The Debate Over Selected Presidential
Assistants and Advisors: Appointment,
Accountability, and Congressional Oversight
Barbara L. Schwemle
Analyst in American National Government
Todd B. Tatelman
Legislative Attorney
Vivian S. Chu
Legislative Attorney
Henry B. Hogue
Analyst in American National Government
October 9, 2009
Congressional Research Service
7-5700
www.crs.gov
R40856
CRS Report for Congress
P
repared for Members and Committees of Congress

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Selected Special Assistants and Advisors

Summary
A number of the appointments made by President Barack Obama to his Administration or by
Cabinet Secretaries to their departments have been referred to, especially by the news media, as
“czars.” For some, the term is being used to quickly convey an appointee’s title (e.g., climate
“czar”) in shorthand. For others, it is being used to convey a sense that power is being centralized
in the White House or certain entities. When used in the political science literature, the term
generally refers to White House policy coordination or an intense focus by the appointee on an
issue of great magnitude. Congress has taken note of these appointments; several Members have
introduced legislation or sent letters to President Obama to express their concerns. Legislation
introduced includes H.Amdt. 49 to H.R. 3170; H.R. 3226; H.R. 3569; H.Con.Res. 185; H.R.
3613; H.Res. 778; S.Amdt. 2440 to H.R. 2996; S.Amdt. 2498 to H.R. 2996; S.Amdt. 2548 to
S.Amdt. 2440 to H.R. 2996; and S.Amdt. 2549 to H.R. 2996.
One issue of interest to Congress may be whether some of these appointments (particularly some
of those to the White House Office), made outside of the advice and consent process of the
Senate, circumvent the Constitution. A second issue of interest may be whether the activities of
such appointees are subject to oversight by, and accountable to, Congress.
This report provides brief background information and selected views on the role of some of
these appointees and discusses selected appointments in the Obama Administration. Additionally,
it discusses some of the constitutional concerns that have been raised about presidential advisors.
These include, for example, the kinds of positions that qualify as the type that must be filled in
accordance with the Appointments Clause, with a focus on examining a few existing positions
established by statute, executive order, and regulation. The report also reviews certain
congressional oversight processes and assesses the applicability of these processes to presidential
advisors. Legislative and non-legislative options for congressional consideration are presented.
An Appendix provides tables showing selected appointments in the Administration of President
Obama, the membership of the President’s Cabinet, and selected legislation, introduced in the
111th Congress, related to the issues discussed in this report.
This report will be updated as circumstances dictate.

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Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 2
Selected Views on Special Assistants and Their Roles ........................................................... 4
Pay and Reporting Requirements for White House Staff ........................................................ 8
Vetting of Appointees............................................................................................................ 9
Background Investigations ............................................................................................ 10
Financial Disclosure...................................................................................................... 13
Outside Employment Limitations ........................................................................................ 14
Selected Special Assistants and Advisors in the Obama Administration ..................................... 17
Appointed by the President to White House Office Positions ............................................... 17
Appointed by the President to EOP Positions....................................................................... 26
Appointed by Agency Heads ............................................................................................... 31
Appointments Clause and Presidential Advisors ........................................................................ 39
Officer/Employee................................................................................................................ 41
Principal Officer/ Inferior Officer ........................................................................................ 44
Analyses of Certain Presidential Advisors ........................................................................... 45
Director of the Office of National Drug Control Policy.................................................. 45
Director of Urban Affairs .............................................................................................. 46
Special Master for TARP Executive Compensation ....................................................... 47
Summary of Presidential Advisor Analyses ................................................................... 48
Congressional Oversight of Presidential Advisors...................................................................... 49
Congress’s Oversight Authority........................................................................................... 49
The Relationship Between Advice and Consent and Congressional Oversight...................... 50
Potential Legal Bases for the Denial of Access to Presidential Advisors............................... 52
The Deliberative Process Privilege ................................................................................ 52
Executive Privilege ....................................................................................................... 52
Application to Potential Congressional Oversight of Presidential Advisors .................... 59
Options for Potential Congressional Consideration.................................................................... 60
Legislative Options ............................................................................................................. 60
Option: Report and Wait Provision ................................................................................ 60
Option: Add Advice and Consent Positions in the EOP.................................................. 62
Option: Reduce and/or Confirm Presidential Staff ......................................................... 62
Oversight Options ............................................................................................................... 63

Tables
Table A-1. Selected Legislation Introduced in the 111th Congress Related to Selected
Appointments in the Administration of Barack Obama, as of October 1, 2009 ........................ 65

Appendixes
Appendix. ................................................................................................................................. 65
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Contacts
Author Contact Information ...................................................................................................... 65
Acknowledgments .................................................................................................................... 65
Key Policy Staff........................................................................................................................ 66

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Introduction
A number of the appointments made by President Barack Obama to his Administration or by
Cabinet Secretaries to their departments have been referred to, especially by the news media, as
“czars.”1 For some, the term is being used to quickly convey an appointee’s title (e.g., climate
“czar”) in shorthand. For others, it is, perhaps, being used to convey a sense that power is being
centralized in the White House or certain entities. When used in the political science literature,
the term generally refers to White House policy coordination or an intense focus by the appointee
on an issue of great magnitude. Congress has taken note of these appointments; several Members
have introduced legislation (See Table A-1 in the Appendix) or sent letters to President Obama to
express their concerns.2
Article II, Section 2 of the U.S. Constitution 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.
One issue of interest to Congress may be whether some of these appointments (particularly some
of those to the White House Office), made outside of the advice and consent process of the
Senate, circumvent the Constitution. A second issue of interest may be whether the activities of
such appointees are subject to oversight by, and accountable to, Congress.
This report provides brief background information and selected views on the role of some of
these appointees, discusses selected appointments in the Obama Administration, provides legal
analyses of the appointments clause and oversight by Congress of presidential advisors, and
discusses options to enhance the accountability of such appointees to Congress.

1 The use of the term “czar” to refer to government officials is not new. In the 19th century, for example, these officials
had that moniker attached to their names: Nicholas Biddle, President of the Bank of the United States, during the “bank
wars”; Andrew Johnson, President of the United States, during Reconstruction; and Thomas Reed, Speaker of the
House of Representatives, during disputes over the rules for the consideration of legislation. See Ben Zimmer, “Czar
Wars,” Slate, December 29, 2008. Hereafter referred to as Zimmer on Czars. Additionally, in the 20th century,
President Calvin Coolidge appointed Herbert Hoover, the Secretary of Commerce, and gave him “near-absolute
authority to organize and oversee” the federal government response to the Flood of 1927. See CRS Report RL33126,
Disaster Response and Appointment of a Recovery Czar: The Executive Branch's Response to the Flood of 1927, by
Kevin R. Kosar.
2 Senator Robert C. Byrd, February 25, 2009, at http://byrd.senate.gov/mediacenter/view_article.cfm?ID=331; Senator
Susan Collins, September 15, 2009, at http://collins.senate.gov/public/continue.cfm?FuseAction=
PressRoom.PressReleases&ContentRecord_id=C2F7DDA9-802A-23AD-4371-ECB6A1C8D2EB&CFID=15502805&
CFTOKEN=17636098; Senator Russell Feingold, September 15, 2009, at http://feingold.senate.gov/pdf/
ltr_091509_czars.pdf; and Representatives Darrell Issa and Lamar Smith, September 15, 2009, at
http://republicans.judiciary.house.gov/Media/PDFs/2009-09-15%20DEI%20%20Smith%20to%209-15-
09%20DEI%20and%20Smith%20Letter%20to%20Craig%20-%20Czars.pdf. On October 6, 2009, the Senate
Committee on the Judiciary’s Subcommittee on the Constitution conducted a hearing on “Examining the History and
Legality of Executive Branch ‘Czars.’” To view copies of the written statements, see http://judiciary.senate.gov/
hearings/hearing.cfm?id=4098.
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Background3
Every American President, since George Washington, has needed advice and assistance. The
President’s Committee on Administrative Management (commonly referred to as the Brownlow
Commission), which had been established by President Franklin D. Roosevelt (FDR), closely
examined this need. The committee’s charge, “A careful study of the organization of the
Executive branch of the Government ... with the primary purpose of considering the problem of
administrative management,”4 resulted in a report that was submitted to the President and then
released to Congress on January 12, 1937. Stating that, “The President needs help,” the
committee recommended that the President “should be given a small number of executive
assistants who would be his direct aides in dealing with the managerial agencies and
administrative departments of the Government.”5 The Reorganization Act of 1939 “empowered
the President to propose plans of reorganization, subject to a veto by a majority of both houses of
Congress, and to also appoint six administrative assistants.”6 On September 8, 1939, FDR issued
Executive Order (E.O.) 8248, to create the enclave of federal agencies known as the Executive
Office of the President (EOP). Many, if not most, of the President’s closest advisors and assistants
on matters of policy, politics, administration, and management are within the EOP. Over time,
some of the EOP’s components have been created by the President and others have been
established by Congress.7 Some components, such as the White House Office (WHO),8 Office of
Management and Budget (OMB, formerly the Bureau of the Budget), the Council of Economic
Advisers, and the National Security Council, have endured to the present day, appearing to hold
permanent status.9

3 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
4 U.S. Congress, House Committee on Post Office and Civil Service, Subcommittee on Employee Ethics and
Utilization, Presidential Staffing-A Brief Overview, committee print, 95th Cong., 2nd sess., July 25, 1978, 95-17
(Washington: GPO, 1978), p. 42. Hereafter referred to as Overview of Presidential Staffing. Staff of the Congressional
Research Service at the Library of Congress prepared the document, with Harold C. Relyea, formerly Specialist in
American National Government, (now retired) as the lead author.
5 Ibid., p. 46.
6 Reorganization Act of 1939, April 3, 1939, ch. 36, 53 Stat. 561 (1939).
7 Two such components, the Office of National Drug Control Policy and the Office of Science and Technology Policy,
that are now authorized by statute (P.L. 100-690, November 18, 1988; 21 U.S.C. §1702(b)(1); P.L. 94-282, May 11,
1976; 42 U.S.C. §6612), began as EOP staff positions: the Special Assistant to the President for Science and
Technology (1957) and the Director, Special Action Office for Drug Abuse Prevention and Special Consultant to the
President for Narcotics and Dangerous Drugs (1971).
8 The term “White House” is used in common parlance to denote various groupings of entities (e.g., the White House
Office alone, the EOP, the Administration, or the President and his top advisors). The term “White House Office” is
generally used to refer to a specific organizational unit within the EOP. See CRS Report 98-606, The Executive Office
of the President: An Historical Overview, by Barbara L. Schwemle.
9 For a history of the Executive Office of the President, see Harold C. Relyea, The Executive Office of the President A
Historical, Biographical, and Bibliographical Guide (Westport, CT: Greenwood Press, 1997). The Financial Services
and General Government appropriations bill provides funding for all but three offices under the EOP. See “Executive
Office of the President and Funds Appropriated to the President,” by Barbara L. Schwemle in CRS Report RL34523,
Financial Services and General Government (FSGG): FY2009 Appropriations, coordinated by Garrett Hatch. Of the
three exceptions, the Council on Environmental Quality and the Office of Environmental Quality are funded in the
Interior, Environment, and Related Agencies Appropriations Act, and the Office of Science and Technology Policy and
the Office of the United States Trade Representative are funded in the Commerce, Justice, Science, and Related
Agencies Appropriations Act. See CRS Report R40685, Interior, Environment, and Related Agencies: FY2010
Appropriations, coordinated by Carol Hardy Vincent, and CRS Report R40644, Commerce, Justice, Science, and
(continued...)
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Notwithstanding these continuing functions, a President may have need for special assistance that
a new White House office or position may provide.10 As described by one scholar,
No president is confined by the organization charts of the past ... A president’s priorities
change—as do his views of the nation’s priorities—and may well expand in new directions.
The White House, as the support center for furthering those priorities, will be flexible and
will adapt to those changes. Its organizational structure will jump beyond the “continuing”
arrangements. If a president wants to begin important new initiatives, to dramatize the extent
of his personal commitment, to respond quickly to today’s crisis or tomorrow’s threat, he
will be pressed to create new organizational forms to support his efforts.11
The “czar” moniker has been attached to some of these special assistant positions since at least
the Administration of FDR. A cartoon drawn by Clifford Kennedy Berryman and published on
September 7, 1942, probably in the Evening Star (Washington, DC), showed three of FDR’s
appointees—“czar” of prices, Leon Henderson; “czar” of production, Donald Nelson; and “czar”
of ships, Emory S. Land—crowded together on one throne, wearing crowns and ermine-trimmed
robes, and wondering where the new economic “czar” would sit.12 Succeeding Presidents
appointed special assistants who were similarly, at times, referred to by the news media as
“czars.” As examples, President Richard Nixon appointed John Love, the so-called energy “czar”
as the Director of the Office of Energy Policy in 1973, and President Clinton appointed John
Koskinen, the so-called Y2K “czar,” as the chairman of the President’s Council on Y2K
Conversion in 1998.13

(...continued)
Related Agencies: FY2010 Appropriations, coordinated by Nathan James, Oscar R. Gonzales, and Jennifer D.
Williams.
10 The President is not alone in seeking ways to address important public policy issues that cut across department and
agency boundaries. Congress has established a range of interagency coordinative mechanisms for this purpose,
including a number of officers that are charged with coordinating among multiple organizations. Among these are the
Office of the Director of National Intelligence, the Office of National Drug Control Policy, and the newly created
Intellectual Property Enforcement Coordinator (15 U.S.C. §8111). See also CRS Report RL31357, Federal Interagency
Coordinative Mechanisms: Varied Types and Numerous Devices, by Frederick M. Kaiser. This report does not address
the position of Director of National Intelligence (DNI) nor its predecessor position, the Director of Central Intelligence
(DCI). The former was established by the Intelligence Reform and Terrorism Prevention Act of 2004; the latter by the
National Security Act of 1947. By statute the DNI is responsible for coordinating national intelligence activities
throughout the federal government and his work is overseen by the two congressional intelligence committees (among
others). For additional information, see CRS Report RL34231, Director of National Intelligence Statutory Authorities:
Status and Proposals, by Richard A. Best Jr. and Alfred Cumming.
11 Bradley H. Patterson, Jr., “First Magnitude Czars: Special Assistants for Special Purposes,” Chapter 17 in The White
House Staff Inside the West Wing and Beyond (Washington, DC: Brookings Institution Press, 2000), p. 263. Hereafter
referred to as White House Staff. Mr. Patterson served on the White House staff during the Administrations of Dwight
Eisenhower, Richard Nixon, and Gerald Ford.
12 The description of the cartoon is taken from the catalog card: U.S. Library of Congress, Prints and Photographs
Division, Cartoon Collection, Call number CD 1-Berryman (C.K.), no. 182 (A size)<P&P>[P&P], and Zimmer on
Czars.
13 William W. Hogan, “Energy Modeling for Policy Studies,” Operations Research, vol. 50, issue 1 (January/February
2002), p. 89. According to this source, Mr. Love was “the first of a string of energy czars ... down through the Federal
Energy Regulatory Administration and then the Department of Energy.” Today, Mr. Koskinen is referred to as the Y2K
“czar,” but during the time that he served, the news media generally referred to him by his title, with just the headlines
of several articles dubbing him the “Y2K guru” or the “millennium man.” Will Englund, “Czar Wars,” National
Journal, February 14, 2009, pp. 21-22. Hereafter referred to as Czar Wars.
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In the current Administration, President Obama has created several new positions, including the
Assistant to the President for Energy and Climate Change, the Deputy Assistant to the President
and Director of Urban Affairs, and the Director, White House Office of Health Reform, that are
not subject to Senate confirmation, the incumbents of which have been dubbed “czars.”
Additionally, several sub-Cabinet level positions that require Senate confirmation have similarly
been termed “czars.” For example, David Hayes, Deputy Secretary at the Department of the
Interior, has been referred to by some in the news media as the “water czar.’’ 14 Further, the
incumbents of some other positions which are authorized in statute and subject to Senate
confirmation, such as the Administrator of the Office of Information and Regulatory Affairs at the
Office of Management and Budget, are also being referred to as “czars.” Several Special Envoy
or Special Representative positions, such as the Special Envoy for the Middle East, are being
similarly described.
Selected Views on Special Assistants and Their Roles15
As envisioned by the Brownlow Commission, which had recommended a few (“probably not
exceeding six”) additional executive assistants to the President, the aides were to have “no power
to make decisions or issue instructions in their own right” and be “possessed of high competence,
great vigor, and a passion for anonymity.”16 An analysis of the commission’s suggestion for such
staff observed that
These men were to act as anonymous servants exercising no initiative independently of the
President’s wishes. No authority was delegated to them. Their function was to extend the
President’s power to listen wherever useful information could be gathered and to see
whatever needed to be seen to provide the information required for decisions. In order to
give them the utmost responsibility, to presidential will, as well as ultimate flexibility, their
functions were not to be defined except as the President saw fit to define them. As such they
would not constitute either an additional institution or certainly not an independent one, but
rather an extension of the Presidency itself.17
Indeed, FDR’s executive order stated that the administrative assistants should have “‘no authority
over anyone in any department or agency’ and should ‘in no event be interposed between the
President and the head of any department or agency.’”18
Since this beginning, Presidents have continued, at times, to appoint special assistants as a way to
reassure the public that immediate and sustained attention is being devoted and a broad viewpoint
is being applied to crisis situations or problems that cut across departments and agencies. One
scholar has noted that, “the expectations surrounding presidential performance far outstrip the
institutional capacity of presidents to perform,” and therefore

14 The Senate confirmed Mr. Hayes by voice vote on May 20, 2009. Senator Dianne Feinstein has stated her view that
the “czar” moniker is inappropriate for Mr. Hayes: “If you look over certain people [who] have real titles and real
authority, I don’t think it’s quite fair to call, for example, David Hayes at the Department of Interior a czar.” Manu
Raju, “Democrats Join GOP Czar Wars,” Politico, September 17, 2009, p. 26.
15 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
16 Overview of Presidential Staffing, pp. 46, 55.
17 Ibid., p. 56.
18 Arthur M. Schlesinger, Jr., The Cycles of American History (New York: Houghton Mifflin, 1986), pp. 333-334,
quoting the executive order. Hereafter referred to as Cycles of American History.
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This gives presidents a strong incentive to enhance their capacity by initiating reforms and
making adjustments in the administrative apparatus surrounding them—but here too there is
a fundamental imbalance: the resources for acting upon this strong incentive are wholly
inadequate, constrained by political and bureaucratic opposition, institutional inertia,
inadequate knowledge, and time pressures. It is this imbalance that channels presidential
effort into areas of greatest flexibility and generates the major institutional developments we
observe, politicization and centralization.19
Describing a subset of special assistants in the Administration of President Dwight Eisenhower as
“Very Special Assistants for Very Special Problems,” another scholar stated this rationale for
them:
From time to time every President is presented with a public policy issue of extraordinary
messiness: an aroused public demanding action, many departments involved, political
opponents charging that he is asleep when he should be grabbing the wheel. Substantive
responses may require billions; thoroughgoing reorganizations will take years—and the
President has neither. He does, however, have an instant option which will portray himself as
taking charge and as jolting stodgy governmental machinery to move faster: he can appoint a
White House “Czar.” No Senate confirmation is needed and a suite can always be found in
the Executive Office Building next door. It is a legitimate presidential gambit; the “czar”
sometimes achieves real success (although often being a pain in the side to the Cabinet).20
The title of special assistant conveys “a sense of action” and the individual is frequently
announced, sometimes with considerable fanfare,21 as one who will “knock heads,” “cut red
tape,” and “ensure coordinated effort.”22 Whether such an appointee ultimately performs his or
her role in this manner is uncertain at the outset. As one reporter wrote with regard to two of the
current Administration’s appointees,
The new White House Office of Urban Policy might work in lockstep with the Domestic
Policy Council, the National Economic Council, and a host of departments and agencies. Or
maybe not.
Obama’s new White House office for energy and climate change ... may work
companionably with the White House Council on Environmental Quality, the president’s
national security adviser, the president’s science adviser, the NEC [National Economic
Council], the new administrator at EPA [Environmental Protection Agency], and the Ph.D.
physicist chosen to lead the Energy Department. Or maybe not.23
According to another reporter, a “czar” “has to drive those he’s working with toward a plan to
present to the president,” but some aspects of the role are undefined:

19 Terry M. Moe, “The Politicized Presidency,” Chapter Nine in John E. Chubb and Paul E. Peterson, eds., The New
Direction in American Politics (Washington: The Brookings Institution, 1985), p. 269.
20 Bradley H. Patterson, Jr., “Teams and Staff: Dwight Eisenhower’s Innovations in the Structure and Operations of the
Modern White House,” Presidential Studies Quarterly, vol. 24, issue 2 (Spring 1994), article begins on p. 277.
21 In an address before a joint session of Congress on September 20, 2001, President George W. Bush announced that
he was creating a new Cabinet-level Office of Homeland Security in the White House and appointing Governor Tom
Ridge as his Assistant to the President for Homeland Security. Governor Ridge later became the first Secretary of
Homeland Security at the Department of Homeland Security, established by P.L. 107-296, enacted on November 25,
2002.
22 White House Staff, p. 264.
23 Alexis Simendinger, “Agents of Change,” National Journal, January 10, 2009, pp. 18-19.
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Budgetary power? Not clear. Accountability? Not to Congress. The capacity to dictate
policy? Umm, probably not. The ability to impose solutions through sheer force of
personality? In some cases, most likely yes.24
More generally, the size of the White House staff is sometimes raised as a concern when
presidential appointments are discussed.25 Some caution that too many advisors may insulate the
President, diminishing his “direct influence and dilut[ing] the impact of his personal
leadership.”26 In his book entitled The Cycles of American History, the historian Arthur M.
Schlesinger, Jr., observed that “The larger the staff grows, the more endless meetings the staff
calls, the more useless paper the staff generates, the more the President will hunker up behind it;
the less he will know what is going on. The staff becomes the shock absorber, shielding the
President against the facts of life.”27
Lines of authority may also be more difficult to discern, as another scholar asserts:
The historical record suggests that czars generally fail to find solutions to the problems they
are commissioned to confront. Instead, czars confuse matters. They disrupt lines of authority
and accountability and they compromise bureaucratic discipline. They sometimes foment
suspicion on Capitol Hill and rivalries within the Executive branch. The mere presence of
policy “czardoms” undermines the morale of officials in the standing table of organization
who retain responsibility for developing and implementing policy while their authority and
credibility are eclipsed by the czar.28
The decline of the Cabinet “as a useful instrument of presidential counsel or assistance” is often
mentioned as a consequence of concentrating power in White House assistants.29 A document
published by the Center for the Study of the Presidency expressed the view that “the Cabinet has
been subordinated to the Presidential staff” since the Administration of President John F.
Kennedy.30 Mr. Schlesinger described the effect of concentrated power in the White House of
President Richard Nixon, for example, as enfeebling the cabinet which “became, with few

