The President shouldn't remove Robert Mueller, but he is fully within his constitutional rights to do so.
Mitchel A. Sollenberger and Mark J. Rozell have provided a valuable contribution to what is often called the public law approach to the presidency in their recent book, The President’s Czars: Undermining Congress and the Constitution. Their argument is clear from the title: “Czars offend the constitutionally based principles of separation of powers, checks and balances, and democratic accountability” (179). They provide an overview of the history of czars and conclude their book with a policy proposal that would eliminate them altogether.
I will turn to their constitutional argument and the larger public law approach later, but here I lay out what I see to be the major contributions of this book. First, they introduce a much-needed clarity by defining precisely what a czar is. Under their definition, a czar is an official in the executive branch that is 1) not confirmed by the Senate, and 2) exercises “final decision-making authority” over policies, budgets or rules (7). A czar then is not an advisor or a Senate confirmed officer, but it is possible that a Senate-confirmed officer becomes a czar when the president delegates “nonstatutorily authorized duties” on that officer (8). As they argue, this part of the definition is important, because presidents frequently give regular department heads czar like duties and then seek to shield them with executive privilege from oversight by Congress. By their definition, then, czars are outside the Constitution, specifically with respect to the appointments clause and the non-delegation doctrine. Classification is a vital part of scholarship, and they have provided a way for scholars to discern whether officials designated as czars by media are in fact czars.
Another contribution is their chronicle of the rise, fall, and return of the czars. In their account, czars began as emergency responses to the extraordinary demands of World Wars I and II, and then took hold during normal times. But even these emergency measures were legally suspect. Woodrow Wilson used the Overman Act of 1918 to create new position for Bernard Baruch over a new agency over increasing the production of raw materials, even though “nowhere in the law did Congress provide Wilson with the power to create a government structure, excepting an agency to manage the production of aircraft” (42). Similarly, FDR used the First War Powers Act of 1941 to create multiple czars, even though “nothing” in that act “authorized the president to create new agencies or offices” (66). These emergency measures were “consolidated” into routine governance under Presidents Truman, Eisenhower, Kennedy and Johnson: “By the 1960’s, presidents had become accustomed to the idea and practice of centralizing power and moving away from a reliance on department heads and the traditional cabinet governing system” (96). This consolidation of presidential power, in their account, corresponded with a presidentialist leaning in behavioral political science, an institutional partisanship that had its roots in Progressive political thought.
But this rise was followed by a fall accompanying the reaction to Watergate and the so-called imperial presidency. As scholars have long noted, Presidents Ford and Carter occupied a presidency that had been chastened by Congress. The authors show that the same is true with respect to czars, since neither Ford nor Carter appointed any—and here, there definition provides a useful contrast to what they call “media-named czars”. Moreover, alongside Congress’s efforts to bind the executive branch with laws (and see David Kyvig’s 2008 book on the “culture” of impeachment for a good summary), Congress attempted to limit the creation of czars through the White House Authorization Act of 1978. But Sollenberger and Rozell argue that this legislation was ultimately too feeble. Even though one provision of the law limited White House aides to 100, another allowed the president the power to appoint “such number of other employees as he may determine to be appropriate” (119). Though the latter provision “blew a hole” in Congress’s attempt to limit czarmaking, Presidents Reagan, Bush, and Clinton “did not completely revive the pre-Watergate use of czars” (135)—at least not in the way that George W. Bush and Barack Obama did. I found this to be a counterintuitive and potentially important point, given all the indications that Presidents Reagan, Bush and Clinton generally relied on executive power, and would have liked to see this chapter expanded. They speculate that Reagan and Bush’s commitment to limited government, and Clinton’s legal troubles, are the chief causes. Future scholarship might explore whether this was indeed the case. If it is, it would suggest that some kinds of executive power are not as attractive as other kinds—a finding in its own right. The full return of the czars was ushered in by the post 2000 presidents, Bush and Obama, and now it seems we have czars gone wild.
The final contribution of this book is its detailed account of what seems to be every czar and every media-named czar. In addition to their narrative, they include a 29 page index of czars and media czars from 1919-2011. The index includes 14 tables and documents every media named czar and every actual czar from Wilson to Obama, providing also the relevant information from the authorizing executive order and any presidentially cited statute. Each executive order and statute is cited, and the footnotes for the tables alone run almost thirty pages. This is an impressive amount of work, and it will be of real value to other scholars. Let me give one example.
