Obama’s Czars and the Appointments Clause

           Gregory Craig, counsel to the President, sent a letter to Senator Feingold last week regarding the various “czars” employed by the Obama administration.  Among other things, Craig responds to concerns raised by Senator Collins (my former boss) that some of the positions may violate the Appointments Clause, which 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.” 

            Only “principal” officers of the United States need be appointed with advice and consent of the Senate.  However, all “officers of the United States” need to be appointed in accordance with the Appointments Clause.  Craig, however, evidently denies that any of the czars are officers at all.  This is what he says: 

Moreover, none of the new White House or NSC positions violates the Appointments Clause.  The Constitution requires that “Officers of the United States” be nominated by the President “by and with the Advice and Consent of the Senate.”  U.S. Const. art. II, § 2, cl. 2.  The Department of Justice has concluded, in an opinion drafted during the prior Administration, that a position is a “federal office” if it is “invested by legal authority with a portion of the sovereign powers of the federal government.”  Officers of the United States within the Meaning of the Appointments Clause, 2007 WL 1405459 (Apr. 16, 2007).  As described above, none of the White House or NSC positions identified by Senator Collins exercises any independent authority or sovereign power.  Their one and only role is to advise the President.  Similarly, I am confident that none of the agency positions identified exercises any authority or sovereign power independent of their respective Senate-confirmed officials.  In order to resolve the issue definitively, however, I have asked the general counsels of the various agencies at issue—the Departments of State, Treasury, Homeland Security, and Labor, as well as the EPA—to respond directly to this concern. 

            Craig’s position that the White House and National Security czars are not officers raises some difficult and unsettled issues (about which more in a future post).  His claim that none of the agency czars are officers, however, seems untenable.  For example, the     OLC opinion on which Craig relies makes clear that individuals engaging in diplomatic functions, such as “[t]he actual conduct of foreign negotiations,” hold federal offices within the meaning of the Appointments Clause.  See OLC Opinion at 15-17.  The OLC notes that “the power of a diplomatic office is peculiarly delegated directly by the President, who makes such officers ‘the unquestionable representatives pro tanto of the sovereignty of the United States.’”  In fact, it points out that ‘[t]o the Founders, the proper exercise of such sovereign authority by officers abroad was critical for the security of the Nation,” as illustrated by the fact that the Foreign Emoluments Clause (art. I, § 9, cl. “was adopted with particular reference to preventing foreign corruption of such officers.” 

            These views would seem to contradict Craig’s contention that certain diplomatic czars are not officers subject to the Appointments Clause.  For example, Craig mentions Todd Stern (no relation), who serves as the “Special Envoy for Climate Change.”  According to the State Department’s website, in this position Stern “plays a central role in developing the U.S. international policy on climate and is the Administration’s chief climate negotiator, representing the United States internationally at the Ministerial level in all bilateral and multilateral negotiations regarding climate change.”  This position would seem to fall squarely within OLC’s definition of a federal office subject to the Appointments Clause. 

            It will be interesting to hear whether the State Department Legal Adviser agrees that Stern is not an officer of the United States.  One would also expect that OLC would be asked for its views on this matter.