24 Czar Wars, p. 18.
25 For a review and analysis of selected literature on White House staffing, see, Charles E. Walcott and Karen M. Hult,
“White House Structure and Decision Making: Elaborating the Standard Model,” Presidential Studies Quarterly, vol.
35, no. 2 ( June 2005), pp. 303-318.
26 Cycles of American History, p. 334.
27 Ibid., p. 335. Similar views are expressed by Stephen Hess, Organizing the Presidency (Washington: Brookings
Institution Press, 2002), p. 208: “The presidents’ solution so far-salvation by staff-is self-defeating. An enlarged White
House staff overprotects presidents in a political environment where their greatest need is the need to know.
Sycophancy can replace independent judgment. By extending the chain of command, presidents have built additional
delay and distortion into the system.”
28 John Mead Flanagin, “Less is More: A New Staff Structure for the White House,” Presidential Studies Quarterly,
vol. 25, issue 2 (Spring 1995), pp. 212-213.
29 Overview of Presidential Staffing, p. 68.
30 Bradley D. Nash with Milton S. Eisenhower, R. Gordon Hoxie, and William C. Spragens, Organizing and Staffing
the Presidency, Center for the Study of the Presidency (Washington: 1980), p. 156. This document, while
acknowledging that special assistants “are indeed a reflection of the President’s concern with matters of major
urgency,” recommended that “a number of these positions might be encompassed within the Cabinet Departments, to
the substantial upbuilding of each Cabinet Officer’s standing before the Congress, the public and the Executive
Branch” (p. 169).
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exceptions, a collection of faceless clerks.”31 This lessoning of the cabinet’s role was described in
a May, 1971, speech by Senator Ernest F. Hollings when he remarked that
It used to be that if I had a problem with food stamps, I went to see the Secretary of
Agriculture, whose Department had jurisdiction over that program. Not any more. Now, if I
want to learn the policy, I must go to the White House and consult John Price. If I want the
latest on textiles, I won’t get it from the Secretary of Commerce, who has the authority and
responsibility. No, I am forced to go to the White House and see Mr. Peter Flanigan. I
shouldn’t feel too badly. Secretary Stans [Secretary of Commerce] has to do the same
thing.32
John Podesta, a former White House Chief of Staff, who headed President Obama’s transition
team, believes that “the very strong or important role that Cabinet secretaries play” is not being
displaced by the current Administration. As quoted in a National Journal article, he emphasized,
however, that, “when you have problems that really cut across a swath of agencies, it’s very
important with respect to the president’s priorities to have a strong central place within the White
House where people can get on the same strategy and that actions are keyed up and accountability
exists.”33
An expert on government and organization, however, believes that, in the end, the efficient
operation of government that is sought through such approaches to management as creating czars
may not be the outcome that is achieved:
Presidents, not caring about management, tend to rely on political personnel to overcome
what they believe to be bureaucratic resistance and incompetence. Instead of properly
reconstructing the institutional capacity of the presidency, they are lured by ‘shortcuts.’ ...
Therefore, among other things, they tend to create ‘czars’ who are deemed, at least initially,
to be close to the president and thus can get around the departments and agencies to achieve
their policy objectives, many of which are not enumerated in law. Presidents are always
tempted to bring issues to the White House, but then when they do, they often regret the
stress it puts upon themselves and their limited institutional resources. 34
More than 30 years ago, a study of presidential staffing concluded that, “White House assistants
to succeeding presidents, since 1939, have become highly conspicuous, multiple in number,
possessed of great power, and virtually unaccountable to anyone but the Chief Executive for their
actions.”35 The question of accountability reverberates today. One scholar who questions whether
these positions should continue to be outside of the advice and consent of the Senate process has
suggested that, “we need to seriously consider requiring Senate approval of senior White House

31 Cycles of American History, p. 334.
32Overview of Presidential Staffing, pp. 60-61, quoting Dom Bonafede, “Ehrlichman Acts As Policy Broker in Nixon’s
Formalized Domestic Council,” National Journal, June 12, 1971, p. 1240.
33Czar Wars, p. 19. For an analysis of presidential management, see, Andrew Rudalevige, Managing the President’s
Program Presidential Leadership and Legislative Policy Formulation (Princeton, N.J.: Princeton University Press,
2002). As stated by the author, “the book develops a theory of ‘contingent centralization’ predicting when presidents
will rely on White House staff as opposed to departmental resources; traces the formulation of presidential legislative
proposals from 1949 to 1996, using a wide array of archival sources, and quantitatively tests the conditions under
which presidents follow centralized strategies; and also shows how different formulation strategies matter to the
proposals’ reception in Congress.”
34 Dr. Ronald C. Moe, formerly Specialist in Government Organization and Management at the Library of Congress,
Congressional Research Service (now retired), quoted in Czar Wars, p. 24.
35 Overview of Presidential Staffing, p. 56.
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staff positions.” He recommends that such a requirement not become effective until January 2017,
however, “To allow for thoughtful bipartisan deliberation” and to encourage Congress “to take the
long view of whether senatorial confirmation is appropriate in terms of constitutional design.”36
Another viewpoint holds that significant authority can only be conferred by the U.S. Constitution
or Congress and that “To subject the qualifications” of special assistants (who “In many respects,
... are equivalent to the personal staff of a member of Congress”) “to congressional scrutiny—the
regular confirmation process—would trench upon the president’s inherent right, as the head of an
independent and equal branch of the federal government, to seek advice and consent where he
sees fit.”37
Regardless of which viewpoint one subscribes to, “The Constitution grants Congress extensive
authority to oversee and investigate executive branch activities” through the “review, monitoring,
and supervision of the implementation of public policy.”38 Several options for congressional
oversight of presidential advisors are discussed later, below.
Pay and Reporting Requirements for White House Staff39
Section 105 of Title 3 of the United States Code authorizes the President to appoint and fix the
pay of employees in the White House Office “who shall perform such official duties as the
President may prescribe.” With regard to employees at the highest pay grades, the President may
appoint 25 employees at salaries that may not exceed Executive Schedule Level II ($177,000, as
of January 2009) and 25 employees at salaries that may not exceed Executive Schedule Level III
($162,900, as of January 2009).40
Section 113 of Title 3 of the United States Code requires the President to transmit to the House of
Representatives and the Senate, and make available to the public, annual reports containing
information in the aggregate and by office on
• the number of employees who are paid at a rate of basic pay equal to or greater
than the rate of basic pay then currently paid for Level V of the Executive
Schedule (5 U.S.C. 5316) and who are employed in the White House Office, the
Executive Residence at the White House, the Office of the Vice President, the
Domestic Policy Staff, or the Office of Administration, and the aggregate amount
paid to such employees;
• the number of employees employed in such offices who are paid at a rate of basic
pay which is equal to or greater than the minimum rate of basic pay then
currently paid for GS-1641 of the General Schedule (GS) but which is less than

36 Bruce Ackerman, “A Role for Congress to Reclaim,” Washington Post, March 11, 2009, p. A15. The writer is a
professor of law and political science at Yale University.
37 David B. Rivkin, Jr. and Lee A. Casey, “Misplaced Fears About the ‘Czars,’” Washington Post, September 17, 2009,
p. A15. The writers are attorneys and served in the Justice Department under Presidents Ronald Reagan and George
H.W. Bush.
38 CRS Report RL30240, Congressional Oversight Manual, by Frederick M. Kaiser et al..
39 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
40 Sections 106 and 107 of Title 3, United States Code, also provide authority for the hiring of close assistants to the
President and Vice President.
41 References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule,
(continued...)
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the rate then currently paid for Level V of the Executive Schedule and the
aggregate amount paid to such employees;
• the number of employees employed in such offices who are paid at a rate of basic
pay which is less than the minimum rate then currently paid for GS-16, and the
aggregate amount paid to such employees;
• the number of individuals detailed under 3 U.S.C. §112 of this title for more than
30 days to each such office, the number of days in excess of 30 each individual
was detailed, and the aggregate amount of reimbursement made as provided by
the provisions of section 112; and
• the number of individuals whose services as experts or consultants are procured
under 3 U.S.C. Chapter 2 for service in any such office, the total number of days
employed, and the aggregate amount paid to procure such services.
Each report must be transmitted within 60 days after the close of the fiscal year covered by the
report.
Additionally, Section 6 of P.L. 103-270, the Independent Counsel Reauthorization Act of 1994,
enacted on June 30, 1994, requires the President to submit an annual report on White House
Office personnel to the Senate Committee on Homeland Security and Governmental Affairs and
the House Committee on Oversight and Government Reform on July 1. The report is to include a
list of each individual employed by or detailed to the White House Office to Congress, including
his or her name, position and title, and annual rate of pay. If the President determines that
disclosure of any item of information with respect to any particular individual would not be in the
interest of the national defense or foreign policy of the United States, he can exclude the
individual and state the number of individuals so excluded. At the request of the Senate and
House committees, the information that is excluded will be made available for public inspection
by the committees. President Obama submitted the most recent report to Congress on July 1,
2009, and had it posted on the White House website.42
Vetting of Appointees43
As previously noted, the term “czar” has been applied to a variety of positions that are (1) located
in various parts of the federal government, (2) filled through various appointment mechanisms,
and (3) established under various legal authorities. One characteristic common to these positions
is that each is filled by political appointment, rather than through a competitive civil service

(...continued)
are considered to be references to rates payable under 5 U.S.C. 5376 related to senior-level positions. Currently, basic
pay for certain senior-level positions—positions classified above GS-15 (SL pay schedule) and scientific or
professional positions (ST pay schedule)—ranges from 120% of the minimum rate of basic pay for GS-15 ($117,787,
as of January 2009) to either EX Level III ($162,900, as of January 2009) or EX Level II ($177,000, as of January
2009), depending on whether an agency’s performance management system has been certified by the Office of
Personnel Management.
42 The White House, “Annual Report to Congress on White House Staff,” July 1, 2009; http://www.whitehouse.gov/
blog/Annual-Report-to-Congress-on-White-House-Staff-2009/. Hereafter referred to as Annual Report on White House
Staff.
43 Henry B. Hogue, Analyst in American National Government in the Government and Finance Division (7-0642),
wrote this section.
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selection process. Political appointees serve at the pleasure of the appointing authority, usually no
longer than the duration of an Administration, rather than for the duration of a career.
Consequently, most politically appointed positions must be filled anew at the beginning of an
Administration. The process of selecting a candidate for a politically appointed position usually
includes vetting, a sometimes lengthy process.
The vetting process for presidential appointees, which is set by each Administration, is designed
to examine the background of nominees and other appointees, to determine their suitability for a
particular position, assess their professional and personal qualifications, and, in the case of the
former, gauge whether they would meet the confirmation demands of the Senate. The current
process includes an extensive questionnaire about an individual’s career and personal history,44 an
FBI background investigation, and a financial disclosure process and related examination of
ethics considerations conducted by the U.S. Office of Government Ethics or the White House
Counsel’s Office. Some of the contours of the vetting process, such as financial disclosure
requirements, are set in law. Others, such as the content of the White House questionnaire and the
extent of background investigations, vary by Administration.
Background Investigations45
Background investigation requirements have been established for determining suitability for
government employment, granting an appropriate security clearance, or meeting the protective
responsibilities of the U.S. Secret Service. Consequently, the nature of a background investigation
will vary according to a prospective appointee’s circumstances.
The requirements of background checks are formalized in various executive orders, presidential
or administrative directives, and public laws. These requirements differ: they serve different
purposes, are issued and amended at different times, and are instituted by different authorities.
They range from following up on responses to questionnaires submitted by the prospective
appointee; to searches of relevant databases; to interviews with colleagues, neighbors, relatives,
and friends.46

44 Jackie Calmes, “For a Washington Job, Be Prepared to Tell All,” New York Times, November 12, 2008, and White
House press comments on vetting in Press Briefing by Press Secretary Robert Gibbs, on February 3, February 6, and
May 26, 2009, available at http://www.whitehouse.gov/the_press_office/PressBriefingbyPressSecretaryRobertGibbs.
The lengthy questionnaire adopted by the then-incoming Obama Administration contains 63 questions about an
individual’s professional background, taxes and finances, criminal or civil matters, family members and cohabitants,
residencies, travel, publications, speeches, association memberships, domestic help (hires, pay, and taxes), and physical
condition. Several additional inquiries (numbers 61 and 63) are open-ended and somewhat subjective. These include
questions regarding “any association with any person, group, or business venture that could be used ... to impugn or
attack your character and qualifications for government service ... [and] any other information, including information
about other members of your family, that could suggest a conflict of interest or a possible source of embarrassment to
you, your family, or the President-elect.”
45 Frederick M. Kaiser, Specialist in American National Government in the Government and Finance Division (7-
8682), wrote this section.
46 In most cases, background investigations of presidential appointees and nominees are conducted by the Federal
Bureau of Investigation (FBI). Other offices are involved in select areas or in times of heavy demand. These include the
Office of Personnel Management (OPM), which handles about 90% of all federal background investigations, and the
U.S. Secret Service, which has responsibility for the protection of the President and many other designees.
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Suitability Checks and Security Clearances47
Suitability checks and security clearances differ from one another. A suitability check is designed
to determine whether a person should be hired for government employment, while a security
clearance is used to determine eligibility for access to classified national security information.
The background investigation resulting from each is governed by its own executive orders,
administrative directives, and public laws.48 Consequently, each follows its own set of
requirements. Even though some requirements are the same for both, a security clearance for the
higher levels is more extensive and exacting than a suitability check.
Secret Service Protective Responsibilities49
The U.S. Secret Service has responsibility for protecting the President; the Vice President;
members of their immediate families; many other executive officials, including individuals in the
EOP and in various departments and agencies; and representatives of the President traveling
abroad.50 As such, the Secret Service may conduct background investigations of individuals who
might be in close proximity to one of its protective assignments. The Secret Service is to have a
copy of the background investigation conducted by another agency for each EOP employee.51
EOP Background Checks52
The background investigation requirements for employment in the EOP and presidential
discretion over coverage are recognized in a provision of law regarding executive office
personnel background investigations and leaves of absence.53 It provides not only for background
investigations and completion of an appropriate questionnaire but also empowers the President to
exempt individuals from its demands:

47 Frederick M. Kaiser, Specialist in American National Government in the Government and Finance Division (7-
8682), wrote this section.
48 Distinctions between the two are spelled out in several executive directives and regulations: 5 C.F.R. 731, 732, and
736; U.S. Department of Homeland Security, Personnel Security and Suitability Program, Management Directive
11050.2 (Washington, DHS, 2005); U.S. Department of Health and Human Services, Personnel Security/Suitability
Handbook, Feb. 1, 2005, available at http://www.hhs.gov/oamp/policies/personnel_security_suitability_handbook/html;
and OPM, Investigations: General Questions and Answers about OPM Background Investigations and Investigations
Reimbursable Billing Rates for FY 2010, Federal Investigations Notice 09-05, August 3, 2009, both available at
http://www.opm.gov/extra/investigate. Questionnaires for applicants or employees also differ between security and
suitability checks: OPM, Questionnaire for Non-Sensitive Positions (SF-85) and Questionnaire for Public Trust
Positions (SF-85P), both for suitability checks; and Questionnaire for National Security Positions (SF-86) for security
clearances; all available at http://www.opm./gov/forms/html/sf.asp.
49 Frederick M. Kaiser, Specialist in American National Government in the Government and Finance Division (7-
8682), wrote this section.
50 18 U.S.C. 3056. U.S. Secret Service, “Protective Mission,” available at http://www.secretservice.geov/
protection.shtml; and CRS Report RL34603, The U.S. Secret Service: An Examination and Analysis of Its Evolving
Missions, by Shawn Reese.
51 P.L. 103-329, 108 Stat. 2425.
52 Frederick M. Kaiser, Specialist in American National Government in the Government and Finance Division (7-
8682), wrote this section.
53 P.L. 103-329, 108 Stat. 2425; 3 U.S.C. prec. § 101.
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(a) Hereafter, the employment of any individual within the Executive Office of the President
shall be placed on leave without pay status if the individual has not, within 30 days of
commencing such employment, submitted a completed questionnaire for sensitive positions
(SF-86) or equivalent form; or has not, within six months of commencing such employment
... had his or her background investigation, if completed, forwarded by the counsel to the
President to the United States Secret Service for issuance of the appropriate access pass.
(b) Exemption. Subsection (a) shall not apply to any individual specifically exempted from
such subsection by the President or his designee.54
Other authorities governing federal employment also support the President’s discretion over
background checks for certain hires. One is included in Executive Order 13467, issued by
President George W. Bush on June 30, 2008, regarding suitability checks and security clearances
for federal employees, applicants, and contractors.55 E.O. 13467 includes a determination of who
is covered:
“Covered individual” means a person who performs work for or on behalf of the executive
branch, or who seeks to perform work for or on behalf of the executive branch, but does not
include:
(i) the President or (except to the extent otherwise directed by the President) employees of
the President under section 105 or 107 of title 3, United States Code; or
(ii) the Vice President or (except to the extent otherwise directed by the Vice President)
employees of the Vice President under section 106 of title 3 or annual legislative branch
appropriations acts. 56
The provisions cited in the order refer to sections of law that provide for the appointment of
certain EOP personnel. As previously noted, the President is authorized to appoint and fix the pay
of a certain number of employees—“without regard to any other provision of law regulating the
employment or compensation of persons in Government service”—in the White House Office
(Sec. 105) and in the Domestic Policy Staff and Office of Administration (Sec. 107).57 The Vice
President is authorized to do the same, in order “to provide assistance to the President in
connection with the performance of functions specifically assigned to the Vice President by the
President in the discharge of executive duties and responsibilities” (Sec. 106).
Reinforcing presidential (and vice presidential) discretion is the definition of “agency” in E.O.
13467:
“Agency” means any “Executive agency” as defined in section 105 of title 5, United States
Code, including military departments, as defined in section 102 of title 5, United States

54 Ibid. SF-86 (Standard Form 86) is the Questionnaire for National Security Positions from the U.S. Office of
Personnel Management (OPM), discussed further below, available at http://www.opm.gov/forms/html/sf.asp.
55 E.O. 13467, “Reforming Processes Relating to Suitability for Government Employment, Fitness for Contractor
Employees, and Eligibility for Access to Classified National Security Information,” 73 Federal Register 38103-38108,
July 2, 2008.
56 Sec. 1.3(g), ibid.
57 The Office of Administration was created by Sec. 2 of Reorganization Plan No. 1 of 1977, 3 U.S.C. §101, in order to
centralize Administration functions in EOP. Further implementation occurred in E.O. 12028, “Office of Administration
in the Executive Office of the President,” 42 Federal Register 62895-62896, December 14, 1977, issued by President
Jimmy Carter on December 12, 1977.
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Code, and any other entity within the executive branch that comes into possession of
classified information or has designated positions as sensitive, except such an entity headed
by an officer who is not a covered individual.58
Along these same lines, an earlier executive order—E.O. 12968, Access to Classified
Information, issued by President William Clinton, in 1995—exempts the President and Vice
President.59 Section 1.1(e) of the Clinton order states that “‘Employee’ means a person, other than
the President or Vice President, employed by, detailed or assigned to, an agency.”60 A predecessor
order—E.O. 10450, Security Requirements for Government Employment, issued by President
Dwight D. Eisenhower, in 1953—applies only to persons “employed in the departments and
agencies of the Government.”61
Financial Disclosure62
Whether any officer or employee of the federal government is required to file public financial
disclosure statements depends on the rate of compensation that the officer or employee receives
from the federal government, and the number of days such an individual works for the federal
government.
All persons appointed by the President to any positions in the government, including presidential
“advisors” or “special assistants” in the White House, and who are compensated above a
threshold amount (at a rate equal to or greater than 120% of the base salary of a GS-15) for work
on more than 60 days in a calendar year, are required to file public financial disclosure reports
under the provisions of the Ethics in Government Act of 1978, as amended.63 Individuals
appointed in the federal government who meet the compensation threshold and who work the
requisite number of days are to file an “entrance” report within 30 days of assuming the position,
and then annually on May 15 of each year, with the “designated agency ethics officer at the
agency by which he is employed.”64 White House assistants and advisors in most instances would
file with an ethics officer in the White House. These reports are public, and are required by law to
be reviewed and then made available to the public within 30 days of filing at the agency where
the reports are filed.65
If a nominee is required to receive Senate confirmation, then the Ethics in Government Act
provides that once the President has transmitted to the Senate the nomination of a person required
to be confirmed by the Senate, that nominee must within five days of the President’s transmittal
(or any time after the public announcement of the nomination—but no later than five days after
transmittal), file a financial disclosure statement.66 This financial disclosure statement is filed

58 Sec. 1.3(b), ibid.
59 60 Federal Register, 40245, August 7, 1995.
60 Ibid.
61 “Security Requirements for Government Employment,” 18 Federal Register 2489, April 27, 1953.
62 Jack H. Maskell, Legislative Attorney in the American Law Division (7-6972), wrote this section.
63 P.L. 95-521, title I, 92 Stat. 1824 (October 26, 1978), as amended; see now 5 U.S.C. app. §§ 101 et seq.; 5 U.S.C.,
app. § 101(f)(3) as to threshold rate of pay for “each officer or employee in the executive branch”; and 5 U.S.C. app. §
101(d) as to 60-day threshold.
64 Entrance reports: 5 U.S.C. app. § 101(a); annual reports: 5 U.S.C. § 101(d); place of filing: 5 U.S.C. § 103(a).
65 5 U.S.C. § 105(b)1).
66 5 U.S.C. app. § 101(b); 5 C.F.R § 2634.602(c)(1). The disclosure report form is provided to the nominee by the
(continued...)
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with the designated agency ethics officer of the agency in which the nominee will serve,67 and
copies of the report are transmitted by the agency to the Director of the Office of Government
Ethics (OGE).68 The Director of OGE then transmits a copy to the Senate committee which is
considering the nomination of that individual.69
In addition to public reports for more senior officers and employees under the Ethics in
Government Act, there are provisions for confidential financial disclosure reports for those who
do not meet the salary threshold. The confidential reporting requirements are intended to
complement the public disclosure system, and apply to those employees who do not have to file
under the public reporting provisions of the Ethics in Government Act.70 Generally speaking, the
confidential reporting requirements apply to certain lower-level or “rank and file” employees, that
is, those officers or employees who are compensated below the threshold rate of pay for public
disclosures (GS-15 or below, or less than 120% of the basic rate of pay for a GS-15), and who are
determined by the employee’s agency to perform duties or exercise responsibilities in regard to
government contracting or procurement, government grants, government subsidies or licensing,
government auditing, or other governmental duties which may particularly require the employee
to avoid financial conflicts of interest.71 Such a person may be required to file a confidential
report if he or she performs the duties of such a position “for a period in excess of 60 days during
the 12 month period ending September 30.”72Additionally, unless required to file public reports,
confidential reports are required from all “special Government employees” in the executive
branch (those employees who are employed by the government for not more than 130 days in a
year), including specifically “those who serve on advisory committees.”73 The disclosure
provisions of federal law and regulation, it should be noted, apply only to persons who are
“officers or employees” of the federal government, and thus do not apply, for example, to so-
called “representatives” of outside, private, or non-federal entities appointed to advisory
committees.74
Outside Employment Limitations75
Executive Order and Regulations. Under an existing executive order, issued by President George
H.W. Bush in 1989, a presidential appointee to a “full-time noncareer position” may not receive
any compensation as outside earned income from any outside employment activities during that
presidential appointment.76 The term “Presidential appointee to a full-time noncareer position” is
defined in the ethics regulations issued by OGE as follows:

