U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office,

http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,

U.S. Government Printing Office. Phone 202–512–1800, or 866–512–1800 (toll-free). E-mail, gpo@custhelp.com.

53–850 PDF 2011

S. Hrg. 111–805 

PRESIDENTIAL ADVICE AND SENATE CONSENT: 

THE PAST, PRESENT, AND FUTURE OF 

POLICY CZARS 

HEARING 

BEFORE THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

OF THE

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 22, 2009 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 


ph44585 on D330-44585-7600 with DISTILLER
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT F. BENNETT, Utah 

MICHAEL L. ALEXANDER, Staff Director 

BETH M. GROSSMAN, Senior Counsel 

JEFFREY E. GREENE, Counsel 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

AMANDA WOOD, Minority Director for Governmental Affairs 

JENNIFER L. TARR, MINORITY COUNSEL

TRINA DRIESSNACK TYRER, Chief Clerk 

PATRICIA R. HOGAN, Publications Clerk and GPO Detailee 

LAURA W. KILBRIDE, Hearing Clerk 


ph44585 on D330-44585-7600 with DISTILLER
(III) 

C O N T E N T S 

Opening statements: Page 

Senator Lieberman ........................................................................................... 1 

Senator Collins ................................................................................................. 2 

Senator Bennett ................................................................................................ 5 

Senator McCaskill ............................................................................................ 6 

Senator Burris .................................................................................................. 23 

Prepared statements: 

Senator Lieberman ........................................................................................... 35 

Senator Collins ................................................................................................. 37 

Senator Burris .................................................................................................. 40 

WITNESSES 

THURSDAY, OCTOBER 22, 2009 

Hon. Thomas J. Ridge, Former Assistant to the President for Homeland 

Security and Secretary of Homeland Security ................................................... 7 

James P. Pfiffner, Ph.D., University Professor, School of Public Policy, George 

Mason University ................................................................................................. 9 

Lee A. Casey, Partner, Baker Hostetler; Former Attorney-Advisor in the 

Office of Legal Counsel at the U.S. Department of Justice .............................. 12 

Harold C. Relyea, Ph.D., Former Specialist in American National Government 

at the Congressional Research Service .............................................................. 14 

ALPHABETICAL LIST OF WITNESSES

Casey, Lee A.: 

Testimony .......................................................................................................... 12 

Prepared statement .......................................................................................... 58 

Pfiffner, James P., Ph.D.: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 53 

Relyea, Harold C., Ph.D.: 

Testimony .......................................................................................................... 14 

Prepared statement .......................................................................................... 73 

Ridge, Hon. Thomas J.: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 49 

APPENDIX 

Hon. Robert C. Byrd, a U.S. Senator from West Virginia, prepared statement 

with attachments ................................................................................................. 41 


ph44585 on D330-44585-7600 with DISTILLER

ph44585 on D330-44585-7600 with DISTILLER
(1) 

PRESIDENTIAL ADVICE AND SENATE 

CONSENT: THE PAST, PRESENT, AND 

FUTURE OF POLICY CZARS 

THURSDAY, OCTOBER 22, 2009 

U.S. SENATE,

COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:03 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Joseph I. Lieberman, Chairman of the Committee, presiding. 

Present: Senators Lieberman, McCaskill, Burris, Collins, Coburn, 

Ensign, and Bennett. 

OPENING STATEMENT OF CHAIRMAN LIEBERMAN 

Chairman LIEBERMAN. Well, good morning. The hearing will 

come to order. Welcome to this hearing, which has the title of 

‘‘Presidential Advice and Senate Consent: The Past, Present, and 

Future of Policy Czars.’’ The title ‘‘czar’’ has been used more in 

Washington in recent years than anywhere, anytime since 1917, 

when Czar Nicholas II of Russia came to his unhappy ending. 

As one of our witnesses this morning will make clear, President 

Obama is not the first of our national leaders to bring non-Cabinet 

officials into the White House as policy advisers or coordinators, 

though he has added a number of them. Arguably and interestingly, it was that great populist Andrew Jackson, way back in the 

early 19th Century, who was the first President to rely on what he 

would be surprised and puzzled to learn are today called ‘‘White 

House czars.’’ 

The main questions raised in what might be called the current 

anti-czarist uprising seem to be: One, have Presidents of both parties, including President Obama, consolidated power excessively in 

the White House through the appointment of these officials contrary to at least the spirit of the Constitution, if not our laws, particularly as against the authority of members of the Cabinet? And 

if so, is there anything Congress can or should do about it? 

Second, does the growing use of czars in the White House and 

the Administration, this and past ones, frustrate Congress in carrying out its constitutional responsibility to oversee the expenditure of the public’s money, which we appropriate, and the decisions 

that are made by the so-called czars with that money? Again, if so, 

what should we be doing about it? 


ph44585 on D330-44585-7600 with DISTILLER
2 

I also hope our witnesses—and it is a great panel of witnesses— 

will help us with the question of definition. Who is deserving in 

this instance of the title of ‘‘czar?’’ Is it only people in the White 

House or coordinators of policy, whether or not their positions are 

authorized in statute and they are confirmed by the Senate? Or 

does it include a larger group of public officials, statutorily authorized or not, confirmed by the Senate or not, working out of the 

White House, or not? Finally, I cannot resist saying with all respect 

to the aforementioned Nicholas II and his esteemed predecessors, 

I will ask our witnesses if there isn’t some more American title 

that we can use instead of ‘‘czar’’ to describe these government employees. The term ‘‘czar’’ seems to me not only ethnically inappropriate, but the Federal officials to whom it has been applied have 

far less autocratic power than the Russian czars did, which may explain why, though some of the current crop of White House czars 

have been subjected to harsh media criticism, their time in office 

is unlikely to end as violently as that of Nicholas II. 

I am sure many people here will remember the moment in the 

classic story ‘‘Fiddler on the Roof ’’ when one of the citizens of 

Anatevka, Russia, asks the local rabbi, ‘‘Rabbi, is there a prayer for 

the czar?’’ And the local rabbi answers, ‘‘Yes, my son, there is. It 

is ‘God bless and keep the czar, far away from us.’ ’’ May I paraphrase that prayer this morning and ask that God bless and keep 

the title of ‘‘czar’’ forevermore away from the American Government. I am going to try to do my best not to use the word ‘‘czar’’ 

in this regard again. So from now on, I am going to try to call the 

drug czar the ‘‘National Anti-Drug Policy Coordinator,’’ the environmental czar the ‘‘National Environmental Advisor,’’ and the pay 

czar, well, today he probably should be called the ‘‘National Pay 

Master.’’ Regardless of what one calls them, the proliferation of 

these positions really does raise serious questions that go right to 

the heart of the allocation of power in our Constitution as between 

the President and Congress, the authority and responsibility of 

Congress to oversee the expenditure of the money we appropriate 

to the executive, and, of course, the right of the executive to executive privilege, which is inherent in the presidency. 

We have an excellent panel of witnesses with us this morning 

who can help us answer these questions and then ultimately help 

us decide whether we wish to propose corrective legislation. 

Senator Collins was really early in raising these important questions in this Committee. I thank her for that, as I recognize her 

now for her opening statement. Senator Collins. 

OPENING STATEMENT OF SENATOR COLLINS 

Senator COLLINS. Thank you, Mr. Chairman, and I want you to 

know how much I enjoyed listening to your opening statement. I 

had a long discussion in my office late yesterday with the President’s legal counsel, who also calls czars ‘‘policy coordinators,’’ and 

I could not help but think that if that were all that they did, I 

would be happy to join you in calling them ‘‘coordinators’’ rather 

than ‘‘czars.’’ But, alas, my conclusion is that they do much more, 

so for lack of another term, despite the deficiencies that you have 

noted so eloquently, I will continue to call them ‘‘czars,’’ at least to 

the conclusion of this hearing and until a solution is found. 


ph44585 on D330-44585-7600 with DISTILLER
3 

I, too, am turning back into history as I present my statement 

today. When the Founding Fathers put down their quills in Philadelphia on September 17, 1787, they had crafted a Constitution— 

the framework for our representative democracy. Their work established a system of government with three separate branches, a government whose leaders were to be accountable to the people 

through a carefully constructed system of checks and balances. 

The responsibility of Congress to oversee the Executive Branch 

is fundamental to our constitutional system. That responsibility is 

on display whenever the Senate performs its explicit constitutional 

‘‘advice and consent’’ role or whenever Congress holds hearings on 

particular policy matters. This oversight ensures the accountability 

and transparency our Founding Fathers envisioned, and it is that 

oversight obligation which brings us here today. 

The proliferation of czars diminishes the ability of Congress to 

conduct its oversight responsibilities and to hold officials accountable for their actions. These czars can create confusion about which 

officials are responsible for various policy decisions. They can duplicate or dilute the statutory authority and responsibilities that Congress has conferred on Cabinet officers and other senior Executive 

Branch officials. 

A perfect example is the health care debate underway right now. 

Who is in charge? Who is making policy? Who is accountable? Is 

it Kathleen Sebelius, the Secretary of Health and Human Services? 

Or is it Nancy-Ann DeParle, the White House czar or coordinator 

of health care policy? 

In addition, the proliferation of czars can circumvent the constitutionally mandated process of advice and consent. Czars can exercise considerable power and influence over major policy issues, 

and yet they are not required to clear the rigorous Senate confirmation process. Czars bypass this important constitutional protection through a unilateral grant of authority from the President. 

Some, including the White House—and I would note every White 

House—have sought to diminish the significance of this debate by 

declaring that the use of czars does not violate the Appointments 

Clause in our Constitution. But even if the appointment of all of 

the czars were consistent with the Appointments Clause—and, 

frankly, I believe that the jury is still out on that question—the 

proliferation of czars in the Executive Branch encroaches on the 

more fundamental constitutional principle of checks and balances. 

Now, we all recognize that the President is entitled to appoint 

and to rely on senior advisers such as his chief of staff and his 

legal counsel, who are part of his personal staff. And to be clear, 

not every position identified in various media reports as a czar is 

problematic. And this is an important distinction. Positions subject 

to Senate confirmation or otherwise recognized by our laws, such 

as the Director of National Intelligence, the National Security Advisor, and the Chairman of the Recovery Accountability and Transparency Board, do not raise the same concerns with accountability, 

transparency, and oversight because they are recognized in law and 

because many of these positions are subject to Senate confirmation. 

I would also note that czars are not new to the American political 

landscape, but this is not merely a question of past usage. The recent proliferation of czars is a cause for real concern because they 


ph44585 on D330-44585-7600 with DISTILLER
4 

oversee a growing number of critical policy areas that are already 

supposedly under the purview of top Executive Branch officials. 

Indeed, this Administration has appointed at least 18 new czars. 

None of these officials was vetted through the Senate confirmation 

process. Their authorities and duties remain unclear. While some 

of them exercise authority pursuant to executive orders, others 

have just been announced through press releases. Their future 

plans have received little public airing. Their relationship with 

Cabinet-level officials is often undefined. They rarely, if ever, testify before congressional committees. And, indeed, yesterday when 

I was talking to Greg Craig, the President’s legal counsel, he made 

very clear that the White House would prohibit any of these officials with significant policy responsibility from coming to testify before us if they are located within the Executive Office of the President. 

In short, this bumper crop of czars has left the public and the 

Congress with many worrisome, bottom-line questions: 

Who is in charge? 

Who is responsible for what? 

Who is directing policy—the czar or the Cabinet official? 

And, most important, whom can Congress and the American people hold accountable for government decisions that affect their 

lives? 

This is not an academic exercise, although it is a fascinating constitutional issue. Czars—not Cabinet secretaries—are negotiating 

with Members of Congress even as we speak on key policy issues. 

Where is the Cabinet official in these talks? 

As I have stated before, this is not a partisan issue, despite the 

attempts of people in both parties to make it so. This is not a political issue. It is an issue of institutional imperative and constitutional prerogative. 

