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57–708 PDF 2010

S. HRG. 111–562 

EXAMINING THE HISTORY AND LEGALITY OF 

EXECUTIVE BRANCH CZARS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 6, 2009 

Serial No. J–111–54 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 3 

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 37 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois, prepared 

statement .............................................................................................................. 40 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 1 

prepared statement .......................................................................................... 42 

WITNESSES 

Halstead, T.J., Deputy Assistant Director, American Law Division, Congressional Research Service, Library of Congress, Washington, D.C. .................... 13 

Harrison, John C., James madison Distinguished Professor of Law, Henry 

L. and Grace Doherty Charitable Foundation Research Professor, University of Virginia School of Law, Charlottesville, Virginia .................................. 11 

Patterson, Bradley H., Jr., Author, ‘‘To Serve the President: Continuity and 

Innovation in the White House Staff’’ (2008), Bethesda, Maryland ................ 5 

Samahon, Tuan, Associate Professor, Villanova University School of Law, 

Villanova, Pennsylvania ...................................................................................... 9 

Spalding, Matthew, Director, B. Kenneth Simon Center for American Studies, 

The Heritage Foundation, Washington, D.C. .................................................... 7 

SUBMISSIONS FOR THE RECORD 

Byrd, Robert C., a U.S. Senator from the State of West Virginia ....................... 29 

Congressional Research Service, Daniel P. Mulhollan, Director, Washington, 

DC, letter .............................................................................................................. 36 

Halstead, T.J., Deputy Assistant Director, American Law Division, Congressional Research Service, Library of Congress, Washington, D.C., statement . 44 

Harrison, John C., James madison Distinguished Professor of Law, Henry 

L. and Grace Doherty Charitable Foundation Research Professor, University of Virginia School of Law, Charlottesville, Virginia, statement ............... 58 

Patterson, Bradley H., Jr., Author, ‘‘To Serve the President: Continuity and 

Innovation in the White House Staff’’ (2008), Bethesda, Maryland, statement ...................................................................................................................... 65 

Samahon, Tuan, Associate Professor, Villanova University School of Law, 

Villanova, Pennsylvania, statement ................................................................... 72 

Spalding, Matthew, Director, B. Kenneth Simon Center for American Studies, 

The Heritage Foundation, Washington, D.C., statement ................................. 77 

U.S. House, Thomas Alexander, Senior Counsel, letter ....................................... 87 

U.S. Senate, Committee on Homeland Security and Government Affairs Committee, letter ......................................................................................................... 91 

White House, Gregory B. Craig, Counsel to the President: 

May 19, 2009 Letter to Senator Byrd ............................................................. 94 

October 5, 2009 Letter to Senator Feingold ................................................... 96 

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EXAMINING THE HISTORY AND LEGALITY OF 

EXECUTIVE BRANCH CZARS 

TUESDAY, OCTOBER 6, 2009 

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:32 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Russell D. Feingold, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feingold, Whitehouse, and Coburn. 

OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. 

SENATOR FROM THE STATE OF WISCONSIN 

Chairman FEINGOLD. The Committee will come to order, and I 

want to welcome everyone to the Constitution Subcommittee’s 

hearing on ‘‘Examining the History and Legality of executive 

branch Czars.’’ 

I think it is fair to acknowledge that there has been a lot of discussion about the Obama administration’s appointment of so-called 

czars to various positions in the White House and other departments or agencies. I called this hearing today because I think this 

is a serious issue that deserves serious study. But I want to be 

clear that I have no objection either to the people serving as advisers to the president, or to the policy issues they are addressing. 

These are some very talented people working on some very important issues that this administration absolutely should be addressing, from climate change to health care. So I hope that this hearing 

will enable us to get beyond some of the rhetoric out there and 

have an informed, reasoned, thoughtful discussion about the constitutional issues surrounding the President’s appointment of certain executive branch officials. 

I should note that while the term ‘‘czar’’ has taken on a somewhat negative connotation in the media in the past few months, 

several Presidents, including President Obama, have used the term 

themselves to describe the people they have appointed. I assume 

they have done so to show the seriousness of their effort to address 

a problem and their expectations of those that they have asked to 

solve it. But, historically, a czar is an autocrat, and it is not surprising that some Americans feel uncomfortable about supposedly 

all-powerful officials taking over areas of the Government. 

While there is a long history of the use of White House advisers 

and czars, that does not mean we can assume they are constitutionally appropriate. It is important to understand the history for 

2 

context, but often constitutional problems creep up slowly. It is not 

good enough to simply say, ‘‘Well, George Bush did it too.’’ 

Determining whether these czars are legitimate or whether they 

will thwart Congressional oversight requires analysis of the Constitution’s Appointments Clause and a discussion of some complicated constitutional and administrative law principles. I am, 

therefore, very pleased that we have such an accomplished group 

of witnesses who can help us determine whether there is a basis 

for concern here or not, and if so, what are the possible remedies 

that Congress ought to consider. I want to thank very much the 

Ranking Member, Senator Coburn, for helping us to put together 

this distinguished panel and for his cooperation on the difficult 

timing of the hearing. 

I think it is helpful to break down the officials whose legitimacy 

has been questioned into three categories to better understand the 

potential legal issues. The first group are positions that I have no 

concerns about, and, frankly, no one else should either. These positions were created by statute and are subject to advice and consent 

from the Senate. For example, some have called Dennis Blair the 

‘‘intelligence czar.’’ But he is the Director of National Intelligence, 

a position created by Congress based on the recommendation of the 

9/11 Commission. Like his predecessors Mike McConnell and John 

Negroponte, he was confirmed by the Senate. Calling him a ‘‘czar’’ 

does not make him illegitimate or extra-constitutional. And there 

are roughly nine officials that fall into this category, yet somehow 

have appeared on some lists of czars. Any serious discussion of this 

issue has to conclude that there is no problem with these posts. 

The second category of positions also does not appear to be problematic, at least on its face. These are positions that report to a 

Senate-confirmed officer, for example, a Cabinet Secretary. All of 

these positions are housed outside of the White House, and all of 

these officials’ responsibilities are determined by a superior who 

Congress has given the power to prescribe duties for underlings. I 

will leave it to our distinguished constitutional law experts to further discuss this category, but as I understand it, these officials are 

likely to be considered ‘‘inferior officers’’ under the Appointments 

Clause, and, therefore, they are not automatically required to be 

subject to advice and consent of the Senate. Most of these positions 

are also housed within parts of the Government that are subject to 

open records laws like the Freedom of Information Act, and many 

of them have already appeared to testify before Congress. Indeed, 

of the 32 czars on a prominent media list, 16 have testified this 

year, and two others are in positions where their predecessors 

under Presidents Bush or Clinton testified. There does not appear 

to be a constitutional problem with these positions in theory, although it is possible people could identify one in practice if, for example, some of the people were determined to be taking away authority or responsibility from a Senate-confirmed position. However, I do not have any reason at this point to believe that that is 

the case. 

Now, what I am most interested here is in the third category of 

positions, and I think we are talking about fewer than 10 people, 

in part because we know the least about these positions. These officials are housed within the White House itself. Three weeks ago, 

3 

I wrote to the President and requested more information about 

these positions, such as the Director of the White House Office of 

Health Reform and the Assistant to the President for Energy and 

Climate Change. The response to that letter finally came yesterday, and I will put the response in the record and plan to question 

our witnesses about it if there is no objection. 

[The response appears as a submission for the record.] 

Chairman FEINGOLD. The White House decided not to accept my 

invitation to send a witness to this hearing to explain its position 

on the constitutional issues we will address today. I think that is 

unfortunate. It is also a bit ironic since one of the concerns that 

has been raised about these officials is that they will somehow 

thwart Congressional oversight of the executive branch. 

The White House seems to want to fight the attacks against it 

for having too many ‘‘czars’’ on a political level rather than a substantive level. I do not think that is the right approach. If there 

are good answers to the questions that have been raised, why not 

give them instead of attacking the motives or good faith of those 

who have raised questions? 

No one disputes that the President is allowed to hire advisers 

and aides. In fact, the President is entitled, by statute, to have as 

many as 50 high-level employees working for him and making top 

salaries. But Congress and the American people have the right to 

ensure that the positions in our Government that have been delegated legal authority are also the positions that are exercising that 

authority. If—and I am not saying this is the case—individuals in 

the White House are exercising legal authority or binding the executive branch without having been given that power by Congress, 

now, that is a problem. And Congress also has the right to verify 

that any directives given by a White House czar to a Cabinet member are directly authorized by the President. 

So I look forward to an open dialog on these important questions. 

I thank the witnesses for their time they devoted and the effort 

they have made to be here with us today. And with that, let me 

recognize Senator Coburn, who I want to thank again for his cooperation in helping us set this up. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Well, Mr. Chairman, thank you. As you noticed, I have not been outspoken on this issue. I do not see it as 

a partisan issue. And I would also compliment your opening statement. 

One of the reasons I like to work with Senator Feingold is he is 

absolutely honest intellectually. He has raised the important questions. It is not in a partisan manner but, in fact, to protect the very 

document that he and I are sworn to protect. And so I thank you 

for your opening statement. 

I would say there is another application to this question that I 

would think the President would want to address, and he spoken 

a lot about it in his campaign, this idea of an open, transparent 

Government. And when you create doubt or you sow doubt—and by 

not having a witness here today does not uphold any strengthening 

4 

of knowledge by the American public—I think he does himself and 

his administration a disservice. 