(...continued)
Executive Office of the President. 5 C.F.R. § 2634.605(c)(1).
67 5 C.F.R. § 2634.602(a).
68 5 U.S.C. app. § 103(c), 5 C.F.R. § 2634.602(c)(1)(vi).
69 5 U.S.C. app. § 103(c), 5 C.F.R. § 2634.602(c)(3).
70 5 C.F.R. § 2634.901(a), although supplemental information may be requested by an agency even from employees
filing public disclosures. 5 C.F.R. §2634.901(c).
71 5 C.F.R. § 2634.904(a).
72 5 C.F.R. § 2634.903(a).
73 5 C.F.R. § 2634.904(b).
74 Id.
75 Jack H. Maskell, Legislative Attorney in the American Law Division (7-6972), wrote this section.
76 E.O. 12674 (modified by E.O. 12731), April 12, 1989, Section 102. See now 5 C.F.R. §§ 2635.804, 2636.302.
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(2) Presidential appointee to a full-time noncareer position means any employee who is
appointed by the President to a full-time position described in 5 U.S.C. 5312 through 5317
[the Executive Schedule] or to a position that, by statute or as a matter of practice, is filled by
Presidential appointment, other than:
(i) A position filled under the authority of 3 U.S.C. 105 or 3 U.S.C. 107(a) for which the rate
of basic pay is less than that for GS-9, step 1 of the General Schedule;
(ii) A position, within a White House operating unit, that is designated as not normally
subject to change as a result of a Presidential transition;
(iii) A position within the uniformed services; or
(iv) A position in which a member of the foreign service is serving that does not require
advice and consent of the Senate. 77
Statutory Limitations. In addition to the complete ban on outside income for “full-time”
presidential appointees under the executive order, federal law limits the amount of compensation
that may be earned by certain other federal officials, and the types of paid outside work in which
such officials may engage, under provisions of the Ethics Reform Act of 1989.78 These statutory
provisions would be relevant when a presidential appointee is not a “full-time” federal employee,
but is more than a “special Government employee,” that is, when such employee works for the
government on more than 130 days in a year.
The coverage of government officials under these restrictions and limitations is dependent on the
rate of federal compensation of the official, the number of days of employment with the
government (that is, whether one is a “regular” employee of the government as opposed to a
“special Government employee”), and the nature of the appointment and employment as to
whether one is a “noncareer officer or employee” as opposed to having a career position.
Under the statutory limitations, a covered officer or employee may not have “outside earned
income” (that is, compensation, salaries, wages, or fees for outside, private employment
activities) that exceeds 15% of the annual rate of pay for a Level II on the Executive Schedule.79
Furthermore, such covered noncareer officials may not receive any compensation for affiliating
with a firm to provide professional services involving a fiduciary relationship; may not permit
their names to be used by any such firm; may not receive any compensation for practicing a
profession which involves a fiduciary relationship; may not serve for compensation as an officer
or member of the board of any association, corporation, or other entity; and may not receive
compensation for teaching without prior notification of and approval by the appropriate
supervisory ethics office.80

77 5 C.F.R. § 2635.804(c)(2).
78 P.L. 101-194, Title VI, 103 Stat. 1760, November 30, 1989; see now 5 U.S.C. app. §§ 501 et seq.
79 5 U.S.C. app. § 501(a). As of January 2009, the compensation for a Level II of the Executive Schedule was
$177,000, and 15% of that amount was $26,550.
80 5 U.S.C. app. § 502. The “honoraria” prohibition of 5 U.S.C. app. § 501(b) was declared unconstitutional by the
Supreme Court in United States v. National Treasury Employees Union, 513 U.S. 454 (1995), and will not be enforced
by the Department of Justice against any officer or employee of the federal government. Office of Legal Counsel, U.S.
Department of Justice, Memorandum to the Attorney General, “Legality of Honoraria Ban Following U.S. v. National
Treasury Employees Union,” February 26, 1996.
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These particular outside employment restrictions apply when all three of the following conditions
are met:
• Government Compensation. An officer or employee of the government to be
covered must, in the first instance, be compensated at a rate of annual pay above
a GS-15, or if not on the General Schedule, then compensated at a rate of basic
pay equal to or greater than 120% of the minimum rate of base pay for a GS-15.
At current rates of pay, as of this writing, the base salary of a GS-15 (excluding
locality pay) is $98,156 and thus the threshold pay rate would be $117,787.20 or
above.
• Career v. Noncareer Employee. An officer or employee is covered only if that
person is a “noncareer officer or employee” of the government. The OGE
regulations expressly define “covered” noncareer employees as follows:
(a) Covered noncareer employee means an employee, other than a Special Government
employee ... who occupies a position classified above GS-15 of the General Schedule, or, in
the case of positions not under the General Schedule, for which the rate of basic pay is equal
to or greater than 120 percent of the minimum rate of basic pay payable for a GS-15 of the
General Schedule, and who is:
(1) Appointed by the President to a position described in the Executive Schedule, 5 U.S.C.
5312 through 5317, or to a position that, by statute or as a matter of practice, is filled by
Presidential appointment, other than:
(i) A position within the uniformed services; or
(ii) A position within the foreign service below the level of assistant Secretary or Chief of
Mission;
(2) A noncareer member of the Senior Executive Service or of another SES-type system,
such as the Senior Foreign Service;
(3) Appointed to a Schedule C position or to a position under an agency-specific statute that
establishes appointment criteria essentially the same as those set forth in § 213.3301 of this
title for Schedule C positions; or
(4) Appointed to a noncareer executive assignment position or to a position under an agency-
specific statute that establishes appointment criteria essentially the same as those for
noncareer executive assignment positions.
For purposes of applying this definition to an individual who holds a General Schedule
position or other position that provides several rates of pay or steps per grade, his rate of
basic pay shall be the rate of pay for the lowest step of the grade at which he is employed.81

81 5 C.F.R. § 2636.303(a). OGE has described the term “covered noncareer employee” to include “a variety of
noncareer employees who are in positions ‘above GS-15,’ including certain Presidential appointees, noncareer
members of the Senior Executive Service (SES) or other SES-type systems, and Schedule C or comparable
appointees.... The term excludes special Government employees, Presidential appointees to positions within the
uniformed services, and Presidential appointees within the foreign service below the level of Assistant Secretary or
Chief of Mission.” OGE Memorandum, 97-10, May 21, 1997.
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• Regular v. Special Government Employee. The term “officer or employee” for the
purposes of these particular statutory compensation restrictions expressly
excludes any “special Government employee,” as defined in 18 U.S.C. § 202
(that is, an officer or employee of the Government who is compensated to
perform duties on no more than 130 days in any period of 365 days).
All officers and employees of the executive branch are also covered by general conflict of interest
and ethical standards regarding conflicting or incompatible outside employment activities, as set
out in executive branch-wide regulations by the Office of Government Ethics, as well as other
statutory restrictions on certain outside activity or compensation.82
Selected Special Assistants and Advisors in the
Obama Administration
As noted above, the term “czar” has been used as a shorthand reference to a number of
appointments made by President Obama or his Cabinet Secretaries. The discussion that follows
presents selected examples of appointments so designated in the news media or elsewhere.83
Appointed by the President to White House Office Positions
Assistant to the President and Deputy National Security Advisor for Counterrorism and
Homeland Security84
On January 9, 2009, President-elect Obama announced the appointment of John Brennan as “my
Homeland Security Advisor and Deputy National Security Advisor for Counterterrorism, serving
with the rank of Assistant to the President” and stated that he “has the experience, vision and
integrity to advance America’s security.”85 The appointment has led to speculation about a future
merger of the Homeland Security Council (HSC) into the National Security Council (NSC) and
placement of policies related to counterterrorism under “a single adviser [Mr. Brennan] reporting
to the president.” 86 During remarks at the 45th Munich Conference on Security Policy, on

82 See 5 C.F.R. §§ 2635.801 et seq. See also statutory restrictions on certain representational activities before federal
agencies, restrictions on private compensation for government work, acting as an agent of a foreign principal, and
constitutional restriction on compensation from foreign governments. 18 U.S.C. §§ 203, 205, 209, 219, Const. Art. I, §
9, cl. 8.
83 This section of the report discusses a sampling of appointments frequently mentioned in the news media. In addition,
several “dual-hatted” positions that have been less frequently cited were included for illustrative purposes. See, for
example, Laura Meckler, “‘Czars’ Ascend at White House,” Wall Street Journal, December 15, 2008, p. A6; Peter
Baker, “And Now Let the Jockeying Begin,” New York Times, February 1, 2009, p. WK.1; Amanda Carpenter, “Hot
Button,” Washington Times, June 15, 2009, p. A18; and “What About Our ‘Czars,’” Chattanooga Times Free Press,
September 20, 2009, p. F5. Inclusion of a position does not suggest that it is more “czar”-like than another position.
Exclusion of a position does not mean that it is free from any concerns.
84 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
85 “Obama Announces Panetta and Blair for Intel Posts; Remarks of President-Elect Barack Obama As Prepared for
Delivery, Announcement of Intelligence Team,” January 9, 2009, at http://change.gov/newsroom/entry/
obama_announces_panetta_and_blair_for_intel_posts/.
86 Eileen Sullivan and Pamela Hess, “Obama May Cut Bush-era Security Panel; CIA Veteran Tapped as
Counterterrorism Policy Faces Review,” Chicago Tribune, January 9, 2009, p. 13.
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February 9, 2009, National Security Advisor, General James L. Jones, stated that Mr. Brennan is
leading the review undertaken by the NSC “to determine how best to unify our efforts to combat
terrorism around the world while protecting our homeland.”87 At a February 12, 2009, hearing on
“Structuring National Security and Homeland Security at the White House” Senator Joseph
Lieberman noted both that Mr. Brennan had been appointed “to serve as both a deputy national
security adviser for counterterrorism and as homeland security adviser—so in some sense
bringing these functions together” and has been asked to undertake a review related to a possible
merger of the HSC and the NSC. Relatedly, at that same hearing, Tom Ridge, who served as the
first homeland security advisor in the Administration of President George W. Bush, stated,
let’s not categorize the Department of Homeland Security’s primary mission as
counterterrorism. It’s not. And having someone such as John Brennan, with the stature and
the experience, being a liaison between the National Security Council and the independent
Homeland Security Council to make sure that the information that the HSC needs, that the
department needs, that the states need, that the locals need, that the private sector needs is
transmitted in a timely and appropriate way would be a huge, huge plus-up for the
department and for the Homeland Security Council.88
According to a Congressional Research Service report on the NSC,
In May 2009 the Administration announced its intention to integrate the staffs of the
National Security Council with the Homeland Security Council into a single National
Security Staff, with the goal of ending “the artificial divide between White House staff who
have been dealing with national security and homeland security issues.” The position of
Assistant to the President for Homeland Security, currently filled by John Brennan, will be
retained “with direct and immediate access” to the President, but the incumbent would
organizationally report to the National Security Advisor. It is anticipated that the changes
will be formalized in a new Presidential Policy Directive.89
Mr. Brennan participated in the 60-day review of cyberspace policy undertaken by the NSC and
the HSC, and in the May 29, 2009, presentation of the review findings to the President. Other
activities reportedly involving Mr. Brennan have included participating in a White House briefing
on swine flu cases on April 26, 2009, and a briefing on hurricane preparedness at the Federal
Emergency Management Agency on May 29, 2009; meeting with the President and several
Cabinet members on June 30, 2009, to discuss lessons learned from the 1976 influenza outbreak;
hosting an all-day H1N1 Influenza preparedness summit at the National Institutes of Health with
representatives from 54 states and territories on July 9, 2009; and presenting a speech on
terrorism at the Center for Strategic and International Studies on August 6, 2009.
Mr. Brennan’s salary, as of July 1, 2009, is $172,200. The FY2010 budget justification for the
EOP that accompanied the submission of the President’s budget to Congress includes funding for

87 White House, Office of the Press Secretary, “Remarks by National Security Advisor Jones at 45th Munich
Conference on Security Policy,” press release, February 9, 2009, at http://www.whitehouse.gov/the_press_office/
RemarksByNationalSecurityAdviserJonesAt45thMunichConferenceOnSecurityPolicy/.
88 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Structuring National Security
and Homeland Security at the White House, hearing, 111th Cong., 1st sess., February 12, 2009. Quoted from the
Congressional Quarterly transcript of the hearing (printout is available from CRS). Mr. Brennan’s appointment also
was mentioned in passing during the House Committee on Homeland Security’s April 2, 2009, hearing on homeland
security policymaking.
89 CRS Report RL30840, The National Security Council: An Organizational Assessment, by Richard A. Best Jr., pp.
23-24.
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various components within the EOP, including the White House Office and the National Security
Council. The justification does not provide specific budget and staff data for the HSC; the only
specific mention of the HSC is that program increases for the NSC will fund “Presidential Study
Directive 1 recommendations with respect to the NSC and [HSC] integration.”90 Included under
the HSC are some 56 staff positions, 10 of which are vacant, according to a spring 2009 listing.91
Assistant to the President for Energy and Climate Change92
The President-elect announced the appointment of Carol Browner “to a new post in the White
House to coordinate energy and climate policy” on December 15, 2008. As of October 1, 2009,
the President has not issued an executive order to establish the office, but the position is
mentioned in E.O. 13499 related to the National Economic Council and E.O. 13500 related to the
Domestic Policy Council, both of which were issued on February 5, 2009.93 In announcing the
appointment, Mr. Obama stated that Ms. Browner “understands that our efforts to create jobs,
achieve energy security and combat climate change demand integration among different agencies;
cooperation between federal, state and local governments; and partnership with the private
sector” and “will be indispensable in implementing an ambitious and complex energy policy.”94
During a January 2009, interview with a reporter for National Journal, Ms. Browner described
her role in this way:
Having served as EPA administrator for eight years, I have a real appreciation for
professional staff and the public servants who make up EPA and the other departments and
agencies. There is a difference between being an assistant to the president and having a
statutory responsibility as the Secretary of Energy or the administrator of EPA. And I respect
that difference. The president recognizes that to tackle the enormous challenges we face
when it comes to energy security and climate change, you have to coordinate across all of
these departments and agencies and work closely with the experts. My role is to bring the
various players together to reach consensus and to work with the president and formulate
policy.95
The appointment has raised questions about her role in policymaking, as the following article
reported:
Browner ... told reporters two weeks ago that the administration would soon propose new
rules to regulate greenhouse gas emissions from a range of industries. Obama’s EPA
administrator had hinted at such a possibility but had not made clear how things would
unfold. Browner’s statement set off a nervous response on Capitol Hill and among

90 U.S. Executive Office of the President, Fiscal Year 2010 Congressional Budget Submission (Washington: 2009), p.
NSC-3.
91 Federal Directory Executive, Legislative, Judicial, (Bethesda: Carroll Publishing, Spring 2009), pp.107-108.
Hereafter referred to as Federal Directory.
92 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
93 E.O. 13499, “Further Amendments to Executive Order 12835, Establishment of the National Economic Council,” 74
Federal Register, 6979, February 11, 2009. E.O. 13500, “Further Amendments to Executive Order 12859,
Establishment of the Domestic Policy Council,” 74 Federal Register, 6981, February 11, 2009.
94 “The Energy and Environment Team, December 16, 2008; Remarks of President-Elect Barack Obama As Prepared
for Delivery, Announcement of Energy and Environment Team,” December 15, 2008, at http://change.gov/newsroom/
entry/the_energy_and_environment_team/.
95 Margaret Kriz, “Power Player,” National Journal, January 31, 2009, p. 23. Hereafter referred to as Power Player.
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Washington interest groups, some of whom objected to executive branch unilaterally taking
the lead on regulating a substance as ubiquitous as carbon.... At least one senator wanted to
ask Browner about exactly that in a confirmation hearing. As a czar and not a Cabinet
secretary though, she never came to Capitol Hill to answer questions. “The overall concern
is, Carol Browner has been appointed to coordinate all this energy policy,” said Sen. John
Barrasso.... “What’s her role going to be? She’s not going to be going through a confirmation
process. While (agency directors) had to come to Congress and answer questions, she
didn’t.”96
Among the public activities that Ms. Browner has reportedly participated in since her
appointment are these: attended the Washington, DC, Auto Show and wrote an entry about the
show for the White House blog on February 4, 2009; participated in the first meeting of the
Middle Class Task Force conducted in Philadelphia on February 27, 2009, the President’s
announcement of a National Fuel Efficiency Policy on May 19, 2009, and the first quarterly
meeting of the President’s Economic Recovery Advisory Board at the White House on May 20,
2009; joined the President on his trip to the United Nations Climate Change Summit on
September 22, 2009, and both wrote an entry for the White House blog on the summit and
participated in a briefing following the President’s speech on climate change the same day. More
recently, Ms. Browner spoke at a conference on politics and history organized by The Atlantic
Magazine, where she reportedly stated that there “was virtually no chance Congress would have a
climate and energy bill ready for him [President Obama] to sign before negotiations on a global
climate treaty begin in December in Copenhagen.”97
Ms. Browner’s salary, as of July 1, 2009, is $172,200. The FY2010 budget justification for the
EOP that accompanied the submission of the President’s budget to Congress, does not provide
specific budget and staff data for her office. Included under the office are five staff members.98
Deputy Assistant to the President and Director, White House Office of Urban Affairs99
President Obama announced the appointment of Adolfo Carrion as “White House Director of
Urban Affairs” on February 19, 2009, and issued E.O. 13503 to establish the office. According to
a White House press release, “President Obama and Vice President Biden created the White
House Office of Urban Affairs to develop a strategy for metropolitan America and to ensure that
all federal dollars targeted to urban areas are effectively spent on the highest-impact programs.”
The press release also stated that the Director “will report directly to the President and coordinate
all federal urban programs.”100 As stated in the executive order, the principal functions of the
office are to
provide leadership for and coordinate the development of the policy agenda for urban
America across executive departments and agencies;

96 Tom Hamburger and Christi Parsons, “White House Czars’ Power Stirs Criticism,” McClatchy-Tribune News
Service, March 9, 2009. For a discussion of the various views surrounding Carol Browner’s role, see, Power Player, pp.
16-23.
97 Andrew C. Revkin, “Obama Aide Concedes Climate Law Must Wait,” New York Times, October 3, 2009, p. A11.
98 Federal Directory, p. 105, and Annual Report on White House Staff.
99 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-8655),
wrote this section.
100 The White House, Office of the Press Secretary, “President Barack Obama Announces Key White House Posts,”
press release, February 19, 2009, at http://www.whitehouse.gov/the_press_office/President-Barack-Obama-Announces-
Key-White-House-Posts/.
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coordinate all aspects of urban policy;
work with executive departments and agencies to ensure that appropriate consideration is
given by such departments and agencies to the potential impact of their actions on urban
areas;
work with executive departments and agencies, including the Office of Management and
Budget, to ensure that Federal Government dollars targeted to urban areas are effectively
spent on the highest-impact programs; and
engage in outreach and work closely with State and local officials, with nonprofit
organizations, and with the private sector, both in seeking input regarding the development
of a comprehensive urban policy and in ensuring that the implementation of Federal
programs advances the objectives of that policy.101
In a February 20, 2009, article in The Washington Post, Mr. Carrion was quoted saying that “he
would help coordinate urban policy in traditional areas such as education, health care and public
safety” and “look to develop urban neighborhoods in environmentally thoughtful ways, such as
by offering incentives for companies to locate in densely populated areas and improving mass
transit.”102 Mr. Carrion conducted a roundtable on urban and metropolitan policy at the
Eisenhower Executive Office Building on July 13, 2009. During the roundtable, the President
said that he had directed OMB, the Domestic Policy Council, the National Economic Council,
and the Office of Urban Affairs “to conduct the first comprehensive interagency review in 30
years of how the federal government approaches and funds urban and metropolitan areas.”103
Among other public activities, Mr. Carrion has also reportedly participated in a town hall meeting
on the future of America’s cities and metro areas conducted in Philadelphia on July 23, 2009;
written an entry for the White House blog on the subject on August 4, 2009; and participated in a
panel discussion on high-speed rail, with the Secretary of Transportation and other officials,
conducted in Chicago on September 17, 2009. The group is expected to convene similar panel
discussions in Denver, CO, Los Angeles, CA, and Atlanta, GA, among other cities, as part of the
President’s sustainable cities initiative.
Mr. Carrion’s salary, as of July 1, 2009, is $158,500. The FY2010 budget justification for the EOP
that accompanied the submission of the President’s budget to Congress, does not provide specific
budget and staff data for his office. Included under the office are two staff members.104

101 E.O. 13503, “Establishment of the White House Office of Urban Affairs,” 74 Federal Register, 8139-8140,
February 24, 2009. The executive order authorizes such staff and other assistance as may be necessary.
102 Robin Shulman, “White House Urban Affairs Chief Picked; Bronx Borough President Lays Out Vision For New
Policy Office,” The Washington Post, February 20, 2009, p. A2.
103 White House, Office of the Press Secretary, “Remarks by the President at Urban and Metropolitan Policy
Roundtable,” press release, July 13, 2009, at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-
at-Urban-and-Metropolitan-Roundtable/.
104 Federal Directory, p. 105, and Annual Report on White House Staff.
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Counselor to the President and Director, White House Office of Health Reform105
On March 2, 2009, President Obama announced the appointment of Nancy-Ann DeParle as
Counselor to the President and Director of the White House Office for Health Reform.106 A White
House press release on the appointment quoted the President as saying that Ms. DeParle, along
with the Secretary of Health and Human Services (HHS), would be “critical” to the effort on
“[h]ealth care reform that reduces costs while expanding coverage.”107 During a press briefing on
that day, the President characterized Ms. DeParle as an “excellent partner at the White House” to
the HHS Secretary and stated his confidence “in her ability to lead the public and legislative
effort to ensure quality, affordable health care for every American.”108 E.O. 13507, issued on
April 8, 2009, establishes the White House Office of Health Reform and states that its principal
functions, to the extent permitted by law, are to
provide leadership for and to coordinate the development of the Administration’s policy
agenda across executive departments and agencies concerning the provision of high-quality,
affordable, and accessible health care and to slow the growth of health costs; this shall
include coordinating policy development with the Domestic Policy Council, National
Economic Council, Council of Economic Advisers, Office of Management and Budget,
HHS, Office of Personnel Management, and such other executive departments and agencies
as the Director of the Health Reform Office may deem appropriate;
work with executive departments and agencies to ensure that Federal Government policy
decisions and programs are consistent with the President’s stated goals with respect to health
reform;
integrate the President’s policy agenda concerning health reform across the Federal
Government;
coordinate public outreach activities conducted by executive departments and agencies
designed to gather input from the public, from demonstration and pilot projects, and from
public-private partnerships on the problems and priorities for policy measures designed to
meet the President’s goals for improvement of the health care system;

