The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight

Congressional research reportMar 31, 2014

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The Debate Over Selected Presidential

Assistants and Advisors: Appointment,

Accountability, and Congressional Oversight

/name redacted/

Analyst in American National Government

/name redacted/

Legislative Attorney

/name redacted/

Legislative Attorney

/name redacted/

Specialist in American National Government

March 31, 2014

Congressional Research Service

7-....

www.crs.gov

R40856

Selected Presidential Assistants and Advisors

Summary

A number of the appointments made by President Barack H. Obama to his Administration or by

Cabinet secretaries to their departments have been referred to, especially by the news media, as

“czars.” For some, the term is used to convey an appointee’s title (e.g., climate “czar”) in

shorthand. For others, it is being used to convey a sense that power is being centralized in the

White House or certain entities. When used in political science literature, the term generally

refers to White House policy coordination or an intense focus by the appointee on an issue of

great magnitude. Congress has noticed these appointments and in the 111th Congress examined

some of them. The Senate Subcommittee on the Constitution of the Committee on the Judiciary,

and the Senate Committee on Homeland Security and Governmental Affairs, for example,

conducted hearings on the “czar” issue on October 6, 2009, and October 22, 2009, respectively.

One issue of interest to Congress may be whether some of these appointments (particularly some

of those to the White House Office), made outside of the advice and consent process of the

Senate, circumvent the requirements of the Appointments Clause of the U.S. Constitution. A

second issue of interest may be whether the activities of such appointees are subject to oversight

by Congress.

This report provides background information and selected views on the role of some of these

appointees. Additionally, it discusses some of the constitutional concerns that have been raised

about presidential advisors. These include, for example, the kinds of positions that qualify as the

type that must be filled in accordance with the Appointments Clause, with a focus on examining a

few existing positions established by statute, executive order, and regulation. The report also

reviews certain congressional oversight processes and assesses the applicability of these

processes to presidential advisors. Legislative and non-legislative options for congressional

consideration are presented.

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Contents

Introduction...................................................................................................................................... 1

Background ...................................................................................................................................... 2

Selected Views on Special Assistants and Their Roles.............................................................. 5

Pay and Reporting Requirements for White House Staff .......................................................... 9

Vetting of Appointees .............................................................................................................. 10

Background Investigations ................................................................................................ 11

Financial Disclosure .......................................................................................................... 15

Outside Employment Limitations............................................................................................ 16

Appointments Clause and Presidential Advisors ........................................................................... 19

Officer/Employee .................................................................................................................... 20

Principal Officer/ Inferior Officer ........................................................................................... 23

Analyses of Certain Presidential Advisors .............................................................................. 24

Director of the Office of National Drug Control Policy.................................................... 24

Director of Urban Affairs .................................................................................................. 25

Special Master for TARP Executive Compensation .......................................................... 26

Summary of Presidential Advisor Analyses ...................................................................... 28

Congressional Oversight of Presidential Advisors ........................................................................ 28

Congress’s Oversight Authority............................................................................................... 28

The Relationship Between Advice and Consent and Congressional Oversight ...................... 30

Potential Legal Bases for the Denial of Access to Presidential Advisors ................................ 31

The Deliberative Process Privilege ................................................................................... 32

Executive Privilege ........................................................................................................... 32

Application to Potential Congressional Oversight of Presidential Advisors ..................... 40

Options for Congressional Consideration ...................................................................................... 41

Legislative Options.................................................................................................................. 41

Option: Report and Wait Provision ................................................................................... 41

Option: Add Advice and Consent Positions in the EOP .................................................... 42

Option: Reduce and/or Confirm Presidential Staff............................................................ 43

Oversight Options.................................................................................................................... 44

111th Congress Hearings ................................................................................................................ 46

Senate Committee on the Judiciary, Subcommittee on the Constitution ................................. 46

Senate Committee on Homeland Security and Governmental Affairs .................................... 52

Contacts

Author Contact Information........................................................................................................... 59

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Introduction1

Article II, Section 2 of the U.S. Constitution provides that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for,

and which shall be established by Law: but the Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.

A number of the appointments made by President Barack H. Obama to his Administration or by

Cabinet Secretaries to their departments have been referred to, especially by the news media, as

“czars.”2 For some, the term is being used to convey an appointee’s title (e.g., climate “czar”) in

shorthand. For others, it is used to convey a sense that power is being centralized in the White

House or certain entities. When used in political science literature, the term generally refers to

White House policy coordination or an intense focus by the appointee on an issue of great

magnitude.

Congress has noticed these appointments and in the 111th Congress examined some of them. The

Senate Subcommittee on the Constitution of the Committee on the Judiciary, and the Senate

Committee on Homeland Security and Governmental Affairs, for example, conducted hearings on

the “czar” issue on October 6, 2009, and October 22, 2009, respectively.3

Legislative action has focused on prohibitions on the use of appropriated funds to compensate

certain appointees. P.L. 113-76, the Consolidated Appropriations Act, 2014, enacted on January

17, 2014, prohibits the use of funds to pay the salaries and expenses for the (1) Director, White

House Office of Health Reform; (2) Assistant to the President for Energy and Climate Change;

(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the

Auto Industry and Senior Counselor for Manufacturing Policy; and (4) White House Director of

Urban Affairs.4 A similar provision was included in P.L. 112-74, the Consolidated Appropriations

Act, 2012, enacted on December 23, 2011.5 Division C of the law included the Financial Services

and General Government (FSGG) Appropriations Act. The Office of Management and Budget’s

(name redacted), Analyst in American National Government in the Government and Finance Division (7-....),

wrote this section.

The use of the term “czar” to refer to government officials is not new. In the 19th century, for example, these officials

had that moniker attached to their names: Nicholas Biddle, President of the Bank of the United States, during the “bank

wars”; Andrew Johnson, President of the United States, during Reconstruction; and Thomas Reed, Speaker of the

House of Representatives, during disputes over the rules for the consideration of legislation. see Ben Zimmer, “Czar

Wars,” Slate, December 29, 2008. Hereinafter referred to as Zimmer on Czars. Additionally, in the 20th century,

President Calvin Coolidge appointed Herbert Hoover, the Secretary of Commerce, and gave him “near-absolute

authority to organize and oversee” the federal government response to the Flood of 1927. See CRS Report RL33126,

Disaster Response and Appointment of a Recovery Czar: The Executive Branch's Response to the Flood of 1927, by

(name redacted).

A summary of the hearings is included in this report.

Division E, §621, the Financial Services and General Government Appropriations Act, statutory citation not yet

available.

Division C, §627, the Financial Services and General Government Appropriations Act, 125 Stat. 786, at 927.

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Statement of Administration Policy on this provision reiterated the President’s authority with

regard to appointments in stating that,

Section 632 would prohibit the use of funds for several positions that involve providing

advice directly to the President. It also would deny funding for any “substantially similar

positions.” As the President indicated in an April 15, 2011 statement regarding virtually

identical provisions in prior legislation, the President has well-established authority to

supervise and oversee the Executive Branch, and to obtain advice in furtherance of this

supervisory authority. 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 advisors within it.

One issue of interest to Congress may be whether some of these appointments (particularly some

of those to the White House Office), made outside of the advice and consent process of the

Senate, circumvent the requirements of the Appointments Clause of the U.S. Constitution. A

second issue of interest may be whether the activities of such appointees are subject to oversight

by, and accountable to, Congress.

This report provides background information and selected views on the role of some of these

appointees, provides legal analyses of the appointments clause and oversight by Congress of

presidential advisors, and discusses options to enhance the accountability of such appointees to

Congress.

Background7

Every American President, since George Washington, has needed advice and assistance. The

President’s Committee on Administrative Management (commonly referred to as the Brownlow

Commission), which had been established by President Franklin D. Roosevelt, closely examined

this need. The committee’s charge, “A careful study of the organization of the Executive branch

of the Government ... with the primary purpose of considering the problem of administrative

management,”8 resulted in a report that was submitted to the President and then released to

Congress on January 12, 1937. Stating that, “The President needs help,” the committee

U.S. Executive Office of the President, Office of Management and Budget, Statement of Administration Policy, H.R.

2434, Financial Services and General Government Appropriations Act, 2012, July 13, 2011, pp. 4-5, available at

http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saphr2434r_20110713.pdf. P.L. 112-10, the

Department of Defense and Full-Year Continuing Appropriations Act, 2011, (H.R. 1473) enacted on April 15, 2011,

included another similar provision. In the statement accompanying the signing of the bill, President Obama stated the

following: 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. Therefore, the executive branch will construe section 2262 not to abrogate these Presidential

prerogatives. See The White House, Office of the Press Secretary, “Statement by the President on H.R. 1473,” April

15, 2011, available at http://www.whitehouse.gov/the-press-office/2011/04/15/statement-president-hr-1473.

(name redacted), Analyst in American National Government in the Government and Finance Division (7-....),

wrote this section.

U.S. Congress, House Committee on Post Office and Civil Service, Subcommittee on Employee Ethics and

Utilization, Presidential Staffing-A Brief Overview, committee print, 95th Cong., 2nd sess., July 25, 1978, 95-17

(Washington: GPO, 1978), p. 42. Hereinafter referred to as Overview of Presidential Staffing. Staff of the

Congressional Research Service at the Library of Congress prepared the document, with (name redacted), formerly

Specialist in American National Government, (now retired) as the lead author.

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recommended that the President “should be given a small number of executive assistants who

would be his direct aides in dealing with the managerial agencies and administrative departments

of the Government.”9 The Reorganization Act of 1939 “empowered the President to propose plans

of reorganization, subject to a veto by a majority of both houses of Congress, and to also appoint

six administrative assistants.”10 On September 8, 1939, President Roosevelt issued Executive

Order (E.O.) 8248, to create the enclave of federal agencies known as the Executive Office of the

President (EOP). Many, if not most, of the President’s closest advisors and assistants on matters

of policy, politics, administration, and management are within the EOP. Over time, some of the

EOP’s components have been created by the President and others have been established by

Congress.11 Some components, such as the White House Office (WHO),12 Office of Management

and Budget (OMB, formerly the Bureau of the Budget), the Council of Economic Advisers, and

the National Security Council, have endured to the present day, appearing to hold permanent

status.13

Notwithstanding these continuing functions, a President may have need for special assistance that

a new White House office or position may provide.14 As described by one scholar,

No president is confined by the organization charts of the past.... A president’s priorities

change—as do his views of the nation’s priorities—and may well expand in new directions.

The White House, as the support center for furthering those priorities, will be flexible and

Ibid., p. 46.

Reorganization Act of 1939, April 3, 1939, ch. 36, 53 Stat. 561 (1939).

Two such components, the Office of National Drug Control Policy and the Office of Science and Technology Policy,

that are now authorized by statute (P.L. 100-690, November 18, 1988; 21 U.S.C. §1702(b)(1); P.L. 94-282, May 11,

1976; 42 U.S.C. §6612), began as EOP staff positions: the Special Assistant to the President for Science and

Technology (1957) and the Director, Special Action Office for Drug Abuse Prevention and Special Consultant to the

President for Narcotics and Dangerous Drugs (1971).

The term “White House” is used in common parlance to denote various groupings of entities (e.g., the White House

Office alone, the EOP, the Administration, or the President and his top advisors). The term “White House Office” is

generally used to refer to a specific organizational unit within the EOP.

For a history of the Executive Office of the President, see (name redacted), The Executive Office of the President A

Historical, Biographical, and Bibliographical Guide (Westport, CT: Greenwood Press, 1997). The Financial Services

and General Government appropriations bill provides funding for all but three offices under the EOP. See “Executive

Office of the President and Funds Appropriated to the President,” by (name redacted) in CRS Report R43352,

Financial Services and General Government (FSGG): FY2014 Appropriations, coordinated by (name redacted). Of the

three exceptions, the Council on Environmental Quality and the Office of Environmental Quality are funded as a single

unit in the Interior, Environment, and Related Agencies Appropriations Act, and the Office of Science and Technology

Policy and the Office of the United States Trade Representative are funded in the Commerce, Justice, Science, and

Related Agencies Appropriations Act. See CRS Report R43142, Interior, Environment, and Related Agencies: FY2013

and FY2014 Appropriations, by (name redacted), and CRS Report R43080,

Commerce, Justice, Science, and

Related Agencies: FY2014 Appropriations, coordinated by (name redacted), (name redacted), and (name redacted)

The President is not alone in seeking ways to address important public policy issues that cut across department and

agency boundaries. Congress has established a range of interagency coordinative mechanisms for this purpose,

including a number of officers that are charged with coordinating among multiple organizations. Among these are the

Office of the Director of National Intelligence, the Office of National Drug Control Policy, and the newly created

Intellectual Property Enforcement Coordinator (15 U.S.C. §8111). See also the archived CRS Report RL31357,

Federal Interagency Coordinative Mechanisms: Varied Types and Numerous Devices, by (name redacted), and

CRS Report R41803, Interagency Collaborative Arrangements and Activities: Types, Rationales, Considerations, by

(name redacted). The latter report discusses the position

of Director of National Intelligence (DNI) established by

the Intelligence Reform and Terrorism Prevention Act of 2004. By statute the DNI is responsible for coordinating

national intelligence activities throughout the federal government and his work is overseen by the two congressional

intelligence committees (among others). For additional information, see the archived CRS Report RL34231, Director

of National Intelligence Statutory Authorities: Status and Proposals, by (name redacted).

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will adapt to those changes. Its organizational structure will jump beyond the “continuing”

arrangements. If a president wants to begin important new initiatives, to dramatize the extent

of his personal commitment, to respond quickly to today’s crisis or tomorrow’s threat, he

will be pressed to create new organizational forms to support his efforts.15

The “czar” moniker has been attached to some of these special assistant positions since at least

the Administration of President Roosevelt.16 A cartoon drawn by Clifford Kennedy Berryman and

published on September 7, 1942, probably in the Evening Star (Washington, DC), showed three

of President Roosevelt’s appointees—“czar” of prices, Leon Henderson; “czar” of production,

Donald Nelson; and “czar” of ships, Emory S. Land—crowded together on one throne, wearing

crowns and ermine-trimmed robes, and wondering where the new economic “czar” would sit.17

Succeeding Presidents appointed special assistants who were similarly, at times, referred to by the

news media as “czars.” As examples, President Richard Nixon appointed John Love, the so-called

energy “czar,” as the Director of the Office of Energy Policy in 1973, and President Clinton

appointed John Koskinen, the so-called Y2K “czar,” as the chairman of the President’s Council

on Y2K Conversion in 1998.18

Early in his Administration, President Obama created several new positions, including the

Assistant to the President for Energy and Climate Change, the Deputy Assistant to the President

and Director of Urban Affairs, and the Director, White House Office of Health Reform, that were

not subject to Senate confirmation, the incumbents of which were dubbed “czars.” Additionally,

several sub-Cabinet-level positions that require Senate confirmation have similarly been termed

“czars.” For example, David Hayes was referred to by some in the news media as the “water

czar’’ during his tenure as Deputy Secretary at the Department of the Interior.19 Further, the

incumbents of some other positions that are authorized in statute and subject to Senate

confirmation, such as the Administrator of the Office of Information and Regulatory Affairs at the

Office of Management and Budget, have also been referred to as “czars.” Several Special Envoy

or Special Representative positions, such as the Special Envoy for the Middle East, have been

similarly described.20

Bradley H. Patterson, Jr., “First Magnitude Czars: Special Assistants for Special Purposes,” Chapter 17 in The White

House Staff Inside the West Wing and Beyond (Washington, DC: Brookings Institution Press, 2000), p. 263. Hereinafter

referred to as White House Staff. Mr. Patterson served on the White House staff during the Administrations of Dwight

Eisenhower, Richard Nixon, and Gerald Ford.