I do not know the qualifications, I do not know what these people 

are actually doing, whether or not—as Senator Feingold outlined, 

whether they are actually binding the administration. But the fact 

is that what the American people lack today in Government is confidence, and the President ought to be about—and I think that is 

what Senator Feingold is attempting to do with this hearing—is to 

re-establish the confidence that the American people that everything is aboveboard, that it is transparent, that we can see it is 

working, and if people truly do have significant authority and are 

not confirmed by the Senate, then that is a problem. 

And so I do not know whether that is the case or not, and I am 

very delighted that you are having this hearing. I know Senator 

Collins is going to have a similar hearing, and I look forward to 

being in attendance at that since I am ranking on a Subcommittee 

in that Committee as well. 

So I thank you, Mr. Chairman. I thank you all for coming. It is 

not easy to take the time to come down here and do this, so I appreciate very much your efforts on that behalf. 

I yield back. 

Chairman FEINGOLD. Thank you, Senator. 

Will the witnesses please stand and raise your right hand to be 

sworn in? Do you swear or affirm that the testimony you are about 

to give before the Committee will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

Mr. HALSTEAD. I do. 

Mr. HARRISON. I do. 

Mr. PATTERSON. I do. 

Mr. SAMAHON. I do. 

Mr. SPALDING. I do. 

Chairman FEINGOLD. Thank you, and you may be seated. 

Our first witness this afternoon is Bradley Patterson, an expert 

on the organization and functioning of the White House staff. A 

graduate of the University of Chicago, Mr. Patterson served 14 

years in the White House, including as the Deputy Cabinet Secretary under President Eisenhower, as executive assistant to Leonard Garment under President Nixon, and as an Assistant Director 

of the Office of Presidential Personnel under President Ford. He 

also served in the Department of State for many years and as the 

Executive Secretary of the Peace Corps. Mr. Patterson is a senior 

staff member of the Brookings Institution’s Center for Public Policy 

Education and the author of three books about the White House 

staff, including most recently ‘‘To Serve the President: Continuity 

and Innovation in the White House Staff.’’ 

So we would ask each of you to limit your remarks to 5 minutes 

and would be, of course, delighted to place your entire statement 

in the record. But let us begin with Mr. Patterson. We appreciate 

your presence here today. 

5 

STATEMENT OF BRADLEY H. PATTERSON, JR., AUTHOR, ‘‘TO 

SERVE THE PRESIDENT’’ (2008), BETHESDA, MARYLAND 

Mr. PATTERSON. Thank you, Mr. Chairman. It is an honor to be 

with you this afternoon. I have six points to emphasize concerning 

the history and legality of executive branch czars. 

Point one, ‘‘czar’’ is not an official title of anybody. It is a 

vernacular of executive branch public administration harking back, 

in one account, at least to the Coolidge years. It is a label now used 

loosely hereabouts, especially by the media. 

Point two, to use the dictionary definition of ‘‘czar’’ as ‘‘one in authority’’ leads us straight to the question: Who in today’s executive 

branch is a czar? A September 16 Washington Post story makes a 

list of 30 with which I differ. My definition of ‘‘czar’’ means, first, 

that this person reports only to the President. If the so-called czar 

reports to somebody in between, then that intermediate person is 

the czar, and the appointee is only a subordinate assistant. Special 

Envoys Stern, Holbrooke, and Mitchell, for instance, report to the 

President through or with Secretary of State Clinton. ‘‘Both Mitchell and Holbrooke said she oversees their work closely,’’ explains a 

September 19 story in the Washington Post. 

A careful reading of the White House announcement about socalled Urban Affairs Czar Adolfo Carrion, Jr. reveals that he answers not directly to the President but reports ‘‘jointly’’ to White 

House Assistants Valerie Jarrett and Melody Barnes. Performance 

Czar Jeffrey Zients and Information Czar Vivek Kundra are subordinates in the Office of Management and Budget. National AIDS 

Policy Czar Jeffrey Crowley in the White House reports to Melody 

Barnes. 

My definition of ‘‘czar’’ also excludes appointees who have undergone Senate confirmation and are thus accountable to testify before 

congressional committees. This excludes from czardom the Director 

of National Intelligence and the Drug, Science, Technology, and 

Regulatory principals in the Executive Office of the President and 

the Domestic Violence Office Director in the Department of Justice. 

I note that the media constantly inject the adjectival words ‘‘White 

House’’ in front of the titles of most of the above-described czar officials. I regard this as misleading reporting. 

Point three, the implication of Senator Feingold’s September 15 

letter to the President is that policy officers of the executive 

branch, especially those in executive positions, who have never 

been appointed with the advice and consent of the Senate, may 

hold positions, which are not consistent with the Appointments 

Clause of the Constitution. 

Principal persons in the non-confirmable category are the 24 top 

White House staff officers with the title of Assistant to the President. Examples are so-called Health Czar Nancy-Ann DeParle and 

Carol Browner for energy and climate change. These two officers, 

and all of their colleagues in the White House, are appointed pursuant to Public Law 95–570 of November 1978, which specifies that 

‘‘the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons 

in the Government service.’’ Public Law 95–570 is silent about any 

requirement for Senate confirmation of these appointments. I interVerDate Nov 24 2008 10:03 Aug 12, 2010 Jkt 057708 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57708.TXT SJUD1 PsN: CMORC
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pret this silence as evidencing the intent of Congress to reconfirm, 

in 1978, the historic practice of not requiring Senate approval of 

White House staff members, whether they are called ‘‘czars’’ or not. 

Likewise, White House staffers do not give formal testimony to congressional committees, unless, as in the Watergate instance, criminality is alleged. 

Point four, does that mean that senior White House staffers wall 

themselves off from the Congress, being ‘‘anti-democratic’’—‘‘a poor 

way to manage the Government?’’ as Senator Lamar Alexander alleges (Washington Post September 16). Consider the example of 

Ms. DeParle (New York Times, September 20). ‘‘When Senator 

Dianne Feinstein...expressed misgivings about how expanding Medicaid would affect California’s budget, Ms. DeParle gathered some 

charts and dropped by [the Senator’s home] on a Saturday. They 

spent nearly 3 hours talking over coffee in Ms. Feinstein’s den.’’ 

Rather un-czar-like behavior. As subcommittee members are 

aware, White House officers constantly visit the Hill for informal 

conferences with members and staffs. 

Point five, the Post’s September 16 story quotes Senator Byrd as 

having written the President criticizing White House staffers for 

‘‘their rapid and easy accumulation of power.’’ Are they powerful? 

Are they ‘‘czars’’? 

Well, no. Let us remember Franklin Roosevelt’s Executive Order 

8248 of September 1939: These Assistants ‘‘shall be personal aides 

to the President and shall have no authority over anyone in any 

department or agency.’’ White House staff members have no legal 

responsibility other than to assist and advise the President. On occasion, when staff seniors communicate the President’s instructions 

to Cabinet members, they sometimes do it in a forceful style. I have 

seen that happen. 

Point six, ‘‘These guys don’t get vetted,’’ the Post quotes Republican Congressman Jack Kingston, ‘‘they have staff and offices and 

immense responsibility. All that needs to come before Congress.’’ I 

differ. 

Defending the new Constitution, and its three branches—executive, legislative, and judicial—Madison’s Federalist 51 emphasized 

that ‘‘the constant aim is to divide and arrange the several offices 

in such a manner as each may be a check on the other...’’. This venerable tenet is as applicable to staff as well as to principals. It 

would be unthinkable that the law clerks of the Supreme Court 

should be in any way accountable to the President or to Congress. 

It would be unthinkable that the appointments of any of the personal legislative or committee staff here at the Capitol should be 

approved by the White House. And likewise vice versa. 

The independence of these three groups of staff is indispensable 

to the separation of powers—which, as this subcommittee knows, 

is an implied mandate of the Constitution. 

The President’s personal staff are independently responsible only 

to the President, and in the end he is the only czar that is. And 

he is accountable to the American electorate. 

Thank you. 

[The prepared statement of Mr. Patterson appears as a submission for the record.] 

Chairman FEINGOLD. Thank you very much, sir. 

7 

We also have with us this afternoon Matthew Spalding, the Director of the B. Kenneth Simon Center for American Studies at the 

Heritage Foundation. Mr. Spalding is a graduate of Claremont 

McKenna College with a Ph.D. in Government from the Claremont 

Graduate School whose scholarship has concentrated in Government, political philosophy, and early American political thought. 

He has taught an American Government course at George Mason 

University, Catholic University, Claremont McKenna College, and 

Hillsdale College. He is co-editor of the best-selling book, ‘‘The Heritage Guide to the Constitution.’’ 

Mr. Spalding, we certainly appreciate your presence here today, 

and you may proceed. 

STATEMENT OF MATTHEW SPALDING, DIRECTOR, B. KENNETH 

SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE 

FOUNDATION, WASHINGTON, D.C. 

Mr. SPALDING. Thank you, Senator, Senator Coburn. Let me 

begin by commending you for looking into this serious issue and 

writing about it. 

’’Czar’’ is a very confusing and also revealing term. No one officially holds the title. We do not know how many there are. There 

is no list. As you have pointed out, some are in positions that are 

created by Congress and confirmed; some are not. 