It is also a question of effective management. The proliferation 

of czars has created two separate tracks of top management within 

our Federal Government. On the one hand, we have Cabinet-level 

leaders with defined roles and clearly assigned duties. On the second track, we have czars with fuzzy roles and loosely defined functions. These separate tracks of management authority can create 

duplication of effort, dilution of responsibilities and focus, and management dysfunction. 

I am looking forward to hearing the testimony of all of our expert 

witnesses today. I particularly appreciate Secretary Thomas Ridge 

joining us again. He has broad experience. He served as the chief 

executive of a State, as a Member of Congress, as a senior White 

House aide, and as a Cabinet-level officer. That experience informs 

every aspect of the debate over the use of ‘‘czars.’’ 

Finally, let me say that until the administration answers important questions about the role of its czars and makes all of them 

available to testify before Congress, I personally believe that it is 

undermining the promises that President Obama has made to the 

American people for increased transparency and accountability. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins, for a very 

thoughtful statement. 


ph44585 on D330-44585-7600 with DISTILLER
5 

1The prepared statement of Senator Byrd with attachments appears in the Appendix on page 

41. 

I do want to, with unanimous consent, enter into the record a 

statement that our colleague Senator Robert C. Byrd asked that we 

enter into the record.1 He has thought a lot about this. He includes 

a letter that he wrote to President Obama on February 23rd and 

the response of White House Counsel Greg Craig to that letter. I 

think this exchange says that the issues at play here are not partisan; they are really institutional. And I am going to ask the witnesses some of the questions that Senator Byrd raises with what 

you would expect of him, characteristic thoughtfulness and passion 

for the institution of Congress. 

Senator BENNETT. Mr. Chairman. 

Chairman LIEBERMAN. Senator Bennett. 

Senator BENNETT. I know it is the pattern that the Chairman 

and the Ranking Member give the opening statement and we do 

not. Could I request, as a point of personal privilege, a few moments in an opening statement? Because the White House has specifically identified me as being hypocritical on this issue by virtue 

of my position with respect to a Year 2000 (Y2K) czar, and I would 

like to make that clear. If it would not be appropriate, I will wait 

until after the panel. 

Chairman LIEBERMAN. No. Go right ahead. Since we are upholding the institution of Congress, I suppose that suggests we should 

uphold the institution of an individual member to defend himself. 

Senator BENNETT. Thank you very much, Mr. Chairman. I appreciate that. 

OPENING STATEMENT OF SENATOR BENNETT 

Senator BENNETT. In November 1997, I requested that President 

Clinton appoint a Y2K czar. I was the Chairman of the Y2K Committee created by the Minority Leader, Senator Tom Daschle, and 

the Majority Leader, Senator Trent Lott, here in the Congress to 

deal with the problem that cut across departmental lines. It did not 

have a legitimate home in any one committee. It cut across the entire government. Senator Lott and Senator Daschle decided to create a special committee to deal with it. I was appointed its chair. 

Senator Chris Dodd was appointed its vice chair. And we proceeded 

with our hearings and came to the conclusion that we, the Committee, needed a counterpart in the Executive Branch, someone 

that would cut across departmental lines, who had the authority 

behind him or her to speak for the President in focusing on this 

issue. And in February 1998, President Clinton appointed a Y2K 

czar, John Koskinen. 

One of the first things John Koskinen did as the Y2K czar for 

the Executive Branch was to call me as the chairman of the Y2K 

Committee in the Senate and set up a pattern of regular consultation, every Wednesday afternoon, and we compared notes. I told 

him what we were doing in the Legislative Branch; he told me 

what he was doing in the Executive Branch. He invited me to go 

to a variety of activities with which he was engaged in the Executive Branch. I invited him to come deal with those of us that were 


ph44585 on D330-44585-7600 with DISTILLER
6 

trying to solve the problem in the Legislative Branch. We worked 

hand in glove together. 

I agree with you, Mr. Chairman, that the title ‘‘czar’’ was not 

necessary, but it did give a sense of focus to what we were doing. 

And when it was all over and the Y2K problem turned out to be 

a non-problem—vice chairman, Senator Dodd, said, ‘‘You know, we 

are in a no-win position, because if there is no problem, they will 

say, ‘You raised concern about something that did not have any difficulty.’ And if there is a problem, it will be, ‘Well, you did not do 

anything about it.’ So either way we are going to get criticized.’’ 

And we were after it was over. The New York Times wondered why 

we had spent all that money when, in fact, none of the computers 

failed. 

That is a very different situation than the situation described by 

Senator Collins and the letter which I signed, and I do not feel in 

any way it is hypocritical for me to have taken the role I did with 

respect to Y2K and now to say there is something that needs investigating because the kind of circumstance we created then was very 

different from the kind of circumstance that we see now. And I 

think the record should be very clear that I am not changing positions just for political purposes, as some members of the White 

House press office may have suggested. 

I thank you, Mr. Chairman, for allowing me to get that off my 

chest. 

Chairman LIEBERMAN. Thank you, Senator Bennett. 

Senator MCCASKILL. Mr. Chairman. 

Chairman LIEBERMAN. I notice an outbreak of democracy here, 

which is very unsettling. 

Senator MCCASKILL. There is an outbreak of democracy. 

Chairman LIEBERMAN. Go ahead, Senator McCaskill. 

OPENING STATEMENT OF SENATOR MCCASKILL 

Senator MCCASKILL. I just want to say I think it is great you 

guys have called the hearing. I think the oversight of this Committee is essential to the balance of power between the different 

branches of government, and I welcome the testimony. But I had 

to think, while my friend Senator Bennett was talking about the 

Y2K czar that he recommended, that was not confirmed by the 

Senate, and that was created out of whole cloth because of a problem that had arisen, the way he described that czar, how ubiquitous the czar was, working with the legislature, that he was constantly around, I kept thinking of Nancy-Ann DeParle. I mean, we 

cannot walk down the hall without seeing her. She is in the chairmen’s offices constantly of the committees and the ranking members, and she has visited across the aisle time after time after time. 

So I think there are situations where a special adviser is created, 

and that does not mean they are not working closely with Congress 

in order to solve a problem. And I think the description that Senator Bennett made of the Y2K czar was very similar to what 

Nancy-Ann DeParle is doing. I hope that the outcome is as good. 

Chairman LIEBERMAN. Thank you. Let us leave it at that. I am 

going to recognize Governor Ridge. Senator Collins acknowledged 

your unique service to our country and to your State. You are in 

a really excellent position to comment on this, having been both 


ph44585 on D330-44585-7600 with DISTILLER
7 

1The prepared statement of Mr. Ridge appears in the Appendix on page 49. 

Assistant to the President for Homeland Security—our first postSeptember 11, 2001—and then our first Secretary of Homeland Security. So we really thank you for taking the time to be here and 

welcome your testimony now. 

TESTIMONY OF HON. THOMAS J. RIDGE,1 FORMER ASSISTANT 

TO THE PRESIDENT FOR HOMELAND SECURITY AND SECRETARY OF HOMELAND SECURITY 

Mr. RIDGE. Thank you. Well, Mr. Chairman, Ranking Member 

Collins, and Members of the Committee, thank you for inviting me 

to spend some time with you this morning. 

As you have alluded to, Mr. Chairman, I have been privileged to 

hold a variety of public service positions throughout my career. 

As I was then, I am now a citizen of a country that embraces its 

Constitution, its Bill of Rights, its values, the greatness of our victories, the lessons learned from our mistakes, and a 230-year desire 

to uphold the tenets of our Founding Fathers. 

I take equal pride and awe in a government that today, as reflected in this hearing, remains committed to a recurring review of 

its structure, its function, and its fundamental tenets of checks and 

balances. 

So I appreciate the discussion that Members of this Committee 

are having this morning. It seems to be one of those rare issues 

these days that overrides partisanship in favor of a serious willingness to consider all points of view. 

First, I must tell you that, having been a congressman, a governor, a so-called czar, and a Cabinet secretary, I have empathy for 

everyone involved in today’s discussion. 

The huge complexities associated with good governance are real; 

they are to be respected. The good intentions of good people are not 

to be demeaned, but rather clarified for all involved, and hopefully 

informed and assisted by ongoing communication and civil debate. 

Second, I am of the belief that Presidents have the discretion and 

authority to appoint advisers who can assist them in carrying out 

their presidential obligations. 

My interests, rather, reside in the issues of effective management, transparency, and lines of authority. 

Who’s reporting to whom? How specific is the job description? 

Does the individual initiate, coordinate, or execute policy? To whom 

does that individual report? Is it the same person to whom the individual is accountable? 

While my own White House experience cannot match all of the 

issues you are addressing today, I hope that sharing them will help 

the Committee as it examines the role of White House czars. 

As we all know too painfully, the events of September 11, 2001, 

set in motion a series of events and actions—made by President 

George W. Bush, his staff, but also, I would say, by a united Congress and a united country. 

My appointment came under those extraordinary times, under 

exceptional stress and grief and yet also, with a singular purpose. 

The people and its government, at its best, joined together in full 


ph44585 on D330-44585-7600 with DISTILLER
8 

throttle to rebuild in those early days and to secure the country 

from another attack. 

When I received the call from President Bush asking me to take 

on a new role, there was no job description. Yet 2 weeks later, on 

the same day of my swearing-in as Homeland Security Advisor, October 8, 2001, President Bush issued Executive Order 13228, establishing the Office of Homeland Security and defining with great 

specificity the responsibilities and authorities of the new White 

House Office and my role as its director. 

Understandably there were legitimate questions and concerns 

about what I was doing, and many of those concerns came from my 

former congressional colleagues. 

It was at the instruction of my President that I would not testify 

and did not testify; typically and historically, assistants to the 

President did not do so. But many in Congress on both sides of the 

aisle took exception to this. 

I offered to speak to congressional members privately. However, 

on a couple of occasions, when I visited Senator Robert Byrd, in his 

gentlemanly manner, he would slip from his coat pocket, as you are 

aware, a copy of the Constitution. If I could paraphrase your colleague, he would observe that the Congress of the United States 

has the exclusive authority over appropriations and broad oversight responsibility. ‘‘Private briefings,’’ he would utter, ‘‘are not a 

substitute for public hearings,’’ he would say. 

My responsibilities were detailed out for everyone to see from 

day one. Still, regardless of the Executive Order, no matter how 

specific, Congress was legitimately concerned about my role, the extent of what I was doing, and what influence I was having. 

The unique distinction for me was that when I was appointed, 

no Cabinet agency existed. I was reporting to a President, not a 

secretary. But my role was a broad one—cutting across Federal jurisdictional lines and departmental lines as well as coordinating activity with State and local governments. 

It was only after discussions began between the White House 

and Congress about establishing a new department that President 

Bush decided I should testify about those plans. And I did. 

After I went over to the Department, I came to benefit from the 

work of my White House successors, General John Gordon and 

later, Fran Townsend. 

In both these principals, I had advocates who assisted in developing policy but not setting it. In both, I had good counsel who 

worked closely with me and department officials to generate and 

coordinate measures that advanced the security of the Nation. 

I think this offers up a significant point. Some of today’s White 

House czars have come to their positions with little public clarification of duty, and they already have a department of subject authority, led by a Senate-approved secretary. 

Are those roles as respected and beneficial to agency progress 

and management effectiveness as my successors’ roles were to me? 

And, again, do these individuals, these so-called czars, direct or 

develop policy? Are they accountable to the President, to the Secretary, or to both? To whom do private constituencies look to provide input, guidance, or opinion? Who resolves the conflict between 

the two? 


ph44585 on D330-44585-7600 with DISTILLER
9 

1The prepared statement of Mr. Pfiffner appears in the Appendix on page 53. 

My concern is that without a clear delineation of responsibilities 

and reporting authority, this creates both a potential management 

problem and clearly the appearance of potential conflict. 

