by Mitchel A. Sollenberger and Mark J. Rozell. Lawrence, KS: University Press of Kansas, 2012. 298pp. Paper $24.95. ISBN: 978-0-7006-1836-1.Reviewed by Bruce E. Altschuler, Department of Political Science, SUNY Oswego
pp.381-384
Early in the Obama administration, conservative commentators led by Glenn Beck attacked the president for his appointment of 32 unaccountable "czars." After independent fact checkers dismissed these claims as exaggerated, pointing out that by Beck's own definition the numbers were actually far lower and that George W. Bush had more such czars than Obama (Anonymous, 2009), attention faded as the public moved on to other issues. Mitchel Sollenberger and Mark Rozell argue that despite the often partisan nature of debates over presidential power, it is important to counter "a continually growing and now widespread preference among many scholars and political observers for a powerful presidency with relatively limited constraints" (p.ix). The purpose of their book is to address what they believe is a trend of presidents bypassing checks and balances through their use of unaccountable czars to make and implement public policy.
Because czar is a popular term rather than an official position title, the first problem they face is one of definition. Their critical analysis of attempts by the Supreme Court, the Department of Justice's Office of Legal Counsel and academics to clarify which executive branch appointments require Senate confirmation provides them with minimal assistance, resulting in a definition that is far from a model of clarity: "an executive branch official who is not confirmed by the Senate and is exercising final decision-making authority that often entails controlling budgetary programs, administrating/coordinating a policy area, or otherwise promulgating rules, regulations, and orders that bind either government officials and/or the private sector" (p.7). Even this complex definition requires additional elaboration. Although some czar positions are created by unilateral presidential action, others are authorized by statute. Senate confirmed officials, including cabinet members and the vice-president, can be czars if additional powers are unconstitutionally delegated to them. It seems unlikely that this definition will be adopted either by many scholars or the media.
Sollenberger and Rozell rely heavily on the non-delegation doctrine even though, as they acknowledge, many experts believe that it is "an inoperative concept for the purpose of constitutional analysis" (p.13). The Supreme Court's failure to employ this doctrine to overturn a single law since 1935 "does not mean it is a dead principle" (p.15). Instead, it is up to congress to provide clearer standards when delegating power to the executive branch. What makes czars dangerous is their lack of accountability to the public and congress. They may be more committed to the president's campaign promises than to statutory programs. The temporary nature of these positions leads to inconsistent policy. Without Senate confirmation, cronies or poorly vetted office holders are more likely.
The book then seeks to provide context by looking at other positions filled outside the normal appointment process such as commissions and special envoys. Tracing the history of commissions starting during the Washington administration, the authors conclude that they were often created without either constitutional or statutory authority. However, commissions are less dangerous than czars because they merely advise presidents on policy rather than implement it. This analysis and a similar one about special envoys are followed by a surprisingly curt dismissal of the idea that presidents have inherent powers. Inherent power is such a long standing, even if much debated, concept that the authors owe it more than a paragraph asserting, without evidence, that by creating a system of checks and balances, the framers "rejected the view that the chief executive would exercise inherent powers" (p.35).
Although the term czar had been used in a variety of ways, both positive and negative, during the nineteenth and early twentieth century, the media began applying it to members of the administration during Woodrow Wilson's presidency. Rather than Sollenberger and Rozell’s meaning, however, it served as a label for any powerful executive branch official, a usage that remains common. It was the expansive view of presidential power held by Theodore Roosevelt and Wilson that led to the modern czar. World War I and congress' passage of the Overman Act, granting the president considerable authority to reorganize the executive branch, allowed Wilson to create the War Industries Board, chaired by Bernard Baruch who was appointed without Senate confirmation. Other agencies headed by czars soon followed. However, when the war ended and Wilson was succeeded by presidents with a more limited philosophy of executive power, most of these agencies and czars were eliminated.
This changed dramatically with the election of Franklin Roosevelt, who was able to use Wilson's precedents to take what Sollenberger and Rozell term "the last significant step to what is now considered to be the model for the modern presidency" (p.54). The authors place much of the blame for what they see as excessive executive power on congress for carelessly delegating to FDR the authority to establish New Deal agencies and czars with few constraints. Like Wilson, Roosevelt used war to expand his executive authority. While New Deal agencies were largely created by statute, once World War II began, he acted unilaterally to achieve his policy goals more frequently than any of his predecessors. However, Sollenberger and Rozell do note a number of cases where congress limited presidential power, including the transformation of FDR's final czar into a position requiring Senate confirmation and the passage of the Independent Offices Appropriations Act, cutting off funds for unilaterally created agencies in existence for more than a year. They rebut the common argument that these czars were necessary to pursue the war effectively by pointing out that how ineffective their agencies proved to be. This is a potentially strong argument that would have been better made with more evidence.