But the word is quite revealing. It is a clever label. It is clearly 

meant to imply in certain positions a breadth of authority and level 

of status beyond the particulars of the formal title, seemingly beyond the confines of the normal process. 

It is not new, either. In the modern era, Nixon had the first one. 

There were a few in the administrations of Ronald Reagan and 

George Herbert Walker Bush, and President Clinton had a few 

more. But there seems to have been a proliferation in the previous 

and in the current administration. At the very least, Congress— 

and here I note the letter you have sent, also the letters of Representatives Issa and Smith in the House and Senators Collins and 

Alexander and others—is absolutely right in calling for more information. 

I believe the issue is not whether the proliferation of czars 

amounts to a usurpation of power by the executive branch. Rather, 

the fundamental issue is how the rise of modern administrative 

government has put us in this insoluble dilemma: whether policy 

should be made by technical experts, insulated from public accountability and control, or whether policy should be made by our elected representatives in Congress as well as the executive branch. The 

rise of government by bureaucrats—largely due to the delegation of 

power from Congress to administrative agencies, combined with the 

removal of those agencies from the President’s control—has given 

rise to efforts by Presidents from both political parties to get the 

bureaucratic state under control through various mechanisms. The 

rise of czars in the current administration is merely another manifestation, albeit an unfortunate one, of this phenomenon. 

My testimony goes into some history of this, concluding that the 

early 20th century reforms essentially shifted the authority to 

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8 

ment and into these newly created administrative boards and commissions. 

In practice, this meant that the expansion of administrative 

agencies appeared to involve an expansion of executive power, but 

it actually resulted in a decline of executive control and, therefore 

responsibility for administrative policy, leading to the paradox of 

the expansion of administrative agencies, but the decline of Presidential control over those agencies. 

Congress has always had several tools for controlling administrative officials—most notably the powers to authorize and fund agencies and through oversight. 

Presidents have tried, the best they can, administrative reorganization, going back to FDR and under Richard Nixon. Ronald 

Reagan created the Office of Information and Regulatory Affairs, 

OIRA, currently occupied by the Clinton regulatory czar, Cass 

Sunstein, who was approved by Congress. 

President Obama’s attempt to centralize control over administrative agencies is, therefore, nothing new, nor is it peculiar to either 

of the two major parties in America. It is a symptom of a much 

more serious sickness, in my opinion—the fact that Congress has 

transferred a great deal of its authority to administrative agencies, 

and neglected to put anyone in charge of the whole structure. The 

Constitution does give us a few pointers to guide by. 

The President has the authority to appoint his own staff and advisers to assist in the work of his office. It is perfectly legitimate 

for him to do so, and Congress cannot infringe on that authority. 

Nevertheless, through its legislative and oversight functions, and 

more specifically through the Senate’s participation in the appointment of officers under Article II, Congress also has significant responsibilities over the general activities of the administration in 

carrying out the operations of the government. 

If executive authority is being used as a subterfuge to thwart 

confirmation requirements and accountability, and so evade constitutional requirements for individuals performing operational and 

managerial functions normally the responsibility of Cabinet Secretaries and department and agency executives who require Senate 

confirmations, that would certainly in my mind violate the spirit 

and probably the letter of the Constitution. A possible example of 

this, according to reports—and I note that heavily—was the fact 

that the climate czar was the lead negotiator in establishing new 

automobile emissions standards, all stemming from the Supreme 

Court’s interpretation of the Clean Air Act. 

As the number of czars expands, and the President’s policy staff 

grows, and there are more and more individuals acting more and 

more seemingly as administrative heads rather than advisers, Congress should raise questions as to whether and to what extent they 

are protected by executive privilege. 

There are numerous managerial problems with this that I raise 

in my paper, looking back to the Nixon administration, the lessons 

of the Tower Commission, the possibility of political influence over 

decisionmaking. And I conclude by noting that we have a dilemma 

between the current Congress that tends to give away large 

amounts of authority—for instance, under the TARP bill, which 

gave the Secretary of the Treasury extensive delegation of power, 

9 

$700 billion to purchase troubled assets. Lo and behold, we now 

own General Motors and we have a car czar. Setting aside the policy, was that Congress’ intention? 

The modern executive, on the other hand, attempts to get control 

of this vast bureaucracy under their authority, as they can, and we 

are seeing the current iteration of that battle. 

But, in general, the combination of these two trends leads to a 

situation where more and more laws—in the form of rulemaking, 

regulations, and policy pronouncements—are made by administrative agencies not only outside of the open and transparent requirements of responsible government, without congressional approval 

and oversight, but generally beyond the principle that legitimate 

government arises out of the consent of the governed. And the more 

government regularly operates as a matter of course outside of popular consent, the more we become clients rather than rulers of a 

vast and distant government, the less we are self-governing, and 

the less we control our own fate. And as Alexis de Tocqueville 

warned in ‘‘Democracy in America,’’ that is the recipe for a benign 

form of despotism that truly imperils our democratic experiment. 

Thank you. 

[The prepared statement of Mr. Spalding appears as a submissions for the record.] 

Chairman FEINGOLD. Thank you very much, Mr. Spalding. 

Our next witness is Tuan Samahon, Associate Professor at 

Villanova Law School where he teaches constitutional law, Federal 

courts, and administrative law issues. He previously taught at the 

University of Nevada-Las Vegas Boyd School of Law, where he was 

named Professor of the Year in 2007. Professor Samahon is a graduate of Georgetown University Law Center. Following law school, 

he clerked for the U.S. District Court for the Eastern District of 

Virginia and for the U.S. Court of Appeals for the Ninth Circuit. 

Professor, thank you for being here today, and you may proceed. 

STATEMENT OF TUAN SAMAHON, ASSOCIATE PROFESSOR, 

VILLANOVA UNIVERSITY SCHOOL OF LAW, VILLANOVA, 

PENNSYLVANIA 

Mr. SAMAHON. Thank you, Senator Feingold and Senator Coburn, 

for inviting me to participate. 

I have been asked to address the question of whether the President’s use of so-called czars violates the Appointments Clause. My 

testimony will be limited to the general appointments issue presented by the use of these positions. I will explain the constitutional framework that the Senate should consider in addressing 

this question. 

First, some generalities about the Appointments Clause. It is 

well established that the Appointments Clause controls the appointment of officers. There are at least two ways to think of this 

power. We could conceive of it either as being a specific grant of 

power to the President, that the President may nominate, shall 

nominate, and with the advice and consent of the Senate, appoint; 

or, alternatively, we might view the Appointments Clause as a 

qualification of the President’s power to appoint, in which case in 

those circumstances in which the President appoints officers, he 

may do so only with the Senate’s advice and consent. 

10 

Either way, if one of the positions that has been colloquially 

termed ‘‘czar’’ proves to be an office, the Appointments Clause or 

its Excepting Clause controls. 

If a position is an office, the President must appoint the officer 

consistent with the Appointments Clause. The Supreme Court has 

interpreted that clause to distinguish between so-called principal 

officers and inferior officers. The President must secure the Senate’s advice and consent to appoint principal officers. This requirement is non-negotiable. On the other hand, inferior officers may be 

opted out of Presidential nomination and Senate advice and consent. The choice to opt out or not is a Congressional prerogative. 

There, of course, is a built-in disincentive to opt out. When Congress exercises this option, Congress effectively eliminates itself 

from the formal appointments process. It, however, may opt back 

into the default arrangement of Presidential appointment with 

Senate advice and consent. To opt out, Congress need only by law, 

by statute, vest the appointment authority in one of three groups 

of authorized officers: the President alone, the heads of executive 

departments, or the courts of law. 

Now, returning to the specific question of so-called czars, one 

way to think of a czar is as an inferior officer whose appointment 

Congress vested in the President alone. The three questions to ask 

in making this determination are: 

First, is this czar even an officer at all, as a threshold matter? 

Second, if so, did Congress by statute vest the appointment power 

in the President alone if appointed by the President or in a head 

of an executive department if appointed by a department secretary 

or similar official appointed by Senate advice and consent? And, 

third, if so, is the officer inferior to the appointing authority? If all 

three conditions are met, the czar is an inferior officer whose appointment was vested by Congress outside the default process and 

is consistent, perfectly consistent, with the Appointments Clause. 

Alternatively, if the czar is not an officer at all but a non-officer, 

then the President has the power to appoint the non-officer without 

regard to the Appointments Clause. 

So let us first talk about the threshold inquiry, the officer versus 

non-officer. 

First, it is necessary to draw the line. This line between non 

-officer and officer is not defined by the Appointments Clause itself, 

but we do have some authority. Recently under the Bush Administration, the Justice Department’s Office of Legal Counsel in April 

of 2007 issued an opinion that synthesized and harmonized the Supreme Court’s opinions on who is an officer for Appointments 

Clause purposes. This OLC opinion boiled down the definition of 

‘‘officer’’ to two requirements that are necessary; that is, in order 

to be an officer, you must hold an office, which in turn is defined 

as a position to which is delegated by legal authority a portion of 

the sovereign powers of the Federal Government—what the Supreme Court in Buckley v. Valeo termed ‘‘significant authority? ’’ 

The second requirement is that this position must be continuing. 