See also, (name redacted), “The Coming of Presidential Czars and Their Accountability to Congress: The Initial

Years: 1937-1945,” White House Studies, vol. 11, issue 1, (2011), pp. 1-20. See also, (name redacted) and

Mark J. Rozell, The President’s Czars Undermining Congress and the Constitution (Lawrence, Kansas: University of

Kansas Press), 2012.

The description of the cartoon is taken from the catalog card: U.S. Library of Congress, Prints and Photographs

Division, Cartoon Collection, Call number CD 1-Berryman (C.K.), no. 182 (A size)<P&P>[P&P], and Zimmer on

Czars.

William W. Hogan, “Energy Modeling for Policy Studies,” Operations Research, vol. 50, issue 1 (January/February

2002), p. 89. According to this source, Mr. Love was “the first of a string of energy czars ... down through the Federal

Energy Regulatory Administration and then the Department of Energy.” Today, Mr. Koskinen is referred to as the Y2K

“czar,” but during the time that he served, the news media generally referred to him by his title, with just the headlines

of several articles dubbing him the “Y2K guru” or the “millennium man.” Will Englund, “Czar Wars,” National

Journal, February 14, 2009, pp. 21-22. Hereinafter referred to as Czar Wars.

The Senate confirmed Mr. Hayes by voice vote on May 20, 2009. Senator Dianne Feinstein has stated her view that

the “czar” moniker is inappropriate for Mr. Hayes: “If you look over certain people [who] have real titles and real

authority, I don’t think it’s quite fair to call, for example, David Hayes at the Department of Interior a czar.” Manu

Raju, “Democrats Join GOP Czar Wars,” Politico, September 17, 2009, p. 26.

These positions were discussed in the section entitled “Selected Special Assistants and Advisors in the Obama

(continued...)

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Selected Views on Special Assistants and Their Roles21

As envisioned by the Brownlow Commission, which had recommended a few (“probably not

exceeding six”) additional executive assistants to the President, the aides were to have “no power

to make decisions or issue instructions in their own right” and be “possessed of high competence,

great vigor, and a passion for anonymity.”22 An analysis of the commission’s suggestion for such

staff observed that

These men were to act as anonymous servants exercising no initiative independently of the

President’s wishes. No authority was delegated to them. Their function was to extend the

President’s power to listen wherever useful information could be gathered and to see

whatever needed to be seen to provide the information required for decisions. In order to

give them the utmost responsibility, to presidential will, as well as ultimate flexibility, their

functions were not to be defined except as the President saw fit to define them. As such they

would not constitute either an additional institution or certainly not an independent one, but

rather an extension of the Presidency itself.23

Indeed, President Roosevelt’s executive order stated that the administrative assistants should have

“‘no authority over anyone in any department or agency’ and should ‘in no event be interposed

between the President and the head of any department or agency.’”24

Since this beginning, Presidents have continued, at times, to appoint special assistants as a way to

reassure the public that immediate and sustained attention is being devoted and a broad viewpoint

is being applied to crisis situations or problems that cut across departments and agencies. One

scholar has noted that, “the expectations surrounding presidential performance far outstrip the

institutional capacity of presidents to perform,” and therefore

This gives presidents a strong incentive to enhance their capacity by initiating reforms and

making adjustments in the administrative apparatus surrounding them—but here too there is

a fundamental imbalance: the resources for acting upon this strong incentive are wholly

inadequate, constrained by political and bureaucratic opposition, institutional inertia,

inadequate knowledge, and time pressures. It is this imbalance that channels presidential

(...continued)

Administration” in the first edition of this report, published on October 9, 2009 (available from CRS, by request). See a

CRS Memorandum entitled “Selected Presidential Assistants and Advisors in the Administration of President Barack

H. Obama,” by (name redacted) and (name redacted), originally published on December 3, 2009, and updated on

December 16, 2013, and a CRS Memorandum entitled “Selected Presidential Assistants and Advisors in the

Administrations of Presidents Franklin D. Roosevelt Through Barack H. Obama,” by (name redacted), (name red

acted), and Maureen Bearden, dated December 3, 2009. S ee also, Aaron J. Saiger, “Obama’s ‘Czars’ for Domestic

Policy and the Law of the White House Staff,” Fordham Law Review, vol. 79, no. 6, (2011), pp. 2577-2615, and

Jonathan D. Puvak, “Executive Branch Czars, Who Are They? Are They Needed? Can Congress Do Anything About

Them?” William and Mary Bill of Rights Journal, vol. 19, no. 4, (2011), pp. 1091-1117.

(name redacted), Analyst in American National Government in the Government and Finance Division (7-....),

wrote this section.

Overview of Presidential Staffing, pp. 46, 55.

Ibid., p. 56.

Arthur M. Schlesinger, Jr., The Cycles of American History (New York: Houghton Mifflin, 1986), pp. 333-334,

quoting the executive order. Hereinafter referred to as Cycles of American History.

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effort into areas of greatest flexibility and generates the major institutional developments we

observe, politicization and centralization.25

Describing a subset of special assistants in the Administration of President Dwight Eisenhower as

“Very Special Assistants for Very Special Problems,” another scholar stated this rationale for

them:

From time to time every President is presented with a public policy issue of extraordinary

messiness: an aroused public demanding action, many departments involved, political

opponents charging that he is asleep when he should be grabbing the wheel. Substantive

responses may require billions; thoroughgoing reorganizations will take years—and the

President has neither. He does, however, have an instant option which will portray himself as

taking charge and as jolting stodgy governmental machinery to move faster: he can appoint a

White House “Czar.” No Senate confirmation is needed and a suite can always be found in

the Executive Office Building next door. It is a legitimate presidential gambit; the “czar”

sometimes achieves real success (although often being a pain in the side to the Cabinet).26

The title of special assistant conveys “a sense of action” and the individual is frequently

announced, sometimes with considerable fanfare,27 as one who will “knock heads,” “cut red

tape,” and “ensure coordinated effort.”28 Whether such an appointee ultimately performs his or

her role in this manner is uncertain at the outset. As one reporter wrote with regard to two of the

current Administration’s appointees,

The new White House Office of Urban Policy might work in lockstep with the Domestic

Policy Council, the National Economic Council, and a host of departments and agencies. Or

maybe not.

Obama’s new White House office for energy and climate change ... may work

companionably with the White House Council on Environmental Quality, the president’s

national security adviser, the president’s science adviser, the NEC [National Economic

Council], the new administrator at EPA [Environmental Protection Agency], and the Ph.D.

physicist chosen to lead the Energy Department. Or maybe not.29

According to another reporter, a “czar” “has to drive those he’s working with toward a plan to

present to the president,” but some aspects of the role are undefined:

Budgetary power? Not clear. Accountability? Not to Congress. The capacity to dictate

policy? Umm, probably not. The ability to impose solutions through sheer force of

personality? In some cases, most likely yes.30

Terry M. Moe, “The Politicized Presidency,” Chapter Nine in John E. Chubb and Paul E. Peterson, eds., The New

Direction in American Politics (Washington: The Brookings Institution, 1985), p. 269.

Bradley H. Patterson, Jr., “Teams and Staff: Dwight Eisenhower’s Innovations in the Structure and Operations of the

Modern White House,” Presidential Studies Quarterly, vol. 24, issue 2 (Spring 1994), article begins on p. 277.

In an address before a joint session of Congress on September 20, 2001, President George W. Bush announced that

he was creating a new Cabinet-level Office of Homeland Security in the White House and appointing Governor Tom

Ridge as his Assistant to the President for Homeland Security. Governor Ridge later became the first Secretary of

Homeland Security at the Department of Homeland Security, established by P.L. 107-296, enacted on November 25,

2002.

White House Staff, p. 264.

Alexis Simendinger, “Agents of Change,” National Journal, January 10, 2009, pp. 18-19.

Czar Wars, p. 18.

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More generally, the size of the White House staff is sometimes raised as a concern when

presidential appointments are discussed.31 Some caution that too many advisors may insulate the

President, diminishing his “direct influence and dilut[ing] the impact of his personal

leadership.”32 In his book entitled The Cycles of American History, the historian Arthur M.

Schlesinger, Jr., observed that “The larger the staff grows, the more endless meetings the staff

calls, the more useless paper the staff generates, the more the President will hunker up behind it;

the less he will know what is going on. The staff becomes the shock absorber, shielding the

President against the facts of life.”33

Lines of authority may also be more difficult to discern, as another scholar asserts:

The historical record suggests that czars generally fail to find solutions to the problems they

are commissioned to confront. Instead, czars confuse matters. They disrupt lines of authority

and accountability and they compromise bureaucratic discipline. They sometimes foment

suspicion on Capitol Hill and rivalries within the Executive branch. The mere presence of

policy “czardoms” undermines the morale of officials in the standing table of organization

who retain responsibility for developing and implementing policy while their authority and

credibility are eclipsed by the czar.34

The decline of the Cabinet “as a useful instrument of presidential counsel or assistance” is often

mentioned as a consequence of concentrating power in White House assistants.35 A document

published by the Center for the Study of the Presidency expressed the view that “the Cabinet has

been subordinated to the Presidential staff” since the Administration of President John F.

Kennedy.36 Mr. Schlesinger described the effect of concentrated power in the White House of

President Richard Nixon, for example, as enfeebling the Cabinet, which “became, with few

exceptions, a collection of faceless clerks.”37 This lessening of the Cabinet’s role was described in

a May 1971 speech by Senator Ernest F. Hollings, when he remarked that

It used to be that if I had a problem with food stamps, I went to see the Secretary of

Agriculture, whose Department had jurisdiction over that program. Not any more. Now, if I

want to learn the policy, I must go to the White House and consult John Price. If I want the

latest on textiles, I won’t get it from the Secretary of Commerce, who has the authority and

For a review and analysis of selected literature on White House staffing, see Charles E. Walcott and Karen M. Hult,

“White House Structure and Decision Making: Elaborating the Standard Model,” Presidential Studies Quarterly, vol.

35, no. 2 ( June 2005), pp. 303-318.

Cycles of American History, p. 334.

Ibid., p. 335. Similar views are expressed by Stephen Hess, Organizing the Presidency (Washington: Brookings

Institution Press, 2002), p. 208: “The presidents’ solution so far-salvation by staff-is self-defeating. An enlarged White

House staff overprotects presidents in a political environment where their greatest need is the need to know.

Sycophancy can replace independent judgment. By extending the chain of command, presidents have built additional

delay and distortion into the system.”

John Mead Flanagin, “Less is More: A New Staff Structure for the White House,” Presidential Studies Quarterly,

vol. 25, issue 2 (Spring 1995), pp. 212-213.

Overview of Presidential Staffing, p. 68.

Bradley D. Nash with Milton S. Eisenhower, R. Gordon Hoxie, and William C. Spragens, Organizing and Staffing

the Presidency, Center for the Study of the Presidency (Washington: 1980), p. 156. This document, while

acknowledging that special assistants “are indeed a reflection of the President’s concern with matters of major

urgency,” recommended that “a number of these positions might be encompassed within the Cabinet Departments, to

the substantial upbuilding of each Cabinet Officer’s standing before the Congress, the public and the Executive

Branch,” p. 169.

Cycles of American History, p. 334.

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responsibility. No, I am forced to go to the White House and see Mr. Peter Flanigan. I

shouldn’t feel too badly. Secretary Stans [Secretary of Commerce] has to do the same

thing.38

John Podesta, a former White House Chief of Staff, who headed President Obama’s transition

team, believes that “the very strong or important role that Cabinet secretaries play” is not being

displaced by the current Administration. As quoted in a National Journal article, he emphasized,

however, that, “when you have problems that really cut across a swath of agencies, it’s very

important with respect to the president’s priorities to have a strong central place within the White

House where people can get on the same strategy and that actions are keyed up and accountability

exists.”39

An expert on government and organization, however, believes that, in the end, the efficient

operation of government that is sought through such approaches to management as creating czars

may not be the outcome that is achieved:

Presidents, not caring about management, tend to rely on political personnel to overcome

what they believe to be bureaucratic resistance and incompetence. Instead of properly

reconstructing the institutional capacity of the presidency, they are lured by ‘shortcuts.’ ...

Therefore, among other things, they tend to create ‘czars’ who are deemed, at least initially,

to be close to the president and thus can get around the departments and agencies to achieve

their policy objectives, many of which are not enumerated in law. Presidents are always

tempted to bring issues to the White House, but then when they do, they often regret the

stress it puts upon themselves and their limited institutional resources.40

More than 30 years ago, a study of presidential staffing concluded that, “White House assistants

to succeeding presidents, since 1939, have become highly conspicuous, multiple in number,

possessed of great power, and virtually unaccountable to anyone but the Chief Executive for their

actions.”41 The question of accountability reverberates today. One scholar who questions whether

these positions should continue to be outside of the advice and consent of the Senate process has

suggested that, “we need to seriously consider requiring Senate approval of senior White House

staff positions.” He recommends that such a requirement not become effective until January 2017,

however, “To allow for thoughtful bipartisan deliberation” and to encourage Congress “to take the

long view of whether senatorial confirmation is appropriate in terms of constitutional design.”42

Another viewpoint holds that significant authority can only be conferred by the U.S. Constitution

or Congress and that “To subject the qualifications” of special assistants (who “In many respects

Overview of Presidential Staffing, pp. 60-61, quoting Dom Bonafede, “Ehrlichman Acts As Policy Broker in Nixon’s

Formalized Domestic Council,” National Journal, June 12, 1971, p. 1240.

Czar Wars, p. 19. For an analysis of presidential management, see Andrew Rudalevige, Managing the President’s

Program Presidential Leadership and Legislative Policy Formulation (Princeton, N.J.: Princeton University Press,

2002). As stated by the author, “the book develops a theory of ‘contingent centralization’ predicting when presidents

will rely on White House staff as opposed to departmental resources; traces the formulation of presidential legislative

proposals from 1949 to 1996, using a wide array of archival sources, and quantitatively tests the conditions under

which presidents follow centralized strategies; and also shows how different formulation strategies matter to the

proposals’ reception in Congress.”

Dr. (name redacted), formerly Specialist in Government Organization and Management at the Library of Congress,

Congressional Research Service (now retired), quoted in Czar Wars, p. 24.

Overview of Presidential Staffing, p. 56.

Bruce Ackerman, “A Role for Congress to Reclaim,” Washington Post, March 11, 2009, p. A15. The writer is a

professor of law and political science at Yale University.