Roosevelt's successors, from Harry Truman to Lyndon Johnson, created few new czars while dismantling some of the wartime agencies. John Kennedy appointed not a single czar. According to the authors, many officials termed czars by the media did not meet the book's definition. Nevertheless, they believe that the actions of these presidents were responsible for normalizing the precedents set by FDR during an economic crisis and world war.
Richard Nixon revived the practice of unilaterally establishing agencies and appointing directors, but the Watergate scandals and other abuses of power led to a reaction both in congress and among his successors that halted the use of czars until the Reagan administration. Despite media labeling of a number of Ford and Carter administration officials as czars, none meet Sollenberger and Rozell’s definition. Unfortunately, congress' main attempt to limit unaccountable presidential appointments, the 1978 White House Authorization Act, had so many loopholes and so few reporting requirements that, in the authors' view, it did more to promote than limit future use of czars. The result was a pause rather than an end to new czars.
Nevertheless, the resurgence of presidential power in the 1980s and 1990s did not mark a return to the large scale use of czars as Jimmy Carter's immediate successors preferred to strengthen the presidency in other ways. The analysis of czars in the Reagan administration demonstrates how problematic the book's argument can be. The authors concede that nearly all of those termed czars by the media were not. Unable to find much to criticize, they instead point to administration officials involved in the Iran-Contra scandal, stating that "although never officially designated as such, these individuals exercised czar-like powers" (p.123). Similarly, nearly all of those considered czars by the media during George H.W. Bush's presidency fail to meet the book's definition. Bill Clinton had so few czars that the section on his administration is largely devoted to discussing those incorrectly labeled czars by the media rather than to the two the authors consider czars.
The book's main targets are George W. Bush and Barack Obama. Although Bush seems to have created a significantly increased number of czars, Sollenberger and Rozell do not fully prove that this is was as serious a problem as they claim. The two who get the most attention are the czars for faith based initiatives and homeland security. However, they acknowledge that the former spent more time on outreach than making policy while congress replaced the latter with a Senate confirmed cabinet secretary in charge of the new department of homeland security.
Obama comes in for sharper criticism, partly because his campaign had promised greater accountability. Sollenberger and Rozell argue that "the proliferation of czars in the early Obama administration has been staggering" (p.147). More serious than the number of czars is the extent to which they operate outside the constitutional system of checks and balances. Sollenberger and Rozell are particularly critical of Steven Rattner, the "car czar," who, without authorization from congress, reorganized the American automobile industry. Like "green jobs czar" Van Jones, Rattner resigned due to actions of his prior to taking the position. Had these positions been subject to Senate confirmation, both would likely have been better vetted and perhaps not taken office in the first place. Not content to criticize those they label as czars, the authors, after pointing out that Obama's "drug czar" fails to meet their definition because the office was established by congress in 1988 and is subject to Senate confirmation, argue that "nonetheless, the office retains the established moniker and does possess many czar-like powers" (p.157).
The final chapter suggests methods for congress to reduce or eliminate czar positions by setting limits on the White House Office and Executive Office of the President and requiring greater reporting of the duties and actions of those occupying in those jobs. Sollenberger and Rozell believe the result will be greater collaboration between the branches.
The book is most valuable for its thorough analysis of positions since the Wilson administration that either they or others have characterized as czars although their focus is somewhat weakened by having to examine so many offices that despite media reports, they do not define as czars. The final chapter includes some sensible ways for congress to reassert its power by limiting unilaterally created positions and improving transparency.
The whole, however, seems less than the sum of its parts. Most of the presidents discussed appointed few or no czars. Often congress was able to fight back either by using its appropriations power or through legislation transforming the disputed position into one requiring Senate confirmation, as with the department of homeland security. In contrast, the president's commander-in-chief power has virtually swallowed congress' power to declare war. Sollenberger and Rozell need to make a stronger case that presidential czars are a systemic problem akin to other controversies over executive aggrandizement rather than simply a few isolated instances of overreach. For example, they rightly point out that FDR's "most repugnant czar" was responsible for the internment of Japanese-Americans, without asking whether the outcome would have been different had the Secretary of War made the decision.
The book also sits uncomfortably between academic analysis and polemic. Too often, as is the case in their dismissals of inherent presidential power or the disappearance of the non-delegation doctrine, they argue by assertion without analyzing the considerable academic literature on the subject. Unlike the partisan commentary they rightly disparage, this is a serious look at the question presented, but the authors need to make a better case that presidential czars are a serious systemic problem that is a major factor in the aggrandizement of presidential power.
REFERENCES
Anonymous, 2009, "Czar Search," FactCheck.org, Sept. 25, www.factcheck.org/2009/09/czar-search.
Copyright by the author Bruce E. Altschuler.
