“MORE CZARS THAN THE ROMANOVS”: A REVIEW OF “THE PRESIDENT’S CZARS,” BY MITCHEL A. SOLLENBERGER AND MARK J. ROZELL

Matt White

March 30, 2015

Liberty University PPOG 624 – Presidential Leadership

Introduction

            “In a system of government that seeks to prevent tyranny by ensuring each branch can check the others, there are dangers in allowing executive branch officials with far-reaching powers to be isolated from legislative oversight and controls.”[1] In The President’s Czars, Mitchel A. Sollenberger and Mark J. Rozell provide a comprehensive non-partisan analysis of the use of executive “czars,” and in doing so, they provide an effective and eye-opening account of executive overreach that is threatening to the American democratic system of checks and balances. Sollenberger and Rozell’s primary purpose with The President’s Czars is to highlight the rise of czars and executive power grabbing in order to raise awareness among their readership concerning this phenomenon and to promote a general demand that this practice be stopped.

Summary

            Sollenberger and Rozell define a true czar as an executively appointed official that has not been confirmed by the Senate, yet performs duties with significant power and authority over budgetary or regulatory matters that are binding to either the government or private sector.[2] They note three specific constitutional and legal principles that are violated by the use of czars. The first is the Appointments Clause, found in Article II, section 2, clause 2 of the Constitution, which states that all officers appointed by the president shall be confirmed with the “Advice and Consent” of the Senate. When, without legislative confirmation or statue, a president unilaterally appoints a czar vested with significant power, it is a direct violation of the Appointments Clause of the Constitution.[3] The Non-Delegation Doctrine, found in Article I, section 1 (incorrectly attributed in President’s Czars to section 2), states that “All legislative powers herein granted shall be vested in a Congress of the United States,”[4] and by implication, prohibits Congress from delegating legislative powers outside its own body. A czar with regulatory and budgetary power can essentially create the existence of legislation by executive fiat.[5] When a president creates an office within the executive branch to be chaired by a czar, and the office is not through congressional legislation, it is a violation of the Legislative Establishment of Office principle that the Framers implied throughout Article II.[6] Further isolating themselves from congressional oversight, czars have claimed executive privilege, as advisors to presidents, to refuse to testify before Congress.

            The majority of The President’s Czars is a simple chronology of the evolution of the American czar, mainly highlighting the initial use and rapid expansion of czars and executive overreach through specific 20^th century presidencies. The modern czar emerged with Woodrow Wilson, under whose administration the power and scope of the executive branch vastly expanded, but often with congressional consent. Congress passed the Overman Act, which gave Wilson legal authority to consolidate and reorganize offices within the executive branch at his discretion. Though the Overman Act did not allow Wilson to create agencies at will, Wilson used the act as a legal cover for the creation of the War Industries Board, among others.[7] Without the threat of a world war, the subsequent string of Republican presidents curtailed the use of czars and rolled back the power of the executive branch to its proper scope.

            Franklin Roosevelt’s presidency marked a major turning point in the creation of the powerful modern presidency. Roosevelt created the Executive Office of the President, which served to perpetually solidify the powers and prominence of the executive branch.[8] As the authors remark, “Roosevelt’s claim to such power to nullify the law at will had never been asserted so boldly by a president. Even English monarchs had been unable to exercise such authority since before the Glorious Revolution.”[9] In response to the Great Depression, Roosevelt’s New Deal policies vastly expanded the sphere of responsibilities undertaken by the executive branch, though mostly with eventual legislative consent. Once the United States prepared to enter World War II, Roosevelt used the excuse of executive war powers to create offices and nominate czars in unprecedented number without legislative consent or push-back.[10] With the exception of Kennedy, presidents Truman through Johnson continued with Roosevelt’s use of czars and with the centralization of executive power in varying degrees.

            Presidential power grabbing was rampant under Richard Nixon. Nixon initially turned to his National Security Advisor, Henry Kissinger, to formulate foreign policy in a role legally ascribed to the Secretary of State. When William Rogers, then Secretary of State resigned, Nixon appointed Kissinger to the position, though he allowed Kissinger to serve in the dual role as National Security Advisor.[11] Nixon went so far as to devise a “super secretaries” plan, in which four Senate-confirmed secretaries would be given czar power beyond their legally sanctioned roles.[12] In the aftermath of Watergate, both Presidents Carter and Ford sought to curtail the executive abuse of power, and neither created any actual czars, only media-appointed ones.[13]

            Presidents Reagan through Clinton resumed the role of an assertive executive, but generally did not actively create czars to accomplish this goal. Reagan sought to reduce the size of government, and to do so, used methods such as executive orders, executive privilege, and signing statements.[14] George H.W. Bush governed through a strong cabinet.[15] Clinton sought to assert his agenda through Congress.[16]

            Under George W. Bush, the use of czars became rampant. After initially promising otherwise, Obama vastly proliferated the practice of czars,[17] so much so to cause Senator John McCain to quip that Obama has “more czars than the Romanovs.”[18] The practice became accepted by many in the public and with special interest groups, because they saw it as a president who is attempting to tackle specific issues of concern. The authors claim “…there was an expectation that the president would take the lead in trying to rescue the country while it was in crisis.”[19] Of the 35 czar positions identified by the authors from Ford-Obama, eight were named under Bush, and twenty under Obama.[20]