105 Barbara L. Schwemle, Analyst in American National Government in the Government and Finance Division (7-
8655), wrote this section.
106 President-elect Barack Obama had announced his selection of Senator Tom Daschle to serve as both Secretary of
Health and Human Services and Director of the White House Office of Health Reform on December 11, 2008. In
announcing the selection, the President-elect stated that Senator Daschle would not only implement, but be the “lead
architect of [his] health care plan” (“President-elect Obama Nominates Senator Daschle as Secretary of HHS; Remarks
of President-Elect Barack Obama As Prepared for Delivery, December 11, 2008,” available at http://change.gov/
newsroom/entry/president_elect_obama_nominates_senator_daschle_as_secretary_of_hhs/. Senator Daschle withdrew
from consideration for these posts on February 3, 2009.
107 The White House, Office of the Press Secretary, “President Obama Will Nominate ... Leading Health Care Expert
Nancy-Ann DeParle to Serve as Director of White House Office for Health Reform,” press release, March 2, 2009, at
http://www.whitehouse.gov/the_press_office/President-Obama-nominates-Governor-Kathleen-Sebelius-Secretary-of-
HHS-Announces-Re/.
108 The White House, Office of the Press Secretary, “Remarks by President Obama, HHS Secretary-Designate Kathleen
Sebelius, and White House Office of Health Reform Director Nancy-Ann DeParle,” press release, March 2, 2009, at
http://www.whitehouse.gov/the_press_office/Remarks-by-President-Obama-HHS-Secretary-designate-Kathleen-
Sebelius-and-White-Hou/. See also, Marilyn Werber Serafini, “Obama’s Health Team,” National Journal, March 7,
2009, p. 54.
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bring to the President’s attention concerns, ideas, and policy options for strengthening,
increasing the efficiency, and improving the quality of the health care system;
work with State, local, and community policymakers and public officials to expand
coverage, improve quality and efficiency, and slow the growth of health costs;
develop and implement strategic initiatives under the President’s agenda to strengthen the
public agencies and private organizations that can improve the performance of the health
care system;
work with the Congress and executive departments and agencies to eliminate unnecessary
legislative, regulatory, and other bureaucratic barriers that impede effective delivery of
efficient and high-quality health care;
monitor implementation of the President’s agenda on health reform; and
help ensure that policymakers across the executive branch work toward the President’s
health care agenda.109
President Obama stated that Ms. DeParle would be interacting with Governors “on a regular
basis” as the health care agenda moved forward.110 Reportedly, she “has a standing biweekly
meeting with [Senator Max] Baucus.”111 On April 15, 2009, the Kaiser Family Foundation
featured her in a newsmaker briefing.112 Since her appointment, Ms. DeParle’s public activities
have also reportedly included the following: participated in the White House Forum on Health
Reform on March 5, 2009, and in meetings with health care stakeholders, including those on
April 8, 2009, and May 27, 2009; written a post for the White House blog on March 30, 2009,
provided updates on the White House website at HealthReform.gov and participated in a
Facebook discussion on June 29, 2009; and participated in a town hall meeting in Derby, CT, with
Representative Rosa DeLauro and Senator Chris Dodd on May 16, 2009.
News reports have mentioned both Ms. DeParle’s experience in business that “gives her an
insider’s insight into the machinery of health-care delivery” and conflict of interest concerns that
arise “particularly given the size and market share” of some of the health care related companies
for which she was a board member or private equity portfolio manager. The latter is seen as
significant because “as a White House adviser, [she] won’t have to undergo the scrutiny of a
Senate confirmation.”113 A September 28, 2009, post on the White House blog responded to
conflict of interest concerns.114

109 E.O. 13507, “Establishment of the White House Office of Health Reform,” 74 Federal Register, 17071-17073, April
13, 2009. The executive order authorizes such staff and other assistance as may be necessary.
110 U.S. President (Obama), Daily Compilation of Presidential Documents, “Remarks Following a Meeting On Health
Care Reform and an Exchange With Reporters,” (June 24, 2009), p. 1.
111 David D. Kirkpatrick, “Obama Taking an Active Role in Health Talks,” New York Times, August 13, 2009, p. A1.
112 The video of the briefing may be viewed at http://www.kff.org/healthreform/hr041509video.cfm.
113 Andrew Zajac, “Health Czar Has Deep Ties to Industry; Some See Potential Conflicts; Others Say Knowledge is
Power,” Chicago Tribune, March 29, 2009, p. 9. On related topics, see, “Financial Disclosure” and “Outside
Employment Limitations,” above.
114 White House, The Blog, “Reality Check: Nancy-Ann DeParle’s Stellar Record,” September 28, 2009, at
http://www.whitehouse.gov/blog/Reality-Check-Nancy-Ann-DeParles-Stellar-Record/.
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Ms. DeParle’s salary is $158,500, as of July 1, 2009. The FY2010 budget justification for the
EOP that accompanied the submission of the President’s budget to Congress, does not provide
specific budget and staff data for her office. Included under the office are two staff members.115
Chief Performance Officer and Deputy Director for Management, Office of Management and
Budget(OMB)116
On January 7, 2009, President-elect Obama announced at a press conference his intention to
establish a new, non-statutory position in the White House Office.117 The position’s title would be
Chief Performance Officer (CPO). Consistent with a presidential campaign pledge, the CPO
would report directly to the President and would be responsible for helping make the federal
government more efficient, effective, and transparent.118 The President-elect said Nancy Killefer,
a senior partner and director of the management consulting firm McKinsey and Company, would
take the position. The President-elect also announced his intention to nominate Ms. Killefer to be
Deputy Director for Management (DDM) at OMB.
It was not clear from Administration statements whether Ms. Killefer was added to the White
House payroll after the President’s inauguration. On February 3, 2009, the White House posted
on its website a letter from Ms. Killefer to the President.119 In the letter, Ms. Killefer asked the
President to “withdraw my name from consideration,” citing a “personal tax issue” that might
distract from her duties as CPO. By this date, the President had not yet referred to the Senate her
nomination for DDM.
On April 18, 2009, the President said he had named Jeffrey Zients to serve as DDM and CPO.120
Mr. Zients founded a private equity firm, Portfolio Logic, and previously had been chairman of
the board of The Advisory Board Company and The Corporate Executive Board Company.121 On
June 10, 2009, the Senate Committee on Homeland Security and Governmental Affairs held a
confirmation hearing for Mr. Zients for the DDM position.122 By this time, the White House

115 Federal Directory, p. 105, and Annual Report on White House Staff.
116 Clinton T. Brass, Analyst in Government Organization and Management in the Government and Finance Division
(7-4536), wrote this section.
117 Office of the President-elect (Obama), “President-elect Names Nancy Killefer as Chief Performance Officer,” press
release, January 7, 2009, at http://change.gov/newsroom/entry/president-
elect_obama_names_nancy_killefer_as_chief_performance_officer; and “New and More Efficient Ways of Getting the
Job Done,” press release, January 7, 2009, at http://change.gov/newsroom/entry/
new_and_more_efficient_ways_of_getting_the_job_done/.
118 Obama ’08, Blueprint for Change: Obama and Biden’s Plan for America, no date (83 pp.), at
http://www.barackobama.com/pdf/ObamaBlueprintForChange.pdf; and Obama Biden, The Change We Need in
Washington: Stop Wasteful Spending and Curb Influence of Special Interests So Government Can Tackle Our Great
Challenges, September 22, 2008, pp. 5-7, at http://obama.3cdn.net/0080cc578614b42284_2a0mvyxpz.pdf.
119 U.S. President (Obama), “Letter from Nancy Killefer to President Obama,” February 3, 2009, at
http://www.whitehouse.gov/the_press_office/LetterfromNancyKillefertoPresidentObama/.
120 U.S. President (Obama), “Weekly Address: President Obama Discusses Efforts to Reform Spending, Government
Waste; Names Chief Performance Officer and Chief Technology Officer,” press release, April 18, 2009, at
http://www.whitehouse.gov/the_press_office/Weekly-Address-President-Obama-Discusses-Efforts-to-Reform-
Spending/.
121 U.S. Office of Management and Budget, “OMB Leadership Bios,” at http://www.whitehouse.gov/omb/
organization_office/.
122 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Nominations, 111th Cong., 1st
sess., June 10, 2009, at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=
19476eae-7f0c-403e-a1fe-f06160b2f7e7. A transcript is available at http://www.cq.com (subscription required). The
(continued...)
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website had dropped references to the CPO as being a White House position that reports directly
to the President.123 On June 19, 2009, the Senate confirmed Mr. Zients’s nomination to be DDM
by unanimous consent.124 On July 1, 2009, the White House released a listing of White House
Office employees.125 The list did not include Mr. Zients. The omission suggested DDM Zients
may not be considered a White House Office employee for purposes of the document, and left
ambiguous whether the CPO position should be considered simply a non-statutory, additional title
for OMB’s DDM position.126
The specific roles for this “dual-hatted” CPO-DDM position have emerged gradually and may be
evolving. Aspects of the Obama Administration’s plans for the CPO were described in some
detail in campaign documents and speeches. Other aspects of the CPO’s agenda and duties have
been included in subsequent announcements during the presidential transition and after the
President’s inauguration. In particular, some have been discussed by OMB officials and
documents. The DDM position’s more general responsibilities are enumerated in law.
When the President announced Mr. Zients’s nomination, President Obama said Mr. Zients “will
work to streamline processes, cut costs, and find best practices throughout our government.”
Campaign documents and speeches provided more detail, saying among other things that the CPO
would lead a “SWAT team” to “work with agency leaders and the White House Office of
Management and Budget to improve results and outcomes for federal government programs while
eliminating waste and inefficiency.”127 In addition, the CPO would “work with federal agencies to
set tough performance targets and hold managers responsible for progress.”128 In turn, the
President would meet “regularly with cabinet officers to review the progress their agencies are
making toward meeting performance improvement targets.”129 An OMB memorandum dated June
11, 2009, set in motion some processes that appeared to be related to CPO-DDM responsibilities
and previous policy announcements.130 Among other things, agencies were directed to identify

(...continued)
CPO position is not statutory in nature and therefore is not subject to Senate confirmation.
123 The CPO was depicted as “reporting directly to the President” early in the Administration, at
http://www.whitehouse.gov/agenda/ethics (no longer posted online; printout is available from CRS). By July 2009, the
equivalent language on the White House website dropped reference to the CPO’s reporting relationship to the President
and to the location “within the White House” of a focused team led by the CPO; http://www.whitehouse.gov/issues/
fiscal.
124 “Executive Calendar,” Executive Session, Congressional Record, daily edition, vol. 155, part 93 (June 19, 2009),
pp. S6840-S6841.
125 The White House, “Annual Report to Congress on White House Staff,” July 1, 2009, at http://www.whitehouse.gov/
blog/Annual-Report-to-Congress-on-White-House-Staff-2009/. The report is submitted annually by the White House to
comply with P.L. 103-270, Section 6 (June 30, 1994; 3 U.S.C. § 113 (note)).
126 Previously, the White House website indicated Nancy Killefer had been nominated for a White House position as
CPO, as opposed to an OMB position; The White House, “The Briefing Room: Nominations & Appointments,” at
http://www.whitehouse.gov/briefing_room/nominations_and_appointments/ (no longer posted online; printout is
available from CRS). At some point after Ms. Killefer’s withdrawal, the website removed reference to Ms. Killefer and
indicated Mr. Zients had been nominated and confirmed for the OMB position as DDM, rather than CPO.
127 Barack Obama and Joe Biden, The Change We Need in Washington: Stop Wasteful Spending and Curb Influence of
Special Interests So Government Can Tackle Our Great Challenges, September 22, 2008, p. 5.
128 Ibid.
129 Ibid.
130 OMB, “Planning for the President’s Fiscal Year 2011 Budget and Performance Plans,” memorandum for the heads
of departments and agencies, M-09-20, June 11, 2009, at http://www.whitehouse.gov/omb/assets/memoranda_fy2009/
m09-20.pdf.
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“high-priority performance goals.” The memorandum also instructed agencies to include certain
performance information and termination proposals in FY2011 budget submissions.
The DDM position was established by statute in 1990, and appointees to the position are subject
to Senate confirmation.131 The DDM reports to the Director of OMB.132 The position’s pay is set
statutorily at Level II of the Executive Schedule.133 Subject to the direction and approval of the
Director of OMB, the DDM has statutory responsibility to “coordinate and supervise the general
management functions of [OMB]” (e.g., OMB’s activities relating to information and regulatory
affairs, procurement policy) and to establish general management policies for executive agencies
across a number of management functions.134 The functions include financial management,
“managerial systems” (including performance measurement), procurement policy, grant
management, information and statistical policy, property management, human resources
management, regulatory affairs, organizational studies, long-range planning, program evaluation,
productivity improvement, and experimentation and demonstration programs. The DDM also
chairs or plays roles in a number of interagency councils of “chief officers,”135 in which the DDM
may exert considerable influence over agency activities.
Appointed by the President to EOP Positions
Administrator, Office of Information and Regulatory Affairs, OMB136
The Paperwork Reduction Act of 1980 (PRA) established the Office of Information and
Regulatory Affairs (OIRA) within OMB, and also established an Administrator to head the office
who is “appointed by the President, by and with the advice and consent of the Senate.”137 The
PRA assigned numerous duties and responsibilities to the OMB Director, but also required the
Director to “delegate to the [OIRA] Administrator the authority to administer all functions under
this chapter” (although the OMB Director was not relieved of responsibility for those
functions).138 For example, the PRA made the OIRA Administrator responsible for overseeing the
use of information resources to improve the efficiency and effectiveness of government
operations, and for reviewing and approving all proposed agency collections of information.139
In 1981, OIRA’s responsibilities expanded significantly when President Reagan issued Executive
Order 12291, which required most federal agencies to send a copy of each draft proposed and

131 The DDM was established by the Chief Financial Officers Act of 1990 (P.L. 101-576; 104 Stat. 2838, at 2839) and
is codified at 31 U.S.C. § 502(c).
132 For an overview of OMB, see CRS Report RS21665, Office of Management and Budget (OMB): A Brief Overview,
by Clinton T. Brass. For OMB’s organization chart, see http://www.whitehouse.gov/omb/assets/about_omb/
omb_org_chart.pdf.
133 5 U.S.C. § 5313.
134 31 U.S.C. § 503.
135 For an overview of some “chief officers” and related councils, see CRS Report RL32388, General Management
Laws: Major Themes and Management Policy Options, by Clinton T. Brass.
136 Curtis W. Copeland, Specialist in American National Government in the Government and Finance Division (7-
0632), wrote this section.
137 44 U.S.C. 3503.
138 Ibid.
139 44 U.S.C. 3504(a) and (c), respectively.
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final rule to OMB before publication in the Federal Register.140 The order authorized OMB to
review proposed and final rules and related materials “based on the requirements of this Order,”
and generally required covered agencies to refrain from publishing any final rules until they had
responded to OMB’s comments. Although the executive order did not specifically mention OIRA,
shortly after its issuance the Reagan Administration decided to integrate OMB’s regulatory
review responsibilities under the executive order with the responsibilities given to OMB (and
ultimately to OIRA) by the PRA.
In 1985, President Reagan extended OIRA’s influence over rulemaking even further by issuing
Executive Order 12498, which required covered agencies to submit a “regulatory program” to
OMB for review each year that covered all of their significant regulatory actions underway or
planned.141 Under this executive order, OIRA could generally return a draft rule to the issuing
agency if the office did not have advance notice of the rule’s submission, even if the rule was
otherwise consistent with the requirements in Executive Order 12291.
In 1993, President Clinton issued Executive Order 12866, which revoked the Reagan executive
orders and focused OIRA’s regulatory reviews on “significant” draft proposed and final rules.142
Nevertheless, OIRA retained significant authority to review covered agencies’ rules before they
were published in the Federal Register. Government Accountability Office (GAO) reviews of
OIRA’s use of that authority indicate that certain agency rules are substantially changed as a
result of the office’s review, and that the OIRA review process is not always transparent.143 The
George W. Bush Administration amended Executive Order 12866 somewhat, but the Obama
Administration reversed those amendments shortly after taking office.144
OIRA currently has a staff of about 50, including staff in the office’s information and statistical
policy branches. The PRA, as amended in 1995 (P.L. 104-13), authorized annual appropriations
of $8 million in FY1996 through FY2001, but those authorizations expired in 2001. Since then,
OIRA has been funded from OMB’s appropriation. The current OIRA Administrator, Cass
Sunstein, was nominated by President Obama on April 20, 2009, and was confirmed by the
Senate on September 10, 2009.

140 E.O. 12291, “Federal Regulation,” 46 Federal Register 13193, February 19, 1981. This and other executive orders
discussed in this section included Cabinet departments and independent agencies, but did not include independent
regulatory agencies like the Securities and Exchange Commission.
141 E.O. 12498, “Regulatory Planning Process,” 50 Federal Register 1036, January 8, 1985.
142 E.O. 12866, “Regulatory Planning and Review,” 58 Federal Register 51735, October 4, 1993. The number of rules
that OIRA reviewed dropped from between 2,000 and 3,000 per year to between 500 and 700 per year.
143 U.S. Government Accountability Office, Rulemaking: OMB’s Role in Reviews of Agencies’ Draft Rules and the
Transparency of Those Reviews, GAO-03-929, September 22, 2003; and U.S. Government Accountability Office,
Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the
Transparency of OMB Regulatory Reviews, GAO-09-205, April 20, 2009.
144 For example, in January 2007, E.O. 13422 made several changes to E.O. 12866. In January 2009, however,
President Obama issued E.O. 13497 revoking those and other changes. As a result, E.O. 12866 is unchanged from how
it was issued in 1993.
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Federal Chief Information Officer and Administrator, Office of Electronic Government, OMB145
In the mid-1990s, Congress debated whether the federal government should have one overarching
chief information officer (CIO), or one CIO in each executive branch agency. 146 Congress opted
for the latter with the passage of the Clinger-Cohen Act of 1995 (P.L. 104-106), which required
each agency to have a CIO. The duties assigned to CIOs under the act included providing
information management advice and policy to the agency head; developing, maintaining, and
facilitating information systems; and evaluating, assessing, and reporting to the agency head on
the progress made developing agency information technology systems. On July 19, 1996, then-
President William Clinton issued Executive Order 13011 which, among other actions, established
a federal Chief Information Officer Council (CIO Council) chaired by the Office of Management
and Budget (OMB) Deputy Director for Management.147 Several years later, mixed results from
the agency-level CIOs rejuvenated debate over whether a single, federal CIO position should be
instituted.148
From the outset of the George W. Bush Administration, information technology issues were an
integral part of the President’s Management Agenda, a comprehensive policy and program plan to
improve the operations and efficiency of federal government. To help lead and carry out the
President’s information technology efforts, OMB announced, on June 14, 2001, the appointment
of Mark Forman to a newly created position, the Associate Director for Information Technology
and E-Government. As “the leading federal e-government executive,”149 the new Associate
Director was to be responsible for the e-government fund, to direct the activities of the CIO
Council, and to advise on the appointments of agency CIOs. The Associate Director would also
“lead the development and implementation of federal information technology policy.”150
The E-Government Act of 2002 established the Office of Electronic Government within OMB,
and this office was to be headed by the Administrator for E-Government and Information
Technology.151 The act provided that the position was to be filled through appointment by the
President alone, and Mr. Forman was so appointed on April 16, 2003.152 Statutory duties of the
Administrator include assisting the Director of OMB, and the OMB Deputy Director for
Management, in coordination with the efforts of the Administrator of the Office of Information
and Regulatory Affairs (OIRA), another OMB unit, “in setting strategic direction for
implementing electronic Government.”153 Among those relevant OMB responsibilities were
prescribing guidelines and regulations for agency implementation of the Privacy Act,154 the
Clinger-Cohen Act, IT acquisition pilot programs, and the Government Paperwork Elimination

145 Wendy R. Ginsberg, Analyst in Government Organization and Management in the Government and Finance
Division (7-3933), wrote this section.
146 For example, see S. 946 (104th Congress).
147 E.O. 13011, “Federal Information Technology,” 61 Federal Register 37657, July 19, 1996.
148 For more information on the legislative history of the federal CIO position, see CRS Report RL30914, Federal
Chief Information Officer (CIO): Opportunities and Challenges, by Jeffrey W. Seifert.
149 U.S. Office of Management and Budget, “News Release: Mark Forman Named Associate Director for Information
Technology and E-Government,” June 14, 2001, at http://www.whitehouse.gov/omb/rewrite/pubpress/2001-13.html.
150 Ibid.
151 P.L. 107-347, §101, December 17, 2002; 116 Stat. 2901; 44 U.S.C. §3602.
152 See Forman biography at http://georgewbush-whitehouse.archives.gov/government/forman-bio.html.
153 P.L. 107-347.
154 5 U.S.C. §552a.
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Act.155 The E-Government Act also required the General Services Administration (GSA) to
consult with the Administrator of the Office of Electronic Government on any efforts by GSA to
promote e-government.
The E-Government Act also codified the Chief Information Officers Council, originally
established by Executive Order 13011, issued by then-President William Clinton. The CIO
Council is composed largely of department and agency chief information officers (CIOs) and
carries out both coordination and advisory roles for the agency-level CIOs. According to the law,
the council serves as
the principal interagency forum for improving agency practices related to the design,
acquisition, development, modernization, use, operation, sharing, and performance of
Federal Government information resources.156
The Deputy Director of OMB serves as the chair of the council.157
In September 2003, Karen Evans was appointed the Administrator for E-government and
Information Technology, serving until President Bush left office.158
The position was vacant until March 5, 2009, when President Barack Obama appointed Vivek
Kundra, former chief technology officer in Washington, DC’s city government, to serve as the
federal CIO.159 This appointment marked the first Presidential appointment to a position explicitly
entitled federal Chief Information Officer. Similar to the previous Administration’s e-government
administrator position, Kundra’s position includes the title of Administrator for E-government and
Information Technology at OMB. According to the White House press release announcing Mr.
Kundra’s appointment, his responsibilities are as follows:
The federal Chief Information Officer directs the policy and strategic planning of federal
information technology investments and is responsible for oversight of federal technology
spending. The Federal CIO establishes and oversees enterprise architecture to ensure system
interoperability and information sharing and ensure information security and privacy across
the federal government. The CIO will also work closely with the Chief Technology Officer
to advance the President’s technology agenda.160

