Cincinnatus or Caesar: American Czars and the Appointments Clause
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Appointments Clause
INTRODUCTION
The last six months of the Bush administration and the first ten of the
Obama administration witnessed an enormous increase in government
involvement in every day American life. To see an example, one need
only examine the manner in which the government took controlling
interests of some of the United States' largest corporations.' Concurrently,
at least according to some, the United States also saw the growth of a new
form of administration to handle these new programs-a shadow
government made up of czars, which is outside the normal cabinet
structure and unvetted by the Senate.2 This development garnered
increased attention in the immediate aftermath of the abrupt resignation of
White House Adviser Van Jones from his position as Green Jobs Czar
following revelations of his past involvement in radical causes.3 After a
summer of controversy, this matter gave the media yet more fodder in the
early autumn of 2009, even generating arguments over the meaning of the
term czar.4 Many on the left easily dismissed the entire issue as right-
wing hypocrisy and an attempt to divert attention from the real issues.
But from the very beginning of the current administration, this matter has
been of some concern to senators on both sides of the aisle.
i See, e.g., Kellie Geressy-Nilsen & Romy Varghese, FDIC Program Still Part of Banks' Funding
Mix, WALL ST. J., Sept. 16, 2009, http://online.wsj.com/article/SB125312702832816889.htm; Neil
King, Jr. & Sharon Terlep, GM Collapses Into Government's Arms, WALL ST. J., June 2, 2009, at Al.
2 Fox & Friends (Fox News Channel television broadcast Sept. 9, 2009), available at
http://www.youtube.com/watch?v-7NGk2758ur0.
Scott Wilson & Garance Franke-Ruta, White House Adviser Van Jones Resigns Amid Controversy
Over Past Activism, WASH. POST, Sept. 6, 2009, http://voices.washingtonpost.com/44/2009/09/06/
vanjones resigns.html.
4 Glenn Beck, Know! Your! Czars!, Aug. 27, 2009, http://www.glennbeck.com/content/articles/
article/198/29798/ (decrying the focus on terminology to the exclusion of the individuals themselves).
The proper terminology has also come up in Congress. For example, it was also a topic in Senator
Feingold's speech when he chaired a recent hearing on this issue. Examining the History and Legality
of Exec. Branch Czars: Hearing Before the Subcomm. on the Constitution, of the S. Judiciary
Comm., Illth Cong. 1 (2009) [hereinafter Feingold Hearing] (statement of Sen. Russ Feingold,
Member, S. Judiciary Comm.), available at 2009 WL 3194199 (F.D.C.H.).
s Lifelong Democrat Robert Byrd of West Virginia wrote to President Obama in February 2009
over his concerns that unaccountable White House staff have taken direction and control of
programmatic areas that are the statutory responsibility of Senate-confirmed officials. Letter from
Robert C. Byrd, Senator, to Barack Obama, President (Feb. 23, 2009), available at
http://www.eenews.net/public/25/9865/features/documents/2009/02/25/document_gw02.pdf.
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Cincinnatus or Caesar: American Czars and the Appointments Clause
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