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... are equivalent to the personal staff of a member of Congress”) “to congressional scrutiny—the

regular confirmation process—would trench upon the president’s inherent right, as the head of an

independent and equal branch of the federal government, to seek advice and consent where he

sees fit.”43

Regardless of which viewpoint one subscribes to, “The Constitution grants Congress extensive

authority to oversee and investigate executive branch activities” through the “review, monitoring,

and supervision of the implementation of public policy.”44 Several options for congressional

oversight of presidential advisors are discussed later, below.

Pay and Reporting Requirements for White House Staff45

Section 105 of Title 3 of the United States Code authorizes the President to appoint and fix the

pay of employees in the White House Office “who shall perform such official duties as the

President may prescribe.” With regard to employees at the highest pay grades, the President may

appoint 25 employees at salaries that may not exceed Executive Schedule Level II ($181,500,

salary became effective in January 2014) and 25 employees at salaries that may not exceed

Executive Schedule Level III ($167,000, salary became effective in January 2014).46

Section 113 of Title 3 of the United States Code requires the President to transmit to the House of

Representatives and the Senate, and make available to the public, annual reports containing

information in the aggregate and by office on

•

the number of employees who are paid at a rate of basic pay equal to or greater

than the rate of basic pay then currently paid for Level V of the Executive

Schedule (5 U.S.C. §5316) and who are employed in the White House Office, the

Executive Residence at the White House, the Office of the Vice President, the

Domestic Policy Staff, or the Office of Administration, and the aggregate amount

paid to such employees;

•

the number of employees employed in such offices who are paid at a rate of basic

pay which is equal to or greater than the minimum rate of basic pay then

currently paid for GS-1647 of the General Schedule (GS) but which is less than

the rate then currently paid for Level V of the Executive Schedule and the

aggregate amount paid to such employees;

David B. Rivkin, Jr. and Lee A. Casey, “Misplaced Fears About the ‘Czars,’” Washington Post, September 17, 2009,

p. A15. The writers are attorneys and served in the Justice Department under Presidents Ronald Reagan and George H.

W. Bush.

CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al.

(name redacted), Analyst in American National Government in the Government and Finance Division (7-....),

wrote this section.

Sections 106 and 107 of Title 3, United States Code, also provide authority for the hiring of close assistants to the

President and Vice President.

References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule,

are considered to be references to rates payable under 5 U.S.C. 5376 related to senior-level positions. Currently, basic

pay for certain senior-level positions—positions classified above GS-15 (SL pay schedule) and scientific or

professional positions (ST pay schedule)—ranges from 120% of the minimum rate of basic pay for GS-15 ($120,749,

salary became effective in January 2014) to either EX Level III ($167,000, salary became effective in January 2014) or

EX Level II ($181,500, salary became effective in January 2014), depending on whether an agency’s performance

management system has been certified by the Office of Personnel Management.

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•

the number of employees employed in such offices who are paid at a rate of basic

pay which is less than the minimum rate then currently paid for GS-16, and the

aggregate amount paid to such employees;

•

the number of individuals detailed under 3 U.S.C. Section 112 of this title for

more than 30 days to each such office, the number of days in excess of 30 each

individual was detailed, and the aggregate amount of reimbursement made as

provided by the provisions of section 112; and

•

the number of individuals whose services as experts or consultants are procured

under 3 U.S.C. Chapter 2 for service in any such office, the total number of days

employed, and the aggregate amount paid to procure such services.

Each report must be transmitted within 60 days after the close of the fiscal year covered by the

report.

Additionally, Section 6 of P.L. 103-270, the Independent Counsel Reauthorization Act of 1994,

enacted on June 30, 1994, requires the President to submit an annual report on White House

Office personnel to the Senate Committee on Homeland Security and Governmental Affairs and

the House Committee on Oversight and Government Reform on July 1. The report is to include a

list of each individual employed by or detailed to the White House Office to Congress, including

his or her name, position and title, and annual rate of pay. If the President determines that

disclosure of any item of information with respect to any particular individual would not be in the

interest of the national defense or foreign policy of the United States, he can exclude the

individual and state the number of individuals so excluded. At the request of the Senate and

House committees, the information that is excluded will be made available for public inspection

by the committees. President Obama submitted the most recent report to Congress on July 1,

2013, and had it posted on the White House website.48

Vetting of Appointees49

As previously noted, the term “czar” has been applied to a variety of positions that are (1) located

in various parts of the federal government, (2) filled through various appointment mechanisms,

and (3) established under various legal authorities. One characteristic common to these positions

is that each is filled by political appointment, rather than through a competitive civil service

selection process. Political appointees serve at the pleasure of the appointing authority, usually no

longer than the duration of an Administration, rather than for the duration of a career.

Consequently, most politically appointed positions must be filled anew at the beginning of an

Administration. The process of selecting a candidate for a politically appointed position usually

includes vetting, a sometimes lengthy process.

The vetting process for presidential appointees is designed to examine the background of

nominees to advice and consent positions and other appointees, to determine their suitability for a

particular position, assess their professional and personal qualifications, and, in the case of the

The White House, “Annual Report to Congress on White House Staff,” available at http://www.whitehouse.gov/

briefing-room/disclosures/annual-records/2013. The 2009 through 2012 reports are also available on the website.

Hereinafter referred to as Annual Report on White House Staff.

(name redacted), Specialist in American National Government in the Government and Finance Division (7-....),

wrote this section.

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former, gauge whether they would meet the confirmation demands of the Senate. The current

process often includes a background investigation conducted by the Federal Bureau of

Investigation (FBI) and a review of financial disclosure materials conducted by the U.S. Office of

Government Ethics and an ethics official for the agency to which the candidate is to be appointed.

The process might also include the review of a White House Personal Data Statement, or similar

materials, by White House officials.50 Some of the contours of the vetting process, such as

financial disclosure requirements, are set in law. Other aspects of the vetting process, such as the

content of White House data statement, if there is one, as well as the extent of background

investigations, vary by Administration.

A smooth vetting process hinges, in large part, on the honesty and thoroughness in the response

of the individual being vetted. Historically, prospective applicants and nominees have been

forthcoming. But in unusual instances, an individual has intentionally withheld vital information

or even deceived federal investigators about his or her activities, including possible criminal

conduct.51

Background Investigations52

Background investigation requirements have been established for determining suitability for

government employment, granting an appropriate security clearance, or meeting the protective

responsibilities of the U.S. Secret Service. Consequently, the nature of a background investigation

will vary according to a prospective appointee’s circumstances.

The requirements of background checks are formalized in various executive orders, presidential

or administrative directives, and public laws. These requirements differ: they serve different

Additional information about the selection and clearance process for nominees to executive branch advice and

consent positions can be found in a November 2012 study that was conducted pursuant to the enactment of P.L. 112166, the Presidential Appointment Efficiency and Streamlining Act. See Working Group on Streamlining Paperwork

for Executive Nominations, Streamlining Paperwork for Executive Nominations: Report to the President and the

Chairs and Ranking Members of the Senate Committee on Homeland Security and Government Affairs and the Senate

Committee on Rules and Administration, November 2012, at http://www.hsgac.senate.gov/download/report-ofworking-group-on-streamlining-paperwork-for-executive-nominations-final. See also National Academy of Public

Administration, A Survivor's Guide for Presidential Nominees, Washington, DC, 2013 Edition, at

http://www.napawash.org/wp-content/uploads/2013/05/SurvivorsGuide2013.pdf.

An illustration of this during the vetting process involved Bernard B. Kerik, first, in 2002-2003, as an applicant to

serve on an advisory committee in the Office of Homeland Security, and later, in 2004, as a nominee to head the

Department of Homeland Security. (He withdrew his nomination in 2004, because of various concerns. See 2005

Congressional Quarterly Almanac, p. 10-4; and Congressional Quarterly Weekly, January 17, 2004, p. 124.) In

November of 2009, Mr. Kerik pleaded guilty in federal district court to several counts of “making false statements to

the federal government,” including directly to White House officials, in emails to the same, on his Personal Data

Questionnaire from the White House Counsel, and on Form 450 (Executive Branch Confidential Financial Disclosure

Report). The indictments are recorded at United States District Court, Southern District of New York (White Plains),

United States of America v Bernard B. Kerik, Indictment S1 07 Cr. 1027 (SCR), December 2, 2008; and United States

District Court for the District of Columbia, United States v Bernard B. Kerik, Case 1:09-cr-00142-RMC, filed

05/26/2009, which was later transferred to the Southern District Court. The guilty pleas for the cases titled “USA v.

Bernard B. Kerik,” are recorded at United States District Court for the Southern District of New York (White Plains),

Criminal Docket for Case #: 7:09-cr-10171-SCR-1, filed 11/05/2009; and Criminal Docket for Case #: 7:07-cr-01027SCR-1, filed 11/08/2009. For press coverage, see Sam Dolnick, “Kerik Confesses to Cheating I.R.S. and Telling Lies,”

New York Times, November 6, 2009, p. A3; and Jim Fitzgerald, “Kerik pleads guilty to tax crimes, lying to White

House; prison time sought,” Washington Post, November 6, 2009, p. A20.

(name redacted), Specialist in American National Government in the Government and Finance Division (7-....),

wrote this section.

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purposes, are issued and amended at different times, and are instituted by different authorities.

They range from following up on responses to questionnaires submitted by the prospective

appointee; to searches of relevant databases; to interviews with colleagues, neighbors, relatives,

and friends.53

Investigations for vetting purposes differ from those for security clearances. The former may be

under severe time constraints and secrecy may surround the names of the candidates. The latter

may require a longer time frame and have no secrecy surrounding the identity of the individual.

Suitability Checks and Security Clearances54

Suitability checks and security clearances differ from one another. A suitability check is designed

to determine whether a person should be hired for government employment, while a security

clearance is used to determine eligibility for access to classified national security information.

The background investigation resulting from each assessment is governed by its own executive

orders, administrative directives, and public laws.55 Consequently, each assessment follows its

own set of requirements. Even though some requirements are the same for both, a security

clearance for the higher levels is more extensive and exacting than a suitability check.

In most cases, background investigations of presidential appointees and nominees are conducted by the Federal

Bureau of Investigation (FBI). Other offices are involved in select areas or in times of heavy demand. These include the

Office of Personnel Management (OPM), which handles about 90% of all federal background investigations, and the

U.S. Secret Service, which has responsibility for the protection of the President and many other designees.

(name redacted), Analyst in Government Organization and Management (7-....), and (name redacted),

Visiting Scholar and formerly Specialist in American National Government in the Government and Finance Division

(7-....), wrote this section. For background and further information on the security clearance process, see CRS Report

R43216, Security Clearance Process: Answers to Frequently Asked Questions, by (name redacted) and

(name redacted); and CRS Congressional Distribution Memorandum, “Security Clearance Process: R

ecent

Development and Continuing Challenges,” by (name redacted) and (name redacted). (Copies of this

memorandum are available to the congressional community from its authors.)

Distinctions between the two are spelled out in several regulations, including 5 C.F.R. 731, 732, and 736.

Additionally, OPM has developed a Position Designation System (PDS) and an automated Position Designation Tool

(PDT) to help agencies determine which type of background investigation is required for each position within an

agency. OPM’s Position Designation System (PDS) is available at http://www.opm.gov/investigations/backgroundinvestigations/position-designation-tool/oct2010.pdf. OPM’s automated Position Designation Tool (PDT) is available

at http://www.opm.gov/investigations/background-investigations/position-designation-tool/tabs/automated-tool. The

costs for the various background investigations are available in OPM, Investigations Reimbursable Billing Rates for

Fiscal Year (FY) 2014, Federal Investigations Notice 13-07, August 30, 2013, available at http://www.opm.gov/

investigations/background-investigations/federal-investigations-notices/2013/fin13-07.pdf. Questionnaires for

applicants or employees also differ between security and suitability checks: OPM, Questionnaire for Non-Sensitive

Positions (SF-85), at http://www.opm.gov/forms/pdf_fill/sf85.pdf; and Questionnaire for Public Trust Positions (SF85P), at http://www.opm.gov/forms/pdf_fill/sf85p.pdf, both for suitability checks; and Questionnaire for National

Security Positions (SF-86) for security clearances, at http://www.opm.gov/forms/pdf_fill/sf86.pdf. The Electronic

Questionnaires for Investigations Processing (e-QIP) system is available at http://www.opm.gov/investigations/e-qipapplication.

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Investigations Related to Secret Service Protective Responsibilities56

The U.S. Secret Service has responsibility for protecting the President; the Vice President;

members of their immediate families; many other executive officials, including individuals in the

EOP and in various departments and agencies; and representatives of the President traveling

abroad.57 As such, the Secret Service may conduct background investigations of individuals who

might be in close proximity to one of its protective assignments. The Secret Service is to have a

copy of the background investigation conducted by another agency for each EOP employee.58

EOP Background Checks and Presidential Discretion59

The background investigation requirements for employment in the EOP and presidential

discretion over coverage are recognized in a provision of law regarding executive office

personnel background investigations and leaves of absence.60 It provides not only for background

investigations and completion of an appropriate questionnaire but also empowers the President to

exempt individuals from its demands:

(a) Hereafter, the employment of any individual within the Executive Office of the President

shall be placed on leave without pay status if the individual has not, within 30 days of

commencing such employment, submitted a completed questionnaire for sensitive positions

(SF-86) or equivalent form; or has not, within six months of commencing such employment

... had his or her background investigation, if completed, forwarded by the counsel to the

President to the United States Secret Service for issuance of the appropriate access pass.

(b) Exemption. Subsection (a) shall not apply to any individual specifically exempted from

such subsection by the President or his designee.61

Other authorities governing federal employment also support the President’s discretion over

background checks for certain hires. One is included in Executive Order 13467, issued by

President George W. Bush on June 30, 2008, regarding suitability checks and security clearances

for federal employees, applicants, and contractors.62 E.O. 13467 includes a determination of who

is covered:

(name redacted), Analyst in Government Organization and Management (7-....), and (name redacted),

Visiting Scholar and formerly Specialist in American National Government in the Government and Finance Division

(7-....), wrote this section.

18 U.S.C. 3056. U.S. Secret Service, “Protective Mission,” available at http://www.secretservice.gov/

protection.shtml; and CRS Report RL34603, The U.S. Secret Service: History and Missions, by (name redacted).

P.L. 103-329, 108 Stat. 2425.

(name redacted), Analyst in Government Organization and Management (7-....), and (name redacted),

Visiting Scholar and formerly Specialist in American National Government in the Government and Finance Division

(7-....), wrote this section.

P.L. 103-329, 108 Stat. 2425; 3 U.S.C. prec. §101.

Title VI, §632 of P.L. 103-329. SF-86 (Standard Form 86) is the Questionnaire for National Security Positions from

the U.S. Office of Personnel Management (OPM), discussed further below, available at http://www.opm.gov/forms/

Federal-Investigation-Forms/.

E.O. 13467, “Reforming Processes Relating to Suitability for Government Employment, Fitness for Contractor

Employees, and Eligibility for Access to Classified National Security Information,” 73 Federal Register 38103-38108,

July 2, 2008.