155 112 Stat. 2681-749.
156 P.L. 107-347.
157 Currently, federal CIO Vivek Kundra serves as the council’s director. See “Federal Chief Information Officers
Council: Members” at http://www.cio.gov/members/members.cfm.
158 Some government observers reportedly referred to Evans as the “de facto CIO of the U.S. government.” See Jill R.
Aitoro, “New Federal CIO Lays Out IT Agenda,” Nextgov.com, March 5, 2009, at http://www.nextgov.com/nextgov/
ng_20090305_9385.php?oref=search.
159 On March 12, Mr. Kundra reportedly took temporary leave of his position when the Federal Bureau of Investigation
(FBI) raided his former Washington, DC, office. Mr. Kundra was reinstated when it was clear he was not implicated in
bribery charges that stemmed from the raid. See Elise Castelli, “Updated: AP Reports Federal CIO on Leave,” Federal
Times, March 12, 2009, at http://www.federaltimes.com/federal-times-blog/2009/03/12/breaking-former-office-of-
federal-cio-raided/.
160 The White House, Office of the Press Secretary, “President Obama Names Vivek Kundra Chief Information
Officer,” press release, March 5, 2009, at http://www.whitehouse.gov/the_press_office/President-Obama-Names-
Vivek-Kundra-Chief-Information-Officer/.
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President Obama’s FY2010 budget recommendations included few comments about the Chief
Information Officer. The Analytical Perspectives budget document said “Leadership for IT
management is assigned to the Federal Chief Information Officer (CIO) in [OMB].”161 The
budget document continued with a brief history of the CIO position, but did not provide further
details on its intended mission or goals in the Obama Administration. According to Analytical
Perspectives, however, “[t]he Federal CIO Council is creating Data.gov, an online repository for
access to Government data (not otherwise subject to valid privacy, security, or privilege
restrictions, consistent with Federal law).”162
During his April 18, 2009, radio address, President Obama announced his selection of two
additional components of his technology team: Jeffrey Zients to serve as Chief Performance
Officer163 and Aneesh Chopra as Chief Technology Officer. When announcing these selections
President Obama said the following:
Aneesh and Jeffrey will work closely with our Chief Information Officer, Vivek Kundra,
who is responsible for setting technology policy across the government, and using
technology to improve security, ensure transparency, and lower costs. The goal is to give all
Americans a voice in their government and ensure that they know exactly how we’re
spending their money—and can hold us accountable le for the results.164
No further details have been released that describe how the CIO, Chief Performance Officer, and
Chief Technology Officer are to interact. It is unclear how each position reports or relates to the
others. The Administration has also not explicitly clarified how the responsibilities of the CIO
position in the Obama Administration differ from or augment those of the statutorily established
Administrator for E-Government and Information Technology.
In his first few months as the federal CIO, Mr. Kundra has contributed to the White House blog
on issues related to federal IT investments and cloud computing, among other initiatives.165 On
June 30, 2009, Mr. Kundra held an online forum answering questions related to the newly created
IT Dashboard (http://it.usaspending.gov/), which “provides the public with an online window into
the details of Federal information technology investments and provides users with the ability to
track the progress of investments over time.”166 On September 15, 2009, Mr. Kundra used “The
Blog” to launch Apps.gov, “an online storefront for federal agencies to quickly browse and
purchase cloud-based IT services, for productivity, collaboration, and efficiency.”167

161 U.S. Office of Management and Budget, Analytical Perspectives: Budget of the U.S. Government, Fiscal Year 2010
(Washington: GPO, March 2009), p. 155, at http://www.whitehouse.gov/omb/budget/fy2010/assets/spec.pdf.
162 Ibid.
163 For more on the Chief Performance Officer, see above.
164 White House, Office of the Press Secretary, “Weekly Address: President Obama Discusses Efforts to Reform
Spending, Government Waste; Names Chief Performance Officer and Chief Technology Officer,” press release, April
18, 2009, at http://www.whitehouse.gov/the_press_office/Weekly-Address-President-Obama-Discusses-Efforts-to-
Reform-Spending/.
165 According to Mr. Kundra, “Cloud computing is the next generation of IT in which data and applications will be
housed centrally and accessible anywhere and anytime by a various devices (this is opposed to the current model where
applications and most data is housed on individual devices).” Vivek Kundra, Streaming at 1:00: In the Cloud, The
White House, September 15, 2009, at http://www.whitehouse.gov/blog/Streaming-at-100-In-the-Cloud/.
166 “IT Dashboard: FAQ, For Public,” at http://it.usaspending.gov/?q=content/faq.
167 Vivek Kundra, Streaming at 1:00: In the Cloud, The White House, September 15, 2009.
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Appointed by Agency Heads
Assistant Secretary for International Affairs and Special Representative for Border Affairs,
Department of Homeland Security168
On April 15, 2009, the Department of Homeland Security (DHS) announced that Secretary Janet
Napolitano had appointed Alan Bersin as Assistant Secretary for International Affairs and Special
Representative for Border Affairs. The announcement indicated that
Bersin’s responsibilities at DHS will include improving relationships with the Department’s
partners in the international community, as well as those at the state and local level including
elected officials, law enforcement, community organizations and religious leaders. He will
lead the Department’s efforts to crack down on violence along the Southwest border …
including the deployment of additional personnel and enhanced technology to help Mexico
target illegal guns, drugs and cash.169
The announcement did not refer to the position or the appointee as a “czar.” During an interview
on the day the announcement was released, however, President Barack Obama referred to the
position as a “border czar,” and some news accounts of the Secretary’s action used the same
language.170 President Obama stated that “the goal of the border czar is to help coordinate all the
various agencies that fall under the Department of Homeland Security, and so that we are
confident that the border patrols are working effectively with ICE [U.S. Immigration and
Customs Enforcement], working effectively with our law enforcement agencies. So he’s really a
coordinator that can be directly responsible to Secretary Napolitano and ultimately directly
accountable to me.”171
In late September 2009, a White House press release referred to the incumbent of this position as
“the secretary’s lead representative on Border Affairs and Mexico, for developing DHS strategy
regarding security, immigration, narcotics, and trade matters affecting Mexico and for
coordinating the Secretary’s security initiatives on the nation’s borders.”172
The place of this position within DHS and its relationship to other so-called czar positions was
addressed during an April 22, 2009, hearing on several DHS nominations before the Senate
Committee on Homeland Security and Governmental Affairs. While questioning the nominee to
be Assistant Secretary for Immigration and Customs Enforcement, John Morton, Senator Susan
M. Collins, the ranking minority member of that committee, stated the following:

168 Henry B. Hogue, Analyst in American National Government in the Government and Finance Division (7-0642),
wrote this section.
169 U.S. Department of Homeland Security, “Secretary Napolitano Highlights Illegal Immigration Enforcement,
Appoints Alan Bersin as Assistant Secretary for International Affairs and Special Representative for Border Affairs,”
press release, April 15, 2009, at http://www.dhs.gov/ynews/releases/pr_1239820176123.shtm.
170 U.S. President (Obama), Daily Compilation of Presidential Documents, (April 15, 2009), pp. 2-3; Stephen Dinan,
“Border Czar to Be Named Ahead of Latin Talks; Obama Set for Mexico and Trinidad,” Washington Times, April 15,
2009, p. A6; and Matthew M. Johnson, “New ‘Border Czar’ Appointed,” CQ Today Online News – Homeland Security,
April 15, 2009, at http://www.cq.com/document/display.do?dockey=/cqonline/prod/data/docs/html/news/111/news111-
000003097214.html@allnews&metapub=CQ-NEWS&searchIndex=0&seqNum=2.
171 U.S. President (Obama), Daily Compilation of Presidential Documents, (April 15, 2009), p. 3.
172 U.S. President (Obama), “President Obama Announces More Key Administration Posts,” press release, September
22, 2009, at http://www.whitehouse.gov/the_press_office/President-Obama-Announces-More-Key-Administration-
Posts-9/22/09/.
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I mentioned in my opening comments my concern about this administration’s proliferation of
czars and special assistants, rather than relying on the people who have the statutory
authority and responsibility to carry out the functions. Secretary Napolitano recently
appointed a border czar who is going to report directly to the secretary [sic] and advise her
on border security and cross-border smuggling. Obviously, this position is not Senate
confirmed, but does have a direct report to the Secretary. It seems to me that the roles and
responsibility of that czar are going to conflict with your responsibilities, as well as those of
the commissioner [sic] of Customs and Border Protection. Do you have any concerns about
having another individual with who is a direct report to the Secretary, making it more
complicated as far as your ability to carry out your legal responsibilities?
Morton replied:
Senator, at this point I don't. My understanding of Mr. Bersin’s role is that, as you say, he is
an adviser. His principle [sic] responsibility is one of facilitation and coordination among the
many components within the department that have some responsibilities along the border,
but that it is not an operational one. The secretary fully intends and expects that whomever is
confirmed as the assistant secretary for Immigrations [sic] and Customs Enforcement is
going to lead and direct that agency’s day-to-day operations, and if I am confirmed I can tell
you that’s exactly what I plan to do….
Senator Collins followed with an additional question:
I'm glad to hear that. I would point out to you that I would hope that your role is not just as
the operational manager—but I would hope that you are the primary adviser to the secretary
in this area. Do you see yourself as having an advisory role to the secretary as well as strictly
an operational role?
Morton replied:
Absolutely. I consider myself to be the principle [sic] policy advisor to the secretary on those
matters within the jurisdiction of the agency. I wouldn't have taken—you know accepted the
nomination if I felt otherwise.
Senator Collins stated the following:
Thank you. That’s reassuring to hear. And I think you could understand, from our
perspective—we have oversight, we confirm you, but if another person is going to be
developing policy recommendations and giving advice, that also creates confusion in terms
of our ability to effectively exercise our oversight responsibility.173
The position to which Bersin was appointed seemingly comprises two titles: (1) Assistant
Secretary for International Affairs, and (2) Special Representative for Border Affairs. The history
of the assistant secretary position is laid out below. A search of the U.S. Code found no statutorily
specified responsibilities associated with the second title. Bersin’s predecessor as Assistant
Secretary for International Affairs, Carol Haave, did not carry this additional title. It is worth
noting, however, that during the Clinton Administration, Bersin served in a similarly titled

173 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, hearing on nominations to
positions in the Federal Emergency Management Agency and U.S. Immigration and Customs Enforcement, 111th
Cong., 1st sess., April 22, 2009. Transcript obtained, by subscription, from CQ.com (further information available from
author).
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position in the Department of Justice: Special Representative for the Southwest Border Region.
According to a Department of Justice press release at the time he stepped down, “The position
was created in October 1995 after the Attorney General, in consultation with INS [Immigration
and Naturalization Service] Commissioner Doris Meissner, decided that the fight against illegal
immigration, border crime and drug trafficking would be strengthened by having one person
coordinate the efforts of all the Justice Department agencies.”174
The position of Assistant Secretary for International Affairs is descended from a position that was
established at the time the DHS was created. The Office of International Affairs was originally
mandated by Section 879 of the Homeland Security Act.175 Under the act, this office, which was
part of the Office of the Secretary, was headed by a director appointed by the Secretary. The
Director’s duties included promoting information and education exchange with friendly nations;
identifying homeland security information and training areas where the U.S. was deficient and
other friendly nations had expertise; planning and executing “international conferences, exchange
programs, and training activities”; and managing the department’s international activities in
coordination with federal counter-terrorism officials.
Under the leadership of the second Secretary of Homeland Security, Michael Chertoff, this
position was moved from the Secretary’s office to a newly created Office of Policy, and the title
was changed from “Director” to “Assistant Secretary.” Upon his appointment, Chertoff initiated a
“Second Stage Review” of DHS, consisting of “a comprehensive review of the Department’s
organization, operations, and policies.”176 After this review, also known as 2SR, the Secretary
undertook a number of reorganization actions. Many of these actions were accomplished through
the Secretary’s reorganization authority under Section 872 of the Homeland Security Act, which
permitted him to allocate functions and alter organizational units within DHS, subject to specified
limits.177 One such reorganization entailed the establishment of the new policy office. This office
included various “existing organizational units that ... [were] relocated to this new centralized
policy office, including the Office of International Affairs, the Special Assistant to the Secretary
for Private Sector Coordination, the Border and Transportation Security Policy and Planning
Office and elements of the Border and Transportation Security Office of International
Enforcement, the Homeland Security Advisory Committee, and the Office of Immigration
Statistics.178 At the time of this reorganization, the incumbent Director of the Office of
International Affairs, Cresencio S. Arcos, was appointed, by the Secretary, as a non-career senior
executive with the title of assistant secretary.179 Alan Bersin was appointed in the same manner.180

174 U.S. Department of Justice, “Attorney General Appoints New Mexico U.S. Attorney John Kelly as Special
Representative for Southwest Border Region,” press release, September 16, 1998, at http://www.usdoj.gov/opa/pr/
1998/September/427usa.htm.
175 116 Stat. 2245; 6 U.S.C. § 459.
176 U.S. Department of Homeland Security, “Statement by Secretary of Homeland Security Michael Chertoff before the
House Appropriations Homeland Security Subcommittee,” testimony, March 2, 2005, at http://www.dhs.gov/xnews/
testimony/testimony_0032.shtm. For more on the 2SR initiative, see CRS Report RL33042, Department of Homeland
Security Reorganization: The 2SR Initiative, by Harold C. Relyea and Henry B. Hogue.
177 116 Stat. 2243; 6 U.S.C. §452.
178 U.S. Department of Homeland Security, letter from Secretary Michael Chertoff to the Honorable Christopher Cox,
Chairman, Committee on Homeland Security, U.S. House of Representatives, Washington, DC, July 13, 2005, p. 2
(identical letter sent to other congressional leaders).
179 Telephone conversation between Henry B. Hogue and a DHS representative, December 22, 2005.
180 Telephone conversation between Henry B. Hogue and a DHS representative, May 1, 2009. This assistant secretary
position is not one of the 12 positions established by the Homeland Security Act that are filled through appointment by
(continued...)
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It appears that the responsibilities of the office have also changed. According to the department’s
website, the Office of International Affairs “plays a central role in developing the Department’s
strategy for pushing the Homeland Security mission overseas and actively engages foreign allies
to improve international cooperation for immigration policy, visa security, aviation security,
border security and training, law enforcement, and cargo security.”181
On September 22, 2009, the White House announced the President’s intention to nominate Bersin
to be Commissioner of U.S. Customs and Border Protection at the Department of Homeland
Security. An appointment to this position would be subject to the advice and consent of the
Senate.
Special Master for TARP Executive Compensation, Department of the Treasury182
A June 10, 2009 press release from the Department of the Treasury indicated that Kenneth R.
Feinberg was to be appointed as Special Master for TARP (Troubled Asset Relief Program)
Executive Compensation.183 On the same day, White House Press Secretary Robert Gibbs spoke
about the appointment during a press briefing. He was asked the following question:
And on executive compensation, will the administration be naming Kenneth Feinberg as the
pay czar to oversee the packages—pay packages for executives and companies that are
receiving bailout money? And how much of the decision on these measures was driven by
the President’s desire to quell public anger about compensation news that has come out
recently?
Gibbs responded:
Well, look, Ken Feinberg is going to assume the role of special master that will allow him to
review for soundness, appropriateness, and to limit risk relating to compensation packages
for those companies that are either receiving extraordinary assistance or might in the future.
I think obviously this is an individual that has great experience in mediation in things that
are—these type of things that are important. And I think—obviously this is a topic that the
President has spoken about. I don’t know if the factsheets have all gone out from Treasury
yet, but there’s additional legislative efforts that we will undertake, as you heard the
President talk about.184

(...continued)
the President with the advice and consent of the Senate.
181 U.S. Department of Homeland Security, “Office of International Affairs” at http://www.dhs.gov/xabout/structure/
editorial_0874.shtm. This website was last updated on October 10, 2008.
182 Henry B. Hogue, Analyst in American National Government in the Government and Finance Division (7-0642),
wrote this section.
183 U.S. Department of the Treasury, “Interim Final Rule on TARP Standards for Compensation and Corporate
Governance,” press release, June 10, 2009, at http://www.treas.gov/press/releases/tg165.htm.
184 White House, Office of the Press Secretary, “Press Briefing by Press Secretary Robert Gibbs and Secretary of
Commerce Gary Locke,” June 10, 2009, at http://www.whitehouse.gov/the_press_office/Briefing-by-Secretary-of-
Commerce-Gary-Locke-and-Press-Secretary-Robert-Gibbs-6-10-09/.
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The establishment of this special master position followed enactment of the American Recovery
and Reinvestment Act of 2009 (ARRA),185 which, among other things, amended Section 111 of
the Emergency Economic Stabilization Act of 2008 (EESA).186 Section 111, as amended, provides
for restrictions on the compensation of executives of companies that have received TARP funds
during the time this financial assistance remains outstanding.187 The section directs the Secretary
of the Treasury to promulgate regulations to implement the section. On June 15, 2009, the
department published an interim final rule pursuant to this instruction, as well as several other
sections of EESA.188 This rule directs the Secretary of the Treasury to establish the special master
position. The applicable portion of the rule is as follows:
The Secretary of the Treasury shall establish the Office of the Special Master for TARP
Executive Compensation (Special Master). The Special Master shall serve at the pleasure of
the Secretary, and may be removed by the Secretary without notice, without cause, and prior
to the naming of any successor Special Master.189
The interim final rule also lays out the authorities and responsibilities of the special master. The
supplementary information preceding the rule describes these:
The scope of the Special Master’s authority and responsibility is limited to compensation and
corporate governance matters under section 111 with respect to TARP recipients, and the
Special Master has no authority to provide guidance or review any submissions with respect
to matters other than compensation or corporate governance matters under section 111, or to
provide guidance or review any submissions with respect to compensation or corporate
governance matters of employers that are not TARP recipients. The Secretary has delegated
to the Special Master the authority to (1) interpret the application of the restrictions on
executive compensation and corporate governance requirements for TARP recipient
employees under EESA, these regulations, and any other applicable guidance, to specific
facts and circumstances; (2) administer section 111(f) of EESA, which requires the Secretary
to review bonuses, retention awards, and other compensation paid before February 17, 2009
to employees of each entity receiving TARP assistance, to determine whether any such
payments were inconsistent with the purposes of EESA section 111 or the TARP, or
otherwise contrary to the public interest, and which further requires that, if the Secretary
makes such a determination, the Secretary seek to negotiate with the TARP recipient and the
employee for appropriate reimbursements to the Federal Government with respect to
compensation or bonuses; (3) approve compensation payments to, and compensation
structures for, certain employees of TARP recipients receiving exceptional financial
assistance; (4) provide opinions, as requested or otherwise as appropriate, regarding
payments to, or compensation structures for, other employees of TARP recipients; and (5)
perform such other duties as the Secretary may delegate from time to time to the Special
Master relating to executive compensation issues under the TARP, including the specific
application of any terms or conditions in a contract between the Treasury and a TARP

185 P.L. 111-5; 123 Stat. 115. See Div. B, Title VII; 123 Stat. 516.
186 P.L. 110-343; 122 Stat. 3765; 12 U.S.C. 5221.
187 For more concerning statutory limitations on executive pay, see CRS Report R40540, Executive Compensation
Limits in Selected Federal Laws, by Michael V. Seitzinger and Carol A. Pettit.
188 U.S. Department of the Treasury, “TARP Standards for Compensation and Corporate Governance, Interim Final
Rule,” 79 Federal Register 28394, June 15, 2009.
189Ibid., p. 28420.
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recipient. Section 30.16 (Q-16) [of the interim final rule] also outlines a set of principles that
the Special Master is required to follow in conducting these reviews.190
Feinberg reportedly has been serving in this position without pay.191
Special Advisor for Green Jobs, Enterprise, and Innovation, Council on Environmental Quality192
On March 10, 2009, Council on Environmental Quality (CEQ) Chair Nancy Sutley announced
the appointment of Anthony (Van) Jones as Special Advisor for Green Jobs. In her announcement,
Sutley described Jones’ responsibilities in this position:
Van Jones has been a strong voice for green jobs and we look forward to having him work
with departments and agencies to advance the President’s agenda of creating 21st century
jobs that improve energy efficiency and utilize renewable resources. Jones will also help to
shape and advance the Administration’s energy and climate initiatives with a specific interest
in improvements and opportunities for vulnerable communities.193
The announcement indicated that Jones was to begin in this position on March 16, 2009.
The National Environmental Policy Act of 1969, enacted on January 1, 1970, established CEQ as
an agency within the Executive Office of the President.194 Under this statute, the council
comprises three members, appointed by the President, with the advice and consent of the
Senate.195 In recent years, however, provisions of annual appropriations measures for the
Department of the Interior and other agencies, including CEQ, have, in effect, restructured this
collegially headed agency as a single-headed agency. The FY2009 funding bill, for example,
provides that “notwithstanding section 202 of the National Environmental Policy Act of 1970, the
Council shall consist of one member, appointed by the President, by and with the advice and
consent of the Senate, serving as chairman and exercising all powers, functions, and duties of the
Council.”196
Soon after CEQ was established, the Environmental Quality Improvement Act of 1970197
established the Office of Environmental Quality (OEQ). The two organizations overlap; the OEQ
was established “to provide professional and administrative support for the Council. The Council

190 Ibid., p. 28404.
191 Louise Story and Stephen Labaton, “Overseer of Big Pay is Seasoned Arbitrator,” New York Times, June 11, 2009,
p. B1, late edition - final. Early in his tenure, he reportedly was supported in his Treasury Department role by
employees from his government office as well as his private firm. As of late July, “[r]oughly a dozen Treasury and
Feinberg Rozen employees divide[d] their time between the two offices, pulling together documents and holding
meetings with representatives of the financial institutions.” Phil Mattingly, “For Salary Czar, Conflict Is a Bonus,” CQ
Weekly, July 20, 2009, p. 1688.
192 Henry B. Hogue, Analyst in American National Government in the Government and Finance Division (7-0642),
wrote this section.
193 U.S. Council on Environmental Quality, “Nancy Sutley, Chair of the White House Council on Environmental
Quality Announces Special Advisor for Green Jobs, Enterprise and Innovation,” press release, March 10, 2009, at
http://www.whitehouse.gov/administration/eop/ceq/press_releases/march_10_2009/.
194 P.L. 91-190, Title II; 83 Stat. 854.
195 42 U.S.C. § 4342.
196 P.L. 111-8, Division E, Title III; 123 Stat. 739.
197 P.L. 91-224, Title II, 84 Stat. 114.
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and OEQ are collectively referred to as the Council on Environmental Quality, and the CEQ chair
… serves as the Director of OEQ.”198
CEQ has statutorily delineated responsibilities, including
1. to assist and advise the President in the preparation of the Environmental Quality
Report required by section 201 [42 USCS § 4341];
2. to gather timely and authoritative information concerning the conditions and
trends in the quality of the environment both current and prospective, to analyze
and interpret such information for the purpose of determining whether such
conditions and trends are interfering, or are likely to interfere, with the
achievement of the policy set forth in title I of this Act [42 USCS §§ 4331 et seq.],
and to compile and submit to the President studies relating to such conditions and
trends;
3. to review and appraise the various programs and activities of the Federal
Government in the light of the policy set forth in title I of this Act [42 USCS §§
4331 et seq.] for the purpose of determining the extent to which such programs
and activities are contributing to the achievement of such policy, and to make
recommendations to the President with respect thereto;
4. to develop and recommend to the President national policies to foster and
promote the improvement of environmental quality to meet the conservation,
social, economic, health, and other requirements and goals of the Nation;
5. to conduct investigations, studies, surveys, research, and analyses relating to
ecological systems and environmental quality;
6. to document and define changes in the natural environment, including the plant
and animal systems, and to accumulate necessary data and other information for
a continuing analysis of these changes or trends and an interpretation of their
underlying causes;
7. to report at least once each year to the President on the state and condition of the
environment; and
8. to make and furnish such studies, reports thereon, and recommendations with
respect to matters of policy and legislation as the President may request.199
The statutory duties and functions of the Director of OEQ direct him or her to assist and advise
the President on environmental quality related policies and programs of the federal government
by
1. providing the professional and administrative staff and support for the Council on
Environmental Quality established by Public Law 91-190 [42 USCS §§ 4321 et
seq.];
2. assisting the Federal agencies and departments in appraising the effectiveness of
existing and proposed facilities, programs, policies, and activities of the Federal

