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Posted Oct. 7, 2009

Harrison Tells Congress that White House ‘Czars’ Are Legal

Harrison

Whether White House policy advisors, or czars, have too much power is a policy question rather than a legal one, Professor John Harrison told Congress on Tuesday.

(Hearing; testimony begins at 47:50)

Harrison testified in a panel before the U.S. Senate Committee on the Judiciary’s Subcommittee on the Constitution in a hearing examining the history and legality of executive branch czars. President Barack Obama has czars for foreign and domestic issues, on subjects ranging from energy policy to urban affairs.

“Only the president has constitutional powers and the president’s constitutional powers are essentially non-delegable,” Harrison told the subcommittee.

As a result, any legal authority granted to members of the executive branch other than the president must be granted through a combination of the appointments clause and statute. The appointments clause allows “superior officers” to be appointed by the president with the advice and consent of the Senate, but also allows for “inferior officers” to be appointed by the president, department heads or the courts.

In his written testimony, Harrison detailed how the U.S. Supreme Court confronted the legal significance of status as an officer in the 1976 case Buckley v. Valeo.

“The court concluded that it represents a substantive constitutional principle that only appointees who have received their legal authority in the way set out in the appointments clause may exercise ‘significant authority pursuant to the laws of the United States,’” Harrison wrote.

Presidents are generally careful not to give advisers legal authority, Harrison suggested, and they often separate operational and advisory roles. He compared the national security adviser’s role, which has no operational power, to that of the secretary of state, who has legal authority and whose appointment requires Senate approval.

“It is extremely doubtful whether anyone on the White House staff, the sort of person sometimes called a czar, could actually exercise legal authority,” Harrison told Congress.

However, advisors can significantly influence policy.

“Whether that division between legal authority and informal, practical influence is a good thing is a difficult question of policy. It’s one that the government has been wrestling with as long as the Constitution has been in operation,” Harrison said. “The important thing, I think, is to understand that that is a policy question, whereas the fundamental legal question is, is anybody who does not have government authority seeking to exercise it.”