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“Covered individual” means a person who performs work for or on behalf of the executive

branch, or who seeks to perform work for or on behalf of the executive branch, but does not

include:

(i) the President or (except to the extent otherwise directed by the President) employees of

the President under section 105 or 107 of title 3, United States Code; or

(ii) the Vice President or (except to the extent otherwise directed by the Vice President)

employees of the Vice President under section 106 of title 3 or annual legislative branch

appropriations acts.63

The provisions cited in the order refer to sections of law that provide for the appointment of

certain EOP personnel. As previously noted, the President is authorized to appoint and fix the pay

of a certain number of employees in the White House Office (§105) and in the Domestic Policy

Staff and Office of Administration (§107).64 The Vice President is authorized to do the same, in

order “to provide assistance to the President in connection with the performance of functions

specifically assigned to the Vice President by the President in the discharge of executive duties

and responsibilities” (§106).

Reinforcing presidential (and vice presidential) discretion is the definition of “agency” in E.O.

13467:

“Agency” means any “Executive agency” as defined in section 105 of title 5, United States

Code, including military departments, as defined in section 102 of title 5, United States

Code, and any other entity within the executive branch that comes into possession of

classified information or has designated positions as sensitive, except such an entity headed

by an officer who is not a covered individual.65

Along these same lines, an earlier executive order—E.O. 12968, Access to Classified

Information, issued by President William Clinton, in 1995—exempts the President and Vice

President.66 Section 1.1(e) of the Clinton order states that “‘Employee’ means a person, other than

the President or Vice President, employed by, detailed or assigned to, an agency.”67 A predecessor

order—E.O. 10450, Security Requirements for Government Employment, issued by President

Dwight D. Eisenhower, in 1953—applies only to persons “employed in the departments and

agencies of the Government.”68

§1.3(g), ibid.

The Office of Administration was created by §2 of Reorganization Plan No. 1 of 1977 in order to centralize

Administration functions in EOP. (3 U.S.C. prec. §101. For full text of Reorganization Plan No. 1 of 1977, see

Appendix of Title 5, U.S. Code.) Further implementation occurred in E.O. 12028, “Office of Administration in the

Executive Office of the President,” 42 Federal Register 62895-62896, December 14, 1977, issued by President Jimmy

Carter on December 12, 1977.

§1.3(b), ibid.

60 Federal Register 40245, August 7, 1995.

Ibid.

“Security Requirements for Government Employment,” 18 Federal Register 2489, April 27, 1953.

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Financial Disclosure69

Whether any officer or employee of the federal government is required to file public financial

disclosure statements depends on the rate of compensation that the officer or employee receives

from the federal government, and the number of days such an individual works for the federal

government.

All persons appointed by the President to any positions in the government, including presidential

“advisors” or “special assistants” in the White House, and who are compensated above a

threshold amount (at a rate equal to or greater than 120% of the base salary of a GS-15) for work

on more than 60 days in a calendar year, are required to file public financial disclosure reports

under the provisions of the Ethics in Government Act of 1978, as amended.70 Individuals

appointed in the federal government who meet the compensation threshold and who work the

requisite number of days are to file an “entrance” report within 30 days of assuming the position,

and then annually on May 15 of each year, with the “designated agency ethics officer at the

agency by which he is employed.”71 White House assistants and advisors in most instances would

file with an ethics officer in the White House. These reports are public, and are required by law to

be reviewed and then made available to the public within 30 days of filing at the agency where

the reports are filed.72

If a nominee is required to receive Senate confirmation, then the Ethics in Government Act

provides that once the President has transmitted to the Senate the nomination of a person required

to be confirmed by the Senate, that nominee must within five days of the President’s transmittal

(or any time after the public announcement of the nomination—but no later than five days after

transmittal), file a financial disclosure statement.73 This financial disclosure statement is filed

with the designated agency ethics officer of the agency in which the nominee will serve,74 and

copies of the report are transmitted by the agency to the Director of the Office of Government

Ethics (OGE).75 The Director of OGE then transmits a copy to the Senate committee which is

considering the nomination of that individual.76

In addition to public reports for more senior officers and employees under the Ethics in

Government Act, there are provisions for confidential financial disclosure reports for those who

do not meet the salary threshold. The confidential reporting requirements are intended to

complement the public disclosure system, and apply to those employees who do not have to file

under the public reporting provisions of the Ethics in Government Act.77 Generally speaking, the

Jack H. Maskell, Legislative Attorney in the American Law Division (7-....), wrote this section.

P.L. 95-521, title I, 92 Stat. 1824 (October 26, 1978), as amended; see now 5 U.S.C. app. §§101 et seq.; 5 U.S.C.,

app. §101(f)(3) as to threshold rate of pay for “each officer or employee in the executive branch”; and 5 U.S.C. app.

§101(d) as to 60-day threshold.

Entrance reports: 5 U.S.C. app. §101(a); annual reports: 5 U.S.C. §101(d); place of filing: 5 U.S.C. §103(a).

5 U.S.C. §105(b)1).

5 U.S.C. app. §101(b); 5 C.F.R §2634.602(c)(1). The disclosure report form is provided to the nominee by the

Executive Office of the President. 5 C.F.R. §2634.605(c)(1).

5 C.F.R. §2634.602(a).

5 U.S.C. app. §103(c), 5 C.F.R. §2634.602(c)(1)(vi).

5 U.S.C. app. §103(c), 5 C.F.R. §2634.602(c)(3).

5 C.F.R. §2634.901(a), although supplemental information may be requested by an agency even from employees

filing public disclosures. 5 C.F.R. §2634.901(c).

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confidential reporting requirements apply to certain lower-level or “rank and file” employees, that

is, those officers or employees who are compensated below the threshold rate of pay for public

disclosures (GS-15 or below, or less than 120% of the basic rate of pay for a GS-15), and who are

determined by the employee’s agency to perform duties or exercise responsibilities in regard to

government contracting or procurement, government grants, government subsidies or licensing,

government auditing, or other governmental duties which may particularly require the employee

to avoid financial conflicts of interest.78 Such a person may be required to file a confidential

report if he or she performs the duties of such a position “for a period in excess of 60 days during

the 12 month period ending September 30.”79 Additionally, unless required to file public reports,

confidential reports are required from all “special Government employees” in the executive

branch (those employees who are employed by the government for not more than 130 days in a

year), including specifically “those who serve on advisory committees.”80 The disclosure

provisions of federal law and regulation, it should be noted, apply only to persons who are

“officers or employees” of the federal government, and thus do not apply, for example, to socalled “representatives” of outside, private, or non-federal entities appointed to advisory

committees.81

Outside Employment Limitations82

Executive Order and Regulations. Under an existing executive order, issued by President George

H. W. Bush in 1989, a presidential appointee to a “full-time noncareer position” may not receive

any compensation as outside earned income from any outside employment activities during that

presidential appointment.83 The term “Presidential appointee to a full-time noncareer position” is

defined in the ethics regulations issued by OGE as follows:

(2) Presidential appointee to a full-time noncareer position means any employee who is

appointed by the President to a full-time position described in 5 U.S.C. 5312 through 5317

[the Executive Schedule] or to a position that, by statute or as a matter of practice, is filled by

Presidential appointment, other than:

(i) A position filled under the authority of 3 U.S.C. 105 or 3 U.S.C. 107(a) for which the rate

of basic pay is less than that for GS-9, step 1 of the General Schedule;

(ii) A position, within a White House operating unit, that is designated as not normally

subject to change as a result of a Presidential transition;

(iii) A position within the uniformed services; or

(iv) A position in which a member of the foreign service is serving that does not require

advice and consent of the Senate.84

5 C.F.R. §2634.904(a).

5 C.F.R. §2634.903(a).

5 C.F.R. §2634.904(b).

Id.

Jack H. Maskell, Legislative Attorney in the American Law Division (7-....), wrote this section.

E.O. 12674 (modified by E.O. 12731), April 12, 1989, Section 102. See now 5 C.F.R. §§2635.804, 2636.302.

5 C.F.R. §2635.804(c)(2).

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Statutory Limitations. In addition to the complete ban on outside income for “full-time”

presidential appointees under the executive order, federal law limits the amount of compensation

that may be earned by certain other federal officials, and the types of paid outside work in which

such officials may engage, under provisions of the Ethics Reform Act of 1989.85 These statutory

provisions would be relevant when a presidential appointee is not a “full-time” federal employee,

but is more than a “special Government employee,” that is, when such employee works for the

government on more than 130 days in a year.

The coverage of government officials under these restrictions and limitations is dependent on the

rate of federal compensation of the official, the number of days of employment with the

government (that is, whether one is a “regular” employee of the government as opposed to a

“special Government employee”), and the nature of the appointment and employment as to

whether one is a “noncareer officer or employee” as opposed to having a career position.

Under the statutory limitations, a covered officer or employee may not have “outside earned

income” (that is, compensation, salaries, wages, or fees for outside, private employment

activities) that exceeds 15% of the annual rate of pay for a Level II on the Executive Schedule.86

Furthermore, such covered noncareer officials may not receive any compensation for affiliating

with a firm to provide professional services involving a fiduciary relationship; may not permit

their names to be used by any such firm; may not receive any compensation for practicing a

profession which involves a fiduciary relationship; may not serve for compensation as an officer

or member of the board of any association, corporation, or other entity; and may not receive

compensation for teaching without prior notification of and approval by the appropriate

supervisory ethics office.87

These particular outside employment restrictions apply when all three of the following conditions

are met:

•

Government Compensation. An officer or employee of the government to be

covered must, in the first instance, be compensated at a rate of annual pay above

a GS-15, or if not on the General Schedule, then compensated at a rate of basic

pay equal to or greater than 120% of the minimum rate of base pay for a GS-15.

At current rates of pay, as of this writing, the base salary of a GS-15 (excluding

locality pay) is $98,156 and thus the threshold pay rate would be $117,787.20 or

above.

•

Career v. Noncareer Employee. An officer or employee is covered only if that

person is a “noncareer officer or employee” of the government. The OGE

regulations expressly define “covered” noncareer employees as follows:

(a) Covered noncareer employee means an employee, other than a Special Government

employee ... who occupies a position classified above GS-15 of the General Schedule, or, in

P.L. 101-194, Title VI, 103 Stat. 1760, November 30, 1989; see now 5 U.S.C. app. §§501 et seq.

5 U.S.C. app. §501(a). As of January 2014, the compensation for a Level II of the Executive Schedule was $181,500,

and 15% of that amount was $27,225.

5 U.S.C. app. §502. The “honoraria” prohibition of 5 U.S.C. app. §501(b) was declared unconstitutional by the

Supreme Court in United States v. National Treasury Employees Union, 513 U.S. 454 (1995), and will not be enforced

by the Department of Justice against any officer or employee of the federal government. Office of Legal Counsel, U.S.

Department of Justice, Memorandum to the Attorney General, “Legality of Honoraria Ban Following U.S. v. National

Treasury Employees Union,” February 26, 1996.

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the case of positions not under the General Schedule, for which the rate of basic pay is equal

to or greater than 120 percent of the minimum rate of basic pay payable for a GS-15 of the

General Schedule, and who is:

(1) Appointed by the President to a position described in the Executive Schedule, 5 U.S.C.

5312 through 5317, or to a position that, by statute or as a matter of practice, is filled by

Presidential appointment, other than:

(i) A position within the uniformed services; or

(ii) A position within the foreign service below the level of assistant Secretary or Chief of

Mission;

(2) A noncareer member of the Senior Executive Service or of another SES-type system,

such as the Senior Foreign Service;

(3) Appointed to a Schedule C position or to a position under an agency-specific statute that

establishes appointment criteria essentially the same as those set forth in §213.3301 of this

title for Schedule C positions; or

(4) Appointed to a noncareer executive assignment position or to a position under an agencyspecific statute that establishes appointment criteria essentially the same as those for

noncareer executive assignment positions.

For purposes of applying this definition to an individual who holds a General Schedule

position or other position that provides several rates of pay or steps per grade, his rate of

basic pay shall be the rate of pay for the lowest step of the grade at which he is employed.88

•

Regular v. Special Government Employee. The term “officer or employee” for the

purposes of these particular statutory compensation restrictions expressly

excludes any “special Government employee,” as defined in 18 U.S.C. Section

202 (that is, an officer or employee of the Government who is compensated to

perform duties on no more than 130 days in any period of 365 days).

All officers and employees of the executive branch are also covered by general conflict of interest

and ethical standards regarding conflicting or incompatible outside employment activities, as set

out in executive branch-wide regulations by the Office of Government Ethics, as well as other

statutory restrictions on certain outside activity or compensation.89

5 C.F.R. §2636.303(a). OGE has described the term “covered noncareer employee” to include “a variety of noncareer

employees who are in positions ‘above GS-15,’ including certain Presidential appointees, noncareer members of the

Senior Executive Service (SES) or other SES-type systems, and Schedule C or comparable appointees.... The term

excludes special Government employees, Presidential appointees to positions within the uniformed services, and

Presidential appointees within the foreign service below the level of Assistant Secretary or Chief of Mission.” OGE

Memorandum, 97-10, May 21, 1997.

See 5 C.F.R. §§2635.801 et seq. See also statutory restrictions on certain representational activities before federal

agencies, restrictions on private compensation for government work, acting as an agent of a foreign principal, and

constitutional restriction on compensation from foreign governments. 18 U.S.C. §§203, 205, 209, 219, Const. Art. I, §9,

cl. 8.

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Appointments Clause and Presidential Advisors90

Concern has been raised that the President’s hiring, or use, of various presidential advisors

circumvents the requirements of the Appointments Clause of the U.S. Constitution.91 The

Appointments Clause establishes that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for,

and which shall be established by Law: but the Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in the Courts of Law,

or in the Heads of Departments.92

Under the text of the clause, it is “[o]fficers of the United States,” whose appointments are

established by law that are to be subject to Senate confirmation. Thus, principal officers will be

appointed in this manner; however, Congress may choose to vest the appointment of those they

consider “inferior [o]fficers” in either the President, the courts of law, or in the heads of

departments.

Before delving further into the Appointments Clause, it is first useful to briefly discuss the

authority of Congress in relation to the creation and operation of the executive bureaucracy.

Although the infrastructure of the executive branch and other entities charged with the execution

of the law is not specified by the Constitution, it is clear that the Framers intended to vest the task

of creating the governmental structure in Congress alone.93 Thus, it seems evident that the

President cannot establish executive offices.94 Congress has been generally given wide latitude to

use its legislative power to structure the modern administrative state by creating and locating

offices, determining qualifications for officeholders, prescribing their appointment, and

establishing general standards for the operation of the offices under the Necessary and Proper

Clause.95 The judiciary generally will interfere with this legislative power only in cases where

such an exercise clearly constitutes an attempt by Congress at aggrandizement or encroachment.96

(name redacted), Legislative Attorney in the Am

erican Law Division (7-....), wrote this section.

See Senator Collins, “Push Out the Czars,” Senate, Congressional Record, daily edition, September 14, 2009, pp.

S9306-S9308 (publishing four articles: (1) “Byrd Questions Obama Administration On Role of White House ‘Czar’

Positions,” February 25, 2009; (2) Edmund L. Andrews and David E. Sanger, “U.S. Is Finding Its Role in Business

Hard to Unwind,” N.Y. Times, September 14, 2009; (3) Kay Bailey Hutchinson, “Czarist Washington,” Washington

Post, September 13, 2009; (4) “President Obama’s ‘Czars,’” Politico, September 4, 2009).