It can diminish the capacity—I will say this again. It can diminish the capacity of both adviser and secretary to operate effectively 

in accordance with the department’s missions. And I certainly 

think from time to time it can cause confusion for those under the 

chain of command of the secretary as well as outside the departmental purview. 

Greater transparency and communication about role delineation 

and reporting structure will promote greater collaboration and 

management effectiveness, which, in my judgment, promotes good 

governance. 

Good governance is what the President and this country require 

to address today’s serious challenges. And good governance is what 

the American people deserve and what I know Members of the 

Committee, by your civil, thoughtful consideration to this issue, 

want to ensure. 

Again, I thank the Members of this Committee for inviting me 

to join you today, and I look forward to your questions. Thank you. 

Chairman LIEBERMAN. Thanks very much, Governor Ridge. That 

was a great statement to begin this deliberation. 

Our next witness is Dr. James Pfiffner, University Professor, 

School of Public Policy at George Mason, specializing in the subject 

of the American Presidency. Dr. Pfiffner has written or edited 12 

books and dozens of articles on our national government. He was 

also a Special Assistant in the Office of the Director of the Office 

of Personnel Management during the Carter Administration. 

Dr. Pfiffner, thanks very much for being here. 

TESTIMONY OF JAMES P. PFIFFNER, PH.D.,1 UNIVERSITY PROFESSOR, SCHOOL OF PUBLIC POLICY, GEORGE MASON UNIVERSITY 

Mr. PFIFFNER. Mr. Chairman, Senator Collins, other Members of 

the Committee, I want to thank you for your invitation to appear 

before you and be able to present my testimony. It is an honor for 

me to do so. 

The term ‘‘czar’’ in the United States has no generally accepted 

definition in the context of American Government. It is a term 

loosely used by journalists. For my purposes, however, the definition of ‘‘czar’’ refers to members of the White House staff who have 

been designated by the President to coordinate specific policy areas 

that involve more than one department or agency. Czars do not 

hold Senate-confirmed positions, nor are they officers of the United 

States. Officers of the United States—presidential appointees with 

Senate confirmation (PAS)—are created in law, and most of them 

exercise legal authority to commit to the United States. In contrast, 

members of the White House staff are appointed by the President 

without Senate confirmation. They are legally authorized only to 

advise the President; they cannot make authoritative decisions for 

the Government of the United States, such as hiring, firing, and 

committing budgetary resources. 


ph44585 on D330-44585-7600 with DISTILLER
10 

For practical purposes, however, White House staff personnel 

certainly may have considerable power or influence, as opposed to 

authority. But this power is entirely derivative of the President. 

White House staffers may communicate orders from the President, 

but they cannot legally give those orders themselves. 

In the real world, of course, White House staffers often make important decisions, but the weight of their decisions depends entirely 

on the willingness of the President to back them up. As the White 

House staff has grown, so has the power of czars. White House 

czars play essential roles that lift the burden of coordination from 

the President. They help to reduce the range of options. But if the 

number of czars proliferates, they can clog and confuse the presidential authority. Somebody then must coordinate the czars and 

their access to the President. Czars may create layers between the 

President and Cabinet secretaries, and too many czars can result 

in managerial overload and confusion. 

From the President’s perspective, a proliferation of czars raises 

the questions of who is in charge of policy short of the President. 

Members of Congress, as well as other national leaders, may be 

confused as to the locus of authoritative decisions. Foreign leaders 

may not know who speaks for the President. Unfortunately, czars 

can pull problems into the White House that could be and should 

be settled at the Cabinet level. But only those issues that are central to the President’s policy agenda should be in the White House; 

others should be delegated to the Cabinet secretaries. 

From the czar’s perspective, the title is a mixed blessing. Prestige and perks of the White House staff are there, but czars are 

often frustrated because they are supposed to be in charge of policy 

area, but they do not have the authority commensurate with their 

responsibilities. Czars cannot enforce decisions on departments or 

agencies. Czars control neither personnel nor budgets. For these 

they must depend on Cabinet secretaries. 

But from the perspective of a departmental secretary, having 

czars in the White House is most often frustrating. White House 

staffers have historically been the natural enemy of Cabinet secretaries. Each vies for the President’s ear; each resents the other’s 

‘‘interference.’’ White House staffers enjoy proximity to the President, but Cabinet secretaries have to worry about managing their 

departments and the many policies and programs for which they 

are responsible. Cabinet secretaries are often at a disadvantage in 

securing presidential attention. 

In the real world, Presidents have to balance their desire for centralized control with the managerial imperatives of delegation. No 

President can do an effective job without talented people on the 

White House staff. But if Presidents allow White House staffers to 

shut out Cabinet secretaries, they will lose the institutional memory of Cabinet secretaries, their operational point of view, and a 

broader political sensitivity than Cabinet secretaries can provide. 

So the real impact of czars must be judged by the role that they 

play and their approach to their responsibilities rather than to 

merely counting their numbers. Thus, insofar as President Obama’s 

czars take active roles in policymaking—as opposed to policy advising—attempt to shut out Cabinet secretaries, or exercise power in 

their own right, they dilute authority and confuse the chain of comVerDate Nov 24 2008 07:46 Jan 13, 2011 Jkt 053850 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 P:\DOCS\53850.TXT SAFFAIRS PsN: PAT

ph44585 on D330-44585-7600 with DISTILLER
11 

mand. But if they work closely with Cabinet secretaries and help 

coordinate policy, they can be very useful. It all depends on their 

behavior. 

That said, the larger the White House staff and the more czars 

that the President designates, the more likely White House staffers 

will be difficult to manage, and relations between Cabinet secretaries and White House staff will be strained. 

The keys to congressional control of Administrations are congressional authority to create agencies, to authorize programs, to appropriate money, and to oversee the faithful execution of the law. 

As a matter of comity, however, the President is entitled to the 

confidentiality of his or her own staff, just as Members of Congress 

are entitled to the confidentiality of their own staff and Supreme 

Court Justices are entitled to the confidentiality of their clerks. 

In closing, I would like to step back from the immediate question 

of czars to the broader purpose of this hearing, which is the appropriate role of Congress in our constitutional system. The Framers 

of the Constitution placed Congress in Article I of the Constitution 

for a reason. In republican governments, the legislature should predominate in policymaking, as James Madison made clear in Federalist 51. The Framers understood that executives tend aggrandize power. From classical times of Greece and Rome, to King 

George III, to the 21st Century United States, Democrats or Republicans, executives want more power. Thus, it is the prerogative 

and the duty of Congress to assert its own constitutional role. I 

think that several issues, aside from the role of czars in the White 

House, are fundamental to the role of Congress in our democracy. 

The explosion of signing statements to imply that a President 

might not faithfully execute the law presents a fundamental threat 

to the constitutional role of Congress, which possesses all legislative powers. If presidents create secret programs that effectively 

nullify or circumvent the laws, they are placing themselves above 

the law and claiming the authority to suspend the laws which the 

Framers explicitly rejected. If presidents use the State secrets 

privilege to avoid the disclosure of or accountability for their actions, the role of the courts is undercut. And if the President claims 

the right to suspend habeas corpus, he treads on Article I of the 

Constitution. 

The use of czars by presidents presents serious questions of policymaking and management, but the constitutional prerogatives of 

Congress are more seriously undermined by the claims of Presidents to have the right to set aside the laws in favor of their own 

policy priorities. 

Thank you, Mr. Chairman, Senator Collins, and other Members 

of the Committee. 

Chairman LIEBERMAN. Thanks, Dr. Pfiffner. Interesting statement. I appreciate your attempt at a definition of these positions, 

too, and I look forward to question-and-answer time with you. 

Our next witness is Lee Casey. Mr. Casey is a partner in the law 

firm of Baker Hostetler specializing in constitutional, environmental, and international law. He served in the Department of 

Justice in the Ronald Reagan and George H.W. Bush Administrations, including in both the Office of Legal Counsel and the Office 

of Legal Policy, and also served as Deputy Associate General CounVerDate Nov 24 2008 07:46 Jan 13, 2011 Jkt 053850 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 P:\DOCS\53850.TXT SAFFAIRS PsN: PAT

ph44585 on D330-44585-7600 with DISTILLER
12 

1The prepared statement of Mr. Casey appears in the Appendix on page 58. 

sel at the Department of Energy in the Administration of President 

George H.W. Bush. 

I have been reading your stuff for a long time, and so it is a 

pleasure to meet you and have you here as a witness. Please proceed. 

TESTIMONY OF LEE A. CASEY,1 PARTNER, BAKER HOSTETLER; 

FORMER ATTORNEY-ADVISOR IN THE OFFICE OF LEGAL 

COUNSEL AT THE U.S. DEPARTMENT OF JUSTICE 

Mr. CASEY. Thank you very much, Mr. Chairman. And, indeed, 

thank you and Senator Collins and the rest of the Committee for 

allowing me the opportunity to address you today on what is indeed a very important issue. 

I should first emphasize, of course, that I am speaking here on 

my own behalf, and I would also like to ask that my written statement be included in the record. 

Chairman LIEBERMAN. Without objection, so ordered. And that 

will be the case for all the witnesses. 

Mr. CASEY. Thank you, Mr. Chairman. 

As you will see in the written statement, my position is that the 

use of White House policy czars—and, again, I think we should and 

need to focus not on the offices created by Congress or on a number 

of the individuals who are called ‘‘czars’’ who actually hold agency 

positions. It is the White House adviser that I think has caused 

people the concern. The fact is, however, those advisers are just 

that. They have no power beyond the fact that they are close to the 

President. They cannot transform Executive Branch policy into the 

policy of the United States. They cannot sign regulations. They 

cannot submit legislation to Congress. Their authority is very limited, and, indeed, it has been the consistent position of the Justice 

Department under both Republican and Democratic Administrations that people in those advisory roles need not be appointed in 

accordance with the Appointments Clause—that is, by and with the 

advice and consent of the Senate. And most importantly of all, they 

cannot take action that would create a legal obligation either on behalf of the government or on behalf of the citizenry at large. The 

President can implement policy and transform it into government 

policy only through officers that have been appointed under the Appointments Clause and who are responsible through the oversight 

process to Congress. 

However, I do understand the feeling of unease that many people 

have with the idea that there are presidential advisers with such 

great power. And, indeed, I think anyone educated in the AngloAmerican legal tradition will feel a little bit of unease, and there 

is a reason for that. 

I think it is important to understand why the Framers did what 

they did and made the distinction between advisory functions and 

actual lawmaking functions. Executive advisers, in other words, 

have a history, and the Framers were working within that context. 

If you look back over the history of the efforts to limit the power 

of the British Crown, those efforts were almost invariably directed 

at limiting who the advisers to the monarch were, who were the 


ph44585 on D330-44585-7600 with DISTILLER
13 

people that were closest and who had his or her ear. There were 

efforts to impose such limitations in the 13th Century, in the 14th 

Century, in the 15th Century, not so much in the 16th Century 

since the monarchy was then at its apogee, but it came back with 

a vengeance in the 17th Century. And the fact is every single one 

of those efforts failed and usually failed miserably with the reformers either ending up dead or in exile. 

The Framers understood this. They knew this. And, indeed, at 

the Constitutional Convention in 1787, there were proposals that 

there should be a council of advice or a privy council appointed, 

possibly by the Senate, through which the President would have to 

work, whose advice he must take. Important members of the Convention supported this idea, among others George Mason and Benjamin Franklin, who actually knew about that sort of thing from 

his service in France. Franklin noted that experience showed that 

‘‘caprice, the intrigues of favorites, and mistresses’’ were, nevertheless, ‘‘the means most prevalent in monarchies,’’ especially with respect to appointments. And he thought a council would not only be 

a check on a bad President, but a relief to a good one. 

His colleagues, however, did not agree, and the Framers rejected 

the entire model, the entire effort to control who is advising the 

President, and they cut to the chase. What they did was say no one 

can exercise actual government power unless they are appointed in 

accordance with the Appointments Clause, by and with the advice 

and consent of the Senate. Indeed, that is the default. All officers 

of the United States must be appointed with the Senate’s consent 

unless Congress has vested the right to appoint inferior officers in 

the office of the President, the heads of departments, or the courts. 

