Speeches & Floor Statements
Posted on September 22, 2009
I wish to congratulate the Senator from Maine for her leadership on this issue. She has shown great respect for the President's authority under the Constitution. We all respect that. He has the right to appoint his own advisers, period, and to take their advice and, as a result, assert some executive privilege. And we don't inquire into that. He is entitled to that. But under the Constitution, article II, section 2, states that the Cabinet officers and other appointments of significant policy positions should be appointed by the advice and consent of the Senate. It is true a number of Republican Senators have raised a question about the 18 new czars appointed by President Obama who are not confirmed by the Senate, all of whom are new. They didn't exist before. This large number of new senior positions is of great concern. Senator Collins, in her letter of September 14 to the President -- written with great respect, signed by Senator Bond, Senator Crapo, Senator Roberts, Senator Bennett, and myself -- basically made the argument she just made. She acknowledged the President's authority under article II to appoint his advisers and to be the leader of the country. But in terms of these specific responsibilities, the letter asks for information about the responsibilities of these 18 new czars; of how they were picked and how they were examined and whether they would be willing to testify before us. In her remarks, Senator Collins pointed out if we have a Health Secretary and a health czar, who is in charge? If we have an Energy Secretary and an energy czar, who is in charge? Those are the big issues before us. Health care is nearly 20 percent of the economy. We have town meetings all over the country about it. Right after that comes energy and climate change, and those are going to be a massive issues for our country. So it is important for us to know who is in charge so they can testify before the Congress and so we can effect their appropriations if we should choose to do so. The main point I want to underscore is the fact that this is not just a concern on the Republican side of the aisle. The senior Senator in the Senate, and the senior Democrat -- the President pro tempore -- is Robert C. Byrd. Sometimes we call him the constitutional conscience of the Senate. Senator Byrd was the first Member of this body to raise questions about the czars. I am sure he would have done it if there had been a Republican President -- he probably has many times before -- but he also did it even though there is now a Democratic President. I think it is important to reflect upon what he said in his February 23 letter to President Obama. Senator Byrd said: As presidential assistants and advisers, these White House staffers are not accountable for their actions to the Congress, to cabinet officials, and to virtually anyone but the President. They rarely testify before congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability. In speaking about the lines of authority between these new White House positions -- these czars -- and their executive branch counterparts, the Secretaries, Senator Byrd said this to the President: Too often, I have seen these lines of authority and responsibility become tangled and blurred, sometimes purposely, to shield information and to obscure the decision-making process. Senator Byrd went on to say: As you develop your White House organization, I hope you will favorably consider the following: that assertions of executive privilege will be made only by the President, or with the President's specific approval; that senior White House personnel will be limited from exercising authority over any person, any program, and any funding within the statutory responsibility of a Senate-confirmed department or agency head; that the President will be responsible for resolving any disagreement between a Senate-confirmed agency or department head and the White House staff; and that the lines of authority and responsibility in the administration will be transparent and open to the American public. Not only Senator Byrd, but Senator Lieberman, who is the chairman of the committee on which Senator Collins is the ranking Republican, has expressed his willingness to hold hearings on this issue. Senator Feingold of Wisconsin, a Democratic chairman of the Subcommittee on the Constitution, has written to the President expressing his concern. Senator Feingold says: The Constitution gives the Senate the duty to oversee the appointment of Executive officers through the Appointments Clause in Article II, section 2. The Appointments Clause states 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. Senator Feingold goes on to say: This clause is an important part of the constitutional scheme of separation of powers, empowering the Senate to weigh in on the appropriateness of significant appointments and assisting in its oversight of the Executive branch. Senator Feingold and Senator Byrd and Senator Collins, and several of us who signed Senator Collins' letter, and Senator Vitter of Louisiana -- we all respect the President's authority to be the President and to appoint his Cabinet members and other executive branch officers. But we expect that those officers, the people who are actually setting the policy and running the departments, should be accountable to those of us in the Senate because the Constitution says so. As a practical matter, we all know in Washington most people in the executive branch measure their power by the number of inches they are from the President of the United States. In the White House, most of the scurrying around at the beginning of an administration is to see who can get the office closest to the Oval Office. So it is always an issue about the amount of power that begins to accumulate in the White House. When it begins to take away accountability and authority and responsibility and create confusion about whether the Cabinet Secretaries have the authority, that is the time that we begin to cross the constitutional line. That is what Senator Byrd talked about in February, what Senator Feingold talked about last week, and what Senator Collins is talking about today. I congratulate her on her amendment. I think it is constructive. I think it is respectful to the President. It acknowledges his role in the Constitution, but it reiterates the importance of the role of the Senate in accountability and in transparency. I look forward to supporting her amendment.