198 United States National Archives and Records Administration, Office of the Federal Register, United States
Government Manual 2008/2009 (Washington: GPO, 2008), p. 91.
199 42 U.S.C. § 4344.
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Government, and those specific major projects designated by the President which
do not require individual project authorization by Congress, which affect
environmental quality;
3. reviewing the adequacy of existing systems for monitoring and predicting
environmental changes in order to achieve effective coverage and efficient use of
research facilities and other resources;
4. promoting the advancement of scientific knowledge of the effects of actions and
technology on the environment and encourage the development of the means to
prevent or reduce adverse effects that endanger the health and well-being of man;
5. assisting in coordinating among the Federal departments and agencies those
programs and activities which affect, protect, and improve environmental quality;
6. assisting the Federal departments and agencies in the development and
interrelationship of environmental quality criteria and standards established
through the Federal Government;
7. collecting, collating, analyzing, and interpreting data and information on
environmental quality, ecological research, and evaluation.200
In carrying out its responsibilities, the statute authorizes the council to “employ such officers and
employees as may be necessary to carry out its functions under” the act. The council is also
authorized to “employ and fix the compensation of such experts and consultants as may be
necessary for the carrying out of its functions” on a temporary basis under applicable provisions
of Title 5 of the U.S.Code.201 The Director of OEQ has similar authority.202
According to an agency representative, the position of Special Advisor for Green Jobs was
established under these authorities.203 The responsibilities delegated to this position were derived
from those laid out in the provisions detailed above. The incumbent of this position oversees a
staff of five; one paid staff, three detailees from other agencies, and one Presidential Management
Fellow. He or she reports to the chief of staff of the council.
Jones reportedly resigned on September 6, 2009, subsequent to public controversy related to past
statements and political affiliations.204 Although Jones had not been replaced as of September 28,
2009, the council reportedly plans to refill the position.205
Special Envoys or Special Representatives206
Secretary of State Hillary Rodham Clinton has announced several appointments to foreign-
policy-related positions, including these:

200 42 U.S.C. § 4372(d).
201 42 U.S.C. § 4343.
202 42 U.S.C. § 4372(c).
203 Telephone communication between Henry B. Hogue and a CEQ representative, September 28, 2009.
204 Tom LoBianco and Christina Bellantoni, “Administration Looks Past Jones Controversy; Job Czar’s Resignation
Caps Series of Missteps,” Washington Times, September 7, 2009, p. 3.
205 Telephone communication between Henry B. Hogue and a CEQ representative, September 28, 2009.
206 Susan B. Epstein, Specialist in Foreign Policy (7-6678) and Kennon H. Nakamura (7-9514), Analyst in Foreign
Affairs in the Foreign Affairs, Defense, and Trade Division, wrote this section.
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• Ambassador Stephen W. Bosworth, Special Representative for North Korea
Policy, announced February 20, 2009, by Secretary of State Clinton;
• Ambassador Daniel Fried, leading the team addressing the closure of
Guantanamo Bay prison, announced March 12, 2009, by Secretary of State
Clinton;
• Richard Holbrooke, Special Representative for Afghanistan and Pakistan,
announced January 22, 2009, by Secretary of State Clinton;
• George Mitchell, Special Envoy for the Middle East, announced January 22,
2009, by Secretary of State Clinton;
• Dennis Ross, Special Advisor for the Persian Gulf and Southwest Asia,
announced February 23, 2009, by Secretary of State Clinton;207 and
• Todd Stern, Special Envoy for Climate Change, announced January 26, 2009, by
Secretary of State Clinton.208
While the term “Special Envoy,” or “Special Representative,” recently has been associated with
the “czar” idea, the title, according to the Department of State, carries no direct relationship to
any particular authority, and the person assumes the responsibilities assigned by the Secretary of
State. Special Envoys are not confirmed by the Senate. If a Special Envoy also has the rank of
Ambassador, the rank of Ambassador is confirmed by the Senate as required by the U.S.
Constitution. Because Special Envoys are not confirmed by the Senate, they are not obligated to
testify before Congress but, in practice, they typically do. Congress, however, has also created
certain Special Envoys, instructing the Secretary of State to appoint a person to fill such a
position with specific authorities, and reporting requirements spelled out in the legislation. An
example of a congressionally created Special Envoy is the Special Envoy for Monitoring and
Combating Anti-Semitism.209
Appointments Clause and Presidential Advisors210
Concern has been raised that the President’s hiring, or use, of various presidential advisors
circumvents the requirements of the Appointments Clause of the U.S. Constitution.211 The
Appointments Clause establishes that the President

207 Mr. Ross transferred to the National Security Council on July 4, 2009. According to the Department of State, his
salary, while at the department, was $177,000. President Obama appointed a Special Envoy: Major General J. Scott
Gration, U.S. Special Envoy for Sudan, announced on March 18, 2009.
208 The salary for the positions held by Mr. Bosworth, Mr. Fried, Mr. Holbrooke, Mr. Mitchell, and Mr. Stern is
$177,000.
209 See 22 U.S.C. §2731.
210 Vivian S. Chu, Legislative Attorney in the American Law Division (7-4576), wrote this section.
211 See Senator Collins, “Push Out the Czars,” Senate, Congressional Record, daily edition, September 14, 2009, pp.
S9306-S9308 (publishing four articles: (1) “Byrd Questions Obama Administration On Role of White House ‘Czar’
Positions,” February 25, 2009; (2) Edmund L. Andrews and David E. Sanger, “U.S. Is Finding Its Role in Business
Hard to Unwind,” N.Y. Times, September 14, 2009; (3) Kay Bailey Hutchinson, “Czarist Washington,” Wash. Post,
September 13, 2009; (4) “President Obama’s ‘Czars,’” Politico, September 4, 2009).
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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.212
Under the text of the clause, it is “[o]fficers of the United States,” whose appointments are
established by law that are to be subject to Senate confirmation. Thus, principal officers will be
appointed in this manner; however, Congress may choose to vest the appointment of those they
consider “inferior [o]fficers” in either the President, the courts of law, or in the heads of
departments.
Before delving further into the Appointments Clause, it is first useful to briefly discuss the
authority of Congress in relation to the creation and operation of the executive bureaucracy.
Although the infrastructure of the executive branch and other entities charged with the execution
of the law is not specified by the Constitution, it is clear that the Framers intended to vest the task
of creating the governmental structure in Congress alone.213 Thus, it seems evident that the
President cannot establish executive offices.214 Congress has been generally given wide latitude to
use its legislative power to structure the modern administrative state by creating and locating
offices, determining qualifications for officeholders, prescribing their appointment, and
establishing general standards for the operation of the offices under the Necessary and Proper
Clause.215 The judiciary generally will interfere with this legislative power only in cases where
such an exercise clearly constitutes an attempt by Congress at aggrandizement or
encroachment.216 Accordingly, because the Appointments Clause has been deemed “among the
significant structural safeguards of the constitutional scheme,”217 Congress is to ensure that it

212 U.S. Const., art. II, § 2, cl. 2.
213 See, e.g., U.S. Const. art. II, §. 2. cl. 2. (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.”) (emphasis added).
214 Saikrishna B. Prakash, “Fragmented Features of the Constitution’s Unitary Executive,” 45 Willamette L. Rev. 701,
719 (2009).
215 U.S. Const., art. I, § 8, cl. 18. See Myers v. United States, 272 U.S. 52, 129 (1926) (“To Congress under its
legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the
prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for
which they are to be appointed ... all except as otherwise provided by the Constitution.”); Buckley v. Valeo, 424 U.S. 1,
134-35 (1976); Morrison v. Olson, 487 U.S. 654, 685-93 (1988); Mistretta v. United States, 488 U.S. 361 (1989).
216 See e.g., Buckley, 424 U.S. 1 (Congress may not appoint executive officials performing substantial functions under
the law); Bowsher v. Synar, 478 U.S. 714, 732 (1986) (Congress may not retain removal power over an officer
performing executive functions); INS v. Chadha, 462 U.S. 919 (1983) (Congress may not exercise legislative power
without conforming to the constitutionally prescribed lawmaking procedures); Metropolitan Washington Airports
Authority v. CAAN, 501 U.S. 252 (1991) (Board of Review composed of Members of Congress could not exercise veto
power over operational decisions of Airports Authority); Hechinger v. Metropolitan Washington Airports Authority
Board of Review, 36 F.3d 97 (D.C. Cir 1994), cert denied, 513 U.S. 1126 (1995) (Board of Review which could only
recommend and delay, but not veto, the operational decisions of the Airports Authority held to be unconstitutional
direct exercise of congressional influence); Federal Election Commission v. NRA Political Victory Fund, 6 F.3d 821
(D.C. Cir 1993), cert denied for want of jurisdiction, 513 U.S. 88 (1994) (congressional appointment of two of its
agents as non-voting members of the commission who could attend all business meetings of the agency held
unconstitutional).
217 Edmond v. United States, 520 U.S. 651, 659 (1997).
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adheres to the strictures of the Appointments Clause when prescribing the appointment for certain
offices.
Officer/Employee
A key first question is to determine whether a person qualifies as an officer of the United States,
or whether a person is a non-officer, or employee, whose “appointment” is not of the kind that
invokes the constitutional requirements of the Appointments Clause. If a person is an employee,
then the appointing authority, whether it is Congress or the President, need not comply with the
requirements of the clause. In the case of Congress, this could mean that it is free to vest the
appointment power in itself, for example; in the case of the President, this could mean that he is
free to appoint persons, as authorized by statute,218 into positions that need not have been
established as an office by Congress. However, if a person is acting as an officer of the United
States then the Appointments Clause must be obeyed. This means that Congress must have
established an office to be filled by an officer, who will be subject to Senate confirmation if it is a
principal officer. An inferior officer may be appointed in the same manner unless Congress
chooses to vest such appointment in the President alone, in the courts, or in heads of
departments.219
The Supreme Court has long held that “‘[o]fficers of the United States’ does not include all
employees of the United States.... Employees are lesser functionaries subordinate to the officers
of the United States.”220 It has stated that office or officer “embraces the ideas of tenure, duration,
emolument, and duties, and that the latter [are] continuing and permanent, not occasional or
temporary.”221
To a certain extent, the standard for such determinations was further delineated by the Supreme
Court in Buckley v. Valeo. There, the Court analyzed provisions of the Federal Election Campaign
Act of 1971 (Act), which established an eight-member Federal Election Commission (FEC) to
oversee federal elections. Specifically at issue was the congressionally mandated composition of
the FEC, which was to consist of two non-voting ex-officio members and six voting members.
According to the act, each of the six voting members were required to be confirmed by the
majority of both houses of Congress, with two members being appointed by the President pro
tempore of the Senate, two members by the Speaker of the House of Representatives, and two by
the President.222 The Court looked to the powers and duties of the FEC and described them as
falling into three general categories: (1) functions relating to the flow of information—receipt,
dissemination, and investigation; (2) functions with respect to promoting the goals of the act—
rulemaking and advisory opinions; and (3) functions necessary to ensure compliance with the
statute—informal procedures, administrative determinations and hearings, and civil suits.223
Given the nature of the duties assigned by law to the FEC, the Court concluded that the FEC was

218 See, e.g. 3 U.S.C. § 105 et seq.
219 As mentioned above, Congress may choose to make the appointments of those considered inferior officers also
subject to Senate confirmation.
220 Buckley, 424 U.S. at 126, n. 162.
221 United States v. Germaine, 99 U.S. 508, 511-12 (1878) (discussing the term “officers”) (citing United States v.
Hartwell, 73 U.S. (6 Wall.) 385, 393-94 (1867) (discussing the term “office”)).
222 Buckley, 424 U.S. at 113.
223 Id. at 137.
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exercising executive power as it found that the FEC’s enforcement power “is authority that cannot
possibly be regarded as merely in aid of the legislative function of Congress.”224 Through its
analysis of the FEC’s powers, the Court established that the Appointments Clause applies to
agencies that have even a tangential connection to the executive branch.225 Thus, the Court held
that the method of appointment prescribed in the Federal Election Campaign Act violated the
Appointments Clause because certain powers of the FEC could only be discharged by “Officers
of the United States,” who must be appointed in conformity with the Appointments Clause.
In reaching this conclusion, the Court held the term “Officers of the United States,” to mean “any
appointee exercising significant authority pursuant to the laws of the United States” (emphasis
added).226 Such officers, whether principal or inferior, must be appointed in conformity with the
Appointments Clause. In its analysis, the Court compared the office of FEC commissioner with
lower-level positions that had been identified as “inferior officers” in earlier cases. It determined
that the FEC commissioners, at a minimum, were inferior officers whose appointment would be
subjected to Senate confirmation or be vested in the President, the courts of law, or heads of
department as prescribed by the Appointments Clause.227 The Court did not engage in a
substantive analysis of the meaning of “significant authority” to distinguish principal officers
from inferior officers in order to determine what mode of appointment would be appropriate for
FEC commissioners.
Justice White, in his concurring opinion, explored further the idea of what constitutes “significant
authority” by expounding upon the duties and powers of the FEC, stating that it “is evident from
the breadth of their assigned duties and the nature and importance of their assigned functions ...
[that] members of the FEC are plainly ‘Officers of the United States’ as that term is used in Art.
II, § 2, cl. 2.”228 The Court later declared in Edmond v. United States that the exercise of
“significant authority pursuant to the laws of the United States marks, not the line between
principal and inferior officer for Appointments Clause purposes, but rather, as we said in Buckley,
the line between officer and non-officer.”229
The Department of Justice’s Office of Legal Counsel (OLC) has also expounded upon the
officer/employee distinction, stating that only “[a]n appointee (1) to a position of employment (2)
within the federal government (3) that carries significant authority pursuant to the laws of the
United States is required to be an ‘Officer of the United States.’” Each of these three conditions is
independent, and all three must be met in order for the position to be subject to the requirements
of the Appointments Clause.230

224 Id. at 138.
225 Id. at 127. (See also Justice White’s concurrence where he noted that the Court had previously recognized that so-
called independent agencies intended to be independent of executive authority are not independent of the executive
with respect to their appointments. Id. at 277 (J. White concurring)).
226 Id. at 126.
227 Id. Subsequent to the decision in Buckley, Congress in 1976 amended the appointments of the six voting members
so that they are appointed by the President, with the advice and consent of the Senate. P.L. 94-283; 90 Stat. 475 (1976).
228 Id. at 269-70 (J. White concurring).
229 520 U.S. at 663 (citing Buckley, 424 U.S. at 126) (internal quotations omitted).
230 See The Constitutional Separation of Powers Between President and Congress, 20 Op. Att’y Gen. 124 (1996); 1996
WL 876050 at *27 (OLC) [hereinafter Dellinger Memo]. This OLC memorandum also pointed out that “members of a
commission that have purely advisory functions need not be officers of the United States because they possess no
enforcement authority or power to bind the Government.” See id. at *23
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A subsequent OLC opinion discusses two essential elements of an office subject to the
Appointments Clause.231 OLC stated that it took the phrase “significant authority pursuant to the
laws of the United States,” and other similar phrases “to be shorthand for the full historical
understanding of the essential elements of a public office.”232 The first element is the delegation
by legal authority of a portion of the sovereign powers of the federal government. OLC described
the “delegation of sovereign authority” as involving “a legal power which may be rightfully
exercised, and in its effects will bind the rights of others, and be subject to revision and correction
only according to the standing laws of the State, in contrast with a person whose acts have no
authority and power of a public act or law absent the subsequent sanction of an officer or the
legislature.”233
The second element is that the position must be “continuing,” which OLC described as having
two characteristics. The first is that “an office exists where a position that possesses delegated
sovereign authority is permanent, meaning that it is not limited by time or by being of such a
nature that it will terminate by the very fact of performance.”234 The second characteristic of
“continuing” deals with delegated sovereign authority that is temporary. Whether such a
temporary position qualifies as “continuing” depends on the presence of three factors. These three
factors are
• the position’s existence should not be personal, meaning that the duties should
continue even though the person is changed;
• the position should not be “transient”; and
• the duties should be more than “incidental” to the regular operations of the
government.235
In other words, “the nature of the delegated sovereign authority will affect whether a temporary
position is an office.”236 For example, although the special independent counsel position in
Morrison v. Olson was arguably temporary, it was found to be an office because the particular
position was not personal and not “‘transient,’ but rather indefinite and expected to last for
multiple years, with ongoing duties”; nor was the position “‘incidental [to the regular operations
of government], but rather possessed core and largely unchecked federal prosecutorial powers,
effectively displacing the Attorney General ... [and] the counsel’s court-defined jurisdiction, []
was not necessarily limited to the specific matter that had prompted his appointment.”237
As delineated by the Court and as characterized by the aforementioned OLC opinion, it appears
that an individual who is to occupy a position that has the following two characteristics, (1)
delegation of sovereign authority and (2) continuing, must be appointed pursuant to the

231 See Officers of the United States Within the Meaning of the Appointments Clause, 2007 WL 1405459 at *3 (OLC)
(April 16, 2007).
232 Id. at *10.
233 Id. at *17 (internal quotations omitted, quoting Opinion of the Justices, 3 Greenl. at 482).
234 Id. at *30 (internal quotations omitted).
235 Id.
236 Id. (“The Constitution requires an examination of ‘the nature of the functions devolved upon’ a position by legal
authority.”) Id at. *35.
237 Id. at *32.
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Appointments Clause, and conversely, a position that does not satisfy either of these elements
need not be filled pursuant to the clause.238
Principal Officer/ Inferior Officer
If it is determined that one is acting as an officer because he or she is exercising significant
authority pursuant to the laws of the United States, the manner of appointment required under the
Appointments Clause necessarily requires a determination of whether the officer is a principal
officer or an inferior officer. As stated above, the Appointments Clause requires Senate
confirmation for principal officers, but gives Congress the discretion to provide for the
appointment of inferior officers without advice and consent.
Although the Supreme Court has determined various offices to be inferior,239 it has acknowledged
that its “cases have not set forth an exclusive criterion for distinguishing between principal and
inferior officers for Appointments Clause purposes.”240 In fact, it observed that “[t]he line
between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided
little guidance into where it should be drawn.”241 In its analyses, however, the Court has relied on
several factors such as whether the officer was subject to removal by a higher officer, that the
officer performed only limited duties, that the jurisdiction was narrow, and that the tenure was
limited.242 These characteristics were examined in Morrison v. Olson when the Supreme Court
held that the special independent counsel was an inferior officer. With regard to examining other
positions, “the nature of each government position must be assessed on its own merits.”243 The
Court in Edmond further stated, “Generally speaking, the term ‘inferior officer’ connotes a
relationship with some higher ranking officer or officers below the President ... [and] whose work
is directed and supervised at some level by others who were appointed by Presidential nomination
with the advice and consent of the Senate.”244 Thus, in analyzing whether one may be an inferior
officer, the Court’s decisions appear to focus on the extent of the officer’s discretion to make
autonomous policy choices and the location of the powers to supervise and to remove the
officer.245

238 Id. at *39.
239 See Ex parte Hennen, 38 U.S. (13 Pet.) 225, 258 (1839) (a district court clerk); Ex parte Siebold, 100 U.S. 371, 397-
98 (an election supervisor); United States v. Eaton, 169 U.S. 331, 343, (1898) (a vice consul charged temporarily with
the duties of the consul); Go-Bart Importing Co. v. United States, 282 U.S. 344, 252-54 (1931) (a “United States
Commissioner” in district court proceedings); Morrison v. Olson, 487 U.S. 654 (1988) (an independent counsel).
240 Edmond, 520 U.S. at 661.
241 Morrison v. Olson, 487 U.S. 654, 671 (1988) (finding that the independent counsel clearly falls on the inferior side
of the line).
242 Id. at 671-672.
243 Silver v. United States Postal Service, 951 F.2d 1033, 1040 (9th Cir. 1991).
244 Edmond, 520 U.S. at 662-63. This characterization of inferior officers by the Court presumably would not preclude
the ability of the Congress to vest the appointment of an inferior officer in the President alone as prescribed by the
Appointments Clause. Justice Souter, dissenting in Edmond, objected to the majority’s general maxim stating, “The
mere existence of a ‘superior’ officer is not dispositive.” He further opined that “[w]hat is needed, instead, is a detailed
look at the powers and duties ... to see whether reasons favoring their inferior officer status within the constitutional
scheme weigh more heavily than those to the contrary.” Id. at 667-68 (Souter, J., dissenting).
245 See Dellinger Memo at *30.
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Analyses of Certain Presidential Advisors
Because the advisor positions, which have been of concern to Congress, each have their own
characteristics, duties, and functions, one cannot categorically say that all or none of them are the
type of positions which would invoke the Appointments Clause. This section will analyze the
application of the Appointments Clause to three positions that are illustrative of positions that
have been established in statute, by the White House, and via a regulation: They are (1) the
Director of the Office of National Drug Control Policy, often referred to as the “Drug Czar”; (2)
the Director of the White House Office of Urban Affairs; and (3) the Special Master for TARP
Executive Compensation, often referred to as the “Pay Czar.”
Director of the Office of National Drug Control Policy
The Office of National Drug Control Policy (ONDCP), established by statute, is charged with the
duties of (1) developing national drug control policy, (2) coordinating and overseeing the
implementation of the national drug control policy, (3) assessing and certifying the adequacy of
National Drug Control Programs (NDCP) and the budget for those programs, and (4) evaluating
the effectiveness of the national drug control policy and the NDCP agencies’ programs by
developing and applying specific goals and performance measurements.246 ONDCP is headed by
a Director, who is required to be appointed by the President with the advice and consent of the
Senate, and the rank is to be the same as the head of an executive department (i.e., Cabinet
level).247 The Director’s responsibilities include but are not limited to assisting the President in
the establishing of the policies, goals, objectives, and priorities for the NDCP; promulgating and
submitting to the President the National Drug Control Strategy; coordinating and overseeing the
implementation of the described policies and goals of the agencies under the National Drug
Control Strategy; making recommendations to the NDCP agency heads with respect to
implementation of federal counter-drug programs; making recommendations to the President with
respect to organization, management, and budgets of the NDCP agencies; appearing before duly
constituted committees and subcommittees of the House of Representatives and of the Senate to
represent the drug policies of the executive branch; and notifying any NDCP agency if its policies
are not in compliance with the strategy and transmitting such notice to the President and relevant
committees of jurisdiction.248 Additionally, the Director has the power to “select, appoint, employ,
and fix compensation of the officers and employees that may be necessary to carry out the
functions of the Office.”249 The Director is also empowered to make available competitive awards
to fund demonstration projects by eligible partnerships for the purpose of reducing the use of
illicit drugs by chronic drug-users.250
In light of the above Appointments Clause discussion, the first question that must be answered is
whether the Director qualifies as an officer of the United States. A review of the Director’s
general responsibilities might lead one to conclude that the Director is not an officer because it is
not evident that the position is one where “significant authority” is exercised, given that much of
it seems to be coordination and evaluation based. However, in codifying this position, Congress

