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Wednesday, April 20, 2011

SIGNING AWAY THE CONSTITUTION?

"This is the whole theory of George Bush that he can make up laws as he goes along. I disagree with that. I taught the Constitution for ten years. I believe in the Constitution. And I will obey the Constitution of the United States. We’re not gonna use signing statements as way of doing an end run around Congress."
-Candidate Obama

Recently, congress managed to pass a budget, and in that budget was a reduction in funding for several of President Obama's "Czars." The position of Czar was created by President Nixon, his "energy czar." The idea of a czar is a cheif adviser, a figurehead to represent the president's commitment to a certain policy or concern. Over time, more and more of these czars were created, and depending on how you count them (the title 'czar' is not an official job title), President Obama has from 32 to over 40 such positions, more than any president before him.

Unlike cabinet positions, czars do not need congressional approval, and act independent of congress without any oversight or reporting to committees in congress. Fox News has a list of most of the generally recognized czars in the Obama administration, some of whom no longer are in the position for various reasons:
9/11 Health Czar: John Howard
AIDS Czar: Jeffrey Crowley
Auto Recovery Czar: Ed Montgomery
Border Czar: Alan Bersin
California Water Czar: David J. Hayes
Central Region Czar: Dennis Ross
Climate Czar: Todd Stern
Cyber Czar: Howard Schmidt
Domestic Violence Czar: Lynn Rosenthal
Drug Czar: Gil Kerlikowske
Energy and Environment Czar: Carol Browner
Faith-Based Czar: Joshua DuBois
FCC Diversity Czar: Mark Lloyd
Government Performance Czar: Jeffrey Zients
Great Lakes Czar: Cameron Davis
Guantanamo Closure Czar: Daniel Fried
Health Czar: Nancy-Ann DeParle
Information Czar: Vivek Kundra
Intellectual Property Czar: Victoria Espinel
Intelligence Czar: James Clapper
Manufacturing Czar/Car Czar: Ron Bloom
Mideast Peace Czar: George Mitchell
Oil Spill Czar: Ray Mabus (possibly retired)
Oil Spill Escrow Fund Czar: Kenneth Feinberg
Regulatory Czar: Cass Sunstein
Safe Schools Czar: Kevin Jennings
Science Czar: John Holdren
Stimulus Accountability Czar: Earl Devaney
Sudan Czar: J. Scott Gration
TARP Czar: Herb Allison
Technology Czar: Aneesh Chopra
Terrorism Czar: John Brennan
Urban Affairs Czar: Adolfo Carrion Jr.
War Czar: Douglas Lute
Weapons Czar: Ashton Carter
WMD Policy Czar: Gary Samore

Former Czars
Economic Czar: Paul Volcker (Volcker is expected to leave the Economic Recovery Advisory Board)
Ethics Czar: Norm Eisen (Eisen was appointed last year to be U.S. ambassador to the Czech Republic)
Afghanistan Czar: Richard Holbrooke (deceased December 13 2010)
When President Obama had the budget bill in front of him, he signed the bill, then issued a "signing statement" accompanying his approval of the bill, claiming section 2262, which defunded some of his czars, wasn't passed and did not apply. How can he claim this? Courtesy Jake Tapper, here's the argument president Obama gave:
“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” he wrote. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it. Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.”
The United States Constitution creates three co-equal and distinct branches of federal government: judicial (supreme court), executive (president) and legislative (congress). Each one of these branches is supreme in its area of power and has no power outside that.

President Obama is arguing that his constitutional authority over the executive department overrules congressional legislation limiting it. The constitution is very strong on this principle of "separation of powers" which prevents one branch of government from overstepping its boundaries, creating a theoretical balance between each and preventing one from gaining too much power.

What President Obama is relying on is a general interpretation of this separation of powers which claims that while congress has the power to pass bills and control the appropriation of funds, any such legislation cannot tell the executive branch exactly how to spend that money. In other words, the argument is that congress can pass a law giving the executive branch a set sum of money to spend, but it cannot say precisely how that money is to be spent outside general categories (intelligence, maintenance of the white house, etc).

The US Constitution does not say one way or another, but that's how the general interpretation of the separation of powers has gone in recent decades. That's why "earmarks" exist; most of them are suggestions how the executive department agencies should spend the money congress is sending them. Now, it isn't just the privilege but it is the duty of each branch to zealously defend this balance of powers so that no one branch becomes more powerful than the others.

Had congress passed a law saying that President Obama could not select Czars, or a law that said one Czar position was eliminated, that would be the legislative branch overstepping its limits and trying to do what only the executive branch is given power to do under the US Constitution.

I cannot find the exact wording of Rider 2262 to the 2012 budget, so I cannot say for certain, but the way this bill is worded, it appears President Obama actually has a pretty good case for refusing to obey that portion of the law. The bill specifically told the White House specific czars couldn't be funded; the executive department reserves that privilege for its self.

Had congress simply reduced the amount allocated to pay all advisers by the total each of these advisers was paid, then he would have had no case, but it does not appear that was how it was done.

*This was originally posted at the Washington Examiner Opinion Zone in a slightly smaller format.

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