Wednesday, June 3, 2009

Rebuilding the Republican Party: Opposing “Czars”

One of the most fundamental principles of the Republican Party must be the protection of the Constitution. The Constitution is the agreement under which we the people have created the government and wherein we the people have carefully outlined the limits of its powers.

Key among those limitations sits the separation of powers. By dividing the government’s power between its three branches, the Constitution prevents any one branch from becoming too powerful. The creation of “czars” violates that separation and endangers our freedoms.

The Constitution is clear: the Legislature creates the laws, the Executive enforces the laws, and the Judiciary ensures that the other two branches don’t overstep their powers.

The use of czars upsets this balance because it allows the Executive to make law and it eliminates judicial review. This is illegal under the Constitution, it violates our agreement with the government, and it leads to the types of abuses the Constitution was meant to prevent. Our government is a government of laws, not of men. The use of czars flips this on its head and makes our government totalitarian in nature.

To understand this point, let’s begin with a brief outline of how the law actually comes into being: note the level of public review in each phase. All laws begin in the legislature -- the Congress, our elected representatives. Once approved, the law is sent to the President to be implemented and enforced. At that point, interested parties may challenge the constitutionality of the law in court.

To implement the law, the President instructs the relevant cabinet official(s) to review the law and to issue appropriate regulations. The official’s agency then prepares proposed regulations. The agency must give the public notice of its intent to issue those regulations and an opportunity to be heard, i.e. anyone may come forward and comment on the proposed changes. If the government fails to give proper notice, or it denies someone the right to be heard, then the regulations will be struck down as a violation of due process and the procedure must be repeated.

After the hearing period, the agency may issue the new regulations -- which can now be challenged in court on the basis that the regulations exceeded the scope of the law or that they are inherently unconstitutional.

Once implemented, everyone to whom the regulations apply must follow those regulations. If an agency violates those regulations, its action can be challenged in court as illegal.

Now let’s compare that to the czar process.

In the czar process, particularly as Obama is using it, the Executive selects one person to meet with representatives of a particular industry or interest. That person meets with those individuals privately and advises them of the steps that the Executive would like them to take. Standing behind these “suggestions” is the threat that if the industry fails to agree, necessary loan funds or approvals will be withheld.

This is essentially lawmaking even though the industry’s compliance is ostensibly “voluntary” because that compliance is obtained under duress -- you and I might call it extortion.

However, unlike true lawmaking, the public has no say in the laws that are produced, the public has no opportunity to review or challenge the existing regulations, and there is no court oversight of the constitutionality of the law or regulations, of the scope of the regulations, or of the implementation. These laws are made in private and they are aimed at specific individuals, and they cannot be reviewed in court because there techinically are no laws or regulations to review.

None of this is allowable under the Constitution.

Indeed, even Robert Byrd (D-WV) has stated in a letter to Obama that the use of these czars is a violation of the separation of powers:

The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials. . .

As presidential assistants and advisors, these White House staffers are not accountable for their actions to the Congress, to cabinet officials and to virtually anyone but the president. They rarely testify before Congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability.

I never thought I’d agree with Robert Byrd, but he’s right. And the Republicans need to recognize that he is right. What Obama is doing is totalitarian in nature. He has pushed aside the Constitution and claimed unto himself the power to make law, in private, without the involvement of the Congress, the Judiciary, or the people. This cannot be allowed to stand because the consequences are too dangerous to the continued existence of constitutional government in the United States.

Step up Republicans, defend our rights.


Captain Soapbox said...

I'm with you Andrew, I never thought I'd agree with Byrd on much of anything, but he's completely correct here. It's a blatant grab at power by the Executive branch and even if the most competent people you could imagine were put in those positions, still wrong. Of course this administration being what it is the competency of many of these people is open to debate. I mean the guy that is "reforming" our auto policy is a 31 year old guy whose only real qualification I can see is he worked for the campaign? You got to be kidding me. Those people usually get rewarded with a nice salaried mid-grade post at some Department where they can't screw anything up, or for the most well liked ones an ambassadorship to some sleepy country where nothing happens, just to make them happy; but assuredly not put in positions to be allowed to tinker with mult-billion dollar policy fiats. Pun intended.

I never much liked the term Czar anyhow, whoever first suggested it be used should be slapped about the head and neck repeatedly with a large sea bass. Then again if they would have gone the usual route each one of these people, with the same powers, would have some indecipherable acronym for their title that even a German would go "Wow that's a long and confusing name."

It's not just the Czars that are the problem either though, it's also the number of "special envoys" that are running around too. There's one for Middle East Peace, there's one for China, there's one for here, there's one for there, you name it. Which makes me say another thing I'd never thought I'd ever say: I feel sorry for Hillary Clinton.

With the number of Special Envoys out there, and any country that is "sensitive" seems to get one, she's basically a speech giver about random inane broad policy decisions, but has no real role in diplomacy at all. In fact with the diplomatic duties further being "seen to" by the National Security Advisor on any area that could go "hot" she really has no clearly defined role.