So as to this first requirement that a position be delegated sovereign authority, OLC provided us with some definition of what exactly constitutes sovereign authority. Delegated strategy authority 

is that power to bind the Government or third parties for the benVerDate Nov 24 2008 10:03 Aug 12, 2010 Jkt 057708 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57708.TXT SJUD1 PsN: CMORC
11 

efit of the public, such as by administering, executing, or authoritatively interpreting the laws. And I quote here, ‘‘Delegated sovereign authority also includes other activities of the executive 

branch concerning the public that might not necessarily be described as the administration, execution, or authoritative interpretation of the laws but nevertheless have long been understood to 

be sovereign functions, particularly the authority to represent the 

United States to foreign nations or to command military force on 

behalf of the Government.’’ 

Now, OLC excludes as an office any purely advisory position. 

These purely advisory positions present a potential problem for 

Congress. Even if one is a non-officer, we do have to worry that 

powerful ‘‘advisers’’ in theory become final in fact. 

If we have an officer, we can then determine whether Congress 

gave that power to the President alone to appoint, and then we 

must determine whether that officer is inferior. As my time has expired, I will save any elaboration of what constitutes an inferior officer for questions. 

Thank you, Senator. 

[The prepared statement of Mr. Samahon appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Professor, and I appreciate 

your testimony. Of course, your full statement will be placed in the 

record, and I would ask unanimous consent that Senator Durbin’s 

statement be placed in the record as well. Thank you. 

[The prepared statement of Senator Durbin appears as a submission for the record.] 

Chairman FEINGOLD. Now we will turn to John Harrison, a professor at the University of Virginia School of Law. Professor Harrison teaches constitutional history, Federal courts, civil procedure, 

and a number of other courses. He was Deputy Assistant Attorney 

General of the Justice Department’s Office of Legal Counsel under 

President George H.W. Bush and recently served as counselor on 

international law in the Office of the Legal Adviser at the Department of State. Professor Harrison earned his J.D. from Yale Law 

School and served as editor of the Yale Law Journal. He clerked 

for Judge Robert Bork on the U.S. Court of Appeals for the District 

of Columbia Circuit. 

Mr. Harrison, we welcome you, too, and thank you for making 

the time to be here this afternoon. You may proceed. 

STATEMENT OF JOHN C. HARRISON, JAMES MADISON DISTINGUISHED PROFESSOR OF LAW, HENRY L. AND GRACE 

DOHERTY CHARITABLE FOUNDATION RESEARCH PROFESSOR, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, CHARLOTTESVILLE, VIRGINIA 

Mr. HARRISON. Thank you, Mr. Chairman, Ranking Member 

Coburn. 

There are two governing legal principles here. Professor 

Samahon just set out the first one, the Appointments Clause. It is 

a necessary condition for the exercise of actual legal authority in 

the Government for someone in the executive branch for anyone 

other than the President to have been appointed to an office pursuVerDate Nov 24 2008 10:03 Aug 12, 2010 Jkt 057708 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57708.TXT SJUD1 PsN: CMORC
12 

ant to the Appointments Clause. You have to be either a superior 

officer or an inferior officer. 

The other necessary condition for the exercise of power by anyone other than the President is some source of statutory authority, 

because only the President has constitutional power and the President’s constitutional powers are essentially non-delegable. 

The consequence of those two principles is that it is extremely 

doubtful whether anyone on the White House staff, the sort of person sometimes called a ‘‘czar,’’ could actually exercise legal authority, at least as a formal matter. Those are the first two points 

about the governing legal principles. 

The next point I want to make is that there is a difference between actual legal power between formal authority and influence 

and importance in the Government. There are a great many people 

in all three branches of Government who do not have any actual 

legal authority but who, nevertheless, are quite important to the 

process of formulating policy or in the judicial branch, thinking of 

law clerks, to the process of deciding cases. 

There is nothing legally problematic about that because the rules 

governing sources of authority and status of an officer look to actual legal authority. They do not look to informal power, what is 

sometimes called ‘‘clout.’’ And I think that is appropriate as it is 

much easier to understand and, hence, make legal rules about actual formal authority than about clout. 

As a consequence, it is not surprising that the legal rules do not 

seek to govern that. They seek to govern what people can actually 

do, whether they can genuinely bind the Government. 

So that is the question with respect to anybody who does not 

have a source of authority or is not appointed consistent with the 

Appointments Clause, whether that person has ever purported to 

take a legally effective action. That is something that certainly 

needs to be thought about. I doubt that it has happened, because 

the legal principles governing this matter are relatively well established. 

The last thing I would point out is that although it is common 

for there to be a divergence between influence in the Government 

and actual formal legal authority, especially with respect to the 

White House staff, it is extremely common for members of the 

White House staff to be extremely influential even though they 

cannot take any genuinely legal binding decision. Whether that division between legal authority and informal practical influence is 

a good thing is a difficult question of policy. It is one that the Government has been wrestling with as long as the Constitution has 

been in operation. It is a hard question both for Congress and for 

the President. But the important thing, I think, to understand is 

that that is a policy question; whereas, the fundamental legal question is, Is anybody who does not have Government authority seeking to exercise it? 

Thank you. 

[The prepared statement of Harrison appears as a submission for 

the record.] 

Chairman FEINGOLD. Thank you very much, Professor. 

Our final witness is T.J. Halstead, Deputy Assistant Director of 

the American Law Division of the Congressional Research Service 

13 

at the Library of Congress. Prior to assuming his current position, 

Mr. Halstead served both as a legislative attorney and section research manager in the American Law Division. Mr. Halstead, a 

graduate of the University of Kansas School of Law, specializes in 

the areas of constitutional law, administrative law and process, 

Congressional practice and procedure, and Congressional-executive 

relations. 

Mr. Halstead. 

STATEMENT OF T.J. HALSTEAD, DEPUTY ASSISTANT DIRECTOR, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE, LIBRARY OF CONGRESS, WASHINGTON, 

D.C. 

Mr. HALSTEAD. Mr. Chairman, Mr. Coburn, I am pleased to be 

here today to discuss the Subcommittee’s consideration of historical 

and constitutional issues pertaining to Presidential advisers. 

In my testimony I will address in a slightly different manner two 

interrelated issues that are relevant to today’s hearing that have 

been touched upon by my fellow panelists—the first dealing with 

those Appointments Clause implications that are posed by the service of Presidential advisers, and then looking to identify the contours of an effective Congressional response to concerns raised by 

the apparent influence that is, in fact, exerted by those advisers. 

As has been stated, the first issue with regard to the Appointments Clause centers on concerns that have been raised that the 

use of these advisers may circumvent the requirements of that 

clause by allowing persons who have not been subjected to the Senate confirmation process to exert significant, if not determinative, 

influence over important policy issues. Those concerns are certainly 

valid from a practical political perspective, but there does not appear to be any substantive basis for a determination that this is, 

in fact, a violation of the Appointments Clause, at least as a facial 

matter. I have laid this out in more detail in my prepared statement, but there is no indication that these advisers, particularly 

those serving in unconfirmed positions within the Executive Office 

of the President, have been vested with any actual executive authority, and that precludes a categorical conclusion that the requirements of the Appointments Clause apply to their service. 

As a result of that dynamic, any constitutional challenge to these 

advisers, even assuming that someone could establish standing to 

mount such a challenge, would rest on a generalized argument that 

Presidential reliance on these advisers offends constitutional principles to such a degree as to be impermissible. 

Now, given that these advisers are viewed widely as exerting 

wide and broad power over actions taken at the executive branch 

level, at the department level, and so on, that argument might 

have a certain intuitive appeal, especially in light of the care with 

which Congress has structured the modern administrative state. 

However, under current jurisprudential principles, it is difficult to 

discern a basis upon which a reviewing court would conclude, as 

a legal matter, that the existence of these advisers runs contrary 

to our constitutional system. 

It is important to note that even assuming that a substantive argument against the service of such advisers could be forwarded, the 

14 

traditional reluctance of the judiciary to intervene in conflicts of 

this type between the Congress and the executive branch make a 

non-political resolution to the controversy unlikely. Also, it is not 

clear that legislative proposals, even if enacted, would have much, 

if any, effect on Presidential utilization of advisers as it does not 

appear possible for Congress to prohibit, either implicitly or explicitly, a President from relying upon personal advisers irrespective of 

whether they are confirmed or draw a salary. 

Given the limitations that are inherent in any judicial or legislative response to this controversy, it seems that the most effective 

Congressional response may be one that is based simply on persistent and aggressive assertion of the oversight prerogatives of the 

House and Senate. Longstanding Supreme Court precedent recognizes the power of Congress to engage in oversight of any matter 

related to its legislative function, and even while there is no explicit provision in the Constitution authorizing Congressional oversight, the Supreme Court has declared that that power is so essential as to be implicit in the general vesting of legislative authority 

in the Congress. 

And, furthermore, despite reports to the contrary, Congress’ 

power in the oversight context certainly extends to the receipt of 

testimony from Presidential advisers. Research conducted by my 

colleagues at CRS has revealed numerous instances where such advisers have testified before committees, effectively disposing of the 

argument that separation of powers principles impose a structural 

bar to the appearance of these advisers before Congress. 

This is not to say that the oversight process is easy. It requires 

sustained and focused effort from Members of Congress and their 

staff. However, a robust oversight regime, focusing on specific, substantive executive action taken in areas over which such advisers 

have political influence, could be an extremely effective approach 

and would enable Congress as an institution to more forcefully assert its constitutional prerogatives and to ensure compliance with 

its enactments. 