246 21 U.S.C. § 1702(a).
247 21 U.S.C. § 1703(a)(1).
248 21 U.S.C. § 1703(b).
249 21 U.S.C. § 1703(d).
250 21 U.S.C. § 1714.
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empowered the Director to “select, appoint, employ, and fix compensation of such officers and
employees of the Office”; (emphasis added), distribute appropriated funds to fund demonstration
projects; make interagency fund transfers; and distribute a periodic bonus payment to any
employee in the office. To the extent that these duties connote the exercise of executive functions,
it could be argued that the Director of ONDCP is an officer who exercises significant authority
pursuant to the laws of the United States. Furthermore, these duties, combined with the fact that
Congress gave the Director a rank equivalent to an agency head and required him to be appointed
by the President subject to Senate confirmation, could be taken to support the conclusion that the
Director is a principal officer of the United States.
Director of Urban Affairs
As discussed in the previous sections, President Obama issued an executive order that established
within the EOP the White House Office of Urban Affairs. The Office of Urban Affairs is to be
headed by the Deputy Assistant to the President, Director of Urban Affairs. The Director is
required to report to the Assistant to the President for Intergovernmental Affairs and Public
Liaison and to the Assistant to the President for Domestic Policy.251 The executive order states
that the principal functions of the Office of Urban Affairs are, to the extent permitted by law,
• to provide leadership for and coordinate the development of the policy agenda for
urban American across executive departments and agencies;
• to coordinate all aspects of urban policy;
• to work with executive departments and agencies, including the Office of
Management and Budget (OMB), to ensure that federal government dollars
targeted to urban areas are effectively spent on the highest-impact programs; and
• to engage in outreach and work closely with state and local officials, with
nonprofit organizations, and with the private sector, both in seeking input
regarding the development of a comprehensive urban policy and in ensuring that
the implementation of federal programs advances the objectives of that policy.252
The Office of Urban Affairs is to coordinate with various specified agencies to the extent
permitted by law and nothing in the executive order is to be construed as impairing or affecting
the authority granted by law to a department, agency, or head thereof, or interfere with the
functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.253
Similar to some of the functions of the ONDCP, the functions to be carried out by this office do
not appear to rise to the level that would require the Director to be an officer of the United States.
There is arguably no delegation of sovereign authority in the sense that the Director is not
exercising a legal power, the effect of which will bind the rights of others. Nor is the Director
permitted to carry out any legislative, executive, or judicial function similar to the FEC
commissioners, who have been found to be at least inferior officers. In this situation, as is the
case with other similar advisor/assistant positions located and created in the EOP,254 the Director

251 Exec. Order No. 13503, 74 Fed. Reg. 8139, 8140 (February 24, 2009).
252 Exec. Order No. 13503, 74 Fed. Reg. 8139 (February 24, 2009).
253 Exec. Order No. 13503, 74 Fed. Reg. 8140 (February 24, 2009).
254 E.g. Director, White House Office of Health Reform, Exec. Order No. 13507; President’s Economic Recovery
Advisory Board, Exec. Order No., 13501; Assistant to President for Energy and Climate Change, Position Mentioned
(continued...)
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of Urban Affairs appears to, or could, exert great political influence over the various agencies
with whom he is required to coordinate because the Director apparently has the “ear of the
President” and is taking action pursuant to the President’s wishes. However, such political
influence does not necessarily amount to the exercise of significant legal authority, which would
consequently require that the position be established and filled in accordance with the
Appointments Clause.
Special Master for TARP Executive Compensation
Drawing upon the statutory language in the Emergency Economic Stabilization Act of 2008
(EESA)255 that authorizes the Secretary of the Treasury to establish the Troubled Asset Relief
Program (TARP) and to “issue such regulations and other guidance as may be necessary or
appropriate to define terms or carry out the authorities or purposes of this Act,” the Secretary
established via an interim final rule, the Special Master for TARP Executive Compensation
(Special Master),256 often referred to as the “Pay Czar.” Under the regulation, the Special Master
is to serve “at the pleasure of the Secretary, and may be removed by the Secretary without notice,
without cause, and prior to the naming of any successor Special Master.”257 The Secretary has
delegated to the Special Master the authority to
• interpret the application of the restrictions on executive compensation for TARP
recipient employees;
• administer Section 111(f) of EESA, which requires the Secretary to review
bonuses, retention awards, and other compensation paid before February 17,
2009, to determine whether any such payments were inconsistent;
• approve compensation payments to, and compensation structures for, certain
employees of TARP recipients receiving exceptional financial assistance;
• provide opinions, as requested or as appropriate, regarding payments to or
compensation structures for other employees of TARP recipients; and
• perform other such duties as the Secretary may delegate from time to time
relating to executive compensation issues under TARP.258
In delineating the Special Master’s interpretative authority, the rule states that the Special Master
has the responsibility for interpreting Section 111 of EESA, the regulations, and any other
applicable guidance and to determine whether such requirements have been met in any particular
circumstance.259 The regulations also provide that in the case of any final determination that a

(...continued)
in Exec. Order Nos. 13499 and 13500.
255 P.L. 110-343; 123 Stat. 3767
256 TARP Standards for Compensation and Corporate Governance (Interim Final Rule), 74 Fed. Reg. 28394, 29420
(Jun. 15, 2009) (to be codified at 31 C.F.R. pt. 30).
257 Id.
258 Id. at 28404.
259 Id. at 28420.
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TARP recipient is required to receive, the final determination of the Special Master “shall be final
and binding and treated as the determination of the Treasury.”260
In examining the functions of this office, one could argue that the Special Master is not merely an
employee of the Treasury Department, but rather qualifies as an officer of the United States. The
Special Master appears to have been delegated authority that permits him to interpret the law and
regulations and decide their applicability to others. Furthermore, although the Special Master
serves at the pleasure of the Secretary, the regulation states that his final determinations are to be
treated as the determination of the Treasury. It does not appear that those determinations are
subject to review by the Secretary. From this, it could be argued that the Special Master is in fact
exercising significant authority such that an officer of the United States must carry out the duties
of this position; if so, then the establishment of this office through an interim final rule may raise
constitutional concerns. One constitutional issue is that Congress did not explicitly establish this
office nor did it vest the Secretary with the explicit authority to appoint such an officer, if in fact
the Special Master is considered to be an officer. An argument could be made that Congress
implicitly authorized the establishment of such an office by vesting the Secretary with the
authority to develop the appropriate procedures to implement the provisions of EESA.261 A
related constitutional issue could center on whether the Special Master is exercising significant
authority that rises to the level of a principal officer such that he must be appointed by the
President subject to Senate confirmation, or whether the Secretary has retained sufficient control
of his actions either explicitly or implicitly such that his duties could be characterized as those of
an inferior officer.
Summary of Presidential Advisor Analyses
These three cases illustrate that an Appointments Clause analysis is best done on a case-by-case
basis. First, one looks at the functions and duties of the particular position in question. This
assists in determining whether such position is one where significant authority is exercised,
meaning that the position primarily is one where there has been a delegation of sovereign power.
Within the narrower context of presidential assistants and advisors, it is important to examine
these positions remembering that the exertion of great political influence or authority does not
presumptively rise to the level of exercising legal authority pursuant to the laws of the United
States. However, if it is determined that the position is one where significant authority is
exercised then the position and appointment is to be made in accordance with the strictures of the
Appointments Clause.

260 Id. at 28432.
261 It is not clear whether a court would be receptive to an argument that congressional enactments can be interpreted as
implicitly creating executive office. It should also be noted that there is a possibility that the Special Master may be
filling an inferior officer position that already existed within the Department of the Treasury and is simply exercising
additional duties delegated to him by the Secretary.
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Congressional Oversight of Presidential Advisors262
Congress’s Oversight Authority
Generally, Congress’s legal authority to obtain information, including, but not limited to,
confidential, sensitive, or deliberative information, is extremely broad. While there is no express
provision of the Constitution or specific statute authorizing the conduct of congressional
oversight, the Supreme Court has firmly established that such power is essential to the legislative
function and can be implied from the general vesting of legislative powers in Congress.263 In
Watkins v. United States, for instance, the Court emphasized that the “power of the Congress to
conduct investigations is inherent in the legislative process. That power is broad. It encompasses
inquiries concerning the administration of existing laws as well as proposed or possibly needed
statutes.”264 The Court in Watkins further stressed that Congress’s power to investigate is at its
peak when focusing on alleged waste, fraud, abuse, or maladministration within a government
department. Specifically, the Court explained that the investigative power “comprehends probes
into departments of the federal government to expose corruption, inefficiency, or waste.”265 The
Court went on to note that the first Congresses held “inquiries dealing with suspected corruption
or mismanagement of government officials.”266 Given these factors, the Court recognized “the
power of the Congress to inquire into and publicize corruption, maladministration, or
inefficiencies in the agencies of Government.”267 Moreover, in a more recent decision, Eastland v.
United States Serviceman’s Fund, the Court reiterated that the “scope of its power of inquiry ... is
as penetrating and far-reaching as the potential power to enact and appropriate under the
Constitution.”268
As a corollary to this accepted oversight authority, the Supreme Court has likewise determined
that the “[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its
power to investigate.”269 In particular, the Court has repeatedly cited the principle that
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information—which not infrequently is
true—recourse must be had to others who do possess it. Experience has taught that mere
requests for such information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means of compulsion are essential
to obtain what is needed. All this was true before and when the Constitution was framed and
adopted. In that period the power of inquiry—with enforcing process—was regarded and

262 Todd B. Tatelman, Legislative Attorney in the American Law Division (7-4697), wrote this section.
263 See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s
Fund, 421 U.S. 491 (1975); Barnblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178
(1957); McGrain v. Daugherty, 273 U.S. 135 (1927).
264 354 U.S. at 187.
265 Id.
266 Id. at 182.
267 Id. at 200, n.33.
268 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).
269 Eastland v. United States Servicemen’s Fund, 421 U.S. at 504.
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employed as a necessary and appropriate attribute of the power to legislate—indeed, was
treated as inhering in it.270
While the congressional power of inquiry is broad, it is not unlimited. The Supreme Court has
admonished that the power to investigate may be exercised only “in aid of the legislative
function”271 and cannot be used to expose for the sake of exposure alone. The Watkins Court
underlined these limitations stating that
There is no general authority to expose the private affairs of individuals without justification
in terms of the functions of the Congress ... nor is the Congress a law enforcement or trial
agency. These are functions of the executive and judicial departments of government. No
inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the
Congress.272
Moreover, an investigating committee has only the power to inquire into matters within the scope
of the authority delegated to it by its parent body.273 Once having established its jurisdiction,
authority, and the pertinence of the matter under inquiry to its area of authority, however, a
committee’s investigative purview is substantial and wide ranging.
The Relationship Between Advice and Consent and Congressional
Oversight
A recurring criticism of the President’s use of special advisors has been that they are not subject
to the confirmation process in the Senate and, therefore, are “largely insulated”274 from
congressional oversight and “wholly unaccountable”275 to the Congress. The connection between
the Senate’s confirmation power and Congress’s more general oversight prerogatives, however,
appears to be derived from practice and tradition, rather than being legally or constitutionally
grounded.
As a matter of constitutional law, there appears to be no direct connection between the Senate’s
authority to give “advice and consent” to Presidential appointees and Congress’s more general
power to conduct oversight and perform investigations of government officials and activities. The
Senate’s confirmation power is expressly provided for by the text of the Constitution,276 while
congressional oversight has, as discussed above, been repeatedly considered by the Supreme

270 McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976), Eastland, 421 U.S. at 504-505.
271 Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
272 Watkins v. United States, 354 U.S. at 187.
273 United States v. Rumely, 345 U.S. 41, 42, 44 (1953); see also Watkins, 354 U.S. at 198.
274 Letter from Senators Susan Collins, Lamar Alexander, Christopher Bond, Mike Crapo, Pat Roberts, and Robert
Bennett, to President Barack Obama (Sept. 15, 2009), available at, http://collins.senate.gov/public/continue.cfm?
FuseAction=PressRoomPressReleases&ContentRecord_id=c2f7dda9-802a-23ad-4371-ecb6a1c8d2eb&Region_id=&
Issue_id=&CFID=12784730&CFTOKEN=17344439.
275 Congressman Eric Cantor, Op-Ed., Obama’s 32 Czars, WASH. POST, July 30, 2009, available at
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/29/AR2009072902624.html?referrer=emailarticle.
276 U.S. Const., art. II, § 2 (stating that “… and he shall nominate, by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other Public Ministers and Counsels, 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:
…”)
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Court to be an implied congressional power. The fact that a special advisor to the President does
not receive a confirmation hearing arguably has no legal or constitutional impact on Congress’s
authority or ability to conduct oversight of that position, its duties and functions, or the individual
holding it. As a practical and political matter, however, in recent years, several Senate committees
have found that extracting an on-the-record, under-oath commitment from nominees regarding
their cooperation in congressional oversight has been helpful in future oversight efforts.277
While promises made at confirmation hearings appear to have changed the practical relations
between Congress and the executive, they have not changed the legal dynamic. For example, as a
result of these on-the-record statements during confirmation hearings, it appears that Congress
has been able to exercise many of its oversight responsibilities with a simple request from a
committee of jurisdiction to the Secretary. In other words, such a promise from a nominee has, in
many cases, obviated the need to use compulsory procedures, such as subpoenas to obtain routine
information and testimony. That said, it is important to note that the executive branch is not
legally obligated to respond to congressional committee requests. The fact that the executive
branch responds is arguably out of a sense of comity between the branches, or as a political
accommodation, or to avoid the political retribution for a failure to comply. A legal obligation to
comply attaches only on the issuance of a subpoena by the inquiring committee.
Even by making a commitment during a confirmation hearing to cooperate with congressional
oversight, the nominee is not waiving any potential claims of privilege or other legal rights the
executive branch may assert to withhold information from the Congress, and may still require the
issuance of a subpoena. Nor has Congress, by extracting such a commitment on oversight from
the nominee, abdicated any legal rights or abilities that it may have to extract information via the
issuance of a subpoena. The continued contentious nature of this relationship is best evidenced by
the nine Cabinet level officials that, since 1975, at least one committee or subcommittee has
voted in contempt of Congress for failing to produce subpoenaed documents.278 Thus, it is clear
that even officials who have obtained the advice and consent of the Senate are not immune from
legal disputes between the branches. Moreover, the fact that a special presidential advisor has not
been subject to a confirmation hearing has not prevented congressional committees from seeking
their testimony on more than 70 documented occasions.279
Although there is little doubt that the advice and consent process may, as a political and practical
matter, make oversight less acrimonious and, therefore, more efficient, the fact that an official has
not been confirmed does not have any legal bearing on Congress’s ability to exercise its oversight
prerogatives.

277 See, e.g., To Consider the Nomination of Ken Salazar to be Secretary of the Interior: Hearing Before the Committee
on Energy and Natural Resources of the United States Senate, 111th Cong. 49 (2009) (Response of Ken Salazar to
written questions from Senator Dorgan pledging to work with oversight efforts on permit and enforcement programs);
To Consider the Nomination of Robert Gates to be Secretary of Defense: Hearing Before the Committee on Armed
Services of the United States Senate, 110th Cong. (2006), available at http://media.washingtonpost.com/wp-srv/politics/
documents/rgates_hearing_120506.html (pledging, in response to a question from Senator Levin, to make relevant
documents available for congressional oversight “to the extent I have the authority.”).
278 The nine officials are as follows: Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B.
Morton (1975); Secretary of Health, Education, and Welfare Joseph A. Califano, Jr. (1978); Secretary of Energy
Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982);
EPA Administrator Anne Gorsuch Burford (1983); Attorney General William French Smith (1983); and Attorney
General Janet Reno (1998). See CRS Report RL30240, Congressional Oversight Manual, by Frederick M. Kaiser et al..
279 CRS Report RL31351, Presidential Advisers’ Testimony Before Congressional Committees: An Overview, by Henry
B. Hogue and Todd B. Tatelman.
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Potential Legal Bases for the Denial of Access to Presidential
Advisors
As the preceding discussion indicates, Congress’s oversight authority appears sufficiently broad
to conduct inquiries of presidential advisors, regardless of where in the organizational structure of
the Administration they are housed.
The Deliberative Process Privilege
That being said, the Administration still retains the ability to claim common law, as well as
constitutionally based, privileges with respect to arguably sensitive information, documents, and
testimony. For example, the Administration may attempt to assert a claim of “deliberative
process” privilege with respect to information directly related to the development of advice to the
President, formulation of policy, and the ultimate decisions within a given special assistant’s
portfolio. Assertions of “deliberative process” privilege by the White House and administrative
agencies have not been uncommon in the past. In essence, it is argued that congressional demands
for information as to what occurred during the policy development process would unduly
interfere, and perhaps “chill,” the frank and open internal communications necessary to the
quality and integrity of the decisional process. Such a privilege claim may also be grounded on
the contentions that it protects against premature disclosure of proposed policies before they are
fully considered or actually adopted, and to prevent the public from confusing matters merely
considered or discussed during the deliberative process with those on which the decision was
based. However, as with other claims of “common law” privileges such as the attorney-client
privilege and work product immunity, congressional practice has been to treat their acceptance as
discretionary with the committee of jurisdiction.280 Moreover, appellate court decisions underline
the understanding that the “deliberative process” privilege is a common law privilege that is
easily overcome by a showing of need by an investigatory body and have recognized the
overriding necessity of an effective legislative oversight process.281
Executive Privilege
In addition, it would appear possible for the Administration to make the constitutional claim of
“executive privilege”—sometimes referred to as “presidential communications privilege”—with
respect to the role of certain presidential advisors. In the event of such a claim, it should be noted
that the vast majority of these interbranch disputes have been resolved through political
negotiation and accommodation; thus, few have reached the courts for substantive resolution.282
In fact, it was not until the Watergate-related lawsuits in the 1970s—seeking access to President
Nixon’s audio tapes—that the existence of a presidential confidentiality privilege was judicially
established as a necessary derivative of the President’s status in the U.S. constitutional scheme of
separated powers. Of the seven court decisions involving interbranch information access
disputes,283 three have directly involved Congress and the Executive, but only one of these

280 See generally, CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry, by Morton Rosenberg.
281 See, e.g., In Re Sealed Case (Espy), 121 F. 3d 729 (D.C. Cir. 1997).
282 See Neil Devins, Congressional-Executive Information Access Disputes: A Modest Proposal-Do Nothing, 48 Adm.
L. Rev. 109 (1996).
283 United States v. Nixon, 418 U.S. 683 (1974); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973); Senate Select
(continued...)
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resulted in a judicial decision on the merits.284 One other case, involving legislation granting
custody of President Nixon’s presidential records to the Administrator of the General Services
Administration, also determined several pertinent executive privilege issues.285
Taken together, the holdings in several Watergate-era lower court decisions,286 the Supreme
Court’s decision in United States v. Nixon,287 and other post-Watergate cases established the broad
contours of the presidential communications privilege. Under those precedents, the privilege,
which is constitutionally rooted, can be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decision making and
deliberations that he believes should remain confidential. If the President does so, the materials
become “presumptively privileged.”288 The privilege, however, is qualified, not absolute, and can
be overcome by an adequate showing of need.289 Finally, while reviewing courts have expressed
reluctance to balance executive privilege claims against a congressional demand for information,
they have acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.290
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed Case,291 and its 2004
ruling in Judicial Watch Inc. v. Department of Justice,292 these judicial decisions had left
important gaps in the law of presidential communications privilege which increasingly became
focal points, if not the source, of interbranch confrontations. Among the more significant issues
left open included whether the President has to have actually seen or been familiar with the
disputed matter; whether the presidential privilege encompasses documents and information
developed by, or in the possession of, officers and employees in the departments and agencies of
the executive branch; whether the privilege encompasses all communications with respect to
which the President may be interested or is it confined to presidential decision making and, if so,
is it limited to any particular type of presidential decision making; and precisely what kind of
demonstration of need must be shown to justify release of materials that qualify for the privilege.
The unanimous D.C. Circuit panel in In re Sealed Case authoritatively addressed each of these
issues in a manner that may have drastically altered the future legal playing field in resolving
such disputes. Moreover, the D.C. Circuit’s ruling in the Judicial Watch case reinforces that
likelihood.293

(...continued)
Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal
after remand, 567 F.2d 121 (D.C. Cir. 1977); United States v. House of Representatives, 556 F.Supp. 150 (D.D.C.
1983); In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21 (D.D.C.
1998).
284 Senate Select Committee, 498 F.2d 725 (D.C. Cir. 1974).
285 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
286 See, e.g., Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir.
1974).
287 United States v. Nixon, 418 U.S. 683 (1974).
288 Nixon v. Sirica, 487 F.2d 750, 757 (D.C. Cir. 1973).
289 Nixon, 418 U.S. 706.
290 United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977)
291 121 F.3d 729 (D.C. Cir. 1997).
292 365 F.3d 1108 (D.C. Cir. 2004).
293 Neither case, however, involved congressional access to information.
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In Re Sealed Case (Espy)
In In re Sealed Case (Espy),294 the appeals court addressed several important issues left
unresolved by the Watergate cases: the precise parameters of the presidential privilege; how far
down the chain of command the privilege reaches; whether the President has to have seen or had
knowledge of the existence of the documents for which he claims privilege; and what showing is
necessary to overcome a valid claim of privilege.
The case arose out of an Office of Independent Counsel (OIC) investigation of former Agriculture
Secretary Mike Espy. When allegations of improprieties by Secretary Espy surfaced in March of
1994, President Clinton ordered the White House Counsel’s Office to investigate and report to
him so he could determine what action, if any, he should undertake. The White House Counsel’s
Office prepared a report for the President, which was publicly released on October 11, 1994. The
President never saw any of the underlying or supporting documents to the report. Secretary Espy
announced his resignation on October 3, to be effective on December 31. The Independent
Counsel was appointed on September 9 and the grand jury issued a subpoena for all documents
that were accumulated or used in preparation of the report on October 14, three days after the
report’s issuance. The President withheld 84 documents, claiming both the executive and
deliberative process privileges. A motion to compel was resisted on the basis of the claimed
privileges and after in camera review the district court quashed the subpoena, but in its written
opinion did not discuss the documents in any detail and provided no analysis of the grand jury’s
need for the documents. The appeals court reversed.
At the outset, the court’s opinion carefully distinguishes between the “presidential
communications privilege” and the “deliberative process privilege.” As previously discussed, the
court observed that both privileges are “executive privileges” designed to protect the
confidentiality of executive branch decision making. According to the court, however, the
“deliberative process” privilege applies generally to executive branch officials, is a common law
privilege which requires a lower threshold of need to be overcome, and “disappears altogether
when there is any reason to believe government misconduct has occurred.”295
On the other hand, the court explained, the presidential communications privilege is rooted in
“constitutional separation of powers principles and the President’s unique constitutional role” and
applies only to “direct decisionmaking by the President.”296 The privilege may be overcome only
by a substantial showing that “the subpoenaed materials likely contain[] important evidence” and
that “the evidence is not available with due diligence elsewhere.”297 The presidential privilege

