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More on White House Czars and the Appointments Clause

            As noted in a prior post , WH Counsel Greg Craig maintains that none of the White House or National Security Council “czars” are officers of the United States within the meaning of the Appointments Clause because they “exercise[] [no] independent authority or sovereign power.”  Instead, Craig argues, they perform solely advisory functions.  For example, he asserts that the “sole function” of the Information Sharing, Central Region, Cybersecurity and WMD Policy “czars” on the NSC staff is “to advise the President, often through recommendations that are formulated by NSC principals and deputies committees.” 

            The three constitutional law experts who testified last week before the Senate Judiciary  Subcommittee on the Constitution seemed to share Craig’s general views regarding what constitutes an officer of the United States.  T.J. Halstead of CRS noted “the Supreme Court’s determination that the “strictures of the Appointments Clause only apply to persons exercising ‘significant authority pursuant to the laws of the United States.’”  Professor John Harrison of UVA Law School similarly testified that many persons who work for the federal government do not exercise “significant authority” and therefore are not officers, but mere employees.  Professor Tuan Samahon of Villanova Law School also adverted to the “significant authority” test as marking the line between officer and non-officer and indicated that “purely advisory positions” are not deemed to be offices within the meaning of the Appointments Clause.  

These experts rely largely on the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1, 125-26 (1976), as well as the 2007 OLC opinion cited by Craig.  But does Buckley really stand for the proposition that only individuals exercising “significant authority” are officers of the United States?

Buckley involved the question of whether the members of the Federal Election Commission were required to be appointed in conformity with the Appointments Clause. The FEC was charged by statute with a number of executive and administrative functions of the sort typically found in administrative agencies, such as engaging in rulemaking, issuing advisory opinions, and filing civil suits to enforce the law.

There was no contention in Buckley that the FEC commissioners were functioning as mere employees, rather than as officers. The Court’s entire discussion of this possibility is contained in footnote 162, which states: “’Officers of the United States’ does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.”

Neither of the cases cited by the Court, however, involved “employees” in the modern sense. Auffmordt held that a merchant appraiser, selected on a temporary basis by the collector of customs to conduct a reappraisal of particular goods, did not hold an office under the Constitution. Germaine held that a civil surgeon, appointed by the Commissioner of Pensions to make occasional and periodic examinations of pensioners (for which he was paid on a per examination basis), was likewise not an officer. These cases stand for little more than the proposition that a contractor who provides goods or services to the government does not thereby become an officer.

It is true that the Buckley Court states that any appointee “exercising significant authority pursuant to the laws of the United States” is an officer of the United States and must be appointed in accordance with the Appointments Clause, a formulation that it repeats at several points. But nowhere does the Court state that only individuals exercising “significant authority” qualify as officers, nor does it give any explanation or example (other than the two cases cited above) of what would constitute “insignificant authority” for purposes of the Appointments Clause.

The Court did does affirm that Congress can create “offices” in the “generic sense” without requiring that those offices be filled in accordance with the Appointments Clause, but only so long as the occupants “perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not ‘Officers of the United States.’” (emphasis added) Moreover, the Court states that the Framers viewed the concept of “officers of the United States” as “embrac[ing] all appointed officials exercising responsibility under the public laws of the Nation.” These broader formulations suggest that the Court’s observations regarding the exercise of “significant authority” were not intended to mark the precise line between officer and non-officer, but merely to establish that the FEC was well on the officer side of that line.

The 2007 OLC opinion, in fact, notes that the “significant authority” phrase used in Buckley “does vary somewhat from the well established historical formulation, but nothing in the Court’s opinion suggests any intention to break with the longstanding understanding of a public office or fashion a new term of art.” OLC points out that the Buckley Court cites with approval several nineteenth century cases that treated “arguably insignificant positions as offices.” As OLC notes, the original understanding of officer included persons holding ministerial offices such as “registers of land offices, masters and mates of revenue cutters, inspectors of customs, deputy collectors of customs, deputy postmasters, and district court clerks.” Accordingly, OLC opines that Buckley merely adopted a “shorthand for the full historical understanding of the essential elements of a public office.”