That concludes my personal statement. I would be happy to answer any questions that the Committee might have, and I look forward to working with you on this issue in the future. 

[The prepared statement of Mr. Halstead appears as a submission for the record.] 

Chairman FEINGOLD. Thank you, Mr. Halstead. I thank all the 

witnesses. We will begin with 7-minute rounds for questions, and 

this is for all of you. 

White House Counsel Gregory Craig responded to my letter to 

the President yesterday, and I forwarded a copy of that response 

to all of you. 

First of all, do any of you disagree with the White House’s conclusion that there is no Appointments Clause issue for so-called 

czars that are housed in Federal agencies and report to Senate-confirmed officials? Does anyone have any difficulty with that? 

I will note that no one has indicated any difficulty. 

White House Counsel Craig’s letter states that with respect to 

the four new White House positions that have been called ‘‘czars’’ 

by some in the areas of health, energy and the environment, urban 

affairs, and domestic violence, they ‘‘assist the President in the forVerDate Nov 24 2008 10:03 Aug 12, 2010 Jkt 057708 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57708.TXT SJUD1 PsN: CMORC
15 

mulation of executive branch policy and exercise no independent 

legal authority.’’ Later in the letter, he states of the White House 

and the NSC officials that none of them ‘‘exercise any independent 

authority or sovereign power.’’ 

Professor Harrison and Professor Samahon, I take it that this is 

a key fact in the legal analysis determining whether these individuals are officers of the United States implicating the Appointments 

Clause. Am I right about that? 

Mr. HARRISON. That is absolutely correct. That is the question 

whether they are exercising legal power. 

Chairman FEINGOLD. Professor. 

Mr. SAMAHON. I would concur with Professor Harrison. Those individuals would not be officers of the United States. 

Chairman FEINGOLD. So what would it take to change that analysis? In other words, what would these advisers have to be doing, 

how would they have to be acting that would trigger an Appointments Clause issue? And, specifically, how should we analyze the 

widely reported duty that some of these officials have to ‘‘coordinate policy development’’ between two or more departments? I will 

start with Professors Harrison and Samahon and then ask the others to respond. 

Mr. HARRISON. I think the sort of thing that would be problematic would be if someone like that were to do one of two things: 

one, to give an order to someone with actual legal authority that 

did not simply represent carrying forward the President’s order, 

that was not just communicating the President’s order; or were 

that person—and I think this is highly unlikely—to purport to take 

some actual binding measure himself or herself, for example, 

issuing a regulation or authorizing an expenditure, an exercise of 

formal legal authority. That I think is the sort of thing that would 

be problematic. 

Chairman FEINGOLD. Professor Samahon. 

Mr. SAMAHON. I would agree with Professor Harrison. I think we 

are on the same page here, and so is the Bush administration’s 

OLC on this particular point. Binding the Government, that would 

be an act where we would say that an assistant to the President 

is no longer an employee—administering, executing, authoritatively 

interpreting the laws, issuing regulations—I think those would be 

problematic. 

Chairman FEINGOLD. Do any of the rest of you wish to respond? 

Mr. Halstead. 

Mr. HALSTEAD. Just to make a tangential point on this issue. 

These individuals are exercising very significant—presumably significant political influence, and even if you had allegations that 

these folks were giving orders to agency heads to take certain action, I just want to touch back on this notion of the very small likelihood of any judicial resolution to this type of conflict. 

You have, by way of analogy, a situation that is similar to this 

dynamic, that has been employed since 1981, where the Office of 

Information and Regulatory Affairs at OMB exercises significant 

control over actual regulatory decisions that are made by executive 

branch agencies. And in the mid-1980s, there were, in fact, allegations that they had effectively usurped the authority that had been 

vested in agency heads to make rulemaking decisions. And the 

16 

court in one case, Public Citizens v. Tyson, I believe, there was substantial evidence presented that that, in fact, had occurred. And 

the court just effectively refused to address the constitutional implications raised by that dynamic and addressed the issue in a 

manner that simply enabled it to ascribe the decision as, in fact, 

being that of the agency head. 

Chairman FEINGOLD. Mr. Craig writes the following—yes, please, 

go ahead. I did not realize you wanted to respond. 

Mr. SPALDING. Sorry, Senator. I agree with the technical points 

that have been raised here in terms of the questions at issue, and 

I also note we are working with a lack of information; hence, the 

letter is trying to get more information. So we are working on what 

we have here. 

But the one example I did give in my testimony that I find to 

be somewhat troubling concerning the climate czar being a chief 

negotiator during automobile emission standards based on a Supreme Court interpretation of the Clean Air Act, that seems to me 

that you are now at several stages of separation, getting into some 

operational regulatory questions—not the EPA Administrator 

whom you have approved. That kind of thing, that kind of question, 

at least in my mind, is something that should be taken seriously 

from the point of view of Congress, because an individual who is 

operating—and I make the distinction between an adviser, someone who is going into an operational mode, who is more administering things, separated from legislative advice—this is an act of 

Congress from 1970 now being interpreted by the courts, Congress 

chose not to change when the current czar was the EPA Administrator in a previous administration, now actually doing that. I 

think there are some questions which do raise some serious consideration along those lines. And there might be others, but that is 

the one that has been reported. 

Chairman FEINGOLD. Thank you, Mr. Spalding. 

Mr. Craig writes the following concerning the number of alleged 

czars who are part of the staff of the National Security Council, or 

NSC. ‘‘According to Federal statute, the function of the NSC is to 

advise the President and to coordinate, subject to the President’s 

discretion, the policies and functions of the departments and agencies of the Government relating to the national security. The NSC 

is supported by numerous professional staff members who have no 

independent legal authority. Their sole function is to advise the 

President often through recommendations that are formulated by 

NSC principals and deputies committees. NSC staff members have 

always had expertise in particular subject matters so they can most 

effectively advise these committees and ultimately the President.’’ 

Now, given their expertise and their role in advising NSC committees, it seems reasonable to suppose that NSC staffers can have 

significant influence whether or not they have ever been called 

‘‘czars.’’ While the NSC plays an important role in coordinating the 

work of different departments and agencies, should the Senate be 

concerned about the possibility that an NSC staffer may end up 

having more ability to influence foreign policy decisions than, say, 

a Senate-confirmed Assistant Secretary of State? Is there a solution 

to this problem or even a way of finding out whether and to what 

extent it is a problem? 

17 

Let us start with Mr. Patterson. Would you like to respond to 

that? 

Mr. PATTERSON. Mr. Chairman, you will recall a year ago a 

group of 22 people called the Project on National Security Reform— 

Brent Scowcroft is one of them; General Jones was a member of 

that group—recommended in a 702-page volume issued a year 

ago—one of the recommendations—was that the Assistant to the 

President for National Security Affairs be confirmed by the Senate 

and be given a great deal more authority. That, of course, would 

presumably require legislation. 

It was interesting to me to notice that General Jones did not sign 

the covering letter of the President, took his name off. Maybe he 

knew he was about to be appointed. But President Obama in his 

May 26th statement about the National Security Council did not 

accept that recommendation. And I do not think any future President would either. 

So the NSC staff, to me, I regard them as part of the White 

House staff family, and there was a case a few years ago, the Armstrong case, which said, in effect the National Security Adviser is 

de facto a member of the White House staff. And so General Jones 

would be supervising all of the members of his staff, which numbers now well over 200. And so whatever recommendations they 

make would be through him to the President. 

Chairman FEINGOLD. My time is up, but does anybody else want 

to respond to the NSC question? Professor Harrison. 

Mr. HARRISON. Just quickly, Senator Feingold. My impression 

about the NSC process is that everyone involved in that process is 

well aware of their institutional prerogatives, that all of the agencies know what their jobs are, that the people at the State Department know that they alone conduct the foreign relations of the 

United States, and that the people at the NSC realize that they are 

uniquely close to the President and that something comes from 

that. 

So I think that as a practical matter, the participants in the 

process do take into account their various roles and their different 

legal authorities. 

Chairman FEINGOLD. We will just have further responses, and 

then we will go to Senator Coburn. 

Mr. SAMAHON. Thank you, Senator Feingold. I did want to make 

clear that there are some legal alternatives, policy choices that 

Congress could make here. Again, the problem is powerful non-officers who might be more powerful than officers appointed with advice and consent. 

One choice is a budgetary choice to exercise a check. You could 

not fund influential non-officer advisers. Given our need for such 

people, though, a more reasonable alternative might be to create 

formal offices staffed by inferior officers, either appointed by the 

President alone or appointed with Senate advice and consent. They 

would have not only the traditional advisory role given to them, 

but they would also have suitable powers such that they occupy offices. 

Chairman FEINGOLD. OK. I am going to go to Senator Coburn. 

When I get my time again, if somebody else wants to talk 

about—— 

18 

Senator COBURN. That is fine. Go ahead. 

Chairman FEINGOLD. I did not see anybody raising their hand. 

Go ahead, Senator. 

Senator COBURN. Thank you, Mr. Chairman. 

Kenneth Feinberg, the current pay czar, recently stated, and I 

quote, ‘‘I have the discretion, conferred upon by Congress, to attempt to recover compensation that has already been paid to executives.’’ 

Now, based on your testimony, that would tend to imply that he 

is in a position of binding authority. What is your response—he 

was not confirmed by the Senate. He was appointed. Give me a 

legal analysis of here is the statement that is made by the person 

in that position, and yet no advice and consent. Can you help me 

walk through the conflict that I see based on your testimony and 

then his statement about his authority? Professor Harrison. 