U.S. Const., art. II, §2, cl. 2.

See, e.g., U.S. Const. art. II, §. 2. cl. 2. (the President “shall nominate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be

established by Law.”) (emphasis added).

Saikrishna B. Prakash, “Fragmented Features of the Constitution’s Unitary Executive,” 45 Willamette L. Rev. 701,

719 (2009) (“The Constitution assumes that those who will wield executive power will be in offices created by statute

by Congress.”).

U.S. Const., art. I, §8, cl. 18. See Myers v. United States, 272 U.S. 52, 129 (1926) (“To Congress under its legislative

power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of

reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they

are to be appointed ... all except as otherwise provided by the Constitution.”); Buckley v. Valeo, 424 U.S. 1, 134-35

(1976); Morrison v. Olson, 487 U.S. 654, 685-93 (1988); Mistretta v. United States, 488 U.S. 361 (1989).

See e.g., Buckley, 424 U.S. 1 (Congress may not appoint executive officials performing substantial functions under

(continued...)

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Accordingly, because the Appointments Clause has been deemed “among the significant

structural safeguards of the constitutional scheme,”97 Congress is to ensure that it adheres to the

strictures of the Appointments Clause when prescribing the appointment for certain offices.

Officer/Employee

A key first question is to determine whether a person qualifies as an officer of the United States,

or whether a person is a non-officer, or employee, whose “appointment” is not of the kind that

invokes the constitutional requirements of the Appointments Clause. If a person is an employee,

then the appointing authority, whether it is Congress or the President, need not comply with the

requirements of the clause. In the case of Congress, this could mean that it is free to vest the

appointment power in itself, for example; in the case of the President, this could mean that he is

free to appoint persons, as authorized by statute,98 into positions that need not have been

established as an office by Congress. However, if a person is acting as an “Officer of the United

States” then the Appointments Clause must be obeyed. This means that Congress must have

established an office to be filled by an officer, who will be subject to Senate confirmation if it is a

principal officer. An inferior officer may be appointed in the same manner unless Congress

chooses to vest such appointment in the President alone, in the courts, or in heads of

departments.99

The Supreme Court has long held that “‘[o]fficers of the United States’ does not include all

employees of the United States.... Employees are lesser functionaries subordinate to the officers

of the United States.”100 It has stated that office or officer “embraces the ideas of tenure, duration,

emolument, and duties, and that the latter [are] continuing and permanent, not occasional or

temporary.”101

To a certain extent, the standard for such determinations was further delineated by the Supreme

Court in Buckley v. Valeo. There, the Court analyzed provisions of the Federal Election Campaign

Act of 1971 (Act), which established an eight-member Federal Election Commission (FEC) to

oversee federal elections. Specifically at issue was the congressionally mandated composition of

(...continued)

the law); Bowsher v. Synar, 478 U.S. 714, 732 (1986) (Congress may not retain removal power over an officer

performing executive functions); INS v. Chadha, 462 U.S. 919 (1983) (Congress may not exercise legislative power

without conforming to the constitutionally prescribed lawmaking procedures); Metropolitan Washington Airports

Authority v. CAAN, 501 U.S. 252 (1991) (Board of Review composed of Members of Congress could not exercise

veto power over operational decisions of Airports Authority); Hechinger v. Metropolitan Washington Airports

Authority Board of Review, 36 F.3d 97 (D.C. Cir 1994), cert. denied, 513 U.S. 1126 (1995) (Board of Review which

could only recommend and delay, but not veto, the operational decisions of the Airports Authority held to be

unconstitutional direct exercise of congressional influence); Federal Election Commission v. NRA Political Victory

Fund, 6 F.3d 821 (D.C. Cir 1993), cert. denied for want of jurisdiction, 513 U.S. 88 (1994) (congressional appointment

of two of its agents as non-voting members of the commission who could attend all business meetings of the agency

held unconstitutional).

Edmond v. United States, 520 U.S. 651, 659 (1997).

See, e.g. 3 U.S.C. §105 et seq.

As mentioned above, Congress may choose to make the appointments of those considered inferior officers also

subject to Senate confirmation.

100

Buckley, 424 U.S. at 126, n. 162.

101

United States v. Germaine, 99 U.S. 508, 511-12 (1878) (discussing the term “officers”) (citing United States v.

Hartwell, 73 U.S. (6 Wall.) 385, 393-94 (1867) (discussing the term “office”)).

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the FEC, which was to consist of two non-voting ex-officio members and six voting members.

According to the act, each of the six voting members were required to be confirmed by the

majority of both houses of Congress, with two members being appointed by the President pro

tempore of the Senate, two members by the Speaker of the House of Representatives, and two by

the President.102 The Court looked to the powers and duties of the FEC and described them as

falling into three general categories: (1) functions relating to the flow of information—receipt,

dissemination, and investigation; (2) functions with respect to promoting the goals of the act—

rulemaking and advisory opinions; and (3) functions necessary to ensure compliance with the

statute—informal procedures, administrative determinations and hearings, and civil suits.103

Given the nature of the duties assigned by law to the FEC, the Court concluded that the FEC was

exercising executive power, as it found that the FEC’s enforcement power “is authority that

cannot possibly be regarded as merely in aid of the legislative function of Congress.”104 Through

its analysis of the FEC’s powers, the Court established that the Appointments Clause applies to

agencies that have even a tangential connection to the executive branch.105 Thus, the Court held

that the method of appointment prescribed in the Federal Election Campaign Act violated the

Appointments Clause because certain powers of the FEC could only be discharged by “Officers

of the United States,” who must be appointed in conformity with the Appointments Clause.

In reaching this conclusion, the Court held the term “Officers of the United States,” to mean “any

appointee exercising significant authority pursuant to the laws of the United States” (emphasis

added).106 Such officers, whether principal or inferior, must be appointed in conformity with the

Appointments Clause. In its analysis, the Court compared the office of FEC commissioner with

lower-level positions that had been identified as “inferior officers” in earlier cases. It determined

that the FEC commissioners, at a minimum, were inferior officers whose appointment would be

subjected to Senate confirmation or be vested in the President, the courts of law, or heads of

department as prescribed by the Appointments Clause.107 The Court did not engage in a

substantive analysis of the meaning of “significant authority” to distinguish principal officers

from inferior officers in order to determine what mode of appointment would be appropriate for

FEC commissioners.

Justice White, in his concurring opinion, explored further the idea of what constitutes “significant

authority” by expounding upon the duties and powers of the FEC, stating that it “is evident from

the breadth of their assigned duties and the nature and importance of their assigned functions ...

[that] members of the FEC are plainly ‘Officers of the United States’ as that term is used in Art.

II, §2, cl. 2.”108 The Court later declared in Edmond v. United States that the exercise of

“significant authority pursuant to the laws of the United States marks, not the line between

102

Buckley, 424 U.S. at 113.

Id. at 137.

104

Id. at 138.

105

Id. at 127. (See also Justice White’s concurrence where he noted that the Court had previously recognized that socalled independent agencies intended to be independent of executive authority are not independent of the executive

with respect to their appointments. Id. at 277 (White, J., concurring)).

106

Id. at 126.

107

Id. Subsequent to the decision in Buckley, Congress in 1976 amended the appointments of the six voting members

so that they are appointed by the President, with the advice and consent of the Senate. P.L. 94-283; 90 Stat. 475 (1976).

108

Id. at 269-70 (White, J., concurring).

103

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principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley,

the line between officer and non-officer.”109

The Department of Justice’s Office of Legal Counsel (OLC) has also expounded on the

officer/employee distinction, stating that only “[a]n appointee (1) to a position of employment (2)

within the federal government (3) that carries significant authority pursuant to the laws of the

United States is required to be an ‘Officer of the United States.’” Each of these three conditions is

independent, and all three must be met in order for the position to be subject to the requirements

of the Appointments Clause.110

A subsequent OLC opinion discusses two essential elements of an office subject to the

Appointments Clause.111 OLC stated that it took the phrase “significant authority pursuant to the

laws of the United States,” and other similar phrases “to be shorthand for the full historical

understanding of the essential elements of a public office.”112 The first element is the delegation

by legal authority of a portion of the sovereign powers of the federal government. OLC described

the “delegation of sovereign authority” as involving “a legal power which may be rightfully

exercised, and in its effects will bind the rights of others, and be subject to revision and correction

only according to the standing laws of the State, in contrast with a person whose acts have no

authority and power of a public act or law absent the subsequent sanction of an officer or the

legislature.”113

The second element is that the position must be “continuing,” which OLC described as having

two characteristics. The first is that “an office [for purposes of the Appointments Clause] exists

where a position that possesses delegated sovereign authority is permanent, meaning that it is not

limited by time or by being of such a nature that it will terminate by the very fact of

performance.”114 The second characteristic of “continuing” deals with delegated sovereign

authority that is temporary. Whether such a temporary position qualifies as “continuing” depends

on the presence of three factors. These three factors are

•

the position’s existence should not be personal, meaning that the duties should

continue even though the person is changed;

•

the position should not be “transient”; and

•

the duties should be more than “incidental” to the regular operations of the

government.115

In other words, “the nature of the delegated sovereign authority will affect whether a temporary

position is an office.”116 For example, the special independent counsel position in Morrison v.

109

520 U.S. at 663 (citing Buckley, 424 U.S. at 126) (internal quotations omitted).

See The Constitutional Separation of Powers Between President and Congress, 20 Op. Att’y Gen. 124 (1996);

[hereinafter Dellinger Memo]. This OLC memorandum also pointed out that “members of a commission that have

purely advisory functions need not be officers of the United States because they possess no enforcement authority or

power to bind the Government.” See id. at 144.

111

See Officers of the United States Within the Meaning of the Appointments Clause, 2007 WL 1405459 at *3 (OLC)

(April 16, 2007).

112

Id. at *10.

113

Id. at *17 (internal quotations omitted, quoting Opinion of the Justices, 3 Greenl. at 482).

114

Id. at *30 (internal quotations omitted).

115

Id.

110

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Olson was an office subject to the Appointments Clause, because the duties assigned to the

particular position were not personal and not “‘transient,’ but rather indefinite and expected to last

for multiple years, with ongoing duties”; nor was the position “‘incidental’ [to the regular

operations of government], but rather possessed core and largely unchecked federal prosecutorial

powers, effectively displacing the Attorney General ... [and] the counsel’s court-defined

jurisdiction, was not necessarily limited to the specific matter that had prompted his

appointment.”117

As delineated by the Court and as characterized by the aforementioned OLC opinion, it appears

that an individual who is to occupy a position that has the following two characteristics, (1)

delegation of sovereign authority and (2) continuing, must be appointed pursuant to the

Appointments Clause, and conversely, a position of employment that does not satisfy either of

these elements need not be filled pursuant to the clause.118

Principal Officer/Inferior Officer

If it is determined that one is acting as an officer because he or she is exercising significant

authority pursuant to the laws of the United States, the manner of appointment required under the

Appointments Clause necessarily requires a determination of whether the officer is a principal

officer or an inferior officer. As stated above, the Appointments Clause requires Senate

confirmation for principal officers, but gives Congress the discretion to provide for the

appointment of inferior officers without advice and consent.

Although the Supreme Court has determined various offices to be inferior,119 it has acknowledged

that its “cases have not set forth an exclusive criterion for distinguishing between principal and

inferior officers for Appointments Clause purposes.”120 In fact, it observed that “[t]he line

between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided

little guidance into where it should be drawn.”121 In its analyses, however, the Court has relied on

several factors such as whether the officer was subject to removal by a higher officer, that the

officer performed only limited duties, that the jurisdiction was narrow, and that the tenure was

limited.122 These particular characteristics were examined in Morrison v. Olson when the

Supreme Court held that the special independent counsel was an inferior officer. With regard to

examining other positions, “the nature of each government position must be assessed on its own

merits.”123 The Court in Edmond further stated, “Generally speaking, the term ‘inferior officer’

(...continued)

116

Id. (“The Constitution requires an examination of ‘the nature of the functions devolved upon’ a position by legal

authority.”) Id. at. *35.

117

Id. at *32.

118

Id. at *39.

119

See Ex parte Hennen, 38 U.S. (13 Pet.) 225, 258 (1839) (a district court clerk); Ex parte Siebold, 100 U.S. 371, 39798 (an election supervisor); United States v. Eaton, 169 U.S. 331, 343, (1898) (a vice consul charged temporarily with

the duties of the consul); Go-Bart Importing Co. v. United States, 282 U.S. 344, 252-54 (1931) (a “United States

Commissioner” in district court proceedings); Morrison v. Olson, 487 U.S. 654 (1988) (an independent counsel).

120

Edmond, 520 U.S. at 661.

121

Morrison v. Olson, 487 U.S. 654, 671 (1988) (finding that the independent counsel clearly falls on the inferior side

of the line).

122

Id. at 671-672.

123

Silver v. United States Postal Service, 951 F.2d 1033, 1040 (9th Cir. 1991).

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connotes a relationship with some higher ranking officer or officers below the President ... [and]

whose work is directed and supervised at some level by others who were appointed by

Presidential nomination with the advice and consent of the Senate.”124 Thus, in analyzing whether

one may be an inferior officer, the Court’s decisions appear to focus on the extent of the officer’s

discretion to make autonomous policy choices and the location of the powers to supervise and to

remove the officer.125

Analyses of Certain Presidential Advisors

Generally, advisor positions each have their own characteristics, duties, and functions. One

cannot categorically say that all or none of them are the type of positions which would invoke the

Appointments Clause. This section analyzes the application of the Appointments Clause to three

positions that are illustrative of positions that have been established in statute, by the White

House, and via a regulation: They are (1) the Director of the Office of National Drug Control

Policy, often referred to as the “Drug Czar”; (2) the Director of the White House Office of Urban

Affairs; and (3) the Special Master for TARP Executive Compensation, often referred to as the

“Pay Czar.”

Director of the Office of National Drug Control Policy

The Office of National Drug Control Policy (ONDCP), established by statute, is charged with the

duties of (1) developing national drug control policy, (2) coordinating and overseeing the

implementation of the national drug control policy, (3) assessing and certifying the adequacy of

National Drug Control Programs (NDCP) and the budget for those programs, and (4) evaluating

the effectiveness of the national drug control policy and the NDCP agencies’ programs by

developing and applying specific goals and performance measurements.126 ONDCP is headed by

a Director, who is required to be appointed by the President with the advice and consent of the

Senate, and the rank is to be the same as the head of an executive department (i.e., Cabinet

level).127 The Director’s responsibilities include but are not limited to assisting the President in

the establishing of the policies, goals, objectives, and priorities for the NDCP; promulgating and

submitting to the President the National Drug Control Strategy; coordinating and overseeing the

implementation of the described policies and goals of the agencies under the National Drug

Control Strategy; making recommendations to the NDCP agency heads with respect to

implementation of federal counter-drug programs; making recommendations to the President with

respect to organization, management, and budgets of the NDCP agencies; appearing before duly

124

Edmond, 520 U.S. at 662-63. This characterization of inferior officers by the Court presumably would not preclude

the ability of the Congress to vest the appointment of an inferior officer in the President alone as prescribed by the

Appointments Clause. Justice Souter, dissenting in Edmond, objected to the majority’s general maxim stating, “The

mere existence of a ‘superior’ officer is not dispositive.” He further opined that “[w]hat is needed, instead, is a detailed

look at the powers and duties ... to see whether reasons favoring their inferior officer status within the constitutional

scheme weigh more heavily than those to the contrary.” Id. at 667-68 (Souter, J., dissenting).