Now don't get me wrong I don't feel too bad for Hillary, she did give up a Senate seat for this job after all, but the current policy of apportioning diplomacy out to Special Envoys and people sitting in the White House is damaging to the entire position of Secretary of State. She's in effect become the Cabinet level version of Gibbs, she makes some speeches, has some tea with friendly countries, but then gets told to sit down while the "experts" do the actual diplomacy. That's a very dangerous precedent to set no matter who happens to be the Secretary of State.

LawHawkSF said...

Andrew: "L'etat c'est moi" said Louis XIV--"I am the state." "Ditto" says Barack Obama.

I want to insert one step in the legislative process as it affects the executive. The Founders intended that each branch would have its own form of Constitutional brakes to apply to the other branches. One of those executive brakes which George Bush consistently forgot to apply for nearly seven years was the veto power of the President.

The Congress sends proposed legislation to the President, but he is not required to execute or apply it until he has made his own independent determination of its efficacy and/or constitutionality. If he agrees, he can sign the bill or simply let it become law by the passage of the ten days the Constitution provides.

The best recent example of a President failing in that constitutional duty is McCain-Feingold. Mr. Bush stated that he felt that portions of the bill were unconstitutional, but he signed it anyway and relied on the Supreme Court to affirm his original view. The Supreme Court did not agree with him, and thus an opportunity to squelch unconstitutional suppression of political free speech was lost, perhaps forever.

Only a two-thirds vote of Congress could have overridden Bush's veto, and it was very unlikely that the supporters in Congress could have raised that many votes.

The Constitution and a long line of case law forbid unlawful delegation of power in either of the political brances (Congress and the Presidency). The Czar concept is a breath-taking unconstitutional delegation of power by both branches working together to undermine our core republican principles. Thank you for a great discussion of the current torch being touched to the Constitution.

AndrewPrice said...


The envoy thing and the czar thing are really very different issues. The czar matter strikes at the heart of our Constitution -- the separation of powers. The envoy thing is a turf battle within the State Department and the White House -- though I agree there is an appointment question.

The term "czar" was first used by Bush I, and while his czars only dealt with coordinating policy within the government, it still raises constitutional concerns.


Thanks -- and great quote by L'roi.

You are right about the veto power. It is certainly an important check/balance that Bush clearly forgot he held, and the idea of signing a law that the president believes to be a violation of the Constitution is a clear violation of his duties. Frankly, it's almost impeachable: the President's oath is to uphold the Constitution.

The reason I left the veto stage out of this discussion was because I was focusing only on laws that are passed. Nice supplement though. Thanks.

McCain Feingold is a discussion for another day.

Captain Soapbox said...

Yeah I didn't mean that Czars and Special Envoys were equivilent in a Constitutional way, they aren't. But just pointed them out to show how much that Obama's White House is trying to run the entire show. Even if it means taking power away from other Executive Branch agencies. He wants everything to be done from the White House, by people who do what he damn well tells them what to do, at least that's how I see it. Plus if you fire your 4th Special Envoy on Middle East Peace, people generally shrug, but if you get rid of your Secretary of State for not doing what you want, well countries all over the world pay attention to that.

I agree with you on the veto thing too Lawhawk, as I mentioned on another article, one of the problems is that everyone in Washington just assumes that they really don't have to look too deeply at the Constitutionality of a piece of legislation, Congress will pass it, and Presidents will sign it, and if any issue comes up, well that's what the Supreme Court is for they figure and they can sort it out. Which is a sloppy, at best, and more likely trending to very dangerous way to do business. The other 2 branches have seemed to give up any notion of worrying about Constitutionality because "That's what the Court is for." And that's true, but as I see it it should be the final test of whether something is Constitutional or not, not the first time the Constitutionality of legislation should be brought up.

Frankly I think if Congress and the President (whatever one happens to be there) did a better job at thinking about what is Constitutional and what isn't before they pass or sign a law, then the Court would have much less impact since they'd be dealing with less things that could have, and should have been cleaned up before it got to them. And by that I don't mean make the Court less powerful at all, but the branches are supposed to be equal in power, whereas lately it seems that the Court winds up being the most powerful (for all practical reasons) since the other two branches have neglected their role in determining what is Constitutional in the first place. If everything winds up before the Court, then the Court has a say on everything; if things are actually reasoned out before passed and signed, then no need for the Court to become involved.

But like I said I'm not a lawyer, it just seems to me that the Court has become so powerful because the other branches aren't holding up their end of the deal and are willing to "pass the buck" to the Court.

LawHawkSF said...

Andrew: Your discussion of Obama's violation of separation of powers is excellent. I simply wanted to add to it the fact that Congress's complicity in the creation of another Czar is not only an unconstitutional foray into the elimination of the separation of powers, but an unconstitutional joint delegation of power as well. In other words, a double-whammy.

