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

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The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight The Debate Over Selected Presidential Assistants and Advisors: Appointment, Accountability, and Congressional Oversight Barbara L. Schwemle Analyst in American National Government Todd B. Tatelman Legislative Attorney Vivian S. Chu Legislative Attorney Henry B. Hogue Analyst in American National Government October 9, 2009 Congressional Research Service 7-5700 www.crs.gov R40856 CRS Report for Congress Prepared for Members and Committees of Congress Selected Special Assistants and Advisors Summary A number of the appointments made by President Barack 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 being used to quickly 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 the 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 taken note of these appointments; several Members have introduced legislation or sent letters to President Obama to express their concerns. Legislation introduced includes H.Amdt. 49 to H.R. 3170; H.R. 3226; H.R. 3569; H.Con.Res. 185; H.R. 3613; H.Res. 778; S.Amdt. 2440 to H.R. 2996; S.Amdt. 2498 to H.R. 2996; S.Amdt. 2548 to S.Amdt. 2440 to H.R. 2996; and S.Amdt. 2549 to H.R. 2996. 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 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 brief background information and selected views on the role of some of these appointees and discusses selected appointments in the Obama Administration. 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. An Appendix provides tables showing selected appointments in the Administration of President Obama, the membership of the President’s Cabinet, and selected legislation, introduced in the 111th Congress, related to the issues discussed in this report. This report will be updated as circumstances dictate. Congressional Research Service Selected Special Assistants and Advisors Contents Introduction ................................................................................................................................1 Background ................................................................................................................................2 Selected Views on Special Assistants and Their Roles ...........................................................4 Pay and Reporting Requirements for White House Staff........................................................8 Vetting of Appointees............................................................................................................9 Background Investigations ............................................................................................10 Financial Disclosure......................................................................................................13 Outside Employment Limitations........................................................................................14 Selected Special Assistants and Advisors in the Obama Administration .....................................17 Appointed by the President to White House Office Positions...............................................17 Appointed by the President to EOP Positions.......................................................................26 Appointed by Agency Heads ...............................................................................................31 Appointments Clause and Presidential Advisors ........................................................................39 Officer/Employee................................................................................................................41 Principal Officer/ Inferior Officer........................................................................................44 Analyses of Certain Presidential Advisors ...........................................................................45 Director of the Office of National Drug Control Policy..................................................45 Director of Urban Affairs ..............................................................................................46 Special Master for TARP Executive Compensation .......................................................47 Summary of Presidential Advisor Analyses ...................................................................48 Congressional Oversight of Presidential Advisors......................................................................49 Congress’s Oversight Authority...........................................................................................49 The Relationship Between Advice and Consent and Congressional Oversight......................50 Potential Legal Bases for the Denial of Access to Presidential Advisors...............................52 The Deliberative Process Privilege................................................................................52 Executive Privilege .......................................................................................................52 Application to Potential Congressional Oversight of Presidential Advisors ....................59 Options for Potential Congressional Consideration....................................................................60 Legislative Options .............................................................................................................60 Option: Report and Wait Provision................................................................................60 Option: Add Advice and Consent Positions in the EOP..................................................62 Option: Reduce and/or Confirm Presidential Staff .........................................................62 Oversight Options ...............................................................................................................63 Tables Table A-1. Selected Legislation Introduced in the 111th Congress Related to Selected Appointments in the Administration of Barack Obama, as of October 1, 2009 ........................65 Appendixes Appendix. .................................................................................................................................65 Congressional Research Service Selected Special Assistants and Advisors Contacts Author Contact Information ......................................................................................................65 Acknowledgments ....................................................................................................................65 Key Policy Staff........................................................................................................................66 Congressional Research Service Selected Special Assistants and Advisors Introduction A number of the appointments made by President Barack Obama to his Administration or by Cabinet Secretaries to their departments have been referred to, especially by the news media, as “czars.”1 For some, the term is being used to quickly convey an appointee’s title (e.g., climate “czar”) in shorthand. For others, it is, perhaps, being used to convey a sense that power is being centralized in the White House or certain entities. When used in the 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 taken note of these appointments; several Members have introduced legislation (See Table A-1 in the Appendix) or sent letters to President Obama to express their concerns.2 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. 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 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 brief background information and selected
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