125

See Dellinger Memo at *150. The reasoning in Edmond was again confirmed by the Supreme Court in Free

Enterprise Fund v. Public Company Accounting Oversight Board, 130 S. Ct. 3139 (2010), which concluded that the

members of the Oversight Board were properly appointed inferior officers because the Securities and Exchange

Commission had oversight over the board members actions as well the authority (after the Court’s decision) to remove

the board members at will. Id. at 3162.

126

21 U.S.C. §1702(a).

127

21 U.S.C. §1703(a)(1).

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constituted committees and subcommittees of the House of Representatives and of the Senate to

represent the drug policies of the executive branch; and notifying any NDCP agency if its policies

are not in compliance with the strategy and transmitting such notice to the President and relevant

committees of jurisdiction.128 Additionally, the Director has the power to “select, appoint, employ,

and fix compensation of the officers and employees that may be necessary to carry out the

functions of the Office.”129 The Director is also empowered to make available competitive awards

to fund demonstration projects by eligible partnerships for the purpose of reducing the use of

illicit drugs by chronic drug users.130

In light of the above Appointments Clause discussion, the first question that must be answered is

whether the Director qualifies as an officer of the United States. A review of the Director’s

general responsibilities might lead one to conclude that the Director is not an officer because it is

not evident that the position is one where “significant authority” is exercised, given that much of

it seems to be coordination and evaluation based. However, in codifying this position, Congress

empowered the Director to “select, appoint, employ, and fix compensation of such officers and

employees of the Office” (emphasis added); distribute appropriated funds to fund demonstration

projects; make interagency fund transfers; and distribute a periodic bonus payment to any

employee in the office. To the extent that these duties connote the exercise of executive functions,

it could be argued that the Director of ONDCP is an officer who exercises significant authority

pursuant to the laws of the United States. Furthermore, these duties, combined with the fact that

Congress gave the Director a rank equivalent to an agency head and required him to be appointed

by the President subject to Senate confirmation, could be taken to support the conclusion that the

Director is a principal officer of the United States.

Director of Urban Affairs

As discussed in the previous sections, President Obama issued an executive order that established

within the EOP the White House Office of Urban Affairs. The Office of Urban Affairs is to be

headed by the Deputy Assistant to the President, Director of Urban Affairs. The Director is

required to report to the Assistant to the President for Intergovernmental Affairs and Public

Liaison and to the Assistant to the President for Domestic Policy.131 The executive order states

that the principal functions of the Office of Urban Affairs are, to the extent permitted by law,

•

to provide leadership for and coordinate the development of the policy agenda for

urban America across executive departments and agencies;

•

to coordinate all aspects of urban policy;

•

to work with executive departments and agencies, including the Office of

Management and Budget (OMB), to ensure that federal government dollars

targeted to urban areas are effectively spent on the highest-impact programs; and

•

to engage in outreach and work closely with state and local officials, with

nonprofit organizations, and with the private sector, both in seeking input

128

21 U.S.C. §1703(b).

21 U.S.C. §1703(d).

130

21 U.S.C. §1714.

131

Exec. Order No. 13503, 74 Fed. Reg. 8139, 8140 (February 24, 2009).

129

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regarding the development of a comprehensive urban policy and in ensuring that

the implementation of federal programs advances the objectives of that policy.132

The Office of Urban Affairs is to coordinate with various specified agencies to the extent

permitted by law, and nothing in the executive order is to be construed as impairing or affecting

the authority granted by law to a department, agency, or head thereof, or interfere with the

functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.133

Similar to some of the functions of the ONDCP, the functions to be carried out by this office do

not appear to rise to the level that would require the Director to be an officer of the United States.

There is arguably no delegation of sovereign authority in the sense that the Director is not

exercising a legal power, the effect of which will bind the rights of others. Nor is the Director

permitted to carry out any legislative, executive, or judicial function similar to the FEC

commissioners, who have been found to be at least inferior officers. In this situation, as is the

case with other similar advisor/assistant positions located and created in the EOP,134 the Director

of Urban Affairs appears to, or could, exert great political influence over the various agencies

with whom he is required to coordinate because the Director apparently has the “ear of the

President” and is taking action pursuant to the President’s wishes. However, such political

influence does not necessarily amount to the exercise of significant legal authority, which would

consequently require that the position be established and filled in accordance with the

Appointments Clause.

Special Master for TARP Executive Compensation

Drawing upon the statutory language in the Emergency Economic Stabilization Act of 2008

(EESA)135 that authorizes the Secretary of the Treasury to establish the Troubled Asset Relief

Program (TARP) and to “issue such regulations and other guidance as may be necessary or

appropriate to define terms or carry out the authorities or purposes of this Act,” the Secretary

established via regulation the Special Master for TARP Executive Compensation (Special

Master),136 often referred to as the “Pay Czar.” Under the regulation, the Special Master serves “at

the pleasure of the Secretary, and may be removed by the Secretary without notice, without cause,

and prior to the naming of any successor Special Master.”137 The Secretary has delegated to the

Special Master the authority to

•

interpret the application of the restrictions on executive compensation for TARP

recipient employees;

•

administer Section 111(f) of EESA, which requires the Secretary to review

bonuses, retention awards, and other compensation paid before February 17,

2009, to determine whether any such payments were inconsistent;

132

Exec. Order No. 13503, 74 Fed. Reg. 8139 (February 24, 2009).

Exec. Order No. 13503, 74 Fed. Reg. 8140 (February 24, 2009).

134

See, e.g., Director, White House Office of Health Reform, Exec. Order No. 13507; President’s Economic Recovery

Advisory Board, Exec. Order No., 13501; Assistant to President for Energy and Climate Change, Position Mentioned

in Exec. Order Nos. 13499 and 13500.

135

P.L. 110-343; 123 Stat. 3767

136

TARP Standards for Compensation and Corporate Governance (Interim Final Rule), 74 Fed. Reg. 28394, 29420

(Jun. 15, 2009), codified at 31 C.F.R. Part 30.

137

31 C.F.R. 30.16.

133

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•

approve compensation payments to, and compensation structures for, certain

employees of TARP recipients receiving exceptional financial assistance;

•

provide advisory opinions, as requested or as appropriate, regarding payments to

or compensation structures for other employees of TARP recipients; and

•

perform other such duties as the Secretary may delegate from time to time

relating to executive compensation issues under TARP.138

In delineating the Special Master’s interpretative authority, the rule states that the Special Master

has the responsibility for interpreting Section 111 of EESA, the regulations, and any other

applicable guidance and to determine whether such requirements have been met in any particular

circumstance.139 The regulations also provide that in the case of any final determination that a

TARP recipient is required to receive, the final determination of the Special Master “shall be final

and binding and treated as the determination of the Treasury.”140

The Special Master could be viewed as an officer of the United States rather than an employee of

the Treasury Department, as he appears to have been delegated authority that permits him to

interpret the law and regulations and decide their applicability to others. Furthermore, although

the Special Master serves at the pleasure of the Secretary, the regulation states that his final

determinations are to be treated as the determination of the Treasury. It does not appear that those

determinations are subject to review by the Secretary. These factors could strongly indicate that

the Special Master is in fact exercising significant authority, such that an officer of the United

States must carry out the duties of this position. If so, the relevant constitutional issue would

center on whether the Special Master is exercising significant authority that rises to the level of a

principal officer, which would require him to be appointed by the President subject to Senate

confirmation, or whether the Secretary has retained sufficient control of his actions either

explicitly or implicitly, which could allow the Special Master to be characterized as an inferior

officer. The Special Inspector General for TARP (SIGTARP), a position established by Congress,

questioned whether the Special Master is a principal officer because, in his view, “the Secretary

appears to be without authority to control the actions of the Special Master in any ... meaningful

manner” other than removal.141

OLC issued an opinion concluding that the Special Master is not a principal officer for purposes

of the Appointments Clause.142 Relying on the factors in Morrison, OLC stated the Special

Master is removable at will, has limited duties that apply only to a particular jurisdiction—

namely, “the compensation practices of particular TARP recipients and certain of their

employees”—and that his tenure is of limited duration.143 OLC disagreed with the SIGTARP’s

interpretation that the regulation insulates the Special Master’s decisions from the Secretary’s

review. OLC gave deference to Treasury’s view that the Special Master’s “decision remains

138

Id.

Id. at 30.16(a).

140

Id. at 30.16(c)(2).

141

See Whether the Special Master for the Troubled Asset Relief Program Executive Compensation is a Principal

Officer Under the Appointments Clause, 2010 WL 4963118 (OLC) [hereinafter Special Master Memo] (referring to a

Letter from the Special Inspector General).

142

Special Master Memo at *1.

143

Id. at *7.

139

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subject to further review within the Treasury,”144 because the “Rule lacks a clear enough

preclusion of Secretarial review to overcome the presumption of Secretarial supervisory

authority.”145 More significant is OLC’s conclusion that Supreme Court decisions strongly

indicate that an individual may still be an inferior officer even if a principal officer does “not

exercise plenary authority over [the] subordinate.”146 These factors, taken together, illustrate

OLC’s view that the Special Master is an officer rather than an employee of the United States,

and qualifies as an inferior officer.

However, in accepting that the Special Master is an officer, rather than employee, of the United

States, the establishment of this office through a rule may raise additional concerns. In particular,

one constitutional issue is that Congress did not explicitly establish the Office of Special Master

nor did it vest the Secretary with the explicit authority to appoint such an officer, if in fact the

Special Master is considered to be an officer. On the other hand, an argument could be made that

Congress implicitly authorized the establishment of such an office by vesting the Secretary with

the authority to develop the appropriate procedures to implement the provisions of EESA.147

Summary of Presidential Advisor Analyses

These three cases illustrate that an Appointments Clause analysis is best done on a case-by-case

basis. First, one looks at the functions and duties of the particular position in question. This

assists in determining whether such position is one where significant authority is exercised,

meaning that the position primarily is one where there has been a delegation of sovereign power.

Within the narrower context of presidential assistants and advisors, it is important to examine

these positions remembering that the exertion of great political influence or authority does not

presumptively rise to the level of exercising legal authority pursuant to the laws of the United

States. However, if it is determined that the position is one where significant authority is

exercised, then the position and appointment is to be made in accordance with the strictures of the

Appointments Clause.

Congressional Oversight of Presidential Advisors148

Congress’s Oversight Authority

Generally, Congress’s legal authority to obtain information, including, but not limited to,

confidential, sensitive, or deliberative information, is extremely broad. While there is no express

144

Id. at *8 (citing Letter for Bryan Saddler, Chief Counsel, Special Inspector General for the Troubled Asset Relief

Program, Department of the Treasury, from Timothy G. Massad, Chief Counsel, Office of Financial Stability, at 1 (July

29, 2010)).

145

Id.

146

Id. at *6 (placing particular emphasis on the language from Edmond, which stated that one may be an inferior officer

as long as the official “is directed and supervised at some level by others who were appointed by Presidential

nomination with the advice and consent of the Senate” (emphasis added)).

147

It is not clear whether a court would be receptive to an argument that congressional enactments can be interpreted as

implicitly creating executive office. It should also be noted that there is a possibility that the Special Master may be

filling an inferior officer position that already existed within the Department of the Treasury and is simply exercising

additional duties delegated to him by the Secretary.

148

(name redacted), Legislative Attorney in the American Law Division (7-....), wrote this section.

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provision of the Constitution or specific statute authorizing the conduct of congressional

oversight, the Supreme Court has firmly established that such power is essential to the legislative

function and can be implied from the general vesting of legislative powers in Congress.149 In

Watkins v. United States, for instance, the Court emphasized that the “power of the Congress to

conduct investigations is inherent in the legislative process. That power is broad. It encompasses

inquiries concerning the administration of existing laws as well as proposed or possibly needed

statutes.”150 The Court in Watkins further stressed that Congress’s power to investigate is at its

peak when focusing on alleged waste, fraud, abuse, or maladministration within a government

department. Specifically, the Court explained that the investigative power “comprehends probes

into departments of the federal government to expose corruption, inefficiency, or waste.”151 The

Court went on to note that the first Congresses held “inquiries dealing with suspected corruption

or mismanagement of government officials.”152 Given these factors, the Court recognized “the

power of the Congress to inquire into and publicize corruption, maladministration, or

inefficiencies in the agencies of Government.”153 Moreover, in a more recent decision, Eastland v.

United States Serviceman’s Fund, the Court reiterated that the “scope of its power of inquiry ... is

as penetrating and far-reaching as the potential power to enact and appropriate under the

Constitution.”154

As a corollary to this accepted oversight authority, the Supreme Court has likewise determined

that the “[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its

power to investigate.”155 In particular, the Court has repeatedly cited the principle that

A legislative body cannot legislate wisely or effectively in the absence of information

respecting the conditions which the legislation is intended to affect or change; and where the

legislative body does not itself possess the requisite information—which not infrequently is

true—recourse must be had to others who do possess it. Experience has taught that mere

requests for such information often are unavailing, and also that information which is

volunteered is not always accurate or complete; so some means of compulsion are essential

to obtain what is needed. All this was true before and when the Constitution was framed and

adopted. In that period the power of inquiry—with enforcing process—was regarded and

employed as a necessary and appropriate attribute of the power to legislate—indeed, was

treated as inhering in it.156

While the congressional power of inquiry is broad, it is not unlimited. The Supreme Court has

admonished that the power to investigate may be exercised only “in aid of the legislative

function”157 and cannot be used to expose for the sake of exposure alone. The Watkins Court

underlined these limitations, stating that

149

See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s

Fund, 421 U.S. 491 (1975); Barnblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178

(1957); McGrain v. Daugherty, 273 U.S. 135 (1927).

150

354 U.S. at 187.

151

Id.

152

Id. at 182.

153

Id. at 200, n.33.

154

421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).

155

Eastland v. United States Servicemen’s Fund, 421 U.S. at 504.

156

McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976), Eastland, 421 U.S. at 504-505.

157

Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).

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There is no general authority to expose the private affairs of individuals without justification

in terms of the functions of the Congress ... nor is the Congress a law enforcement or trial

agency. These are functions of the executive and judicial departments of government. No

inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the

Congress.158

Moreover, an investigating committee has only the power to inquire into matters within the scope

of the authority delegated to it by its parent body.159 Once having established its jurisdiction,

authority, and the pertinence of the matter under inquiry to its area of authority, however, a

committee’s investigative purview is substantial and wide ranging.

The Relationship Between Advice and Consent and

Congressional Oversight

A recurring criticism of the President’s use of special advisors has been that they are not subject

to the confirmation process in the Senate and, therefore, are “largely insulated”160 from

congressional oversight and “wholly unaccountable”161 to Congress. The connection between the

Senate’s confirmation power and Congress’s more general oversight prerogatives, however,

appears to be derived from practice and tradition, rather than being legally or constitutionally

grounded.

