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.