And so as a result, if one of these individuals—presidential advisers, czars—attempts to take an action with legal force, the action has no legal force. It does not bind the government. It does not 

bind individuals. That is the ultimate check. 

And I think if you need to look at a situation where the Framers’ 

wisdom was vindicated, probably the most important is indeed the 

Saturday Night Massacre, when President Richard M. Nixon decided to fire Special Prosecutor Archibald Cox, which he had every 

legal right to do. The Attorney General refused and resigned. The 

Deputy Attorney General refused and resigned. The Solicitor General was about to refuse and resign, although the Attorney General 

convinced him that if he did that, the entire top leadership of the 

department would leave, and there would be no one in charge but 

a 26-year-old attorney-adviser who was waiting for the bar results. 

So Judge Robert Bork stayed, and he did fire Cox. 

There were prices to be paid for that. President Nixon, of 

course—that was the beginning of the end. But the issue actually 

haunted Judge Bork. It was raised at his confirmation hearings for 

the Supreme Court. I think that shows the system worked. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Fascinating. Thank you. You raise a lot of 

good questions, very helpful. 

The final witness is Dr. Harold Relyea, former Specialist in 

American National Government at the Congressional Research 

Service, specializing in the presidential office and powers, Executive Branch organization, and congressional oversight. Just within 


ph44585 on D330-44585-7600 with DISTILLER
14 

1The prepared statement of Mr. Relyea appears in the Appendix on page 73. 

your own areas of expertise, perfectly suited to either be extremely 

conflicted or to give us good advice. Maybe both. [Laughter.] 

Mr. RELYEA. Maybe both. 

Chairman LIEBERMAN. Dr. Relyea. 

TESTIMONY OF HAROLD C. RELYEA, PH.D.,1 FORMER SPECIALIST IN AMERICAN NATIONAL GOVERNMENT AT THE 

CONGRESSIONAL RESEARCH SERVICE 

Mr. RELYEA. Mr. Chairman, Senator Collins, and Members of the 

Committee, thank you for your invitation to appear here today. 

My prepared statement reviews the historical antecedents of the 

presidential czars, the conditions contributing to their creation, 

their initial use during the World War II period, their congressional accountability at that time, some later developments, and 

some considerations regarding their future relationships with Congress. Let me summarize. 

Presidents initially utilized their department heads as advisers 

and the Cabinet as a means of coordination. Soon, however, they 

turned to circles of informal advisers and confidants who were 

often personal and political friends. These were called ‘‘Kitchen 

Cabinets’’ during the presidencies of Andrew Jackson and John 

Tyler. In more recent memory, President Franklin D. Roosevelt 

brought to the White House a group of advisers and agents known 

as the ‘‘Brains Trust,’’ which was composed of intellectuals and 

other ideas people from the academic world. Their numbers and 

roles prompted the President to seek more White House staff positions and improved arrangements for Executive Branch coordination and management. 

The result was the Reorganization Act of 1939 which empowered 

the President to create, by reorganization plan, the Executive Office of the President, but also the White House Office, and a subsequent Office for Emergency Management, and to appoint as well 

six new administrative assistants. 

Thus, in 1940, on the eve of the United States’ entry into World 

War II, the President had at least three havens for his agents, special assistants, and closest advisers, including coordinators who 

would come to be known in some instances as ‘‘czars.’’ 

For war mobilization, President Roosevelt had at least three successive primary czars: William S. Knudsen at the Office of Production Management, who was not given enough authority to be successful; Donald Nelson, Chairman of the War Production Board, 

who allowed his authority to become diluted; and James F. Byrnes, 

who led the Office of War Mobilization with great confidence, great 

ability, and great accomplishment. 

But it also appears that these czars were accountable to Congress. An examination of the April 1941 to April 1943 hearings of 

the respected Senate Special Committee investigating the National 

Defense Program—this was the panel chaired by Senator Harry S 

Truman—indicate that Knudsen appeared once, his deputy appeared twice, and Nelson thrice. Moreover, lesser officials from 

Knudsen’s agency made 17 appearances, and those from Nelson’s 


ph44585 on D330-44585-7600 with DISTILLER
15 

board made 24 appearances. This all in just 2 years. There was, 

indeed, cooperation with the Truman Committee. 

In conclusion, let me just offer a couple of considerations that are 

in my statement. 

When the President prohibits congressional testimony by a czar 

or other presidential agent, efforts should be made to obtain the desired information in some other way, such as the provision of responsive factual documents, like a Freedom of Information Act 

(FOIA) request, or written answers to interrogatories, testimony by 

a department or agency official heading the unit in which the czar 

or presidential agent is located, or a briefing of congressional committee leaders or staff. 

Also let me note that in 1978 Congress established personnel authorizations for the White House Office, for two other Executive Office of the President units, and for the Executive Office of the Vice 

President. This authorization might be revisited with a view to the 

adequacy of its allotments, with a view to its reporting requirements, and its scope—should it be extended to other Executive Office entities. 

Mr. Chairman, thank you again for your invitation to appear 

here today. I welcome the questions of Members. 

Chairman LIEBERMAN. Thank you, Dr. Relyea. 

For those who are interested, I think your description of the history here and your prepared testimony is really quite illuminating, 

and it is worth reading. 

Mr. RELYEA. Thank you. 

Chairman LIEBERMAN. So I am sure people will be waiting for 

the transcript of this hearing to appear. 

Mr. RELYEA. Best-seller. [Laughter.] 

Chairman LIEBERMAN. We will have 7-minute rounds of questions. 

Dr. Pfiffner and Mr. Casey in different ways tried to define what 

we should be focused on, and if I heard you right, Dr. Pfiffner, you 

started with a kind of disclaimer I think is valid, which is, there 

is no generally accepted definition of what we are exactly talking 

about, but your definition of the category of employee that we 

should be concerned about are members of the White House staff 

who are not officers of the government within the definition, not 

statutorily authorized, not confirmed, and they are coordinators of 

policy. To some extent, Mr. Casey, I think you agreed with that. 

Am I hearing that right? And let me ask first—perhaps I should 

wait for Senator Collins, but I know she feels that some of those 

working in executive agencies are also czars because of the role 

they play. But you would say at the outset that what we should 

be concerned about are the people in the White House? 

Mr. PFIFFNER. They maybe have responsibility to coordinate, do 

interagency coordination and so forth, but they report to a Cabinet 

secretary, so they can report to Congress and they are responsible 

if they are not in the White House and if they are either PAS or 

report to a PAS position. 

Chairman LIEBERMAN. Just define PAS for the record. 

Mr. PFIFFNER. Presidential appointment with consent of the Senate. Those in the White House staff usually are just preisdentially 

appointed (PA). 


ph44585 on D330-44585-7600 with DISTILLER
16 

Chairman LIEBERMAN. So in response to the direct question of 

their accountability to Congress and to—actually, there is a wonderful phrase that Senator Byrd quoted from President Obama: ‘‘A 

democracy requires accountability, and accountability requires 

transparency.’’ 

So in regard to that, you would say that someone in an executive 

agency who may be acting like the people in the White House we 

are concerned about is, nonetheless, accountable to us and can be 

called to testify or produce documents. Is that the distinction you 

would make? 

Mr. PFIFFNER. Yes. 

Chairman LIEBERMAN. Mr. Casey, go ahead. 

Mr. CASEY. I generally agree with that, although, again, there is 

always a question of what testimony and which documents. Whenever you start getting close to advice that is prepared for and given 

to the President, you start, obviously, getting into some very difficult separation-of-powers issues. But to the extent that the czars 

who actually hold offices at the agencies, some of which have been 

confirmed by the Senate, undertake a policymaking role in addition 

to the role they serve in in their office, that is fine—again, so long 

as they do not attempt to exercise authority that was not otherwise 

properly delegated to them. 

Chairman LIEBERMAN. So let us go back to the people in the 

White House, the category we are concerned about. What if the 

people that we are describing here are not just advisers but, as one 

might argue in some cases, both in this Administration and previous Administrations, actually begin to act like officers, that they 

are making decisions, they are forcing decisions on Cabinet secretaries, for instance? What should our response be? Because they 

will claim, as they have in this Administration and previous ones, 

that we do not have a right to call them to testify or to ask them 

to produce documents. 

Mr. CASEY. Sure. I think, frankly, that is the key, and I think 

that is the key to the concern, that White House policy czars, 

White House advisers, will force the agencies to do things that they 

do not want to do. 

I think in answer to the first question, to the extent they act like 

officers, their actions are not valid. Their actions are not legally enforceable. A court will not enforce an order or a rule signed by a 

presidential adviser. 

With respect to whether they over-awing the agencies, in my limited experience, frankly, it is actually quite difficult for the White 

House to force an agency to do what it does not want to do. But 

assuming that is done, then I think your concern should be with 

the officers, with the Secretary, with the Under Secretaries, whoever actually signs the document that makes it law. They are the 

ones who must defend it. You sign it, you buy it. And if they believe, as Attorney General Elliott Richardson believed, that what 

the President wants them to do is wrong, they can resign. 

Chairman LIEBERMAN. Yes. From your perspective, both of you— 

and all of the witnesses, having studied this—we have gone 

through it back and forth, over and over again with people in the 

White House, not just this one, but previously too—where they will 

not testify based on the claim of executive privilege, that they have 


ph44585 on D330-44585-7600 with DISTILLER
17 

to be free to give the President advice and not have it become a 

matter of public testimony. And, generally speaking, we all agree 

with that. We always say, ‘‘Yes, but you are playing an independent policy coordination role, and we want to question you on 

that.’’ 

So I guess I would ask you a two-part question on that. Is there 

validity to their claim that they should not be called to testify on 

their policy coordination as opposed to the advice to the President? 

And either way, is there some way we should legislate to compel 

people in the White House holding these positions to come before 

Congress to testify about—not about the advice they have given the 

President, but about the policy coordination role that they are playing? 

Mr. CASEY. Well, the thing is you start very quickly getting into 

difficulties of definition. Obviously, the advice someone gives directly to the President, the actual speech, what you tell the President is clearly privileged. But, in addition, to have an effective 

privilege, your activities, what you do for the President also needs 

to be privileged; otherwise, the privilege does not mean that much. 

Again, these individuals, whatever independent authority they 

have is entirely based on the President’s authority. They are his assistants. They can do nothing that he does not permit them to do, 

and there are things that he may not delegate to them. 

In terms of possible legislation, Congress has regulated the 

White House Office, but it is difficult to think of a system where 

you are regulating the independence of presidential advisers that 

would not raise serious separation-of-powers issues. 

Chairman LIEBERMAN. Governor Ridge, do you want to get into 

this? Actually, my time has expired, but do you have any responses 

to the back-and-forth that we have just had? 

Mr. RIDGE. Just, first of all, I am very pleased to be with such 

a distinguished panel of historians and constitutional experts. I 

think one of the challenges associated with the ability of Congress 

to even have a legitimate basis for inquiry would be resolved if in 

making the appointment there was a public revelation of precisely 

the function that the adviser was going to play within the White 

House. And my sense is a lot of these have been appointed by virtue of a press release. And obviously the President can appoint 

whatever advisers he wants, but in terms of your ability to make 

inquiry, perhaps not of the adviser but of the Cabinet secretaries 

with whom this individual has coordinated responsibility would 

certainly be a very positive step. But right now I do not even think 

Congress is in a position to do that because the President has not 

outlined specifically what those coordinating responsibilities are. 