Mr. HARRISON. Senator, the question there would be whether Mr. 

Feinberg is permissibly operating as an inferior officer, appropriately appointed pursuant to the second part of the Appointments 

Clause. The first part says officers shall be appointed by the President with the advice and consent of the Senate. The second part 

says inferior officers, as prescribed by statute, may be appointed by 

the President alone, the heads of departments, or the courts of law. 

So the question first would be whether the Secretary of the 

Treasury had the statutory authority to create that office pursuant 

to his authority under TARP or some other legislation, and then 

whether he has appropriately exercised it so as to constitute Mr. 

Feinberg an inferior officer. That is the first question. 

The second question, because he is an inferior officer, clearly not 

a principal or superior officer because the Senate did not confirm 

him, the next question would be whether he receives adequate supervision from a principal officer, someone who is Senate confirmed. And to know that, you would need to know the extent to 

which he is overseen, presumably by the Secretary of the Treasury, 

perhaps some other higher officer in the Department of the Treasury. 

There are a number of cases in the Supreme Court and the lower 

courts about how much supervision is required. The details remain 

somewhat unclear, but the basic principle is that for an inferior officer to operate permissibly, the inferior officer has to be subject to 

substantial supervision from somebody higher up. So that is the 

question you would need to answer about Mr. Feinberg. 

Senator COBURN. So the dilemma then comes: How do we find 

out if we cannot get him to testify? 

Mr. HARRISON. I do not know that—well, you can ask the Secretary of the Treasury. 

Senator COBURN. Yes, but you are only getting one side of the 

story. The problem is—let us give them the benefit of the doubt. 

How do we do our oversight function to make sure we are not violating the Appointments Clause and that they are not? I think that 

is one of the key questions we are trying to find out here, is understanding superior officer versus inferior, understanding the ability 

to contract, understanding whether or not there is a statutory requirement that gives that authority, or there is statutory language 

to give that authority, how do we find out? 

19 

Mr. HARRISON. Senator, I do not think there is any difficulty 

with your calling an inferior officer to testify. And as I say, certainly you can call the Secretary of the Treasury so you can find 

out about the legal nature of the relationship. And I believe you 

could find out about both sides, about whether the Secretary thinks 

he is supervising Mr. Feinberg and how much supervision Mr. 

Feinberg thinks he is getting. I think it is entirely within your 

power to do that because both of them are officers of the United 

States. And I think the Treasury Department would have to take 

the position that Mr. Feinberg is an inferior officer, because I believe he is exercising some significant authority pursuant to the 

laws of the United States. 

Senator COBURN. OK, thank you. 

Mr. SPALDING. Can I add something to that? 

Senator COBURN. Sure, I would be happy to hear it. 

Mr. SPALDING. I would just like to underscore the fact that there 

is no reason why Congress cannot ask them to give testimony. I 

think the administration cannot have it both ways. Either these 

are individuals that they are going to claim fall under executive 

privilege, or they are not. And I think on the face of it, these individuals—almost all of them in some cases—seem to be doing the 

types of coordinating operational and administrative things that I 

think could legitimately fall under the requirement of testimony. It 

would be very hard for the executive to claim that they do not. 

The second thing I would add, just in light of your conversation, 

is that, again, I would underscore the broader point I made that 

Congress needs to be more careful in the types of legislative discretion it gives, which in many cases gave rise to the creation of these 

czars in the first place. The TARP legislation is a great example 

of that, both in terms of this question and the question of the purchase of General Motors. 

You know, do you give too much discretion, which then allows for 

the type of policy this person is pursuing, setting aside whether or 

not they do fall under the Appointments Clause. Is that actually 

violating your legislative direction to the officer, the Secretary of 

Treasury, in carrying out your legislative intent? I think that is an 

important question as well. 

Senator COBURN. Let me just interject and then I will come to 

you, Professor Samahon. I do not mean to imply—I have never 

been turned down significantly by any of these people for information, so I do not want that to be the predicate under which we operate. But I will go back to my statement before. Transparency is the 

thing that creates confidence in Government, and so the message 

ought to be that. Professor Samahon. 

Mr. SAMAHON. I would like to build on a point made by Mr. 

Spalding. When Congress intends to vest the appointment power 

(e.g. it might want to vest the appointment power in the President 

alone or the head of an executive department), this body might consider adopting its own clear statement rule as a matter of internal 

best legislative practices, i.e. it will actually parallel the language 

of grants of power under the Excepting Clause when it intends to 

vest that power elsewhere. The language is ‘‘but the Congress may 

by law vest the appointment of such inferior officers. . . .’’ If 

the statute plainly says ‘‘the Secretary is hereby vested with the 

20 

authority to appoint,’’ that will make for grant of appointment authority clear. Moreover, it will make clear your judgement of who 

is actually an inferior officer and who is not. At the end of the day, 

you can give the President (or other executive oficers) various tools 

to supervise the subordinates.’’ 

I should note also, building on what Professor Harrison said, that 

there is some incoherence, heaven forbid, in the Supreme Court’s 

approach to this question of inferior officer. Some of this might be 

resolved by a pending case, Free Enterprise Fund v. PCAOB. But 

at the moment, I take the better law to be that to be an inferior 

officer is, as Professor Harrison stated, to be a subordinate to someone who is either the President alone or someone appointed with 

Senate advice and consent. 

There is a case out there, Morrison v. Olson, whose view of inferior is to in some sense be less powerful, in which case we might 

have problems, because under the subordinate formulation you can 

be extremely powerful, but just subordinate in the sense of hierarchically dependent upon a superior. But under the Morrison v. 

Olson approach, you could just be very, very powerful and, therefore, deemed not an inferior officer. 

Senator COBURN. OK, thank you. Just one other comment. None 

of us want to handicap our President in terms of the advisers that 

he can have, and to clarify, we want him to have the best and 

brightest. But we also want him to be as transparent as he can be 

as he does that. 

And so, Mr. Chairman, again, I am very appreciative of you having this hearing, and I will look forward to the hearing that we are 

going to have in Homeland Security and Governmental Affairs and 

see what kind of testimony we get there. 

Chairman FEINGOLD. Thank you again, Senator Coburn, for your 

cooperation. 

Senator COBURN. I would ask unanimous consent to enter into 

the record the following items: a letter from Senators Collins, Alexander, Bond, and Crapo; a letter from Senator Byrd; a letter from 

Congressman Issa; and a statement of Senator Cornyn. 

Chairman FEINGOLD. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Chairman FEINGOLD. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman, and thank you for 

holding this hearing. 

As I understand, we are talking about two different things so far. 

One, we have been talking about an inferior officer who is an appointee of an advice-and-consent principal officer. But the second is 

somebody who is a direct agent of the President and is, on the 

President’s behalf, exerting the President’s own authority, for instance, to sort out issues between Cabinet members to assure the 

smooth functioning of the President’s own authority, to represent 

the President at meetings, to delivery decisions of the President, either finally or tentatively. That all strikes me as being very clearly 

within the Presidential authority. Those would tend to be people 

within the White House. 

Is there any constitutional hesitation about somebody exercising 

those sorts of functions irrespective of whether you give them the 

21 

name ‘‘czar’’ or ‘‘principal adviser’’ or ‘‘White House adviser’’ or 

‘‘Presidential adviser’’ ? Professor Harrison. 

Mr. HARRISON. Senator, no. Again, as long as the person involved 

does not claim, as we might say, ‘‘genuinely to exercise’’ any power 

of the President, because the President’s constitutional authorities 

are almost certainly non-delegable. A phrase that occurs sometimes 

in the case law is that people like that advise and assist the President, and as long as they can find themselves to advising and assisting the President, as long as they can find themselves to coordination, to making sure that the agencies talk to one another and 

the President is fully apprised of what the agencies are doing, that 

is not legally problematic. 

Senator WHITEHOUSE. And does anybody disagree with what Professor Harrison just said? That is a yes or no question before we 

get into other statements? 

Mr. PATTERSON. They also would be violating a Presidential Executive order of 1939, President Roosevelt’s Executive order that I 

cited from, that assistants ‘‘shall be personal aides and shall have 

no authority over anyone in any department or agency.’’ That was 

the famous Roosevelt language which established the White House 

staff in that famous executive order. So that still controls. 

Senator WHITEHOUSE. I think that is consistent with my question. 

Professor Spalding, do you want to—— 

Mr. SPALDING. I would disagree only to say that I would add one 

thing, which is it does strike me that if an agent of the President 

is actually doing things that go to the extent of seeming to step on 

an officer that has been approved by Congress—— 

Senator WHITEHOUSE. In a way that the President could not. 

Mr. SPALDING. In a way that the President—well, give the legislative instructions from Congress to carry out the law, that strikes 

me as potentially raising a serious issue. 

Senator WHITEHOUSE. That implies that in these statutorily created executive offices there are legal authorities and responsibilities that belong to the occupant of that office per se and that not 

only an agent or adviser or assistant to the President, but the 

President himself cannot direct. 

