But Don’t Call Them Czars

Eight years ago, when President Obama took office, Faux News and others spent a good chunk of their time complaining about President Obama’s use of “czars.”  By czar, they meant members of the White House staff who did not have to face Senate confirmation who were assigned responsibility for certain policy areas.  Now that Republicans are back in the White House, they are about to learn the same lesson that the George W. Bush and the Obama Administrations knew — that the White House staff serves an important role in a functioning government.  But, you can be pretty sure that these positions will not be referred to as czars by Fox News.

There are several reasons why Presidents tend to depend on “staff” advisors rather than executive branch people subject to Senate confirmation.  The first reason has to do with the nature of Senate confirmations.

Most of our allies are parliamentary democracies.  While there is some distinction between the appointees to ministries (mostly members of parliament) and the Prime Ministers personal staff, the bottom line in most parliamentary democracies is that parliament does not individually confirm members of the government.  Depending on the country, parliament may have a single vote to approve the entire government (but, in others, the government takes power without any formal vote).  This process puts the full government in place on Day 1 of the new government.

The United States, however, requires individual confirmation of individual officials.  This process requires a review of the nominee (often involving a hearing) by the relevant Senate committee (or committees) followed by a vote of the full Senate.  As a general rule, anybody serving as head of a sub-level of a cabinet department or of an agency (and the general counsels to such individuals) requires Senate confirmation.  Additionally, every U.S. Attorney and Marshall (one for each of the ninety-three districts) needs Senate confirmation.  Furthermore, all promotions above certain ranks in the armed forces, public health service, and foreign service requires Senate confirmation.  Given the large number of government positions that require Senate confirmation, this process takes a substantial amount of time.  Because of this process, even a successful administration typically has some positions that are filled by somebody in an “acting” capacity — more likely to be a civil servant than a political appointee, particularly at the lowest levels requiring Senate confirmation.

By contrast, most staff positions in the White House do not require Senate confirmation.  Subject to budget limitations (how many positions are funded), the President can place whomever he wishes into the staff positions and assign them whatever responsibility he wishes.  Simply put, the White House staff can be filled a lot faster than the senior positions in the cabinet departments and independent agencies.  For those issues that are top priorities for a new administration, it makes sense to assign responsibility for putting together the proposal to a member of the White House staff who is already in place rather than waiting for a sub-cabinet official who might not get confirmed for another seven or eight months.

Second,  many of the positions that require Senate confirmation also have responsibilities assigned to them by statute or regulation.  Simply put, they have day-to-day responsibilities making the big management decisions to assure that their departments pursue the president’s priorities and reviewing new and revised regulations.  The need to focus on regulatory changes can’t be overstated.  Many statutes give the various departments broad discretion in implementing the basic policies contained within the statute.  While interested parties can challenge those regulations if they are not consistent with the statute, regulations that are consistent with the governing statute have the effect of law.  While some of the work of drafting is done by career staff, it is still the duty of the political appointees to make sure that the regulation does what the administration wants it to do (i.e. goes as far as the administration thinks it can go to make the regulations consistent with the administration’s view of how things should be) and does not contain any language that could be used to frustrate the administration’s goals.

While administrations may assign staff members to review new regulations submitted by the various departments and agencies, that responsibility is not statutory.  With limited exceptions (e.g., the Director of the Office of Management and Budget which is subject to Senate confirmation), if the president wants to designate a staff member as special counsel for trade and tax policy, he can do so.  That person can then coordinate with the relevant departments and agencies (Treasury, Commerce, Office of U.S. Trade representatives) to get all of the information together and put forth a unified set of policy proposals for the president to review and decide what statutory and regulatory changes to pursue.  More importantly, this person has close access to the president and senior staff to keep them in the loop on various ideas being considered.

Third, assigning a task to staff rather than a department or agency reduces the influence that the department or agency has in the process.  When a department official is in charge of coordinating policy, that department gains additional influence in the process.  The core functions of a department inevitably color how the senior civil servants in that department view issues.  Furthermore, with some exceptions, the political appointees in a department tend to have backgrounds that overlap somewhat with the institutional bias of their departments.  To use the trade policy topic, a review headed by Treasury tends to be more tax focused and a review headed by Commerce is more likely to be more focused on non-tax barriers to trade.   While any review should give all departments a chance for input, the senior civil servants in the office coordinating the work will inherently get more input from direct access to that person.  There will be issues on which those civil servants will oppose proposals simply because “that’s not how we do things here.”    While the departments and agencies will still get input on a review coordinated out of the White House, no single department will have outsized influence.

In short, the nature of the U.S. government results in the White House staff taking lead in drafting major policy positions of the administration.  It is likely to remain the same in the Trump Administration.  However, that curious silence that you hear will be conservatives not making any noise about the power of “czars” in the Trump Administration.

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