Chairman LIEBERMAN. Thank you. I am going to yield to Senator 

Collins. I just want to read you a paragraph from Senator Byrd’s 

letter. It is a very interesting argument, and maybe we will come 

back to it. ‘‘Whether an executive official is confirmed by the full 

Senate or appointed by the President alone to serve on the White 

House staff, that official holds the position by virtue of the authority that the Congress has granted to the President. Such White 

House staffers receive a salary by virtue of the spending authority 

that Congress has granted to the Executive Branch. Even presidential assistants and advisers have a constitutional obligation to 


ph44585 on D330-44585-7600 with DISTILLER
18 

answer questions before the Congress if it is necessary for the Congress to fulfill its constitutional oversight and investigative functions.’’ 

That is something really to think about. Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

I want to give the panel an actual example of a czar position that 

I think is very troubling. In 2007, this Committee wrote legislation 

that became law that created within the Executive Office of the 

President a Senate-confirmed position to be coordinator for the prevention of weapons of mass destruction (WMD), and the coordinator’s role, which is defined in this law, says that this individual 

should serve as the principal adviser to the President on all matters relating to the prevention of weapons of mass destruction proliferation and terrorism. And, again, I am going to stress this was 

to be a Senate-confirmed coordinator located within the Executive 

Office of the President. 

Now, neither President Bush nor President Obama ever filled 

this statutorily created position, but both of them created and filled 

a White House policy czar for weapons of mass destruction. That 

individual, the WMD czar, has exactly the same functions that 

were set forth in the law that the Chairman and I wrote. And to 

me, this is a prime example of both Presidents—this is not a partisan issue—appointing a White House policy czar, which completely circumvents a statutorily Senate-confirmed position created 

by Congress. 

So I would like to get your reaction to this, because to me, this 

is a prime example of what troubles me. Secretary Ridge. 

Mr. RIDGE. I was afraid you were going to call on me. [Laughter.] 

Senator COLLINS. Would you like me to call on you last? 

Mr. RIDGE. With that intervention, I am prepared to answer the 

question. I think it is fundamental to the inquiry that you are making today. The brilliance of the Founding Fathers years and years 

ago to create the three branches of government, the separation of 

powers, and one can say—and, remember, I used to sit up on that 

side of the dais—that the Congress of the United States has effectively said for public policy purposes there is a need for a position 

and you want it Senate-confirmed. Everybody agrees with that. 

That is circumvented by not filling a position but giving somebody 

else the exact same responsibilities. 

Here is why I think that whole notion of transparency essential 

to the functioning of a democracy probably gives precedent to that 

individual testifying simply because it was apparently done in response to a statutorily—there was no position. You created the position. It was filled as an adviser. The name was not sent to the 

Hill. I guess I would put on my congressional hat and say that is 

sleight of hand that it would seem to me to be very troubling, because the basic strength of our country, of a democracy, is transparency. Here the conditions are so raw, so evident, in my judgment, that your claim for this individual to testify before you 

should be legitimized since you created the position. They filled it 

but did not send a name to the Hill. 

Senator COLLINS. Dr. Pfiffner. 

Mr. PFIFFNER. I agree. I think the Senate—— 

Mr. RIDGE. Good. [Laughter.] 


ph44585 on D330-44585-7600 with DISTILLER
19 

Mr. PFIFFNER. The Congress can certainly create whatever positions in the U.S. Government that it wants to, setting aside the 

President’s right to confidential advice and so forth. The fact that 

confidential responsibility overlaps or duplicates a position that is 

supposed to be PAS I think is very troubling. So I agree on that 

issue. 

Senator COLLINS. Mr. Casey, you have been a strong advocate for 

a strong presidency, but does this specific example trouble you? 

Mr. CASEY. Well—— 

Senator COLLINS. The answer is, ‘‘Yes.’’ [Laughter.] 

Mr. CASEY. With respect to this example, I think the question 

really is: Did Congress have the authority to create a position, the 

role of which is to act as chief adviser to the President on a particular topic area? Obviously, Congress is free to create offices and 

to vest those offices with whatever power it thinks necessary. But 

when you start getting to a point where you are effectively choosing 

the President’s advisers—as I understand the way you described 

this office, this person will act as the President’s chief adviser. 

That raises very serious separation-of-powers concerns simply because you are purporting to say this is the person the President 

has to listen to. 

So in this instance, I do not actually find it troubling. In fact, I 

kind of wonder what the Administration statement on the proposed 

bill was when it came through and whether there was an objection 

to that office. Perhaps there was not, but it would be interesting. 

Senator COLLINS. I do not believe there was. 

Mr. CASEY. It would be interesting to find out. 

But I think that is why the office has not been filled, because 

there is a feeling that it is simply too close to the President’s own 

authority. 

Senator COLLINS. We were just talking up here as you were responding that you could say that about almost any position. If the 

President disagrees with the creation of a Senate-confirmed position, he obviously could have vetoed the bill, and did not do so. Instead, it is being circumvented. 

I want to get to the final witnesses’ comments on this. 

Mr. RELYEA. I have two points I would make. I am not in disagreement with what has been said, but I am reminded that in 

1944, with Mr. Byrnes as the head of the Office of War Mobilization (OWM), that position was seen as too powerful in some regards. He was the President’s agent. He was appointed without 

Senate confirmation. OWM had been created by executive order. 

Congress said, ‘‘We are going to reconstitute the office,’’ and they 

did, by statute. Technically abolishing Byrnes’ office and his role, 

Congress set it up as a Senate-confirmed position, in a statutorily 

created entity. I think that might be an answer here, that you 

eliminate either its funding or its role as a White House unit and 

go for something that is a congressional creation. 

Now, there is another point here, too, and that is, on occasion, 

when Congress has created an Executive Office unit, the White 

House has played sleight of hand and put that unit for funding 

purposes—and by implication for managerial purposes—within the 

White House Office. The Homeland Security Council had that 

budgetary type of role. The Privacy and Civil Liberties Oversight 


ph44585 on D330-44585-7600 with DISTILLER
20 

Board, before it was made an independent agency—and that is why 

it was made an independent agency—was also put behind that facade, creating a whole array of problems, czar or otherwise. 

Senator COLLINS. Unfortunately, my time has already expired 

even though I have lots more questions. Let me just make a final 

point on this issue. 

When Congress passed the Intelligence Reform and Terrorism 

Prevention Act, which we wrote in 2004, we created by statute a 

Director of National Intelligence. That individual acts as the chief 

adviser to the President on intelligence matters. When we made 

the powers of the Federal Emergency Management Agency (FEMA) 

Administrator stronger, we specifically designated that individual 

as being the principal adviser to the President. So this is done all 

the time. And I think it creates a real problem when Congress specifically creates in law a position that is Senate-confirmed, that is 

accountable to us, thus a person we can call up before us, and then 

the White House—and both President Bush and President Obama 

did this with the WMD coordinator position—does not fill the 

statutorily created position and instead creates a czar with exactly 

the same duties and who is not accountable to us at all. 

Chairman LIEBERMAN. Well done. Very important question. 

As you know, we call Senators in order of appearance. Just for 

your information, that is Senators Bennett, Burris, McCaskill, 

Coburn, and Ensign. Senator Bennett. 

Senator BENNETT. Thank you very much, and thank you to the 

panel. Very well done and fascinating. Let me pick out a few comments that you made, however, to disagree with and see what your 

response is. 

The comment, Mr. Casey, that it is difficult to force an agency 

to do what they do not want to do, anybody who has dealt with the 

Office of Management and Budget (OMB) who is a Cabinet officer 

will disagree with that. And they are now both dead, so I can tell 

the incident. When I was serving in the Executive Branch and we 

were at the White House making a very strong pitch for something 

we very significantly wanted to do to Cappy Weinberger, who was 

the head of OMB, it was very rough sailing. Cappy was called out 

of the meeting to meet with the President. We sat there waiting. 

He came back grinning like the Cheshire cat and said, ‘‘I just ran 

into John Ehrlichman, and he told me no. So you cannot do it. That 

is the Nixon Administration, period. You have gone to the highest 

possible authority. There is no point in our continuing the meeting.’’ 

Well, this is an unconfirmed presidential assistant who made the 

firm decision. 

Now, you are correct in that he was able to do that because 

President Nixon allowed him to do that. I worked for John Volpe. 

I saw the circumstance where John Volpe offended John 

Ehrlichman, as a result of which Mr. Volpe did not see the President of the United States for 2 years. 

So let us not kid ourselves that these unconfirmed folks only 

have the authority to advise. The reality is the White House is a 

court. The President is the king. The White House staffers are 

courtiers, and it is the century-long duty of every courtier to keep 

anybody else from access to the king. And the White House courVerDate Nov 24 2008 07:46 Jan 13, 2011 Jkt 053850 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 P:\DOCS\53850.TXT SAFFAIRS PsN: PAT

ph44585 on D330-44585-7600 with DISTILLER
21 

tiers do a very good job of that, regardless of which party is in 

charge or which Administration is doing it. And in President Nixon’s case, he paid a very serious price for allowing his courtiers to 

keep people who would tell him the things he needed to hear away 

from him. But let us understand that is the case. 

Now, one other quick comment, responding to my colleague and 

the comment that says, well, the Congress cannot tell the President 

who his principal adviser is going to be. Congress passed a law creating the Council of Economic Advisers, and yet there is an economic czar, Paul Volcker, at the current moment. Who has the 

President’s ear on the economy? And then there is the other adviser, Larry Summers, and if you want to influence the President, 

if you are a Member of the Congress, whom do you call? Do you 

call the Council of Economic Advisers? Do you call Mr. Summers? 

Or do you call Mr. Volcker? 

Reference has been made to Nancy-Ann DeParle, for whom I 

have enormous respect. I think she is terrific, and I have had a lot 

of conversations with her about health care. But we do happen to 

have a Cabinet officer of Health and Human Services with whom 

I have never had a conversation about health care—not because I 

have any opposition to her, but because it is my perception that 

Nancy-Ann DeParle is calling the shots rather than Secretary 

Sebelius. 

We have an Energy Secretary with whom I have had a number 

of conversations about energy because that is an area now of my 

responsibility here in the Congress. But I think the person calling 

the shots here is Carol Browner. 

This is the management issue that this whole thing raises. I said 

what I said about Y2K because that was a circumstance that cut 

across Department lines. There was no way you could raise that 

issue within existing White House or congressional staff. But in 

this circumstance, you have a Council of Economic Advisers, but 

the President has a czar. You have a Secretary of Health and 

Human Services, and the President has a czar. You have a Secretary of Energy, but the President has a czar. And somewhere in 

this circumstance, at OMB or surrounding OMB, there is a John 

Ehrlichman from Chicago who is going to say no, and that is going 

to end it. 

Mr. CASEY. Actually, Senator, if I can respond. 

First, with respect to the question of how difficult it is to make 

an agency do what it does not want to do, obviously the White 

House can and does make agencies do what they do not want to 

do. But it is a heavy lift, as they say. Not every issue can be elevated to the President. The agencies deal, obviously, with hundreds 

and hundreds of important issues. And, yes, if you get to John 

Ehrlichman, then ultimately you can probably close down debate. 

But you cannot do that on every issue because there are simply too 

many. 

With respect to the question of whether John Ehrlichman was 

speaking for the President, to the extent the President wanted 

Ehrlichman to deliver the message, that is fine. But the Cabinet 

officers who were responsible for that issue had absolutely every 

right to say, ‘‘We want to hear that from the President.’’ 


ph44585 on D330-44585-7600 with DISTILLER
22 

Senator BENNETT. Let me hear from Secretary Ridge. Mr. Secretary, can you respond to that? 

Mr. RIDGE. Well, I can appreciate people in the White House saying no, Senator, based on personal experience. Whether or not they 

would be considered as czars, I do not know. It is very interesting. 

A true incident has come to mind. I remember right after the anthrax incident—I was sworn in on October 8, 2004. The first anthrax death had been reported. We had that series of letters and 

deaths and just a horribly anxious time for this country post-September 11, 2001. The Executive Branch was not speaking with one 

voice. There was a cacophony of well-intentioned people going forward, but for 3 or 4 days there, we had the Centers for Disease 

Control and Prevention (CDC) speaking, the National Institutes of 

Health (NIH) speaking, everybody speaking. I must commend the 

present Administration getting around H1N1. They did a much 

better job of having a single point of focus. 