Mr. SPALDING. Well, one of the dilemmas we have here is the extent to which—the larger mega question, the extent to which the 

Executive has control over those things by virtue of the fact that 

that is the executive power of the President. I think that is one of 

the dilemmas we have here. But where they rub up together as a 

practical matter is when you have an individual working through 

Congressional legislation in a created position that has been approved by Congress here—— 

Senator WHITEHOUSE. With duties given him or her by Congress—— 

Mr. SPALDING. Given him by Congress, and you have a Presidential adviser here who has seemed to go beyond advice and mere 

coordination to actually taking on the job of the other, that is something that I think is murky, partially because of the way the legislation is written, partially because of the way the executive office 

works—— 

22 

Senator WHITEHOUSE. I have a different point about that, which 

is that, to the extent that there are duties that are specifically 

given to an office by Congress, even if that office holder is an appointee of the President, it may very well be that there are authorities that belong to that office that the President cannot simply direct. 

Mr. SPALDING. The only thing I would add quickly for others is 

that I think partially there is—inherent in all this is a debate over 

the nature of Executive power, and my position would be that 

many of the particular agencies we are talking about here actually 

properly fall under the power of the Executive, which means the 

Executive has a lot more authority over those things. That does not 

mean that the President can ignore the actual way Congress has 

written the laws, which he is to execute. 

Senator WHITEHOUSE. Professor Harrison. 

Mr. HARRISON. Senator, the question of the extent to which the 

President can direct the exercise of statutory authority that is vested in someone else in the executive branch is one of the great questions of American constitutional law. The important thing for these 

purposes, I think, is to see that it is quite distinct from the question of any role that the President’s advisers have because that 

power, if it arises under the Constitution, is the President’s alone. 

Mr. PATTERSON. May I have the Chairman’s permission to give 

an example that I lived through? 

Senator WHITEHOUSE. I believe I still have the floor and the ability to ask questions. 

Chairman FEINGOLD. The Senator—— 

Mr. PATTERSON. Excuse me. 

Senator WHITEHOUSE. The point that I am trying to make is 

that, to the extent that there is some question about the authority 

that the President can exercise through his assistants and advisers, that is a limitation that pertains to the President himself, i.e., 

a Presidential assistant or adviser with the full support of the 

President exercising the President’s power has as much authority 

as the President cares to imbue that person with as to that decision in terms of the delivery of a Presidential decision. Correct? 

Mr. HARRISON. It is certainly the case that the ultimate limits 

here would be the limits on the President himself. And one of the 

great questions is what are those limits. 

Senator WHITEHOUSE. But one of those limits, although it is 

somewhat ill-defined, is the statutory authority that pertains to office holders and restrictions of the Administrative Procedures Act 

and Federal regulatory law and so forth. Correct? 

Mr. HARRISON. Well, some of those questions are very much in 

dispute historically, and there are judicial opinions in different directions on that, and there is no scholarly consensus and never has 

been. So I would not be comfortable going beyond saying that is 

one of the central and very difficult questions of American constitutional law. 

Senator WHITEHOUSE. Thank you very much. 

Chairman FEINGOLD. Thank you. We will start another round, 

and I want to give Mr. Patterson a chance to say what he wants 

to say and then—— 

23 

Mr. PATTERSON. Mr. Chairman, I would like your permission to 

give a real example of a real-life situation which I experienced. It 

was November 20, 1969. I was executive assistant to Leonard Garment on the Nixon White House staff. The tickers came out with 

the news: ‘‘Indians Seize Alcatraz.’’ Mr. Garment turned to me and 

said, ‘‘Patterson, who has Alcatraz? ’’ I said, ‘‘Mr. Garment, I don’t 

know, but I will find out.’’ And it turned out to be the General 

Services Administration, which has authority over surplus Federal 

real property. Mr. Garment said, ‘‘Who is the head of it? ’’ A gentleman named Robert Kunzig. Mr. Garment said, ‘‘Get Kunzig on 

the phone’’ or ‘‘I will get him on the phone.’’ 

He talked to Mr. Kunzig, and he said, ‘‘Mr. Administrator, what 

are you going to do about the Indians on Alcatraz? ’’ And the Administrator said, ‘‘I am appointed by the President and confirmed 

by the Senate. This is my responsibility, in my agency, the General 

Services Administration. I am going to call in the marshals, and we 

are going to yank them out of there by noon tomorrow.’’ 

Mr. Garment said, ‘‘Mr. Administrator, you will do no such thing. 

That is the wrong thing to do. It is a terrible policy to follow. I am 

countermanding you.’’ 

And the Administrator said, ‘‘What do you mean? I am the Administrator here. I am responsible. I have the authority.’’ Mr. Garment said, ‘‘You will do exactly what I tell you to do.’’ The Administrator said, ‘‘I will never talk to you again,’’ and slammed down the 

phone. 

We did not bring in the marshals, and we negotiated with the 

Indians on Alcatraz for 18 months and finally removed them peacefully without any violence. 

Chairman FEINGOLD. Thank you, sir. 

Mr. Halstead, I understand that Mr. Feinberg has not yet testified before Congress, but if he is an inferior officer in the Treasury 

Department, is there any reason he cannot be asked to do so? 

Mr. HALSTEAD. No, not at all. There are roughly 75 instances 

since the end of the World War II era where Presidential advisers, 

high-level Presidential advisers have appeared before Congressional committees. Now, the fact that there is no structural separation of powers prohibition against the appearance of these individuals is a much different thing than saying it is going to be easy 

to get them to appear before Congress. Certainly as we saw today, 

the administration simply declined the invitation to supply a witness to today’s hearing. And at that point, it becomes a question 

for a Committee and Congress as an institution as to whether or 

not to assert the institutional prerogatives and powers it has to 

compel testimony from certain individuals. 

Now, it is a road that is not gone down terribly often. Most recently, we saw with the ongoing inquiry into the dismissal of U.S. 

Attorneys during the Bush administration a very protracted effort 

to obtain the testimony of Harriet Myers and Karl Rove. They were 

held in contempt of Congress. The House of Representatives was 

given authority to pursue a civil action in the District Court for the 

District of Columbia to enforce those subpoenas. And it was not 

until the end of the Bush administration, well after the end of the 

Bush administration that those individuals, in fact, finally appeared to testify before the House Judiciary Committee. 

24 

So it is not necessarily an easy thing to do or something that can 

be accomplished overnight, and so that raises a question of are 

there other avenues, less formal avenues, that Congress could employ to obtain testimony of advisers. And one option—and this is 

just conjectural. One complaint that I have heard voiced or concern 

that I have heard voiced relating to the service of these Presidential advisers is that they are, in effect, circumventing the roles 

that are served by Cabinet heads, agency heads, so on and so forth. 

And it is not uncommon as a practical matter for the Senate to obtain the commitment of a nominee to an advice-and-consent position that they will affirmatively agree to appear before the Committee when requested. 

And so one option during that type of process would be to get a 

commitment from the Secretary of the Treasury or any individual 

so appointed to any other position that they would not only adhere 

to that agreement in relation to their general duties, but also to inquiries from the Committee as to the impact that these advisers or 

other personnel are having on their carrying out or conduct of the 

legal authorities that are vested specifically in them. 

Chairman FEINGOLD. Back to Mr. Patterson, I think your anecdote sort of relates to this matter. In your testimony regarding 

White House staffers, you stated that senior White House staff 

members often communicate the President’s instructions to Cabinet 

members in a forceful manner. Would any recipient of an order 

from a White House adviser question whether the directive came 

directly from the President? And if not, don’t these advisers end up 

having a lot of de facto authority? I would be curious, your response to that. 

Mr. PATTERSON. I cannot think of an example right away, but it 

is clearly open to a Cabinet officer to question a White House staffer request. He could do that. In fact, every senior White House 

staff officer is aware that that rebuttal could come back from a 

Cabinet officer, and he better be sure that he is representing the 

President. 

I think in the example I gave, my boss was quite sure, although 

he had not discussed this with the President. But he was confident 

that he was representing the President. 

But it is an option every Cabinet member has to go straight to 

the President and find out, and then the White House staff officer 

loses his authority promptly. 

Chairman FEINGOLD. Mr. Spalding, do you have anything to say 

about that one? 

Mr. SPALDING. Yes, that is actually a very good question. Here 

I make a distinction between the technical legal questions we have 

been discussing and what I would consider the managerial problems these things raise, because one of the temptations here is always exerting undue and improper influence. 

Now, I for one think the President has the prerogative to influence the administrative agencies below him as a matter of his authority. However, sometimes if that is not stemming from a legitimate source, it can sometimes cause practical problems. And the 

two examples I would give that are most recently in the current administration—although there are others previous to this; this is not 

unheard of—would be the story about the NEA conference calls 

25 

with artists implying that somehow this would be connected to 

NEA grants to pursue policy. That probably was a bad call that 

someone made. But the question, did they seem to suggest they 

were doing so on behalf of the White House or the President? 

Another example would be the controversy not over President 

Obama’s speech to the students, which is itself not controversial at 

all, but the issuance of what is implied to be curriculum being— 

was that a call from the White House over the Department of Education? And if so, was that an undue implication that somehow this 

was coming from the authority of the President? Which odds are 

it probably was not. 

I think these questions actually raise some managerial processes 

that probably more likely than not—not technical legal problems at 

all, but will probably raise questions about who has the authority, 

where is this coming from, and in many cases probably are bad political calls on top of everything else. 

Chairman FEINGOLD. Thank you. Senator—oh, excuse me. Professor? And then we will go to Senator Coburn. 