"The Congress proposes, the President disposes" has turned into "the Congress and the President propose and the unelected Czar disposes." First we'll burn The Federalist Papers, then we'll throw the Constitution on the funeral pyre.

LawHawkSF said...

Captain: How right you are. The descent into European style "rule of the bureaucracy" is accelerated every time the Congress and the President act hastily and without the guidance of the Constitution. The rule of a few hundred elected representatives and one President fulfilling the will of the people is dying a slow and painful death. It is being replaced with the rule of one Czar and the nine gray eminences on the Supreme Court.

I cannot believe the the Founders intended any such thing--not even the heavy-handed Alexander Hamilton. And there is good reason why Jefferson considered the Supreme Court to be the most dangerous branch of government, even after the Court supported him in Marbury v. Madison.

AndrewPrice said...


When you say that the other branches have abdicated their role to the courts, you have no idea how right you are. That really is a topic for another day because of it's depth, but it used to be that the courts required that legislation be specific or they would strike it down. That changed under Roosevelt. Now, the courts will just fill in the blanks.

The most egregious example of this was the Americans with Disabilities Act (ADA), which did not include a useable definition of "disability" nor did it say how far employers/businesses had to go to "accomodate" the disabled. Indeed, the law left these areas up to the court to determine. This has brought total chaos and inconsistency to anyone trying to comply. In the old days, such legislation would have been struck down.

Captain Soapbox said...

I forget most of the specifics (as there were) of the Americans With Disabilities Act, but the whole "filling in the blanks" deal is the thing that really should worry everyone regardless of which side of the political spectrum they're on.

Lawhawk, the European Bureaucracy style is in full swing now it seems. There are Czars for a whole host of issues, there are new offices and agencies put into place faster than people can keep track of them. Some of them being simply offices to recommend new offices that they'll need in a few years, etc. All overseen by gray faceless bureaucrats whose only mission in life is to create more bureaucracy. When there are offices that have the holy duty of coming up with toilet tank specs for the good of the American people, well I think we've pretty much entered the land of the surreal.

Of course the government sees nothing wrong with turning larger and larger segments of the workforce into government workers, not only does that give them actual control over them, but hey they're all union too so double bonus as far as the current administration is concerned.

Writer X said...

Excellent post, Andrew. And, once again, you point out in layman's terms a process that is being violated at every turn. Where are the Republican Leaders' voices on this? If they're speaking out, I'm not hearing them. It's pretty sad if Robert Byrd is the only voice of reason on this.

Republican leaders need to step it up before President Obama dons the epaulets. It's bad enough that he's already got members of the media bowing to him.

patti said...

where the hell are our leaders? i am restraining myself from packing my boots and getting there as fast as i can. we want to be led, we want the constitution upheld. it seems like a simple, doable concept.

i am speechless at the swiftness in our decline, but feel powerless to stop it. will those who freed us from england's tyranny have died in vain?

AndrewPrice said...

Write X and Patti,

I agree completely. I don't know why the Republicans can't see this, or explain it, or why they are afraid to stand up for our rights, the Constitution and the future of the country.

Hopefully, when this series of over, someone in the party will take note and will realize that it's really pretty obvious what they need to do.

StanH said...

The Republicans are complicit in what’s going on, they love big government as well. In the cloak rooms of congress they probably cheer Barry and his power grab. Washington is a cesspool, and to get back to our founding is going to take a strong leader that can keep the Washington jackals in line, espouse freedom, states rights, free markets, Sarah Palin? Maybe! Czars are a cute way to usurp the power of the Constitution, subsequently the American people, and is another reason to coalesce as conservatives to prepare for 2010. Barry has pledged an oath to preserve, protect and defend the Constitution lets hold him to it. If we can find that true conservative leader we can hold his feet to the fire, and slow him down for defeat.

CrispyRice said...

Hi, I've been lurking, but I wanted to add that I, too, am tired of seeing all this happening and feeling helpless to stop it. I have no faith in Republicans to stand up against and lead. As Stan said, they seem to like big government and big bureaucracy just as much.

Perhaps "Brazil" would be appropriate for your next film feature, Andrew.

AndrewPrice said...


I agree completely. These guys have fallen in love with the place and have forgotten why they are there or who sent them.


Welcome to the land of the participating! Brazil huh? That might not be a bad idea. . . interesting film!

LawHawkSF said...

CrispyRice and Andrew: Astute. This hanging onto a Congressional seat and following the same old path have cost us two elections in a row. Inertia is not a plan. It's just a recipe for further disaster. I pray that we will soon see some genuine leaders emerge. We have numerous conservative Republican thinkers who are on the right track (pun intended), but where are the leaders? I don't have an answer, but we had better come up with one soon.

Captain Soapbox said...

"Brazil" is a most excellent movie indeed. In fact every time I think of that movie I see Nancy Pelosi as the mom in it, then again maybe that's what she's been shooting for all along...

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