But in my coordinating role as Assistant to the President for 

Homeland Security, I remember calling everybody together in the 

Roosevelt Room and saying, ‘‘We have got to do a better job than 

this, and from now on, we are going to coordinate the message. We 

are going to do it through the White House.’’ So that worked very 

effectively. 

But there were other occasions when, then as Secretary stepping 

in, I guess my concern was there were some organizational matters 

that I thought we had greater familiarity with, better understood 

than perhaps somebody in the White House in terms of the effectiveness of the proposal we had, just on an organizational chart, 

and was told no. 

And so I guess the challenge you have is distinguishing those 

times when this individual, a confidant of the President, gives exclusively bad advice, and then occasionally, when whomever it is 

around the President has actually veto authority, can actually influence what that Cabinet secretary wants to do. So that is the 

gray area that I think the Executive and Legislative Branches have 

dealt with for 200-plus years, and you continue to deal with it. So 

I have had experiences in both directions. 

Chairman LIEBERMAN. Thanks, Senator Bennett. I think you 

were here for my opening statement. I expressed some concern 

about the use of the term ‘‘czar.’’ You have offered in its place 

‘‘courtier.’’ That actually describes more appropriately the power 

exercised here, although it is not yet quite American enough. 

[Laughter.] 

Let us work on that together. 

If I may, just to supplement your story, you brought to mind a 

story when you told the Ehrlichman story, it is not quite as direct, 

but Abraham A. Ribicoff was a governor of Connecticut and a Senator. He was a great inspiration and mentor to me. In between, he 

was in the Kennedy Cabinet for 2 years, and he left surprisingly 

quickly to run for the Senate. And I remember being at a dinner 

with him. Somebody said, ‘‘Abe, why did you leave the Cabinet so 

quickly?’’ ‘‘Oh,’’ he said, ‘‘there were several reasons, but its wonderful to think about being a Senator.’’ But he said, ‘‘You know, I 

just got tired of having these kids from the White House call me 

and tell me what to do.’’ 


ph44585 on D330-44585-7600 with DISTILLER
23 

Now, of course, he had been, as Governor Ridge knows, previously a governor, so no one tells a governor what to do. Senators 

are more accustomed to that. [Laughter.] 

But those stories give us a certain degree of humility here, hopefully, in trying to deal with this, because whether they are called 

‘‘czars’’ or special positions are created, there is no question that inherent in the people around the President—Ehrlichman, who had 

a high office, or ‘‘these kids,’’ as Abe Ribicoff said—there is power. 

And it has over the years concentrated much more in the White 

House and away, unfortunately, from the Cabinet secretaries. 

Senator Burris, do you want to say a word of defense on behalf 

of Chicago? 

OPENING STATEMENT OF SENATOR BURRIS 

Senator BURRIS. I would, Mr. Chairman. I have been a constitutional and political science student. I mean, this is Political Science 

101 or maybe Political Science 1000. The panel has just been terrific. I have so many thoughts just rolling through my head, I do 

not even know where to start. This is the meat that causes us political scientists to even exist because you are dealing with these 

major issues of the separation of powers and the creation of this 

country, and whether or not you want the President to really have 

the powers that you granted him, and whether or not the Congress, 

which is on similar or equal footing, can then control or muscle in 

on those powers of the President based on the fact that—especially 

the House of Representatives, since they stand for re-election every 

2 years, and Senators much longer. You have this constant power 

struggle as to who is really representing the people and what that 

representation is going to mean when it gets to the policy decision 

that is going to impact the public. 

I do not think you can come up with a definition dealing with 

this. Having served in a governor’s cabinet and having dealt with 

those staffers, it almost depends on how strong the Cabinet member is as to just what and how he is going to deal with those situations and those circumstances, because having experienced that on 

the State level and knowledgeable to some extent on the Federal 

level—I was very close to the Carter Administration and had good 

insights into the workings of the White House and all of those decisions that were being made and how the gatekeepers really sought 

to filter the information they got to the President. Every President 

is going to go through it. I do not know how we in the Congress 

can legally—I mean, I heard the distinguished Ranking Member 

say that we passed a law. We can pass a law and say that there 

is going to be a position in there, but I do not think the Congress 

can tell the President who to put in that position. And if we do 

that, then I think that we are violating the separation of powers. 

I mean, this is what we get into. And you can create a position— 

what happens if the President says, ‘‘I do not want to appoint anybody as Secretary of State. I am going to use the Under Secretary 

as an Acting Secretary’’? Is there a law that would require a President to appoint a Secretary of State? 

Mr. CASEY. A law that requires the President to appoint a Secretary of State? 

Senator BURRIS. Yes. 


ph44585 on D330-44585-7600 with DISTILLER
24 

Mr. CASEY. Specifically, there would not be a law requiring him 

to do that. Now, of course, if he wants the functions that you vested 

in a Secretary of State performed, he probably has to—— 

Senator BURRIS. But there is no law that says he has to even appoint a Secretary of State. Am I correct? There is a statute that 

says there is a Secretary of State position. 

Mr. CASEY. Right, shall be appointed in the following—yes, I am 

unaware of any law to require it. 

Senator BURRIS. But is there a law that says the President has 

to make that appointment? 

Mr. CASEY. Not that I am aware of. 

Senator BURRIS. That is the difficulty with which we are dealing. 

Is there a law that says that the President can appoint an acting 

person and how long can that person act? 

Mr. CASEY. Yes, there is actually a law that governs that. 

Senator BURRIS. How long can that person act? 

Mr. CASEY. I would actually have to look at the statute, but it 

is a matter of months. 

Senator BURRIS. A matter of months. So that person has the authority then should leave that position? And who then assumes 

that authority in that position if the President refuses to send a 

name up for confirmation to us? 

Mr. CASEY. Well, yes, there are many circumstances in which an 

acting official can continue to serve, especially if they are the normal principal deputy of the office that you are talking about. 

Senator BURRIS. And what about the midnight appointment of 

judges in the interim time while Congress is in recess. 

Mr. CASEY. Recess appointments. 

Senator BURRIS. The recess appointments, and they serve for 

only a certain period of time, and otherwise that person would have 

to leave the position? I mean, you can see all the questions that 

are just flowing through my process here as we try to talk about 

czars and policymakers. This is even bigger than czars. You are 

wrestling with this wonderful document that was created 200-plus 

years ago that created our Nation and this thing called separation 

of powers. We have not even gotten into the judiciary side of this, 

which could also raise a whole lot of other questions. 

I have more questions than I have answers, Mr. Chairman, in 

reference to this because I just sit here and listen to the experts 

talk, and every time there was a statement made, there is a new 

question coming to my mind, well, what about this? What if? And 

so I find this so fascinating, and I am certainly going to read each 

and every testimony of the witnesses. I do not know how I am 

going to get back to the hearing again to try to follow up on this. 

Mr. Chairman, I would imagine that our grandchildren are going 

to be still wrestling with this same problem. I do not know whether 

or not we want to have a weak President who is going to kowtow 

to Congress or a weak Congress who is going to let a President run 

all over us, which you see in some of these cases. If you say that 

we are going to appropriate some money and they do not want to 

spend it, they do not spend it. And you just heard what the distinguished Senator from Utah said, who the gatekeeper is to stop information from getting to the President? I am more frustrated than 

I am with the questions. 


ph44585 on D330-44585-7600 with DISTILLER
25 

Thank you, Mr. Chairman. I am done. [Laughter.] 

Chairman LIEBERMAN. Thank you, Senator Burris. No, I think 

this is actually a subject that has received a lot of heat lately, but 

I think there has been a lot of light shed this morning, and it is 

due to the quality of the witnesses and, I think, the interest of the 

Members of the Committee, including yourself, in going at this 

thoughtfully. I thank you. 

Senator McCaskill. 

Senator MCCASKILL. Thank you, Mr. Chairman. 

The job we have today is to try to separate genuine concern over 

constitutional checks and balances versus the partisan food fight. 

And I think we are in the right Committee to do that. I think the 

Chairman and the Ranking Member have repeatedly shown in 

their tenure in this Committee that they are not partisan and that 

they are focused on accountability. 

The context really is what is important here, and, really, the 

question boils down to the simple nugget of truth: To what extent 

is the President entitled to have advisers within the White House? 

And what power does the Congress have to limit those advisers in 

the White House? And I read every word of all of your testimonies. 

They were fascinating. I am a student of history, especially the 

Truman Committee because of my connection to that particular 

President in my home State and my interest in oversight in war 

contracting. So all of your testimony—I have to tell you, I have 

been a little offended at how frequently Richard Nixon’s name has 

been used by members of the other party in the last few days. I 

think that is a little silly to be comparing the Obama Administration to some of the shenanigans that went on in the Nixon White 

House, and I have not appreciated that comparison. 

And that is unfortunate for this studious look at this issue. This 

all began, as my kids would say, in reference to the Harry Potter 

series, from a rant by he who shall not be named, and in the rant 

that this person did include nine people who have been confirmed 

by the Senate in his list of czars. And of the nine people who were 

confirmed by the Senate, all but two of those were unanimously 

confirmed by the Senate. 

Another large chunk of the czars that were identified report to 

Cabinet secretaries. They do not have any power outside of the 

power of the Cabinet secretary, as you all have pointed out as experts in this area of constitutional law. 

So if you whittle it down, there is a very small number of White 

House advisers that we are really talking about here, and even a 

smaller number that are new. And so I think you all have done a 

very good job in a nonpartisan way, including you, Secretary Ridge, 

talking about the challenges of us overseeing White House advisers. 

I was particularly interested in your testimony, Dr. Pfiffner, 

about what is perhaps a bigger threat to the constitutional checks 

and balances, which are things like signing statements and things 

like secret programs and the claim of executive privilege. And I 

find it a little ironic that some of my Republican friends have righteous indignation about White House policy advisers, especially in 

light of what I would call the very strong, muscular attempt in the 


ph44585 on D330-44585-7600 with DISTILLER
26 

previous Administration to embrace signing statements and some 

of the other things I just talked about. 

I would hope that this Committee would take a look at signing 

statements and their constitutional foundation and what we should 

be doing about signing statements. That is a direct affront to the 

constitutional power of the Legislative Branch. 

Let me ask and confirm again, Is there anyone on the panel that 

believes we should be calling anyone outside of a White House adviser the term ‘‘czar’’? Is it appropriate to anyone who works directly and answers, for example, to National Security Advisor Jim 

Jones or answers directly to Secretary of State Hillary Clinton or 

answers directly to the Environmental Protection Agency (EPA) 

Administrator or any of those? Is there any appropriate nomenclature that would put them under the rubric of the term ‘‘czar’’? 

Mr. RELYEA. I suspect what you are asking is to let us get away 

from the label. 

Senator MCCASKILL. Right. 

Mr. RELYEA. And let us see what these people are actually doing. 

Senator MCCASKILL. Right. 

Mr. RELYEA. Are they wielding power that someone else should 

use? 

There is another caution here, I think. The word ‘‘czar,’’ like the 

word ‘‘kaiser,’’ both come from Caesar. That was a pretty authoritarian person. 

Senator MCCASKILL. Right. 

Mr. RELYEA. If not a dictator. So it has a pejorative quality to 

it, too. And where it is usually applied first is by the press. This 

may be a member of the press who did not get access to this person 

and so they labeled him a ‘‘czar’’ to sting him back. 

It also may be shorthand—to come full circle in my comment, it 

falls on the part of the reporter or the journalist to actually look 

at what the person is doing. They go, ‘‘Oh, this person has a lot 

of power. Must be a czar. That is my story.’’ 

So I think it behooves us, wherever we see these actors, these 

presidential agents—Dr. Pfiffner makes the point that these are 

blessed somehow with access to and the authority of the President. 

I think that is a beginning point. And then are they doing somebody else’s job, as Senator Collins was pointing our in her example. 