            Sollenberger and Rozell conclude The President’s Czars by outlining a general plan for restoring the proper balance of power between the executive and legislative branches. This involves overhauling Title 3, Section 105 of the US Code, which governs the pay of employees within the White House Office.[21]

Critique

            The President’s Czars is a comprehensive look at the use of presidentially appointed czars throughout the modern era, and is quite thorough in naming each official that is deemed a czar per Sollenberger and Rozell’s definition. While the expansion of executive power becomes readily apparent throughout their analysis, the focus is quite quantitative in nature. While the abuse of executive authority through the use of czars is clearly presented as an unconstitutional legal issue, the book is lacking in the qualitative nature of how the ends do not justify the means, as there are only a few empirical examples of significant harm that the use of czars have imposed on the daily life of the general voting constituency.

While Sollenberger and Rozell effectively highlight instances of executive abuse of the system of checks and balances, they diminish the constitutional responsibility of the executive in the legislative process and in holding Congress accountable. The executive was not intended to be servile to the legislative branch, rather the two are co-equal in the tripartite system. As Madison states in The Federalist 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”[22] The President’s Czars superbly overviews the executive accumulation of power in the modern presidency, but it would be just as dangerous to democracy if Congress wielded supreme power in a greater than co-equal status.

Aside from thoroughly highlighting the unconstitutional use of czars, the primary strength of The President’s Czars is its non-partisanship. The use of czars and the abuse of executive power are thoroughly condemned throughout the book, regardless of a president’s party affiliation. Bush and Nixon are criticized on equal footing as Franklin Roosevelt and Obama. This is particularly poignant since many contemporary pundits and politicians tend to defend or turn a blind eye to the power-grabbing of a president of their own party affiliation in order to preserve their own and their party’s interests. Then, in a hypocritical fashion, the practice is condemned by the pundits only when it is done by a president of another party.[23]

            Sollenberger and Rozell’s proposed legislative reforms demand significant regulation and congressional oversight of the pay and responsibilities of White House and Executive Office employees. Though adding additional complex regulation to government would usually result in a larger bureaucracy to work through the red-tape, their proposal to statutorily limit the size could ameliorate this. Their idea is a positive start, albeit a weak solution. It does little to get to the root of the problem.

Personal Response

As John Marshall quoted in Marbury v. Madison, “We are a nation of laws, and not of men.”[24] This philosophy has roots dating back to the Magna Carta through the English Constitution. Presidents are bound by the law, despite the acceptance of the extra-legal practice of using czars. The acceptance of the view that presidents are above the law is a direct affront to the democratic philosophy on which American democracy was built. Many do not see this trend as a problem, rather, czars could be a tool for efficiently addressing a specific issue of national concern. However, the Framers created a system of limited government in order to protect personal liberty and avoid the concentration of power within one individual. Ruling by autocratic fiat may be an efficient way to govern the nation, but it is in direct violation of the foundations of our democratic system. The creation of czars, as astutely highlighted in The President’s Czars, is just one symptom of demagoguery in presidents who think that they are above the law.

When confronted by any personal issue, too many people expect the government to swoop in and fix their lives for them. It creates an environment where a giant government structure, led by a powerful executive, is strongly desired, and fosters an environment where czars created through executive overreach is the acceptable and expected norm. This atmosphere is fertile for the rise of the demagogue, a leader who is able to rally the masses, promising to deliver their every want and need, but motivated by a selfish lust for power and a god-like ego. Not only does this exhibit a growing lack of self-reliance among the populace, but also a lack of reliance on God. Sigmund Neumann warned that when people lose their faith in God, they turn to these demagogues as an alternate source of salvation.[25] God could not have stated it more clearly: “You shall have no other gods before me.”[26] The power of Christ Jesus is “far above all rule and authority, power and dominion…”[27] and therefore forever above a power-hungry demagogue who tries to exceed the legal authority God granted them by God’s higher power.

Conclusion

The President’s Czars is a detailed, eye-opening, and frightening account. The presidential use of czars is an affront to the constitutional principles of the separation of powers and of checks and balances established by the Framers. The emergence of czars is a symptom of the characteristic modern presidency tending towards the centralization of power within the executive branch and the belittling of the congressional role in the democratic process. With Sollenberger and Rozell’s non-partisan condemnation of the practice, The President’s Czars will not alienate large segments of the political spectrum, making it a must-read for all in order to raise a universal awareness and condemnation of illegal executive power-grabbing through the use of czars.

References

Hamilton, Alexander, James Madison, John Jay. The Federalist. Orig. pub. 1788, 1818. Project Gutenburg compilation, 1992. Accessed March 28, 2015. http://thomas.loc.gov/home/histdox/abt_fedpapers.html

Neumann, Sigmund. “The Rule of the Demagogue.” American Sociological Review 3, no. 4 (August 1938). 487–498. Accessed March 18, 2015. http://www.jstor.org.ezproxy.liberty.edu:2048/stable/view/2083896.

Sollenberger, Mitchel A. and Mark J. Rozell. The President’s Czars: Undermining Congress and the Constitution. Lawrence: University Press of Kansas, 2012.