The problem is that this “historical understanding” does not go very far in establishing whether or not White House or NSC officials are officers for purposes of the Appointments Clause. These officials do not have the types of functions that are most typically and obviously associated with being an officer, such as law enforcement, rulemaking or formal military command, but they are certainly nothing like the independent contractors providing commercially available services as in Auffmordt or Germaine.

The OLC opinion notes that “[t]he mere authority to advise or inform” does not constitute “delegated sovereign authority” so as to create an office within the meaning of the Appointments Clause. But this observation is rooted in historical examples of advisory or investigative commissions performing functions analogous to congressional committees. See, e.g., Buckley, 424 U.S. at 137 (“Insofar as the powers confided in the [FEC] are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress may delegate to one of its own committees, there can be no question that . . . [the FEC] may exercise them [without complying with the Appointments Clause]“).

While WH and NSC officials, including the various “czars,” clearly have advisory functions, it is a bit of a stretch to say that their roles are “purely advisory” or comparable to a commission established to make a report and recommendations on a particular subject. When the Brownlow committee first proposed an expansion of “presidential assistants” in 1937, it described their roles as follows: “These aides would have no power to make decisions or issue instructions in their own right. They would not be interposed between the Presidents and the heads of his departments. They would not be assistant presidents in any sense. Their function would be, when any matter was presented to the President for action affecting any part of the administrative work of the Government, to assist him in obtaining quickly and without delay all pertinent information possessed by any of the executive departments so as to guide him in making his responsible decision; and then . . . ‘to assist him in [informing departments and agencies of the decision]. . . . They would remain in the background, issue no orders, make no decisions, emit no public statements.”

It is questionable whether this modest conception of the role of presidential advisors reflected reality even when the Executive Office of the President was formally organized several years later. Brownlow himself described the newly created office as “the institutional realization of administrative management and ‘the effective coordination of the tremendously wide-spread federal machinery.’” These are functions which go beyond merely providing information, advice and recommendations to the President.

In any event, there is a significant gulf between the “purely advisory” conception of presidential advisors and the actual role that they have played over the past 70 years. This legal history of the NSC, for example, describes how it has “evolved from a limited advisory council to a vast network of interagency groups that are deeply involved in integrating national security policy development, oversight of implementation, and crisis management.” While the authority and role of the National Security Advisor has differed depending on the administration, it has never been a purely advisory position.

It may be true that the National Security Advisor and other WH aides are not supposed to have operational responsibilities or authority. The line between policy making/coordinating and operations, however, may sometimes be less than clear. For example, the 9/11 Commission (a truly advisory body) described how Richard Clarke, who served on the NSC staff as “national coordinator for security, infrastructure protection and counterterrorism,” became the “manager of the U.S. counterterrorism effort.”

Even if it is assumed, however, that WH or NSC officials do not exercise operational authority (or that any authority they do exercise is ultra vires), it is by no means clear that their policymaking and coordinating functions are insufficient to qualify them as officers of the United States. One would have to analyze the actual functions and authorities of each WH or NSC “czar” to make such a determination.

To take just one example, the report recommending the establishment of a WH “cybersecurity policy official” (popularly referred to as the “cyberczar”) describes that official’s functions “to coordinate the Nation’s cybersecurity-related policies and activities.” Although the cyberczar should have no operational responsibility or authority, the report says, he or she “should harmonize cybersecurity-related policy and technology efforts across the Federal government, ensure that the President’s budget reflects federal priorities for cybersecurity, and develop a legislative agenda.” Moreover, the cyberczar is to serve “as the White House action officer for cyber incident response.”

These do not seem like “purely advisory” duties. Indeed, one might argue that the cyberczar’s budgetary responsibilities sound a lot like the “preparatory plans of finance,” described in Federalist No. 72 as one of the key functions of an executive officer.

Are these functions nonetheless “sufficiently removed from the administration and enforcement of the public law” to be performed by a non-officer under Buckley? Perhaps. But there is nothing in Buckley or any other controlling precedent to answer the question, which appears to be far murkier than suggested by Craig’s letter.

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