So labels are neither here nor there. Titles may not be here or 

there. It is what are they doing, and that is the key question. 

Mr. CASEY. I would agree. The real question is—‘‘czar’’ is an unfortunate term. It has been with us for 30 years. The fact that now 

we have 30 or 40 people being called ‘‘czars’’ frankly debases what 

was already a debased currency. We really need to look at the authority that people are exercising. 

Senator MCCASKILL. Dr. Pfiffner. 

Mr. PFIFFNER. I think there is no doubt that some White House 

staffers try to exert personal power rather than representing the 

President, but only if and as long as the President is willing to listen to them. But I think that is the reality of power. Leaders need 

staff and advisers, and I think even Members of Congress probably 

have staffers that occasionally communicate with other staffers by 

delivering a message of the principal person. So a certain amount 


ph44585 on D330-44585-7600 with DISTILLER
27 

of that stuff I think is legitimate in the White House as it is in 

Congress, as it is in the Supreme Court. 

Mr. RIDGE. Senator, if I might just comment, please, I think I 

can put an exclamation point—and my colleagues are much more 

versed in this than I am. But whether the term is ‘‘czar’’ or ‘‘adviser,’’ both defy definition. There is no definition, unless accompanying the appointment there is a specific delineation of responsibilities. If accompanying every appointment there is that delineation, then there is some functionality associated with the title. I 

think one of the reasons there is so much confusion and perhaps 

a point of delineation between those who should testify and those 

who should not, is if the Congress and the public in a transparent 

world understood completely what the authorities were. 

Senator MCCASKILL. Right. I would just briefly also point out, I 

think Senator Collins had a good example of where we have to ask 

questions about the position that was created. I do know, however—and I know you guys are aware of this—that the Weapons 

of Mass Destruction Commission has recommended the repeal of 

that position, and President Bush wrote a letter to Congress in 

January requesting the repeal because the Commission has indicated they do not think it is an appropriate Senate-confirmed position. 

I tend to agree with you, Senator Collins, that regardless of what 

the Weapons of Mass Destruction Commission said, if Congress has 

passed it, I think it would be incumbent to fill it unless and until 

it is repealed. But I do think that there has been some at least 

independent assessment concerning that position that at least I 

think has come to the attention of both the Bush Administration 

and the Obama Administration. But I thought your example was 

a good one because it was not about the Democrats versus 

theRepublicans; it was about Presidents ignoring Congress. 

Thank you, Mr. Chairman. 

Chairman LIEBERMAN. Thanks, Senator McCaskill. 

We will do one more round. There is a vote in about 10 or 15 

minutes. 

Let me pick up on this example that Senator Collins mentioned 

and acknowledge it and acknowledge that attempts we make to 

deal with the problem that concerns us can be frustrated by executive action, but let me just focus in. 

What really troubles me about this is the matter that we have 

talked about, which is the difficulty and really ultimately the impossibility of exercising our oversight authority with regard to people in the White House. And the elevation of some of these positions, which are really policy coordinators and coordinating Cabinet 

officials, to me they seem sometimes to be really acting as if they 

were officers of the Federal Government, that is the concern I have. 

So the question then is—because in the normal course of events, 

no matter which party controls Congress, which controls the White 

House, these are institutional conflicts that will go on, and Congress will not have the ability to obtain information. 

So one possibility is to take some of these positions that are now 

within the White House, that appear to be policy coordinating, not 

within the inner circle, if you will, of the President, and make them 


ph44585 on D330-44585-7600 with DISTILLER
28 

statutory. And, again, I understand the capacity of a President to 

frustrate this. 

An interesting example here is the Office of National Drug Control Policy. A so-called drug czar was actually created by President 

Nixon. There we go again with President Nixon. Later it was made 

statutory, and the Director of the Office of National Drug Control 

Policy, statutorily authorized, confirmed by the Senate, does respond to requests by Congress to testify or produce documents. 

So as we quite seriously search for some kind of answer to what 

to me is the heart of this question from a congressional point of 

view, how do we obtain testimony properly and exercise our oversight authority? I want to ask you, is that history that I have just 

described a good precedent for us? In other words, should Congress, 

for instance, create a White House office charged with coordinating 

national health policy, which is essentially the position of NancyAnn DeParle? And should we create a national adviser to the President for energy and climate change policy—which is the one that 

Carol Browner is in now—as a way to resolve this dilemma and 

subject these positions to Senate confirmation and, therefore, make 

sure that they will be responsive, acknowledging executive privilege, to a request to come before Congress and testify? Dr. Relyea, 

I think I will start with you. 

Mr. RELYEA. I think it is worth pointing out that the drug czar, 

so-called, is in an agency which is within the Executive Office of 

the President. It is not in the White House Office. So there is a distinction that is important. Congress has on occasion created entities within the Executive Office, and those seem to be—up until the 

moment—far less of a problem than people who are in the White 

House Office. 

The National Security Advisor is actually on the White House 

Office staff, not an official of the National Security Council. And on 

various occasions, since as far back as I can remember, like in the 

early 1970s, there had been attempts from time to time to make 

that position subject to Senate confirmation. We have come very 

close to the edge, but have always backed away at the last minute. 

Chairman LIEBERMAN. Particularly around Henry Kissinger’s 

time, if I recall correctly. 

Mr. RELYEA. Yes, it was with Dr. Kissinger. 

Chairman LIEBERMAN. He was exercising too much authority. 

Mr. RELYEA. Yes, and it came up later. 

Now, interestingly, out of Dr. Kissinger’s experience, when he 

was National Security Advisor, and Governor Ridge did the same, 

while they were prohibited from coming before Congress, they gave 

briefings. They met informally, confidentially, off the record, with 

Members of Congress. So as I tried to point out in my statement, 

there are means for getting accountability or finding out what is 

going on and so forth. But I think, even though Congress creates 

a staff authorization for the White House Office, provides the funds 

for the White House Office personnel, thus far Congress has not 

seen fit to invade that domain and has left it to the President. 

Now, a little saber rattling might cause a President to think, 

‘‘Uh-oh, here they come. They are going to come in the White 

House and start telling me how I can hire people.’’ 


ph44585 on D330-44585-7600 with DISTILLER
29 

Chairman LIEBERMAN. In general, you would counsel against 

that? 

Mr. RELYEA. I counsel against it because I think you have two 

great problems to overcome: A historical record, and I think it 

would take an extraordinary majority in both chambers to get that 

passed. 

Chairman LIEBERMAN. Yes. Incidentally, as you know, Kissinger 

and Nixon solved that controversy by making Kissinger Secretary 

of State. 

Mr. RELYEA. He had both roles for a while. 

Chairman LIEBERMAN. Yes, that is right. Mr. Casey. 

Mr. CASEY. I think the real question is whether by creating one 

of these offices you can then effectively prevent the President from 

looking to someone else to be his adviser on the issue or to speak 

for him on the issue, and I think that, frankly, is where the constitutional problem is. 

There are certainly a lot of functions that you could consolidate 

in a particular office, be it in the White House, in the Executive 

Office of the President, or outside in an agency. But the key question is: By doing that, can you keep the President from looking to 

someone else? I do not think you can. I think it raises very serious 

separation-of-powers issues. I am not exactly sure what the courts 

would do, although I will say that in many areas where the question is whether legislation or regulations apply to the President’s 

personal staff and office, the courts do somersaults to avoid answering the question. 

Chairman LIEBERMAN. Thanks. Dr. Pfiffner. 

Mr. PFIFFNER. I think Secretary Ridge is right, that the key here 

is the functions that these people perform. If you create an officer 

of the government, that person can exercise the authority of that 

office, but they are also subject to the Executive Branch chain of 

command. 

Advisers to the President, on the other hand, can tell the President whatever they want, and you can create the position, but basically the President can listen to whomever he or she wants. 

So I think the real solution, if there is one, to this problem is 

comity between the branches from both sides so that the President 

does not keep trying to keep things away from Congress, make 

things non-transparent, and that Congress does not get too heavyhanded, on the other hand. That is a difficult one, but I think that 

is the real solution. 

Chairman LIEBERMAN. Governor Ridge. 

Mr. RIDGE. Senator, a slightly different perspective. At some 

point in time, while you are interested in the kind of interaction 

and oversight incumbent upon you within the Legislative Branch, 

the perspective I offer you as a former Cabinet secretary, at what 

point in time does that assignment of responsibilities or a function 

begin to interfere, overlap, conflict, or create a real tension between 

the individual in the White House and a Cabinet secretary? So 

does the presidential nominee confirmed by the Senate have as 

much authority in this domain as the President’s adviser who is 

not answerable to you right now under certain circumstances? 

So I think if you would decide to legislate, I would just encourage 

you to be very cautious that you do not undermine the credibility 


ph44585 on D330-44585-7600 with DISTILLER
30 

and the function of the Secretary, who ultimately is accountable to 

you. 

Chairman LIEBERMAN. That is a good point. As you respond, it 

strikes me that the initial position you held in the White House, 

Homeland Security Advisor, was created by executive order. 

Mr. RIDGE. Correct. 

Chairman LIEBERMAN. And then made statutory. That is an interesting case. Now, it was not done to compel the testimony of the 

position. It was done as part of the creation of the Department of 

Homeland Security, the reforms that we were putting into effect 

over time to protect our country from terrorism. So we wanted to 

give it that extra measure of authority. And then—I think I am 

getting the time right—when you were Secretary, we had given the 

Homeland Security Council and Advisor statutory authority. In 

other words, you were dealing with a statutorily authorized Homeland Security Advisor when you were in the Cabinet. 

Mr. RIDGE. Right. As I recall the legislation, my position within 

the White House as Assistant to the President for Homeland Security was created, and now President Obama, I think, has moved 

that within the National Security Council. I think John Brennan 

basically now holds that title. 

Chairman LIEBERMAN. That is right. 

Mr. RIDGE. I do not know whether he is subject to public inquiry 

from the Congress or not. I suspect the President is protecting that 

domain. And I do not recall, frankly, Senator, whether or not General Gordon or Fran Townsend were ever called to testify. I do not 

think they did, although, again, to Dr. Relyea, I think they are up 

here briefing constantly, but not publicly. Big difference. 

Chairman LIEBERMAN. Thank you. Very good answers and helpful. 

Senator Collins. 

Senator COLLINS. Thank you, Mr. Chairman. 

We have heard today, as well as from the President’s legal counsel, the argument that Congress cannot compel individuals who fill 

these czar roles to testify before us because of the argument Mr. 

Casey made today that the President has the right to have personal assistants who advise him. 

The problem for me is there is a big difference between the traditional staff of the President—his chief of staff, his legal counsel, his 

press secretary—and these czar positions which have significant 

policy responsibilities. And that is why I have been trying to come 

up with a reasonable approach to resolve this issue. 

For example, I think Congress should be able to call Carol 

Browner, the President’s energy and environmental czar, to ask her 

about the negotiations that she conducted with the automobile industry that led to very significant policy changes with regard to 

emission standards. I think that is particularly important because 

the Supreme Court in 2007 held that it was the Environmental 

Protection Agency that had that very responsibility under the 

Clean Air Act. And yet these negotiations were not undertaken by 

the EPA Administrator but, rather, by the White House czar. 

Similarly, when Nancy-Ann Min DeParle was appointed to her 

position in the White House, the executive order does not just vest 

in her the authority to coordinate across Department lines. It does 


ph44585 on D330-44585-7600 with DISTILLER
31 

not just say that her job is to advise the President. It specifically 

says that she is charged ‘‘to develop and implement strategic initiatives under the President’s agenda’’ with a relationship to health 

care. 

Implementation should be the job of the Secretary of Health and 

Human Services, so that is why I am troubled. And I am not proposing that the President be barred from creating these new positions to focus on important policy priorities. I am not saying that 

he should not be able to appoint whomever he wants to these positions. But if we are going to have these individuals in the White 

House have the ability to negotiate emission standards with the 

automobile industry or implementation health care policy initiatives, to me that is totally different. That goes far beyond a position 

responsible for advising the President where I would agree that we 

do not have the right to call them before us—in the vast majority 

of cases. I realize I need an out there just in case. 

