Are Czars Constitutional?

October 27, 2009

The issue of Obama’s czars has come to a head with the recent announcement that Pay Czar Kenneth Feinberg has ordered steep pay cuts of bailed out executives.  Obama is certainly not the first president to utilize these executive appointments, and there have been constitutional grumblings about their status since Nixon’s first appointment around forty years ago. But, Obama has appointed more than any of his predecessors, and they wield far more power. That’s why we may be in store for an interesting legal battle. Feinberg would seem to be the obvious target.  The media is reporting that he alone decided to order the executive pay cuts; he did not even consult the president about his decision.

The constitutional arguments against his actions are clear cut.  According to Ken Klukowski’s article on, “the Founding Fathers were specifically blocking the type of centralized power that President Obama is currently exerting.”

Article II, Section 2, Clause 2 of the United States Constitution is known as the “appointments” clause.  Here is the full text of the clause:

[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.

It would seem under any sensible reading of the clause that an executive appointment wielding the power now enjoyed by Mr. Feinberg would have to have been with the advise and consent of the Senate.

This discussion breaks along  predictably partisan lines. Democrats point out that many Republicans arguing against Obama’s Czars supported Bush’s Czars. They have a point.  See Alex Koppelman’s article for  Yet it’s not clear how far a “the other guy did it too” argument will get if there’s a legal challenge. There is also an argument that many of Obama’s czars were appointed with the advice and consent of the Senate. Still, there doesn’t seem to be any evidence that the Senate had any say in Feinberg’s appointment.

Maybe an angry senior executive at one of the bailed out companies may just decide to challenge Feinberg’s authority. Then things could get interesting.

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