In particular, this should be of interest to scholars in the unilateral presidency literature. Over the last fifteen years, this scholarship (See the work of William Howell and Kenneth Mayer for examples) has moved away from Richard Neustadt’s declaration that presidential power was merely the power to persuade and instead have recovered the importance of the presidential power to command. Specifically, this approach has found that presidents can and do make policy through executive orders, proclamations, signing statements, etc. Moreover, they have turned to advanced quantitative analysis to understand the conditions under which presidents use these powers, finding that presidents often “think politically” before they act “first and alone.” Sollenberger and Rozell’s charts will be of interest, then, because it offers a way to understand the way a particular kind of executive action (creating a czar) has been used over time. These are significant moments of policy creation, and they can now be studied as a group.
More than a providing a new and different list of what might be called significant executive orders, this data can help advance the unilateral presidency literature in another way. One major problem in this literature is that there have been inconsistent findings regarding the relationship between divided government and unilateral power (it appears that divided government does not encourage unilateral action). But another is that the scholarship hasn’t been able to discern the extent to which presidents use unilateral power to cooperate with (rather than circumnavigate) Congress. The problem here is that it is very hard to determine whether a president cited Congress appropriately or whether a president misused the authorization from Congress. Sollenberger and Rozell give us a nice way to focus on one set of orders to ask whether presidents sometimes work with Congress instead of acting first and alone.
This last point about the difficulty of determining the constitutional intentions of president and Congress brings me to my one criticism of the book and back to the larger public law approach to the presidency. While I count several scholars in this tradition as my friends and am generally sympathetic to their concern with the rule of law, I think that the approach needs to correct two serious flaws as it moves forward.
The first is that this kind of scholarship frequently ends with the exhortation that Congress just do something to assert itself. The problem these scholars want to fix is an old one; it is, as Justice Robert Jackson famously noted, that Congress alone can guard congressional authority from executive overreach. But that in turn raises another problem, a problem that partisans of executive power are sure to exploit. If Congress is complicit, then at some point (and we would have to do some work to figure out where that point is) it becomes a little strange to say that there is some executive power problem from the perspective of the rule of law. If there is a problem, it would have to be with the Constitution itself—members of Congress have the incentive by way of the electoral connection to protect their own interests, but they, unlike presidents, have very little incentive to protect their interest as an institution. If there is a problem, it is one of constitutional design.
The second is that scholars in the public law tradition tend to commit the same kind of willful historical errors that their opponents make. Namely, like the unitarians and behavioralists, they also assume that both democratic theory and the Framers of 1787 unambiguously recommend a certain kind of president. In short, the problem is that that the one group seems to assume that Alexander Hamilton alone created the presidency, and the other group pretends that Hamilton didn’t exist.
Let me provide just one example of this problem from this book’s conclusion. Sollenberger and Rozell quote representative Alexander White in the First Congress as part of their evidence that the Famers took extra precautions to make sure executive action was subject to democratic accountability (177). What they do not say is that White’s comments were given in the context of debates over the removal power and that White’s argument was that the Constitution required the Senate’s participation in removals. White lost that argument to the coalition led by Madison, who argued that democratic accountability required that the president alone possess the power to remove. As the difference between White and Madison in 1789 illustrates, what makes the president and his officers accountable is more open to debate than Sollenberger and Rozell are willing to acknowledge and confront.
I give this example not to conclude that Madison’s argument clearly demonstrated the rightness of the view of executive power championed by Madison or that by modern unitarians (and in full disclosure, I am coauthor on a book on the removal power that argues something else). Rather, I mention it to argue that both camps refer to a constitutional design that is foreign to the one that is easily found in the historical record. That record reveals that the constitutional presidency is some part James Wilson and James Madison, and some part Roger Sherman and Alexander Hamilton. That design was then altered, again, by Hamilton and then by Jefferson. When we speak of the Framers, then, we need to acknowledge the possibility that the presidency they created is one that can accommodate – and even invite — the rival understandings of executive power held by, say, Louis Fisher and John Yoo. This point, I think, should complicate Sollenberger and Rozell’s definition and classification of czars, but it should not discourage anyone from reading this fine book.
Additional Law and Liberty Resources:
A Liberty Law Talk podcast with authors Mark Rozell and Mitchel Sollenberger.