also specify who appoints them. And such officers are still answerable to Congress. They are subject to subpoena to testify before Congress, and Congress holds the power of the purse by making annual appropriations for their division or program.
White House officials, by contrast, cannot be compelled to appear before Congress and testify. They are alter-egos of the president himself, and as an agent of the Executive Office of the President they are entirely removed from Congress, and not answerable to Congress in any way. That was why during the Bush administration White House Chief of Staff Josh Bolten, Senior Advisor Karl Rove, and Counsel Harriet Miers could not be compelled to testify to Congress when President Bush invoked executive privilege (a battle they may well have won if they pressed their case all the way to the Supreme Court). Senior presidential aides advise the president alone, and the separation of powers forbids congressional interference in that relationship.
But that’s the problem with these czars. The president can have any advisors he wants, people who privately advise him or meet with others on his behalf, but have little or no actual authority to exert government power on anyone. These czars, however, are directly dictating policy, impacting millions of lives in the way that few assistant secretaries or deputy undersecretaries do.
The Founding Fathers specifically wrote the Constitution in a way to deny such absolute power to emanate from one person. That was why they required that no principal officers could exercise any power unless the U.S. Senate decided to confirm them. That was also why they specified that even for inferior officers only Congress could create their positions and could still require them to answer to Congress. The Founding Fathers were specifically blocking the type of centralized power that President Obama is currently exerting.
Fortunately, there is a remedy. Any person on the receiving end of an order from any of these czars has standing to challenge their constitutionality in court. Any person whose pay is deemed excessive by Kenneth Feinberg, or affected by any other czar, could file a federal suit asserting that the order is an unconstitutional exercise of government power, and have a court both invalidate the order and hold that the position itself doesn’t legally exist. Then everyone could just ignore these czars, because they would simply be private citizens, without the authority to order any of us to tie our shoes. (Source)
Dr. Harold Pease, an expert on the United States Constitutio who has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events, says that under the Constitution the president has but eleven powers found in Article II, Sections II and III. Let us identify them:
- “Commander in chief of the army and navy of the United States” including the militia when called into actual service of the United States;
- supervise departments (cabinet), each presumably established by the Congress (George Washington had but four);
- grant reprieves and pardons;
- make treaties with the help of the Senate;
- with Senate help appoint positions established by law such as ambassadors, ministers and judges;
- fill vacancies “during recess of the Senate;”
- make recommendations to Congress on the state of the union;
- convene both houses on special occasions and handle disputes with respect to convening (Prior to the 20th Amendment in Feb. 6, 1933, Congress convened on the first Monday in December and were out before Christmas—maybe three weeks.);
- receive ambassadors and other public ministers;
- make certain that “laws be faithfully executed;” and,
- “commission all the officers of the United States.”
Simply stated, the president has two supervisory powers over existing organizations and two shared powers with the Senate, otherwise he pardons, recommends, appoints and entertains. That is it! Notice the absence of power to make any rules and regulations on us. This is the job of Congress alone. Congress should immediately end all Czars and, if resisted in doing so, move next to impeachment proceedings regardless of political party.
- Judicial Watch Special Report on Presidential Czars
- Here a czar. there a czar… Everywhere a czar, czar
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