Herein of Regulatory “Czars”
Some conservatives like Glenn Beck are now raising alarms about the power of “czars” within the Obama White House. Although the rhetoric is ridiculous, there is a serious question here. A long-term trend has been for Presidents to exert more centralized control over the bureaucracy, and as a practical matter that control has to be exercised through staff.
This is a bipartisan trend — indeed, the most strenuous efforts were made to centralize authority under Bush 43, and perhaps the single most important move to centralize government was made by Ronald Reagan, when he assigned review of government regulations to OMB. The strongest advocates of centralized presidential power are believers in the unitary president, a popular view in the conservative Federalist Society. So despite the current furor, “presidentialism” doesn’t have an inherent ideological spin.
What are the pros and cons of centralizing power over the executive branch in the White House?
Pro. (1) More coordination of government policy, (2) increased democratic accountability because (obviously) the President is elected and (obviously) bureaucrats are not. These are big pluses.
Con. (1) Less responsiveness to congressional will,(2) less commitment to the missions assigned to agencies by statutes, (3) less expertise, (4) less transparency because the White House isn’t subject to most disclosure laws and is more apt to claim executive privilege for itself than for agencies. These are significant negatives.
Administrative law scholars have been vigorously debating these issues for years. A further complication is that, to the extent decisions should be made within agencies, this is increasingly difficult because it’s gotten so time-consuming to get sub-Cabinet appointments through Senate confirmation, and once they’re in place, they often don’t stay any long. So the offices are often vacant, leaving a vacuum at the agencies.
I myself am troubled by the trend toward undercutting the authority of cabinet officials (and cabinet-level types such as the administrator of EPA). As I’ve said, that trend long predates the Obama Adminstration, and it got so bad under Bush 43 that even the VP — who is given zero executive power by the Constitution — was bossing around the agencies. However, until Congress cuts way back on the number of political appointments in the agencies and speeds up the confirmation process, there may not be much of an alternative to White House activism. And until Congress gets over its seeming inability to make important policy decisions, it’s no surprise that the White House has taken over much of that role.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more