So what I have proposed—and what I offered on the Senate floor, 

but it fell to a point of order unrelated to the merits—is that the 

President make available to Congress to testify upon a reasonable 

request individuals who have responsibility for interagency development or coordination of any rule, regulation, or policy, and that 

it would apply to only those individuals who are without statutory 

authority. So I am narrowly defining who I believe should come 

and testify before us. 

The second half of the amendment also called on the President 

to provide us twice a year with a written summary of the activities 

of these officers within the White House. That strikes me as a reasonable approach that would allow us to exercise our oversight responsibilities, that would introduce far more transparency and accountability into the process, while not infringing upon the ability 

of the President to create special policy advisers, to fill them with 

the people he wants without congressional confirmation, without 

Senate confirmation. 

So I would like to get your judgment on whether you think that 

would be a reasonable compromise to a difficult issue for those of 

us who believe in a strong Congress. Secretary Ridge. Or would you 

like me to start on the other end of the panel, then work down. 

Mr. RIDGE. Well, I would start if you let me finish. [Laughter.] 

Revise and extend, whatever. 

Senator COLLINS. Absolutely. 

Mr. RIDGE. The operative word—I mean, it does make sense, if 

you can identify in your legislation the ability—and, again, language will be very important, as it always is—of these individuals 

within the White House, within the President’s staff, who actually, 

as you pointed out, are told to implement and execute policy. I am 

there, then I think clearly you have that—I would favor your 

amendment. 

The coordination role I have often viewed as a little different, if 

it is truly coordination. Because I think the notion that the President would have someone around him overlooking—because there 

is so much overlapping jurisdiction, to bring people together to coordinate existing policy—not to create it but to coordinate whatever 

Congress has said the Administration is obliged to do, whether or 


ph44585 on D330-44585-7600 with DISTILLER
32 

not—I am agnostic on that. I cannot quite get there right now, but 

clearly on implementing and execution, you got me. 

Senator COLLINS. Thank you. Dr. Pfiffner. 

Mr. PFIFFNER. With respect to policy responsibilities of advisers 

and whether they can negotiate for the President, they can, I think, 

only do that with the President’s permission. I think even Senators’ 

staffs sometimes do something like negotiate with other staffs and 

so forth. 

With respect to the implementation of health policy, I think that 

is very troubling, but I think that person cannot, with any personal 

authority, do any implementation. 

The President I think can give permission to his or her staff to 

come and testify. I think that is a matter of comity usually rather 

than forcing the President to do that. 

With respect to requiring a report from the President, I think 

you can absolutely require a report on the policies, but whether you 

can require a report on personal advice and activities, I am less 

certain about that. 

Senator COLLINS. Thank you. Mr. Casey. 

Mr. CASEY. Certainly with respect to the question of implementation, it raises a fair question for Congress to ask. It is absolutely 

true that an Assistant to the President cannot propose a rule, cannot finalize a rule. They cannot by law implement. But it would be 

a reasonable question to say what exactly did you mean by ‘‘implement.’’ 

With respect to negotiating on the outside, again, I agree, the individual acts solely as the President’s personal representative. If 

you disagree with the policy that eventually came out of that, you 

have every right to call the Administrator and the Secretary of 

Transportation up here and say, ‘‘What made you think this was 

a good idea? Why did you sign it?’’ And in that way you can certainly oversee it. 

With respect to legislation, again, the court analyzes this based 

not on hermetically sealed departments, but how much would it actually intrude upon the President’s ability to do his job. And so it 

is not exactly clear what the result would be. 

Senator COLLINS. The problem, if I may interrupt just briefly, is 

that we could call the Secretary of Transportation, the head of 

EPA, and the Secretary of Energy on the automobile emissions 

issue before us. You are right. But they are not the ones who made 

the deal. That is what troubles me. They are not going to be able 

to address the issues. 

Mr. CASEY. If I may, you see, they did not negotiate the deal, but 

they did actually make the deal. They are the ones that had to act 

in order for that deal to become law, to be binding. And that I 

think is indeed the important issue. 

Senator COLLINS. Not in terms of transparency. Mr. Relyea. 

Mr. RELYEA. On your amendment that you were talking about, 

I think a central problem is the hair splitting of the functions that 

are legitimate and thought not to be legitimate. So I am basically 

sort of in agreement with what you are trying to do, but the beauty 

is in how it is crafted legislatively. 

As to a report from the President, I am less hopeful. I have read 

many reports supposedly from the President, and they can be pretVerDate Nov 24 2008 07:46 Jan 13, 2011 Jkt 053850 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 P:\DOCS\53850.TXT SAFFAIRS PsN: PAT

ph44585 on D330-44585-7600 with DISTILLER
33 

ty mushy. Nicely phrased, but they do not tell you much when you 

back away from them. A hollow meal. 

I have a question, though. In your example you gave of Carol 

Browner’s activity, did you ever consider asking her for a briefing 

on the issue of how she was negotiating and doing that? 

Senator COLLINS. Let me say that I have talked with both 

Nancy-Ann DeParle and Carol Browner, not on the automobile 

emissions but other issues. But I agree with Senator Byrd that private meetings are not the same as public hearings. And they are 

not. The public cannot see them. 

Mr. RELYEA. Right. There is no transparency. 

Senator COLLINS. There is no transparency, and that is why this 

is difficult. 

I know that my time is more than expired, and a vote has started. 

Mr. RELYEA. Could I ask you one other question? You asked 

about the implementation point. This is a point for many Members 

of the Senate, or the House, for that matter. Did you consider legislation that would overturn the implementation capacity in that executive order? 

Senator COLLINS. Well, we are going through the executive order 

with a fine-toothed comb, but, see, one of the problems is that several of the czars were just announced through press releases. There 

is not an executive order. But let me indicate that we are halfway 

through a vote, so I know we need to conclude this. 

I just want to thank the Chairman for holding this hearing. This 

issue has been of concern to me for many months. I first raised it 

at a public hearing back in April when we were discussing whether 

there should be a cyber security czar, and I thought, ‘‘Here we go 

again.’’ And it is of great concern to me. It implicates fundamental 

constitutional issues and responsibilities of the Congress, and I just 

want to thank the Chairman for putting together a superb hearing 

with excellent witnesses so that we could have a serious look at 

this issue. 

So thank you very much, Mr. Chairman. 

Chairman LIEBERMAN. Thank you, Senator Collins. You did raise 

it long before it got to be a hot topic on the airwaves, particularly 

from he whose name shall not be mentioned, who is my constituent 

and long-time acquaintance since he had a morning radio show in 

New Haven, Connecticut. But you raised it. I remember when you 

raised it earlier, and I am very grateful to you for your help in putting this hearing together, and to the four witnesses who have testified, this has been very informative, very provocative really, and 

I think we both share a desire to do something about this to help 

Congress uphold our constitutional responsibility for oversight. But 

we understand the balance here as reflected in the Constitution. 

So thank you very much. The reward for your good testimony is 

that we will probably bother you again. 

The record of the hearing will remain open for 15 days for additional statements and questions. With that, the hearing is adjourned. 

[Whereupon, at 12:04 p.m., the Committee was adjourned.] 


ph44585 on D330-44585-7600 with DISTILLER

ph44585 on D330-44585-7600 with DISTILLER
(35) 

A P P E N D I X 


ph44585 on D330-44585-7600 with DISTILLER53850.001
36 


ph44585 on D330-44585-7600 with DISTILLER53850.002
37 


ph44585 on D330-44585-7600 with DISTILLER53850.003
38 


ph44585 on D330-44585-7600 with DISTILLER53850.004
39 


ph44585 on D330-44585-7600 with DISTILLER53850.005
40 


ph44585 on D330-44585-7600 with DISTILLER53850.006
41 


ph44585 on D330-44585-7600 with DISTILLER53850.007
42 


ph44585 on D330-44585-7600 with DISTILLER53850.008
43 


ph44585 on D330-44585-7600 with DISTILLER53850.009
44 


ph44585 on D330-44585-7600 with DISTILLER53850.010
45 


ph44585 on D330-44585-7600 with DISTILLER53850.011
46 


ph44585 on D330-44585-7600 with DISTILLER53850.012
47 


ph44585 on D330-44585-7600 with DISTILLER53850.013
48 


ph44585 on D330-44585-7600 with DISTILLER53850.014
49 


ph44585 on D330-44585-7600 with DISTILLER53850.015
50 


ph44585 on D330-44585-7600 with DISTILLER53850.016
51 


ph44585 on D330-44585-7600 with DISTILLER53850.017
52 


ph44585 on D330-44585-7600 with DISTILLER53850.018
53 


ph44585 on D330-44585-7600 with DISTILLER53850.019
54 


ph44585 on D330-44585-7600 with DISTILLER53850.020
55 


ph44585 on D330-44585-7600 with DISTILLER53850.021
56 


ph44585 on D330-44585-7600 with DISTILLER53850.022
57 


ph44585 on D330-44585-7600 with DISTILLER53850.023
58 


ph44585 on D330-44585-7600 with DISTILLER53850.024
59 


ph44585 on D330-44585-7600 with DISTILLER53850.025
60 


ph44585 on D330-44585-7600 with DISTILLER53850.026
61 


ph44585 on D330-44585-7600 with DISTILLER53850.027
62 


ph44585 on D330-44585-7600 with DISTILLER53850.028
63 


ph44585 on D330-44585-7600 with DISTILLER53850.029
64 


ph44585 on D330-44585-7600 with DISTILLER53850.030
65 


ph44585 on D330-44585-7600 with DISTILLER53850.031
66 


ph44585 on D330-44585-7600 with DISTILLER53850.032
67 


ph44585 on D330-44585-7600 with DISTILLER53850.033
68 


ph44585 on D330-44585-7600 with DISTILLER53850.034
69 


ph44585 on D330-44585-7600 with DISTILLER53850.035
70 


ph44585 on D330-44585-7600 with DISTILLER53850.036
71 


ph44585 on D330-44585-7600 with DISTILLER53850.037
72 


ph44585 on D330-44585-7600 with DISTILLER53850.038
73 


ph44585 on D330-44585-7600 with DISTILLER53850.039
74 


ph44585 on D330-44585-7600 with DISTILLER53850.040
75 


ph44585 on D330-44585-7600 with DISTILLER53850.041
76 


ph44585 on D330-44585-7600 with DISTILLER53850.042
77 


ph44585 on D330-44585-7600 with DISTILLER53850.043
78 


ph44585 on D330-44585-7600 with DISTILLER53850.044
79 


ph44585 on D330-44585-7600 with DISTILLER53850.045
80 


ph44585 on D330-44585-7600 with DISTILLER53850.046
81 


ph44585 on D330-44585-7600 with DISTILLER53850.047
82 


ph44585 on D330-44585-7600 with DISTILLER53850.048
83 


ph44585 on D330-44585-7600 with DISTILLER53850.049
84 


ph44585 on D330-44585-7600 with DISTILLER53850.050
85 


ph44585 on D330-44585-7600 with DISTILLER53850.051
86 


ph44585 on D330-44585-7600 with DISTILLER53850.052
87 


ph44585 on D330-44585-7600 with DISTILLER53850.053
88 


ph44585 on D330-44585-7600 with DISTILLER53850.054
89 


ph44585 on D330-44585-7600 with DISTILLER53850.055
90 


ph44585 on D330-44585-7600 with DISTILLER53850.056
91 


ph44585 on D330-44585-7600 with DISTILLER53850.057
92 


ph44585 on D330-44585-7600 with DISTILLER53850.058
93 


ph44585 on D330-44585-7600 with DISTILLER53850.059
94 


ph44585 on D330-44585-7600 with DISTILLER53850.060
95 

Æ 


ph44585 on D330-44585-7600 with DISTILLER53850.061