Mr. SAMAHON. Thank you. I want to build on Mr. Spalding’s 

point, namely, the problem that the sorcerer’s apprentice then becomes the sorcerer. And there is a legal consequence here because 

OLC had excluded from the definition of officer—that is, you are 

a non-officer—if you are in a purely advisory position. What if you 

are not in a purely advisory position such that you hold forth that 

you have power to make final decisions? 

I think that is probably a legislative question and subject to legislative oversight. Perhaps you make these people officers by 

marrying the policy and the legal authority. 

Chairman FEINGOLD. Senator Coburn. 

Senator COBURN. I just wanted to make one statement about Mr. 

Patterson’s statement, that his boss had not checked with the 

President, but yet took a position otherwise. Now, he happened to 

be right. The question we should be worried about is how often do 

they make those same statements and they are not speaking for 

the President. 

So I think it proves the point that there is a problem for us in 

terms of really line structure. If you go and look at management 

and styles of management and line authority and where we have 

line authority and where we do not, and I think our panel has pretty well testified there are some fairly murky areas out there that 

need to be distinguished. 

Professor Harrison, if, in fact, one of these so-called czars exerts 

statutory authority when, in fact, they have none—let us say one 

does and they have no statutory authority, in your testimony you 

indicated that their actions have no legal effect. So if that is the 

case, how do you stop that from happening? What can be done? 

Mr. HARRISON. Well ultimately, there could be circumstances 

under which there would be legal effect on some private person, 

and the private person would be able to take the position that what 

had happened was invalid and ineffective, in, for example, the extreme situation where someone who did not have the authority to 

issue a regulation, somehow it purported to issue the regulation, 

the person subject to the regulation could simply object to it on the 

grounds that it was invalid. 

26 

I think that the more practical likelihood is exactly what we have 

been talking about, that someone who does not have the authority 

to bind someone else in the executive branch would purport to give 

one of those orders that claim to come from the President and that 

did not really. And I think there probably the primary enforcement 

mechanism is Congress, because you do have access to the people 

who have the actual practical authority. And what ought to happen—this is sort of 51st Federalist inside the executive branch. 

What ought to happen is that the people who have the practical authority need to stand up for it and make sure that the orders are 

coming from the President, and you can, when you talk to them, 

as you routinely do, both in formal and in informal settings, make 

sure that they are standing up for the distinction between staff and 

line, which as an administrative matter is very important. 

Senator COBURN. Which would go back to Mr. Patterson. Obviously, the GSA Administrator figured out that he was, in fact, 

speaking for the President. 

Mr. PATTERSON. He made that assumption. 

Senator COBURN. But the GSA Administrator ultimately did not 

send the marshall at noon tomorrow, and so he understood that 

your boss was speaking for the President. 

Mr. PATTERSON. That is correct. I could give a couple of other examples that do occur to me. Help me a little bit on my history. I 

believe President Carter had an Assistant on Aging, and I believe 

he testified before Congress in opposition to the President. And he 

also had an assistant name Costanza, a woman named Costanza, 

who I think participated in a television program opposing the 

President. In both cases, their tenure at the White House was very 

brief. 

Senator COBURN. Professor Spalding. 

Mr. SPALDING. I just wanted to add and underscore what I think 

we are implying here is the main question at issue is responsibility 

and accountability. One of the problems with the modern administrative state, it is not oftentimes clear who is actually responsible 

and, thus, who is accountable, especially from a Congressional or 

executive point of view. And that is why some of these things are 

muddled. 

It seems to me that two broad things that could be done is that 

Congress could write clear laws that make these things known. The 

car czar did not exist when TARP was written. If you can see 

things coming that ought to be taken care of in the legislation that 

ought to be done, you should be careful not to give away—to delegate so much authority that implies a much wider swath of delegation that gives rise to these kinds of things. 

The second point I would make from an administrative point of 

view—that is, from the point of view of the Executive—is that I 

think these are touching on managerial questions that raise managerial style issues. And there I would point back to the fact that 

strong Presidents—the most successful Presidents, I would argue— 

tend to use Cabinet-style processes of management. And most recently we see a good example of that in President Reagan who had 

Cabinet Councils, which have been widely noted for being very successful; that is, he operated as much as possible through his Cabinet and, thus, down through the structure of management that coVerDate Nov 24 2008 10:03 Aug 12, 2010 Jkt 057708 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\57708.TXT SJUD1 PsN: CMORC
27 

incides with positions approved by Congress and through Congressional legislation. 

That seems to me to be a stronger way of management. That is 

not the style that is being followed in this administration or the 

previous administration, I would point out. As a result, it is no coincidence that we are seeing the rise of these individuals that seem 

to be outside of that management structure and in many cases 

raise questions as to the distinction between whether that person 

is within that structure or falls into the advisory category, is actually operating things, is actually coordinating. Thus, all of this 

blurriness occurs. 

Mr. PATTERSON. With respect to President Reagan, I cannot help 

thinking of Ollie North and his operations. 

Mr. SPALDING. Which was a great lesson of the Tower Commission, which was precisely when you start operational procedures 

within the White House structure, it tends to cause problems. That 

was the great lesson of the Tower Commission, and I would actually point out—I do not cover it in my testimony, but Ed Meese at 

great length talks about this operational problem from a managerial point of view in his own autobiography. 

Senator COBURN. All right. Well, Mr. Chairman, thank you. You 

all have been fantastic in terms of giving us insight, both in terms 

of the Constitution as well as your advice, and I would like very 

much to be able to submit additional questions for the record, if 

possible. 

Chairman FEINGOLD. Of course. Without objection. 

[The questions appears in the questions and answers.] 

Senator COBURN. I want to thank you for being here. 

Chairman FEINGOLD. Let me just—potential constitutional issues 

that could arise in a circumstance where a czar or other executive 

branch adviser is charged with the same or some of the same duties and responsibilities as an inferior officer in an agency or department. For example, as Chairman of the African Affairs Subcommittee of the Foreign Relations Committee, I have supported 

the appointment of a special envoy to Sudan. There is also a Senate-confirmed inferior officer who is the Assistant Secretary for the 

Bureau of African Affairs. Should I be concerned that this special 

envoy and his staff may unconstitutionally infringe and/or ignore 

the Assistant Secretary’s authority? 

Mr. HARRISON. Senator, I doubt an arrangement like that would 

create a constitutional question, provided that the special envoy 

was appointed appropriately as an inferior officer and the lines of 

authority were clearly drawn both in the statute and in whatever 

the President and the State Department set up. You have to be 

careful sort of about the plumbing in these things, but it can be 

done. 

I think in a situation like that the real concern is less constitutional and more practical. Any time you have overlapping responsibilities, it is extremely important that people know who makes 

what decisions and ultimately who is in charge of actually acting 

for the United States. 

Chairman FEINGOLD. And I take it a legitimate concern for Congressional oversight regardless of whether it raises legal issues. 

28 

Mr. HARRISON. Making sure that the Government is set up properly and is functioning properly is a central role of the Congress. 

Chairman FEINGOLD. Professor. 

Mr. SAMAHON. I am going to be a little hesitant here because I 

think there is potentially a problem. I think, first of all, going back 

to the OLC April 2007 opinion, if one is exercising diplomatic functions, one would plainly seem to be an officer. What the question 

would then be is whether being a special envoy position is a continuing office such that the second requirement for officer-hood is 

met. 

If that is the case, then we have someone who should be subject 

to Presidential nomination with Senate advice and consent. There 

is no opt-out for these principal officers. Ambassadors, as I would 

potentially consider even one denominated a ‘‘special envoy,’’ must 

go through Senate advice and consent. 

I am not certain what the contours of this particular office or position would be ‘‘special envoy’’—but it does raise some cause for 

concern, certainly to learn more about what this special envoy does 

so you can make a judgment. 

Chairman FEINGOLD. Well, I want to thank all of you—oh, I am 

sorry. Professor Harrison. 

Mr. HARRISON. Yes, I do just want to stress that in a situation 

like that, Professor Samahon is exactly right. It is necessary to 

have an eye on the precise legal authority of the officers involved 

and, in particular, any special envoy. 

Chairman FEINGOLD. Mr. Halstead. 

Mr. HALSTEAD. Just a brief point. With regard to Congressional 

oversight prerogatives in such a context, the Supreme Court has 

stated that the oversight prerogatives of Congress are at their peak 

when looking into allegations of mal-administration, governmental 

inefficiency, et cetera. So it would clearly be something that would 

be very suited for Congressional inquiry. 

Chairman FEINGOLD. Well, I thank all of you. The hearing I 

think was very informative. I think we cut through a lot of the 

rhetoric that has been flying back and forth and started to really 

examine not only the serious underlying constitutional issues, but 

also some of the policy issues that we should be looking at. Administrations going back decades have created positions with important portfolios that are not subject to Senate approval. This is certainly not an isolated issue of the Obama administration, as you 

have all been fair enough to point out. And Congress may need to 

act to make sure that, going forward, the proper checks and balances are in place. 

And as Senator Coburn indicated, both the Chairman and the 

Ranking Member of the Homeland Security and Governmental Affairs Committee, Senators Lieberman and Collins, are interested in 

this issue as well. I will work with them as well as Senator 

Coburn, who is the Ranking Member of this Subcommittee, on possible next steps. 

My thanks to all the witnesses, and that concludes the hearing. 

[Whereupon, at 2:55 p.m., the Subcommittee was adjourned.] 

[Submissions for the record follow.] 

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