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With All Due Respect

A Commentary By Susan Estrich

Friday, February 27, 2009

One of my favorite federal judges used to laugh whenever I began a sentence "with all due respect," because he knew I was about to tell him I thought he was wrong. And he was right. So with all due respect to the longest serving Democrat in the United States Senate, Robert Byrd, I believe his criticism of President Obama for relying on White House "czars" to coordinate policy in areas such as health care and climate change is at best premature if not totally unfounded.

Obama faces unprecedented challenges right now and has little choice but to expand government in an effort to rescue the economy and cushion the impact of the crisis on millions of Americans. Free market and limited government types can complain all they want, but it was the excesses of the free market and the lack of sufficiently strict regulation that got us into this mess, and no institution but the government can get us out. The president will be held accountable for money that is poorly spent from the trillions being printed. If he thinks White House "czars" can improve coordination and better assure that the money is well spent, who's to say he shouldn't have them?

Whatever you call them, they aren't czars. A real czar would go nuts in Washington. Even the president doesn't have the power to get much of anything done on his own say-so: Other than executive orders, the power of the presidency, as the late Professor Richard Neustadt long ago recognized, is not the power to act but the power to persuade. The "czars" can hold meetings, coordinate Cabinet departments and agencies, brief the president, and review programs and proposals. But at the end of the day, they can't "make" anyone do anything. Byrd, who has been around the bureaucracy longer than most Americans have been alive, knows that better than anyone.

His concern is less about their power than Congress'. Unlike Cabinet secretaries, "czars" are not confirmed by the Senate; they don't have to come to Congress for appropriations for their departments; and they may have the ability to invoke executive privilege in order to limit congressional oversight where Cabinet secretaries could not, in Byrd's words, threatening "the Constitutional system of checks and balances. … 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."

The problems to which the senator refers are hardly limited, or even greatest, with respect to Obama's decision to charge people on his own staff to deal with urban affairs or climate change. The most powerful people in the White House are usually the chief of staff, the top political adviser and the national security adviser. If you're worried about unconfirmed officials exercising power for which only the president is accountable, you needn't worry about the climate change czar; worry about Rahm Emanuel, who will be the boss of all the czars.

The reality is that a president can't run the country alone. He can't even run the government alone. It's too big, and he has too many people to persuade. The right answer, it seems to me, is not to limit his ability to structure his staff however he chooses, but to strictly limit the invocation of executive privilege so that it covers his decision-making, and not that of everyone around him. On that point, Byrd -- who has been a bipartisan critic of the excesses of executive privilege, tangling repeatedly with the Bush White House -- is certainly right: Expansion of White House staffing should not translate into expansion of "secret" government.

This president has promised transparency and accountability. I'm all for letting him have as many czars as he wants, so long as their work is out in the open and part of the effort to increase transparency and improve accountability, not reduce it. This, at the end of the day, means they aren't czars at all.

With all due respect, my friend said to me. Sometimes I'm wrong, too. In a recent column, I took a shot at all the high-paid executives of companies getting TARP money, many of whom are none too pleased by the idea that they shouldn't be making more than the president. My point was that people who are getting bailed out have no cause to complain about six-figure limits on income. I still believe that.

But not all the institutions taking TARP money are bailouts. Some very successful banks, like City National Bank based in Southern California, took TARP money not because they needed it -- they didn't; they didn't make subprime loans or any of that toxic assets business -- but because they were asked to put more money out there in the credit markets. They aren't using us; we're using them. A line should be drawn. I don't care what the executives of City National make as long as they keep making money for their customers, myself included.

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