As a matter of constitutional law, there appears to be no direct connection between the Senate’s

authority to give “advice and consent” to presidential appointees and Congress’s more general

power to conduct oversight and perform investigations of government officials and activities. The

Senate’s confirmation power is expressly provided for by the text of the Constitution,162 while

congressional oversight has, as discussed above, been repeatedly considered by the Supreme

Court to be an implied congressional power. The fact that a special advisor to the President does

not receive a confirmation hearing arguably has no legal or constitutional impact on Congress’s

authority or ability to conduct oversight of that position, its duties and functions, or the individual

holding it. As a practical and political matter, however, in recent years, several Senate committees

have found that extracting an on-the-record, under-oath commitment from nominees regarding

their cooperation in congressional oversight has been helpful in future oversight efforts.163

158

Watkins v. United States, 354 U.S. at 187.

United States v. Rumely, 345 U.S. 41, 42, 44 (1953); see also Watkins, 354 U.S. at 198.

160

Letter from Senators Susan Collins, Lamar Alexander, Christopher Bond, Mike Crapo, Pat Roberts, and Robert

Bennett, to President Barack Obama (Sept. 15, 2009), available at http://collins.senate.gov/public/continue.cfm?

FuseAction=PressRoomPressReleases&ContentRecord_id=c2f7dda9-802a-23ad-4371-ecb6a1c8d2eb&Region_id=&

Issue_id=&CFID=12784730&CFTOKEN=17344439.

161

Congressman Eric Cantor, Op-Ed., Obama’s 32 Czars, Washington Post, July 30, 2009, available at

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/29/AR2009072902624.html?referrer=emailarticle.

162

U.S. Const., art. II, §2 (stating that “… and he shall nominate, by and with the Advice and Consent of the Senate,

shall appoint Ambassadors, other Public Ministers and Counsels, Judges of the supreme Court, and all other Officers of

the United States, whose Appointments are not herein otherwise provided for, and which shall be established by

Law:…”)

163

See, e.g., To Consider the Nomination of Ken Salazar to be Secretary of the Interior: Hearing Before the Committee

on Energy and Natural Resources of the United States Senate, 111th Cong. 49 (2009) (Response of Ken Salazar to

written questions from Senator Dorgan pledging to work with oversight efforts on permit and enforcement programs);

To Consider the Nomination of Robert Gates to be Secretary of Defense: Hearing Before the Committee on Armed

Services of the United States Senate, 110th Cong. (2006), available at http://media.washingtonpost.com/wp-srv/politics/

(continued...)

159

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While promises made at confirmation hearings appear to have changed the practical relations

between Congress and the executive, they have not changed the legal dynamic. For example, as a

result of these on-the-record statements during confirmation hearings, it appears that Congress

has been able to exercise many of its oversight responsibilities with a simple request from a

committee of jurisdiction to the Secretary. In other words, such a promise from a nominee has, in

many cases, obviated the need to use compulsory procedures, such as subpoenas, to obtain

routine information and testimony. That said, it is important to note that the executive branch is

not legally obligated to respond to congressional committee requests. The fact that the executive

branch responds is arguably out of a sense of comity between the branches, or as a political

accommodation, or to avoid the political retribution for a failure to comply. A legal obligation to

comply attaches only on the issuance of a subpoena by the inquiring committee.

Even by making a commitment during a confirmation hearing to cooperate with congressional

oversight, the nominee is not waiving any potential claims of privilege or other legal rights the

executive branch may assert to withhold information from Congress, and may still require the

issuance of a subpoena. Nor has Congress, by extracting such a commitment on oversight from

the nominee, abdicated any legal rights or abilities that it may have to extract information via the

issuance of a subpoena. The continued contentious nature of this relationship is best evidenced by

the nine Cabinet-level officials whom, since 1975, at least one committee or subcommittee has

voted in contempt of Congress for failing to produce subpoenaed documents.164 Thus, it is clear

that even officials who have obtained the advice and consent of the Senate are not immune from

legal disputes between the branches. Moreover, the fact that a special presidential advisor has not

been subject to a confirmation hearing has not prevented congressional committees from seeking

their testimony on more than 70 documented occasions.165

Although there is little doubt that the advice and consent process may, as a political and practical

matter, make oversight less acrimonious and, therefore, more efficient, the fact that an official has

not been confirmed does not have any legal bearing on Congress’s ability to exercise its oversight

prerogatives.

Potential Legal Bases for the Denial of Access to

Presidential Advisors

As the preceding discussion indicates, Congress’s oversight authority appears sufficiently broad

to conduct inquiries of presidential advisors, regardless of where in the organizational structure of

the Administration they are housed.

(...continued)

documents/rgates_hearing_120506.html (pledging, in response to a question from Senator Levin, to make relevant

documents available for congressional oversight “to the extent I have the authority.”).

164

The nine officials are as follows: Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B.

Morton (1975); Secretary of Health, Education, and Welfare Joseph A. Califano, Jr. (1978); Secretary of Energy

Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982);

EPA Administrator Anne Gorsuch Burford (1983); Attorney General William French Smith (1983); and Attorney

General Janet Reno (1998). See CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al..

165

CRS Report RL31351, Presidential Advisers’ Testimony Before Congressional Committees: An Overview, by (name

redacted), (name redacted), and (name redacted).

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The Deliberative Process Privilege

That being said, the Administration still retains the ability to claim common law, as well as

constitutionally based, privileges with respect to arguably sensitive information, documents, and

testimony. For example, the Administration may attempt to assert a claim of “deliberative

process” privilege with respect to information directly related to the development of advice to the

President, formulation of policy, and the ultimate decisions within a given special assistant’s

portfolio. Assertions of “deliberative process” privilege by the White House and administrative

agencies have not been uncommon in the past. In essence, it is argued that congressional demands

for information as to what occurred during the policy development process would unduly

interfere, and perhaps “chill,” the frank and open internal communications necessary to the

quality and integrity of the decisional process. Such a privilege claim may also be grounded on

the contentions that it protects against premature disclosure of proposed policies before they are

fully considered or actually adopted, and to prevent the public from confusing matters merely

considered or discussed during the deliberative process with those on which the decision was

based. However, as with other claims of “common law” privileges such as the attorney-client

privilege and work product immunity, congressional practice has been to treat their acceptance as

discretionary with the committee of jurisdiction.166 Moreover, appellate court decisions underline

the understanding that the “deliberative process” privilege is a common law privilege that is

easily overcome by a showing of need by an investigatory body and have recognized the

overriding necessity of an effective legislative oversight process.167

Executive Privilege

In addition, it would appear possible for the Administration to make the constitutional claim of

“executive privilege”—sometimes referred to as “presidential communications privilege”—with

respect to the role of certain presidential advisors. In the event of such a claim, it should be noted

that the vast majority of these interbranch disputes have been resolved through political

negotiation and accommodation; thus, few have reached the courts for substantive resolution.168

In fact, it was not until the Watergate-related lawsuits in the 1970s—seeking access to President

Nixon’s audio tapes—that the existence of a presidential confidentiality privilege was judicially

established as a necessary derivative of the President’s status in the U.S. constitutional scheme of

separated powers. Of the seven court decisions involving interbranch information access

disputes,169 three have directly involved Congress and the executive, but only one of these

resulted in a judicial decision on the merits.170 One other case, involving legislation granting

166

See generally, CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of

Congressional Inquiry, by (name redacted). (Out of print. Available upon request.)

167

See, e.g., In Re Sealed Case (Espy), 121 F. 3d 729 (D.C. Cir. 1997).

168

See Neil Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 Adm.

L. Rev. 109 (1996).

169

United States v. Nixon, 418 U.S. 683 (1974); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973); Senate Select

Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal

after remand, 567 F.2d 121 (D.C. Cir. 1977); United States v. House of Representatives, 556 F.Supp. 150 (D.D.C.

1983); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C.

1998).

170

Senate Select Committee, 498 F.2d 725 (D.C. Cir. 1974).

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custody of President Nixon’s presidential records to the Administrator of the General Services

Administration, also determined several pertinent executive privilege issues.171

Taken together, the holdings in several Watergate-era lower court decisions,172 the Supreme

Court’s decision in United States v. Nixon,173 and other post-Watergate cases established the broad

contours of the presidential communications privilege. Under those precedents, the privilege,

which is constitutionally rooted, can be invoked by the President when asked to produce

documents or other materials or information that reflect presidential decision making and

deliberations that he believes should remain confidential. If the President does so, the materials

become “presumptively privileged.”174 The privilege, however, is qualified, not absolute, and can

be overcome by an adequate showing of need.175 Finally, while reviewing courts have expressed

reluctance to balance executive privilege claims against a congressional demand for information,

they have acknowledged they will do so if the political branches have tried in good faith but

failed to reach an accommodation.176

However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed Case,177 and its 2004

ruling in Judicial Watch Inc. v. Department of Justice,178 these judicial decisions had left

important gaps in the law of presidential communications privilege, which increasingly became

focal points, if not the source, of interbranch confrontations. Among the more significant issues

left open included whether the President has to have actually seen or been familiar with the

disputed matter; whether the presidential privilege encompasses documents and information

developed by, or in the possession of, officers and employees in the departments and agencies of

the executive branch; whether the privilege encompasses all communications with respect to

which the President may be interested or is confined to presidential decision making and, if so, is

limited to any particular type of presidential decision making; and precisely what kind of

demonstration of need must be shown to justify release of materials that qualify for the privilege.

The unanimous D.C. Circuit panel in In re Sealed Case authoritatively addressed each of these

issues in a manner that may have drastically altered the future legal playing field in resolving

such disputes. Moreover, the D.C. Circuit’s ruling in the Judicial Watch case reinforces that

likelihood.179

In Re Sealed Case (Espy)

In In re Sealed Case (Espy),180 the appeals court addressed several important issues left

unresolved by the Watergate cases: the precise parameters of the presidential privilege; how far

down the chain of command the privilege reaches; whether the President has to have seen or had

171

Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

See, e.g., Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir.

1974).

173

United States v. Nixon, 418 U.S. 683 (1974).

174

Nixon v. Sirica, 487 F.2d 750, 757 (D.C. Cir. 1973).

175

Nixon, 418 U.S. 706.

176

United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977)

177

121 F.3d 729 (D.C. Cir. 1997).

178

365 F.3d 1108 (D.C. Cir. 2004).

179

Neither case, however, involved congressional access to information.

180

121 F.3d 729 (D.C. Cir. 1997).

172

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knowledge of the existence of the documents for which he claims privilege; and what showing is

necessary to overcome a valid claim of privilege.

The case arose out of an Office of Independent Counsel (OIC) investigation of former Agriculture

Secretary Mike Espy. When allegations of improprieties by Secretary Espy surfaced in March of

1994, President Clinton ordered the White House Counsel’s Office to investigate and report to

him so he could determine what action, if any, he should undertake. The White House Counsel’s

Office prepared a report for the President, which was publicly released on October 11, 1994. The

President never saw any of the underlying or supporting documents to the report. Secretary Espy

announced his resignation on October 3, to be effective on December 31. The Independent

Counsel was appointed on September 9 and the grand jury issued a subpoena for all documents

that were accumulated or used in preparation of the report on October 14, three days after the

report’s issuance. The President withheld 84 documents, claiming both the executive and

deliberative process privileges. A motion to compel was resisted on the basis of the claimed

privileges and after in camera review the district court quashed the subpoena, but in its written

opinion did not discuss the documents in any detail and provided no analysis of the grand jury’s

need for the documents. The appeals court reversed.

At the outset, the court’s opinion carefully distinguishes between the “presidential

communications privilege” and the “deliberative process privilege.” As previously discussed, the

court observed that both privileges are “executive privileges” designed to protect the

confidentiality of executive branch decision making. According to the court, however, the

“deliberative process” privilege applies generally to executive branch officials, is a common law

privilege which requires a lower threshold of need to be overcome, and “disappears altogether

when there is any reason to believe government misconduct has occurred.”181

On the other hand, the court explained, the presidential communications privilege is rooted in

“constitutional separation of powers principles and the President’s unique constitutional role” and

applies only to “direct decisionmaking by the President.”182 The privilege may be overcome only

by a substantial showing that “the subpoenaed materials likely contain[] important evidence” and

that “the evidence is not available with due diligence elsewhere.”183 The presidential privilege

applies to all documents in their entirety184 and covers final and post-decisional materials as well

as pre-deliberative ones.185

Turning to the chain-of-command issue, the court held that the presidential communications

privilege must cover communications made or received by presidential advisors in the course of

preparing advice for the President, even if those communications are not made directly to the

President. The court rested its conclusion on “the President’s dependence on presidential advisors

and the inability of the deliberative process privilege to provide advisors with adequate freedom

181

Id. at 745-46; see also id. at 737-38 (“[W]here there is reason to believe the documents sought may shed light on

government misconduct, the [deliberative process] privilege is routinely denied on the grounds that shielding internal

government deliberations in this context does not serve ‘the public interest in honest, effective government.”’).

182

Id. at 745, 752-53 (“ ... these communications nonetheless are ultimately connected with presidential

decisionmaking”).

183

Id. at 754, 757.

184

In contrast, the deliberative process privilege does not protect documents that simply state or explain a decision the

government has already made or material that is purely factual, unless the material is inextricably intertwined with the

deliberative portions of the materials so that disclosure would effectively reveal the deliberations. 121 F.3d at 737.

185

Id. at 745.

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from the public spotlight” and “the need to provide sufficient elbow room for advisors to obtain

information from all knowledgeable sources.”186 Thus, the privilege will “apply both to

communications which these advisors solicited and received from others as well as those they

authored themselves. The privilege must also extend to communications authored or received in

response to a solicitation by members of a presidential adviser’s staff.”187

The court, however, was acutely aware of the dangers to open government that a limitless

extension of the privilege poses and carefully limited its reach by explicitly confining it to White

House staff, and not staff in the agencies, and then only to White House staff that has “operational

proximity” to direct presidential decision making.

We are aware that such an extension, unless carefully circumscribed to accomplish the

purposes of the privilege, could pose a significant risk of expanding to a large swath of the

executive branch a privilege that is bottomed on a recognition of the unique role of the

President. In order to limit this risk, the presidential communications privilege should be

construed as narrowly as is consistent with ensuring that the confidentiality of the President’s

decisionmaking process is adequately protected. Not every person who plays a role in the

development of presidential advice, no matter how remote and removed from the President,

can qualify for the privilege. In particular, the privilege should not extend to staff outside the

White House in executive branch agencies. Instead, the privilege should apply only to

communications authored or solicited and received by those members of an immediate White

House advisor’s staff who have broad and significant responsibility for investigation and

formulating the advice to be given the President on the particular matter to which the

communications relate. Only communications at that level are close enough to the President

to be revelatory of his deliberations or to pose a risk to the candor of his advisers.

