Obama’s 'Czars' for Domestic Policy and the Law of the White House Staff

Abstract

President Obama has appointed a substantial number of high-profile, area-specific, domestic policy advisors to senior positions in the White House Office. The proliferation of these high-profile “czars,” as they have come to be known, represent a particular approach to the goal, shared by all modern presidents, of magnifying presidential influence over agency action in domestic policy. Czars provide Obama with an attractive synthesis of the technocratic advantages traditionally associated with the agency form and the political responsiveness ordinarily attributed to the White House staff. That synthesis, I argue, presents no constitutional problems; but it does increase the opacity of presidential influence over agencies to political accountability and legal controls. I therefore consider two categories of potential administrative-law response. One is to limit the ability of the president’s staff to interact with agencies: such contact could be forbidden, restricted, or saddled with transparency requirements. The other, better alternative is to relax some administrative constraints on agencies, and in particular to allow a president’s political preferences more easily to serve as a legitimate justification for agency decisions. Increased doctrinal room for a president to realize his political program by using the agency form will decrease his incentives to find politically and legally opaque ways to work such influence from the White House.