# The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR40856 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** March 31, 2014 - **Citation:** R40856 ## Text 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. Congressional Research Service Selected Presidential Assistants and Advisors 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 Congressional Research Service Selected Presidential Assistants and Advisors 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 1 (name redacted), Analyst in American National Government in the Government and Finance Division (7-....), wrote this section. 2 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). 3 A summary of the hearings is included in this report. 4 Division E, §621, the Financial Services and General Government Appropriations Act, statutory citation not yet available. 5 Division C, §627, the Financial Services and General Government Appropriations Act, 125 Stat. 786, at 927. Congressional Research Service 1 Selected Presidential Assistants and Advisors 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 6 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 6 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. 7 (name redacted), Analyst in American National Government in the Government and Finance Division (7-....), wrote this section. 8 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. Congressional Research Service 2 Selected Presidential Assistants and Advisors 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 9 Ibid., p. 46. Reorganization Act of 1939, April 3, 1939, ch. 36, 53 Stat. 561 (1939). 11 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). 12 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. 13 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) 14 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). 10 Congressional Research Service 3 Selected Presidential Assistants and Advisors 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 15 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. 16 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. 17 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], and Zimmer on Czars. 18 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. 19 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. 20 These positions were discussed in the section entitled “Selected Special Assistants and Advisors in the Obama (continued...) Congressional Research Service 4 Selected Presidential Assistants and Advisors 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. 21 (name redacted), Analyst in American National Government in the Government and Finance Division (7-....), wrote this section. 22 Overview of Presidential Staffing, pp. 46, 55. 23 Ibid., p. 56. 24 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. Congressional Research Service 5 Selected Presidential Assistants and Advisors 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 25 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. 26 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. 27 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. 28 White House Staff, p. 264. 29 Alexis Simendinger, “Agents of Change,” National Journal, January 10, 2009, pp. 18-19. 30 Czar Wars, p. 18. Congressional Research Service 6 Selected Presidential Assistants and Advisors 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 31 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. 32 Cycles of American History, p. 334. 33 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.” 34 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. 35 Overview of Presidential Staffing, p. 68. 36 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. 37 Cycles of American History, p. 334. Congressional Research Service 7 Selected Presidential Assistants and Advisors 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 38 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. 39 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.” 40 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. 41 Overview of Presidential Staffing, p. 56. 42 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. Congressional Research Service 8 Selected Presidential Assistants and Advisors ... 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; 43 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. 44 CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al. 45 (name redacted), Analyst in American National Government in the Government and Finance Division (7-....), wrote this section. 46 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. 47 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. Congressional Research Service 9 Selected Presidential Assistants and Advisors • 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 48 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. 49 (name redacted), Specialist in American National Government in the Government and Finance Division (7-....), wrote this section. Congressional Research Service 10 Selected Presidential Assistants and Advisors 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 50 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. 51 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. 52 (name redacted), Specialist in American National Government in the Government and Finance Division (7-....), wrote this section. Congressional Research Service 11 Selected Presidential Assistants and Advisors 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. 53 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. 54 (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.) 55 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. Congressional Research Service 12 Selected Presidential Assistants and Advisors 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: 56 (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. 57 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). 58 P.L. 103-329, 108 Stat. 2425. 59 (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. 60 P.L. 103-329, 108 Stat. 2425; 3 U.S.C. prec. §101. 61 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/. 62 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. Congressional Research Service 13 Selected Presidential Assistants and Advisors “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 63 §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. 65 §1.3(b), ibid. 66 60 Federal Register 40245, August 7, 1995. 67 Ibid. 68 “Security Requirements for Government Employment,” 18 Federal Register 2489, April 27, 1953. 64 Congressional Research Service 14 Selected Presidential Assistants and Advisors 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 69 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. 71 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). 72 5 U.S.C. §105(b)1). 73 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). 74 5 C.F.R. §2634.602(a). 75 5 U.S.C. app. §103(c), 5 C.F.R. §2634.602(c)(1)(vi). 76 5 U.S.C. app. §103(c), 5 C.F.R. §2634.602(c)(3). 77 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). 70 Congressional Research Service 15 Selected Presidential Assistants and Advisors 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 78 5 C.F.R. §2634.904(a). 5 C.F.R. §2634.903(a). 80 5 C.F.R. §2634.904(b). 81 Id. 82 Jack H. Maskell, Legislative Attorney in the American Law Division (7-....), wrote this section. 83 E.O. 12674 (modified by E.O. 12731), April 12, 1989, Section 102. See now 5 C.F.R. §§2635.804, 2636.302. 84 5 C.F.R. §2635.804(c)(2). 79 Congressional Research Service 16 Selected Presidential Assistants and Advisors 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 85 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. 87 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. 86 Congressional Research Service 17 Selected Presidential Assistants and Advisors 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 88 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. 89 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. Congressional Research Service 18 Selected Presidential Assistants and Advisors 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 90 (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). 92 U.S. Const., art. II, §2, cl. 2. 93 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). 94 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.”). 95 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). 96 See e.g., Buckley, 424 U.S. 1 (Congress may not appoint executive officials performing substantial functions under (continued...) 91 Congressional Research Service 19 Selected Presidential Assistants and Advisors 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). 97 Edmond v. United States, 520 U.S. 651, 659 (1997). 98 See, e.g. 3 U.S.C. §105 et seq. 99 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”)). Congressional Research Service 20 Selected Presidential Assistants and Advisors 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 Congressional Research Service 21 Selected Presidential Assistants and Advisors 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 Congressional Research Service 22 Selected Presidential Assistants and Advisors 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). Congressional Research Service 23 Selected Presidential Assistants and Advisors 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). Congressional Research Service 24 Selected Presidential Assistants and Advisors 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 Congressional Research Service 25 Selected Presidential Assistants and Advisors 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 Congressional Research Service 26 Selected Presidential Assistants and Advisors • 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 Congressional Research Service 27 Selected Presidential Assistants and Advisors 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. Congressional Research Service 28 Selected Presidential Assistants and Advisors 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). Congressional Research Service 29 Selected Presidential Assistants and Advisors 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. A [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR40856. Public record. Not legal advice.