Of course, the privilege only applies to communications that these advisers and their staff

author or solicit and receive in the course of performing their function of advising the

President on official government matters. This restriction is particularly important in regard

to those officials who exercise substantial independent authority or perform other functions

in addition to advising the President, and thus are subject to FOIA and other open

government statutes. The presidential communications privilege should never serve as a

means of shielding information regarding governmental operations that do not call ultimately

for direct decisionmaking by the President. If the government seeks to assert the presidential

communications privilege in regard to particular communications of these “dual hat”

presidential advisers, the government bears the burden of proving that the communications

occurred in conjunction with the process of advising the President.188

The appeals court’s limitation of the presidential communications privilege to “direct decision

making by the President” makes it imperative to identify the type of decision making to which it

refers. A close reading of the opinion makes it arguable that it is meant to encompass only those

functions that form the core of presidential authority, involving what the court characterized as

“quintessential and non-delegable presidential power.”189 In the case before it, the court was

specifically referring to the President’s Article II appointment and removal power, which was the

focal point of the advice he sought regarding Secretary Espy. That said, it is clear from the

context of the opinion that the description was meant to be in juxtaposition with the appointment

186

Id. at 752.

Id.

188

Id. (internal citations and footnotes omitted).

189

Id. at 752.

187

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and removal power and in contrast with “presidential powers and responsibilities” that “can be

exercised or performed without the President’s direct involvement, pursuant to a presidential

delegation of authority or statutory framework.”190 The reference the court uses to illustrate the

latter category is the President’s Article II duty “to take care that the laws are faithfully executed,”

a constitutional direction that the courts have consistently held not to be a source of presidential

power, but rather an obligation on the President to see to it that the will of Congress is carried out

by the executive bureaucracy.191

The appeals court’s decision, then, arguably confines the parameters of the newly formulated

presidential communications privilege by tying it to those Article II functions that are identifiable

as “quintessential and non-delegable,” which would appear to include, in addition to the

appointment and removal powers, the commander-in-chief power, the sole authority to receive

ambassadors and other public ministers, the power to negotiate treaties, and the power to grant

pardons and reprieves. On the other hand, decision making vested by law in agency heads, such

as prosecutorial decision making, rulemaking, environmental policy, consumer protection,

workplace safety, and labor relations, among others, would not necessarily be covered. Of course,

the President’s role in supervising and coordinating (but not displacing) decision making in the

executive branch remains unimpeded. However, his communications would presumably not be

cloaked by a constitutionally based privilege.

Such a reading of this critical part of the court’s opinion is consonant with the court’s view of the

source and purpose of the presidential communications privilege and its expressed need to

confine it as narrowly as possible. Relying on United States v. Nixon,192 the In re Sealed Case

court identified “the President’s Article II powers and responsibilities as the constitutional basis

of the presidential communications privilege.... Since the Constitution assigns these

responsibilities to the President alone, arguably the privilege of confidentiality that derives from it

also should be the President’s alone.”193 Again, relying on Nixon, the court pinpoints the essential

purpose of the privilege: “[T]he privilege is rooted in the need for confidentiality to ensure that

presidential decisionmaking is of the highest caliber, informed by honest advice and knowledge.

Confidentiality is what ensures the expression of ‘candid, objective, and even blunt or harsh

opinions’ and the comprehensive exploration of all policy alternatives before a presidential course

of action is selected.”194 The limiting safeguard is that the privilege will apparently only apply in

those instances where the Constitution provides that the President alone must make a decision.

“The presidential communications privilege should never serve as a means of shielding

information regarding governmental operations that do not call ultimately for direct

decisionmaking by the President.”195

190

Id. at 752-53.

See, e.g., Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-613 (1838); Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 587 (1952); Myers v. United States, 272 U.S. 52, 177 (1926) (Holmes, J., dissenting);

National Treasury Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974); Biodiversity Associates et al. v.

Cables, 357 F.3d 1152, 1161-63 (10th Cir. 2004).

192

418 U.S. 683 (1974).

193

121 F.3d at 748.

194

Id. at 750.

195

Id. at 752.

191

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Judicial Watch, Inc. v. Department of Justice

The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of

Justice196 appears to lend substantial support to the above-expressed understanding of Espy.

Judicial Watch involved requests for documents concerning pardon applications and pardon

grants reviewed by the Justice Department’s Office of the Pardon Attorney and the Deputy

Attorney General for consideration by President Clinton.197 Some 4,300 documents were withheld

on the grounds that they were protected by the presidential communications and deliberative

process privileges. The district court held that because the materials sought had been produced for

the sole purpose of advising the President on a “quintessential and non-delegable Presidential

power”—the exercise of the President’s constitutional pardon authority—the extension of the

presidential communications privilege to internal Justice Department documents, which had not

been “solicited and received” by the President or the Office of the President, was not

warranted.198 The appeals court reversed, concluding that “internal agency documents that are not

solicited and received by the President or his Office are instead protected against disclosure, if at

all, by the deliberative process privilege.”199

Guided by the analysis of the Espy ruling, the panel majority emphasized that the “solicited and

received” limitation “is necessitated by the principles underlying the presidential communications

privilege, and a recognition of the dangers of expanding it too far.”200 Espy teaches, the court

explained, that the privilege may be invoked only when presidential advisors in close proximity

to the President who have significant responsibility for advising him on non-delegable matters

requiring direct presidential decision making have solicited and received such documents or

communications or the President has received them himself. In rejecting the government’s

argument that the privilege should be applicable to all departmental and agency communications

related to the Deputy Attorney General’s pardon recommendations for the President, the panel

majority held that

such a bright-line rule is inconsistent with the nature and principles of the presidential

communications privilege, as well as the goal of serving the public interest....

Communications never received by the President or his Office are unlikely to be revelatory

of his deliberations ... nor is there any reason to fear that the Deputy Attorney General’s

candor or the quality of the Deputy’s pardon recommendations would be sacrificed if the

presidential communications privilege did not apply to internal documents.... Any pardon

documents, reports or recommendations that the Deputy Attorney General submits to the

Office of the President, and any direct communications the Deputy or the Pardon Attorney

may have with the White House Counsel or other immediate Presidential advisers will

remain protected.... It is only those documents and recommendations of Department staff that

are not submitted by the Deputy Attorney General for the President and are not otherwise

196

365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the majority and Judge Randolph

dissenting.

197

The President has delegated the formal process of review and recommendation of his pardon authority to the

Attorney General who in turn has delegated it to the Deputy Attorney General. The Deputy Attorney General oversees

the work of the Office of the Pardon Attorney.

198

365 F.3d at 1109-12.

199

Id. at 1112, 1114, 1123.

200

Id. at 1114.

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received by the Office of the President, that do not fall under the presidential

communications privilege.201

Indeed, the Judicial Watch panel makes it clear that the Espy rationale would preclude Cabinet

department heads from being treated as being part of the President’s immediate personal staff or

as some unit of the Office of the President:

Extension of the presidential communications privilege to the Attorney General’s delegatee,

the Deputy Attorney General, and his staff, on down to the Pardon Attorney and his staff,

with the attendant implication for expansion to other Cabinet officers and their staffs, would,

as the court pointed out in In re Sealed Case, pose a significant risk of expanding to a large

swatch of the executive branch a privilege that is bottomed on a recognition of the unique

role of the President.202

The Judicial Watch majority took great pains to explain why Espy and the case before it differed

from the Nixon and post-Watergate cases. According to the court, “[u]ntil In re Sealed Case, the

privilege had been tied specifically to direct communications of the President with his immediate

White House advisors.”203 The Espy court, it explained, was for the first time confronted with the

question whether communications that the President’s closest advisors make in the course of

preparing advice for the President and which the President never saw should also be covered by

the presidential privilege. The Espy court’s answer was to “espouse[ ] a ‘limited extension’ of the

privilege’ ‘down the chain of command’ beyond the President to his immediate White House

advisors only,” recognizing “the need to ensure that the President would receive full and frank

advice with regard to his non-delegable appointment and removal powers, but was also wary of

undermining countervailing considerations such as openness in government.... Hence, the [Espy]

court determined that while ‘communications authored or solicited and received’ by immediate

White House advisors in the Office of the President could qualify under the privilege,

communications of staff outside the White House in executive branch agencies that were not

solicited and received by such White House advisors could not.”204

The situation before the Judicial Watch court tested the Espy principles. While the presidential

decision involved—exercise of the President’s pardon power—was certainly a non-delegable,

core presidential function, the operating officials involved, the Deputy Attorney General and the

Pardon Attorney, were deemed to be too remote from the President and his senior White House

advisors to be protected. The court conceded that functionally those officials were performing a

task directly related to the pardon decision but concluded that an organizational test was more

appropriate for confining the potentially broad sweep that would result from a functional test;

under the latter test, there would be no limit to the coverage of the presidential communications

privilege. In such circumstances, the majority concluded, the lesser protections of the deliberative

process privilege would have to suffice.205

201

Id. at 1117.

Id. at 1121-22.

203

Id. at 1116.

204

Id. at 1116-117.

205

Id. at 1118-24.

202

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Committee on the Judiciary v. Miers

The important 2008 district court opinion in Committee on the Judiciary v. Miers has also played

a role in defining the outer contours of executive privilege. In 2007, the House Judiciary

Committee issued subpoenas to White House Chief of Staff Joshua Bolten, in his role as

custodian of White House documents, and to former White House Counsel Harriet Miers as a part

of its investigation of the termination and replacement of several U.S. Attorneys. President Bush,

through his White House Counsel, asserted executive privilege in response to the subpoenas and

ordered Ms. Miers and Mr. Bolten not to produce any documents or appear to give testimony to

the committee.206

Throughout negotiations with the committee, the executive branch argued for a broad conception

of executive privilege that would not only shield disclosure of White House and executive branch

communications but would also provide an absolute immunity from compelled congressional

process for senior presidential advisors.207 Following their continued refusal to cooperate,

criminal contempt citations and resolutions authorizing civil enforcement of the subpoenas were

approved by the House against Ms. Miers and Mr. Bolten.208 After the Department of Justice

refused to bring the criminal contempt citation before a grand jury,209 the committee filed a civil

action for declaratory judgment and injunctive relief to enforce the subpoenas.210 The district

court’s 2008 opinion rejected the executive’s position that present and past senior advisors to the

President are absolutely immune from compelled congressional process, which it noted was

unsupported by existing case law.211 It also rejected the executive’s claim that requiring testimony

would have a “chilling effect” on the candid advice advisers provide to the President, since

advisers routinely testify before Congress as part of their jobs. Additionally, the court noted that

advisers could assert executive privilege on a question-by-question basis as appropriate during

their testimony.212 Throughout its analysis, the court reaffirmed Congress’s essential,

constitutionally based role in conducting oversight and enforcing its own subpoenas.213 However,

the court did not address the validity of any specific claims of executive privilege over the

documents at issue.

206

Letter dated June 28, 2007 to Chairman Conyers and Leahy from Fred F. Fielding, Counsel to the President,

available at http://www.judiciary.senate.gov/resources/documents/upload/110thCongress-2007Documents.pdf;

Memorandum, dated June 27, 2007, for the President from Paul D. Clement, Solicitor General and Acting Attorney

General, available at http://www.judiciary.senate.gov/resources/documents/upload/110thCongress-2007Documents.pdf

[hereinafter Clement Memo].

207

Memorandum for the Counsel to the President Re: Immunity of Former Counsel to the President from Compelled

Congressional Testimony from Principal Deputy Assistant Attorney General, Office Legal Counsel, DOJ, dated July

10, 2007, available at http://www.justice.gov/olc/2007/miers-immunity-Opinion071007.pdf [hereinafter OLC

Immunity Opinion].

208

See H.Res. 979, 110th Cong. (2008); H.Res. 980, 110th Cong. (2008); H.Res. 982, 110th Cong. (2008). The House

only voted on one resolution, H.Res. 982. However, the text of this resolution stated, “Resolved, That House Resolution

979 and House Resolution 980 are hereby adopted.” Therefore, the House only recorded one vote, but voted in favor of

passing two resolutions. See also H.Rept. 110-423 110th Cong., 1st Sess. (2007).

209

Letter from Attorney General Michael Mukasey to Speaker of the House Nancy Pelosi, Feb. 29, 2008 (on file with

the authors).

210

Complaint for Declaratory and Injunctive Relief, Comm. on the Judiciary, U.S. House of Representative v. Miers,

558 F. Supp. 2d 53 (D.D.C. 2008) (No. 08-0409).

211

Miers, 558 F. Supp. 2d at 99.

212

Id. at 102.

213

Id. at 102-03.

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Pending appeal to the U.S. Court of Appeals for the District of Columbia Circuit, the newly

arrived Obama Administration negotiated a compromise with the newly elected House.

Ultimately, some, but not all, of the requested documents were provided to the committee and

Ms. Miers was permitted to testify, under oath, in a closed but transcribed hearing.214

Application to Potential Congressional Oversight of Presidential Advisors

Taken together, Espy and Judicial Watch arguably have effected important qualifications and

restraints on the nature, scope, and reach of the presidential communications privilege. As

established by those cases, and until reviewed by the Supreme Court, to appropriately invoke the

privilege the following elements appear to be essential. First, the protected communication must

relate to a “quintessential and non-delegable presidential power.”215 This requirement would

arguably not include decision making with respect to laws that vest policymaking and

implementation authority in the heads of departments and agencies or which allow presidential

delegations of authority. Second, the communication must be authored or “solicited and received”

by a close White House advisor (or the President). The judicial test is that an advisor must be in

“operational proximity” with the President. This effectively means that the scope of the

presidential communications privilege extends only to the boundaries of the White House and the

Executive Office complex. Finally, the presidential communications privilege remains a qualified

privilege that may be overcome by a showing of need and unavailability of the information

elsewhere by an appropriate investigating authority. The Espy court found an adequate showing

of need by the Independent Counsel; while in Judicial Watch, the court found the privilege did

not apply and the deliberative process privilege was unavailing.216

Applying the law of executive privilege to the potential congressional oversight of presidential

advisors will largely need to be done on a case-by-case basis. As the above discussion indicates,

these advisors appear to reside both inside the Executive Office of the President (EOP), as well as

within several of the agencies or departments, such as Treasury and Homeland Security.

With respect to the advisors contained within the EOP, there appears to be a greater likelihood of

claims of executive privilege, specifically the “presidential communications privilege.” Based on

the position descriptions that are publically available, however, it is unclear whether information

sought from any of these advisors would satisfy all three parts of the test established by Espy and

Judicial Watch and qualify to be withheld under a theory of executive privilege. Arguably, given

their location inside the EOP, these advisors all meet the “operational proximity” prong of the

test. However, even granting that prong of the test, it would still need to be determined that the

communications seeking the privilege’s protection relates to a “quintessential and non-delegable

presidential power.” Thus, a presidential advisor such as the National Security Advisor may

satisfy this prong, as that advice likely relates to the President’s “Commander-in-Chief” and/or

authority with respect to the conduct of foreign affairs. Conversely, advice from other presidential

advisors within the EOP, such as the Assistant to the President for Energy and Climate Change,

214

David Johnston, Top Bush Aides to Testify in Attorneys’ Firings, N.Y. TIMES, March. 4, 2009. The settlement also

permitted Karl Rove to testify under the same conditions.

215

Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core,

direct presidential decision-making powers include the Commander-in-Chief power, the sole authority to receive

ambassadors and other public ministers, the power to negotiate treaties, and the power to grant pardons.

216

See, e.

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