White House czars: Is Congress to blame?

Before Congress allowed it to expire, there used to be a law that helped the president streamline and coordinate roles within the executive branch.

Opinion

The proliferation of so-called czars in the Obama White House has led to echoes of outrage on the airwaves and in the House and Senate chambers. A "shadow government," declared one congressman. "Antidemocratic," asserted another senator.

Not since the Russian Revolution of 1917 have "czars" been under such attack.

Democrats and Republicans alike have called for hearings, and legislation has even been introduced. The Senate has already held one hearing this month, and another hearing is set for this week in the Senate Homeland Security and Governmental Affairs Committee.

Before acting, however, Congress should consider a fundamental (and potentially uncomfortable) question: Is Congress to blame for the proliferation of White House czars?

"Czar" is an ominous, yet ill-defined term. But, a czar is a nonstatutory presidential assistant who aids the president in overseeing and coordinating a particular policy area. These independent advisers are not Senate-confirmed, not subject to traditional congressional oversight, and rarely testify before Congress based on presidential assertions of executive privilege.

These advisers have no legal authority to make decisions, to direct departments or agencies, or to allocate resources. Unlike cabinet officials, who derive their authorities from statute, czars obtain influence from their relationship with and proximity to the president.

So why would a president rely on assistants without authority? Several reasons: A policy may cut across a range of agencies requiring someone in the White House to handle coordination. A president may want someone within earshot to keep him informed about an important issue. Assistants are easy to create and can skirt arduous confirmation hearings, allowing more controversial figures to serve in an administration.

Congressional estimates of czars in the Obama administration range between 18 and 34, widely touted as an increase from the past several administrations. But what explains this increase?

To answer this, we should look back at 1932 when Congress authorized the president to consolidate executive branch functions and agencies in order to "reduce expenditures and increase efficiency" and to "eliminate … duplication of effort."

In practice, this authority allowed the president to transfer disparate functions under a single authority. Without it, the president faced the administrative challenge of trying to coordinate disparate functions operating under equally disparate authorities, an increasingly complex task with the rise of the administrative state.

Congress passed a similar law in 1939 called the "Reorganization Act," which again authorized the president to consolidate functions and agencies unless both chambers objected by concurrent resolution within 60 days. Congress later renewed this authority in various forms, substituting a one-house legislative veto in lieu of a concurrent resolution.

The result? Less than one year after the first two reorganization plans became effective, President Roosevelt concluded that he had already "found the task of coordinating the work of the executive branch less difficult." And over the next five decades, presidents went on to submit over 100 reorganization plans, streamlining the administration of the executive branch.

But use of reorganization plans ceased after the Supreme Court held one-house legislative vetoes to be unconstitutional in INS v. Chadha in 1983. The following year Congress amended the Reorganization Act, requiring a joint resolution to void a president's plan. But Congress allowed that authority to expire at the close of President Reagan's first term, and it has never been reauthorized.

In the wake of the Reorganization Act's expiration, presidents were left with no standing authority to consolidate functions and agencies within the executive branch. Consequently, coordination became an increasingly complex task.

Absent reorganization authority, what was a president to do? The president cannot personally coordinate all disparate functions and agencies in the massive federal government. Yet, if a policy fails because of poor coordination, the president is held to account.

So it is no coincidence that as the complexity of government machinery has grown, presidents have responded by increasing the number of assistants or "czars" to help with the management and coordination of the executive branch.

The current White House spokesman said as much recently, "Lots of these [czars] are designed to bring many different efforts together and coordinate them in a way that is more structured and more efficient than the governmental work chart might ordinarily allow."

As the "czar" issue winds its way through committee rooms on Capitol Hill, Congress should consider the effect that the absence of reorganization authority has had on the number of czars.

Passing a new reorganization act, in a constitutional form, may not only reduce the presence of czars, but could also improve the administrative management of the executive branch while giving Congress a voice in the process.

Cody M. Brown, author of "The National Security Council: A Legal History of the President's Most Powerful Advisers," and Jeffrey D. Ratner, a former legislative aide to former Senator Hillary Rodham Clinton, serve as senior counsel at the Project on National Security Reform.