Hoover Daily Report

The Constitution Doesn't Mention Czars

via Wall Street Journal
Monday, April 11, 2011

A pattern of governance has emerged in Washington that departs substantially from that envisaged in our Constitution. Under our basic concept of governance: (1) a president and vice president are elected; and (2) the departments of government are staffed by constitutional officers including secretaries, undersecretaries, assistant secretaries and others who are nominated by the president and confirmed for service by the consent of the Senate. They are publicly accountable and may be called to testify under oath about their activities.

Over time, this form of governance has changed. Presidents sometimes assume that the bureaucracy will try to capture a secretary and his or her immediate staff so that they will develop a departmental, rather than a White House, point of view. So presidents will name someone in the White House to oversee the department and keep a tight rein on its activities.

In national security and foreign policy, the National Security Council (NSC) was established after World War II by the National Security Act of 1947. As late as 1961, under President Dwight Eisenhower, the NSC was supported by a small staff headed by an executive secretary with a "passion for anonymity" and limited to a coordinating role. In subsequent administrations, that passion disappeared and staff members took on operational duties that formerly were the responsibility of constitutionally confirmed cabinet officials. This aggrandizement of the staff function then spread into fields far beyond national security.

More recently, the situation has been worsened by the difficulty of getting presidential nominees to cabinet and subcabinet positions approved and in place. The White House vetting process has become exhaustive, with potential appointees required to fill out extensive questionnaires on such things as foreign travel and personal acquaintances, let alone financial matters. Mistakes are potentially subject to criminal penalties. The result is a drawn-out and often disagreeable process from the time a person agrees to a job to the actual nomination.

Formal nominations do not necessarily receive quick consideration by Senate committees, which routinely request additional information. Sometimes a nomination, voted legitimately out of the committee, can be put on hold indefinitely as one member of the Senate uses the hold as a bargaining chip to get some matter, often unrelated, settled to his or her satisfaction.

These long delays make for great difficulty in assembling an administration, particularly in its crucial first year. The result has been appointment of people to the White House staff with de facto decision-making power over all the major areas of government. This practice also extends to foreign affairs, as a variety of special envoys and "special representatives" are appointed, often with ambiguity about whether they report directly to the president or to the secretary of state.

The practice of appointing White House "czars" to rule over various issues or regions is not a new invention. But centralized management by the White House staff has been greatly increased in recent years.

Beyond constitutional questions, such White House advisers, counselors, staffers and czars are not accountable. They cannot be called to testify under oath, and when Congress asks them to come, they typically plead executive privilege.

The consequences, apart from the matter of legitimate governance, are all too often bad for the formation and execution of policy. The departments, not the White House, have the capacity to carry out policies and they are full of people, whether political appointees or career governmental employees, who have vast experience and much to contribute to the making of ­policy. When White House staffers try to formulate or execute policy, they can easily get off track in a way that would not happen in a regular department.

As secretary of state under President Ronald Reagan, I experienced this with great pain when White House people developed and ran an off-the-books program of arms sales to Iran. It erupted in the Iran-Contra scandal involving the unconstitutional transfer of funds not appropriated by Congress to the Contras, and with close to devastating consequences for the president.

Iran-Contra is a dramatic example, but the more general problem is the inability to take full advantage of available skills and expertise in policy making, and the difficulty in carrying out the functions of government nationally and internationally.

What must be done?

To return to a more effective and constitutionally sound use of cabinet members and their departments in helping the president formulate policy, cabinet secretaries could be grouped into important functional categories—national security and foreign policy, economics, natural resources, human resources, the rule of law, education, health and others. All of these subjects involve more than one department. Sometimes the natural convener is obvious; in other instances the leading role might simply rotate.

With the help of staff coordinators in the White House, cabinet members might convene by themselves and then with the president. This would involve the departments and, at the same time, ensure that a presidential, rather than a departmental, point of view would prevail. Policy execution would be improved, as would support for legislative initiatives.

The main goal is to assure that a cabinet member—not a White House aide—is always in charge. The result would be not so much cabinet government as presidential government with the heavy involvement of accountable officials in the administration.

Then, and foremost, the appointment process must be moved back to what it was even as recently as the Reagan administration. The assumption is that honorable people want to serve honorably. Reasonable vetting, such as a review of Internal Revenue Service and Federal Bureau of Investigation records, can be done quickly. A bad apple will surely be discovered and can be discarded.

I remember a passage in the late great American statesman Paul Nitze's autobiography. A friend in the FDR administration called and asked him to work in government—he would receive no pay, only an extra desk and an assistant. In this wholly illegitimate way, he began his career in the federal government.

Nitze's record of public service is legendary. I was lucky to serve with such a great and honorable man. I am not recommending that today's vetting process be like his, but I worry: Could we attract a Paul Nitze to the government today?

Today's problems are daunting and of critical importance. We need today's Paul Nitzes involved in the process of governance. It's imperative that we get back to a constitutional and accountable form of government before confidence in our capacity to govern further erodes.

Mr. Shultz, former secretary of labor (1969-70), secretary of the Treasury (1972-74) and secretary of state (1982-89), is a fellow at Stanford University's Hoover Institution.