294 121 F.3d 729 (D.C. Cir. 1997).
295 Id. at 745-46; see also id. at 737-38 (“[W]here there is reason to believe the documents sought may shed light on
government misconduct, the [deliberative process] privilege is routinely denied on the grounds that shielding internal
government deliberations in this context does not serve ‘the public interest in honest, effective government.”’).
296 Id. at 745, 752-53 (“ ... these communications nonetheless are ultimately connected with presidential
decisionmaking”).
297 Id. at 754, 757.
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applies to all documents in their entirety298 and covers final and post-decisional materials as well
as pre-deliberative ones.299
Turning to the chain of command issue, the court held that the presidential communications
privilege must cover communications made or received by presidential advisors in the course of
preparing advice for the President, even if those communications are not made directly to the
President. The court rested its conclusion on “the President’s dependence on presidential advisors
and the inability of the deliberative process privilege to provide advisors with adequate freedom
from the public spotlight” and “the need to provide sufficient elbow room for advisors to obtain
information from all knowledgeable sources.”300 Thus, the privilege will “apply both to
communications which these advisors solicited and received from others as well as those they
authored themselves. The privilege must also extend to communications authored or received in
response to a solicitation by members of a presidential adviser’s staff.”301
The court, however, was acutely aware of the dangers to open government that a limitless
extension of the privilege poses and carefully cabined its reach by explicitly confining it to White
House staff, and not staff in the agencies, and then only to White House staff that has “operational
proximity” to direct presidential decision making.
We are aware that such an extension, unless carefully circumscribed to accomplish the
purposes of the privilege, could pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition of the unique role of the
President. In order to limit this risk, the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the confidentiality of the President’s
decisionmaking process is adequately protected. Not every person who plays a role in the
development of presidential advice, no matter how remote and removed from the President,
can qualify for the privilege. In particular, the privilege should not extend to staff outside the
White House in executive branch agencies. Instead, the privilege should apply only to
communications authored or solicited and received by those members of an immediate White
House advisor’s staff who have broad and significant responsibility for investigation and
formulating the advice to be given the President on the particular matter to which the
communications relate. Only communications at that level are close enough to the President
to be revelatory of his deliberations or to pose a risk to the candor of his advisers.
Of course, the privilege only applies to communications that these advisers and their staff
author or solicit and receive in the course of performing their function of advising the
President on official government matters. This restriction is particularly important in regard
to those officials who exercise substantial independent authority or perform other functions
in addition to advising the President, and thus are subject to FOIA and other open
government statutes. The presidential communications privilege should never serve as a
means of shielding information regarding governmental operations that do not call ultimately
for direct decisionmaking by the President. If the government seeks to assert the presidential
communications privilege in regard to particular communications of these “dual hat”

298 In contrast, the deliberative process privilege does not protect documents that simply state or explain a decision the
government has already made or material that is purely factual, unless the material is inextricably intertwined with the
deliberative portions of the materials so that disclosure would effectively reveal the deliberations. 121 F.3d at 737.
299 Id. at 745.
300 Id. at 752.
301 Id.
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presidential advisers, the government bears the burden of proving that the communications
occurred in conjunction with the process of advising the President.302
The appeals court’s limitation of the presidential communications privilege to “direct decision
making by the President” makes it imperative to identify the type of decision making to which it
refers. A close reading of the opinion makes it arguable that it is meant to encompass only those
functions that form the core of presidential authority, involving what the court characterized as
“quintessential and non-delegable presidential power.”303 In the case before it, the court was
specifically referring to the President’s Article II appointment and removal power, which was the
focal point of the advice he sought regarding Secretary Espy. That said, it is clear from the
context of the opinion that the description was meant to be in juxtaposition with the appointment
and removal power and in contrast with “presidential powers and responsibilities” that “can be
exercised or performed without the President’s direct involvement, pursuant to a presidential
delegation of authority or statutory framework.”304 The reference the court uses to illustrate the
latter category is the President’s Article II duty “to take care that the laws are faithfully executed,”
a constitutional direction that the courts have consistently held not to be a source of presidential
power, but rather an obligation on the President to see to it that the will of Congress is carried out
by the executive bureaucracy.305
The appeals court’s decision, then, arguably confines the parameters of the newly formulated
presidential communications privilege by tying it to those Article II functions that are identifiable
as “quintessential and non-delegable,” which would appear to include, in addition to the
appointment and removal powers, the commander-in-chief power, the sole authority to receive
ambassadors and other public ministers, the power to negotiate treaties, and the power to grant
pardons and reprieves. On the other hand, decision making vested by law in agency heads such as
prosecutorial decision making, rulemaking, environmental policy, consumer protection,
workplace safety and labor relations, among others, would not necessarily be covered. Of course,
the President’s role in supervising and coordinating (but not displacing) decision making in the
executive branch remains unimpeded. However, his communications would presumably not be
cloaked by a constitutionally based privilege.
Such a reading of this critical part of the court’s opinion is consonant with the court’s view of the
source and purpose of the presidential communications privilege and its expressed need to
confine it as narrowly as possible. Relying on United States v. Nixon,306 the In re Sealed Case
court identified “the President’s Article II powers and responsibilities as the constitutional basis
of the presidential communications privilege.... Since the Constitution assigns these
responsibilities to the President alone, arguably the privilege of confidentiality that derives from it
also should be the President’s alone.”307 Again, relying on Nixon, the court pinpoints the essential
purpose of the privilege: “[T]he privilege is rooted in the need for confidentiality to ensure that

302 Id. (internal citations and footnotes omitted).
303 Id. at 752.
304 Id. at 752-53.
305 See, e.g., Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-613 (1838); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 587 (1952); Myers v. United States, 272 U.S. 52, 177 (1926) (Holmes, J., dissenting);
National Treasury Employees Union v. Nixon, 492 F.2d 587, 604 (D.C. Cir. 1974); Biodiversity Associates et al. v.
Cables, 357 F.3d 1152, 1161-63 (10th Cir. 2004).
306 418 U.S. 683 (1974).
307 121 F.3d at 748.
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presidential decisionmaking is of the highest caliber, informed by honest advice and knowledge.
Confidentiality is what ensures the expression of ‘candid, objective, and even blunt or harsh
opinions’ and the comprehensive exploration of all policy alternatives before a presidential course
of action is selected.”308 The limiting safeguard is that the privilege will apparently only apply in
those instances where the Constitution provides that the President alone must make a decision.
“The presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for direct
decisionmaking by the President.”309
Judicial Watch, Inc. v. Department of Justice
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of
Justice310 appears to lend substantial support to the above-expressed understanding of Espy.
Judicial Watch involved requests for documents concerning pardon applications and pardon
grants reviewed by the Justice Department’s Office of the Pardon Attorney and the Deputy
Attorney General for consideration by President Clinton.311 Some 4,300 documents were withheld
on the grounds that they were protected by the presidential communications and deliberative
process privileges. The district court held that because the materials sought had been produced for
the sole purpose of advising the President on a “quintessential and non-delegable Presidential
power”—the exercise of the President’s constitutional pardon authority—the extension of the
presidential communications privilege to internal Justice Department documents, which had not
been “solicited and received” by the President or the Office of the President, was not
warranted.312 The appeals court reversed, concluding that “internal agency documents that are not
solicited and received by the President or his Office are instead protected against disclosure, if at
all, by the deliberative process privilege.” 313
Guided by the analysis of the Espy ruling, the panel majority emphasized that the “solicited and
received” limitation “is necessitated by the principles underlying the presidential communications
privilege, and a recognition of the dangers of expanding it too far.”314 Espy teaches, the court
explained, that the privilege may be invoked only when presidential advisors in close proximity
to the President who have significant responsibility for advising him on non-delegable matters
requiring direct presidential decision making have solicited and received such documents or
communications or the President has received them himself. In rejecting the Government’s
argument that the privilege should be applicable to all departmental and agency communications
related to the Deputy Attorney General’s pardon recommendations for the President, the panel
majority held that

308 Id. at 750.
309 Id. at 752.
310 365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the majority and Judge Randolph
dissenting.
311 The President has delegated the formal process of review and recommendation of his pardon authority to the
Attorney General who in turn has delegated it to the Deputy Attorney General. The Deputy Attorney General oversees
the work of the Office of the Pardon Attorney.
312 365 F.3d at 1109-12.
313 Id. at 1112, 1114, 1123.
314 Id. at 1114.
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such a bright-line rule is inconsistent with the nature and principles of the presidential
communications privilege, as well as the goal of serving the public interest....
Communications never received by the President or his Office are unlikely to “be revelatory
of his deliberations ... nor is there any reason to fear that the Deputy Attorney General’s
candor or the quality of the Deputy’s pardon recommendations would be sacrificed if the
presidential communications privilege did not apply to internal documents.... Any pardon
documents, reports or recommendations that the Deputy Attorney General submits to the
Office of the President, and any direct communications the Deputy or the Pardon Attorney
may have with the White House Counsel or other immediate Presidential advisers will
remain protected.... It is only those documents and recommendations of Department staff that
are not submitted by the Deputy Attorney General for the President and are not otherwise
received by the Office of the President, that do not fall under the presidential
communications privilege.315
Indeed, the Judicial Watch panel makes it clear that the Espy rationale would preclude cabinet
department heads from being treated as being part of the President’s immediate personal staff or
as some unit of the Office of the President:
Extension of the presidential communications privilege to the Attorney General’s delegatee,
the Deputy Attorney General, and his staff, on down to the Pardon Attorney and his staff,
with the attendant implication for expansion to other Cabinet officers and their staffs, would,
as the court pointed out in In re Sealed Case, pose a significant risk of expanding to a large
swatch of the executive branch a privilege that is bottomed on a recognition of the unique
role of the President.316
The Judicial Watch majority took great pains to explain why Espy and the case before it differed
from the Nixon and post-Watergate cases. According to the court, “[u]ntil In re Sealed Case, the
privilege had been tied specifically to direct communications of the President with his immediate
White House advisors.”317 The Espy court, it explained, was for the first time confronted with the
question whether communications that the President’s closest advisors make in the course of
preparing advice for the President and which the President never saw should also be covered by
the presidential privilege. The Espy court’s answer was to “espouse[ ] a ‘limited extension’ of the
privilege’ ‘down the chain of command’ beyond the President to his immediate White House
advisors only,” recognizing “the need to ensure that the President would receive full and frank
advice with regard to his non-delegable appointment and removal powers, but was also wary of
undermining countervailing considerations such as openness in government.... Hence, the [Espy]
court determined that while ‘communications authored or solicited and received’ by immediate
White House advisors in the Office of the President could qualify under the privilege,
communications of staff outside the White House in executive branch agencies that were not
solicited and received by such White House advisors could not.”318
The situation before the Judicial Watch court tested the Espy principles. While the presidential
decision involved—exercise of the President’s pardon power—was certainly a non-delegable,
core presidential function, the operating officials involved, the Deputy Attorney General and the
Pardon Attorney, were deemed to be too remote from the President and his senior White House

315 Id. at 1117.
316 Id. at 1121-22.
317 Id. at 1116.
318 Id. at 1116-117.
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advisors to be protected. The court conceded that functionally those officials were performing a
task directly related to the pardon decision but concluded that an organizational test was more
appropriate for confining the potentially broad sweep that would result from a functional test;
under the latter test, there would be no limit to the coverage of the presidential communications
privilege. In such circumstances, the majority concluded, the lesser protections of the deliberative
process privilege would have to suffice.319
Application to Potential Congressional Oversight of Presidential Advisors
Taken together, Espy and Judicial Watch arguably have effected important qualifications and
restraints on the nature, scope, and reach of the presidential communications privilege. As
established by those cases, and until reviewed by the Supreme Court, to appropriately invoke the
privilege the following elements appear to be essential. First, the protected communication must
relate to a “quintessential and non-delegable presidential power.”320 This requirement would
arguably not include decision making with respect to laws that vest policymaking and
implementation authority in the heads of departments and agencies or which allow presidential
delegations of authority. Second, the communication must be authored or “solicited and received”
by a close White House advisor (or the President). The judicial test is that an advisor must be in
“operational proximity” with the President. This effectively means that the scope of the
presidential communications privilege extends only to the boundaries of the White House and the
Executive Office complex. Finally, the presidential communications privilege remains a qualified
privilege that may be overcome by a showing of need and unavailability of the information
elsewhere by an appropriate investigating authority. The Espy court found an adequate showing
of need by the Independent Counsel; while in Judicial Watch, the court found the privilege did
not apply and the deliberative process privilege was unavailing.321
Applying the law of executive privilege to the potential congressional oversight of presidential
advisors will largely need to be done on a case-by-case basis. As the above discussion indicates,
these advisors appear to reside both inside the Executive Office of the President (EOP), as well as
within several of the agencies or departments, such as Treasury and Homeland Security.
With respect to the advisors contained within the EOP, there appears to be a greater likelihood of
claims of executive privilege, specifically the “presidential communications privilege.” Based on
the position descriptions that are publically available, however, it is unclear whether information
sought from any of these advisors would satisfy all three parts of the test established by Espy and
Judicial Watch and qualify to be withheld under a theory of executive privilege. Arguably, given
their location inside the EOP, these advisors all meet the “operational proximity” prong of the
test. However, even granting that prong of the test, it would still need to be determined that the
communications seeking the privilege’s protection relates to a “quintessential and non-delegable
presidential power.” Thus, a presidential advisor such as the National Security Advisor may
satisfy this prong, as that advice likely relates to the President’s “Commander-in-Chief” and/or
authority with respect to the conduct of foreign affairs. Conversely, advice from other presidential

319 Id. at 1118-24.
320 Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core,
direct presidential decision-making powers include the Commander-in-Chief power, the sole authority to receive
ambassadors and other public ministers, the power to negotiate treaties, and the power to grant pardons.
321 See, e.g., In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Dep’t of Justice, 365 F.3d
1108 (D.C. Cir. 2004).
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advisors within the EOP, such as the Assistant to the President for Energy and Climate Change,
the White House Director of Urban Affairs, Director of the White House Office of Health
Reform, or the Director of the National Economic Council, arguably do not satisfy this prong of
the test, as their functions are not related to “quintessential and non-delegable presidential
power,” but rather relate to more general law execution authority. Finally, it is important to note
that the privilege in all cases is a qualified one and, therefore, can be overcome by a showing of
need and unavailability of the information elsewhere. The consideration of legislation by
Congress would likely be considered sufficient to satisfy the need requirement. As to
unavailability, that will depend on exactly what information the committee is seeking, but seeing
as how there are few, if any, alternative sources to discern what takes place inside the EOP, it does
not appear that this prong would present much difficulty for an oversight committee with proper
jurisdiction.
Turning to those advisors who have been placed inside the various executive agencies, as Judicial
Watch indicates, the farther from the EOP an advisor resides the more difficult it becomes to
justify the use of the presidential communications privilege. Thus, advisors in the administrative
agencies are arguably more likely to assert the common law “deliberative process” privilege,
rather than the “presidential communications privilege.” As noted above, common law privileges
are accepted at the discretion of the committee chair and, therefore, raise far more difficult
political concerns. Assuming that a claim of “presidential communications privilege” is raised to
a request or subpoena to an advisor inside an agency, it would appear difficult to satisfy the
requirements of the D.C. Circuit’s test. An advisor housed within an agency, like the Pardon
Attorney in Judicial Watch, is not within “operational proximity” to the President and, thus, is
likely not to be considered protected, even if they are dealing with “quintessential and non-
delegable presidential powers.” Further complicating matters, is the fact that few advisors within
an agency are engaged in providing advice with respect to such functions. Thus, if a position such
as the Pardon Attorney could not satisfy the D.C. Circuit, it is unlikely that any other advisory
position would satisfy the standard.
Options for Potential Congressional
Consideration322
In examining the concerns surrounding presidential advisors, Congress may decide that no action
is needed. However, should it decide otherwise, there are some legislative and non-legislative
options.
Legislative Options
Option: Report and Wait Provision
One option that might be considered is a change to the President’s authority to hire non-advice
and consent persons within the EOP. Currently, as discussed above, federal law permits the
President to hire employees within the EOP at specific salary levels and does not require any

322 Vivian S. Chu (7-4576) and Todd B. Tatelman (7-4697), Legislative Attorneys in the American Law Division,
wrote this section.
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additional accounting or justification to Congress about how those positions are filled or salary
levels determined.323 One solution to this lack of information would be to adopt language
conditioning the use of that authority on the receipt by Congress of information relating to the
salaries, expenses, and other budgetary impact of the creation of advisory positions or offices
within the EOP. The proposed language could be structured as a “report and wait” provision,
which permits the President to select his personnel, but requires those selected to wait for a set
amount of time before starting work, so that Congress can review the submitted materials
required by the proposed legislation.
So-called “report and wait” provisions have been consistently upheld by federal courts as a
constitutional exercise of Congress’s oversight functions. As the United States Court of Appeals
for the Federal Circuit has noted,
We take notice that since early in the 19th Century there have been marked differences
between the United States Congress and other parliamentary bodies. One is the greater
development of the committee system here.... Committee chairmen and members naturally
develop interest and expertise in the subjects entrusted to their continuing surveillance.
Officials in the executive branch have to take these committees into account and keep them
informed, respond to their inquiries, and it may be, flatter and please them when necessary.
Committees do not need even the type of “report and wait” provision we have here to
develop enormous influence over executive branch doings. There is nothing unconstitutional
about this: indeed, our separation of powers makes such informal cooperation much more
necessary than it would be in a pure system of parliamentary government.324
It should be noted, however, that while “report and wait” provisions are constitutionally valid, by
their plain language they do not create a legal obligation for Congress to take any action. Under
the terms of this specific provision, if Congress takes no action within the number of days as
determined by the bill, the employee can start work. Should Congress decide to act to nullify the
President’s creation of the position or office, it is obligated to do so in accordance with the
Court’s holding in INS v. Chadha.325 In other words, Congress’s action needs to comply with the
Constitution’s requirements for bicameralism and presentment.326 Thus, the only options available
to nullify a Presidential action under this provision would be either a bill (H.R. or S.) or a joint
resolution of disapproval (H.J. Res. or S.J. Res.), both of which require passage by both houses
and the signature of the President. Of course, Congress would retain other mechanisms to make
its views on such a position known. These would include, but are not limited to, committee
hearings, language in committee reports, or the adoption of sense of the House/Senate resolutions.
That said, however, none of those methods would be legally binding or would in any way prevent
the employee from beginning work.

323 See 3 U.S.C. § 105 (2006).
324 City of Alexandria v. United States, 737 F.2d 1022, 1025-26 (Fed. Cir. 1984); see also Armijo v. United States, 663
F.2d 90 (Cl. Ct. 1981).
325 462 U.S. 919 (1983).
326 Id. at 954-955. U.S. Const., art I, § 7 states that “Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the
President ... according to the Rules and Limitations prescribed in the Case of a Bill.”
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Option: Add Advice and Consent Positions in the EOP
Because concern has been raised that President Obama has created new offices within the EOP
and has designated presidential advisors or assistants, who are not subject to the advice and
consent of the Senate, to be in charge of certain policy portfolios where they have been
characterized as exerting political influence and possibly wielding significant legal authority,
another option would have Congress codify these positions on a case-by-case basis and make
those positions subject to the Senate confirmation process.
In the past, Congress has taken action to codify positions existing within the EOP.327 For example,
during the Nixon Administration, Congress passed legislation requiring Senate confirmation of
future Directors and Deputy Directors of the Office of Management and Budget (OMB).328 This
legislation also set four-year terms for the OMB officials and formally transferred to the OMB
Director powers held by the President but delegated to OMB. During consideration of the OMB
legislation, it was argued by Roy Ash, then Director, that “the OMB director serves as the
personal agent of the President in the performance of presidential duties” and that as an advisor
he “conducts no programs that directly affect the public, makes no grants and engages in no
significant contractual arrangements” and therefore should not be subject to confirmation.329
However, it was the sense of Congress that the role of the OMB and the decisions made by those
in charge had changed since its establishment in 1921 and that Senate confirmation of the
Director and Deputy Director was “fully justified and long overdue.”330
Regarding some of the positions in the EOP that the President created for his presidential
assistants to fill, Congress could choose to codify them on a case-by-case basis as it has done in
the past. However, this raises the question of whether Congress and the President should make
permanent such positions within the White House, many of which appear to have been created to
address time-sensitive issues of the present. Moreover, this option still leaves the President the
ability to hire assistants pursuant to Title 3331 and nothing precludes the President from consulting
with these assistants on issues that the codified positions would have jurisdiction over.
Option: Reduce and/or Confirm Presidential Staff
Another option would be to reduce the number of employee-assistants the President is authorized
to hire under 3 U.S.C. § 105 and/or require these employees to be subject to Senate confirmation,

327 See note 7 on the Office of Science and Technology Policy and the Office of National Drug Control Policy.
328 P.L. 93-250. Before P.L. 93-250 became law, Congress had passed an earlier OMB confirmation bill that was
vetoed by President Nixon on grounds that it required confirmation of incumbent as well as future directors (See H.R.
3932 and S. 518, 93d Cong., 1st Sess. 1973).
329 1973 Congressional Quarterly Almanac at 712 (citing March 1, 1973 letter from Roy Ash to the House Government
Operations subcommittee).
330 H.Rept. 93-697, at 10. (“The decisions of the Director of the Office of Management and Budget are in most
instances the final Executive Branch decisions on budget requests and on the legislative policy of the Executive
Branch. To contend that the Director is nothing more than the President’s technician on budgetary matters and that he
does not exercise tremendous power and authority on his own [sic] initiative is to blind one’s self to the real facts of
governmental life and present day realities.... The Office of Management and Budget stands at the center of Federal
policy-making with life and death decisions about programs and procedures.... Unlike the situation 50 years ago, when
the mix of Federal activities varied little from year to year, the budget now is the ‘action forcing’ process, involving
new program decisions and billions of dollars each year.” See id. at 6-7).
331 3 U.S.C. § 105 et seq.
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without regard to the policy areas they may cover (and without necessarily making them officers
of the United States). If Congress were to reduce the number of employees the President is
authorized to hire, this would arguably limit the President in his or her ability to use such
assistants as advisors in charge of coordinating various policy areas. Such a provision therefore
may be effective in that the President would turn to existing positions within the agencies to
coordinate policy. Alternatively, reducing the number of presidential employee-assistants may be
ineffective as nothing precludes the President from utilizing persons outside the government for
the same or similar purposes.
Turning to the idea of confirming presidential staff, Congress, in the past, attempted to require
that future appointments of certain positions in the EOP be subject to confirmation by the
Senate.332 One such bill focused on the Executive Secretary of the National Security Council, the
Executive Director of the Domestic Council, and the Executive Director of the Council on
International Economic Policy, with the Senate Committee on Governmental Affairs stating its
opinion that the officers in question have responsibilities well beyond those of personal advisors
or consultants to the President.”333 The committee report concluded that “Congressional
insistence that the exemption from confirmation be strictly limited to genuine staff assistants to
the President will help restore the confirmation process to the role intended by the
Constitution.”334
Thus, while Congress could make these employees/assistants subject to Senate confirmation, it
runs the risk of diluting the meaning and weight carried by the advice and consent requirement as
this process is generally reserved for officers of the United States under the text of the
Appointments Clause. Furthermore, as discussed above, Congress has recognized that staff
assistants are not intended to be subject to the advice and consent process. However, as with any
legislative option, either of these two proposals would require the signature of the President, who
may not be inclined to enact legislation that arguably interferes with his or her ability to
efficiently run the EOP and therefore execute the laws.
Oversight Options335
Unlike legislation—which requires either the affirmative consent of the President in the form of
his signature or sufficient votes to override his veto—congressional oversight, at least initially,
requires that only the legislative branch act.
Congress, especially the committees of jurisdiction or appropriations, might elect to conduct
oversight hearings regarding a number of the potential issues related to the positions discussed in
this report. For example, although the current statutes already prescribe reporting requirements
for White House staff, Congress may want to examine whether additional data might be
appropriate. Data that might be informative would include the duties and responsibilities of
positions, planned initiatives, staffing limitations, and public accessibility of meetings and
documents for each office. Such data could, for example, be included in the report on White

332 S. 590, 93d Cong., 1st Sess. (1973).
333 S.Rept. 93-47, at 7.
334 Id.
335 Vivian S. Chu (7-4576) and Todd B. Tatelman (7-4697), Legislative Attorneys in the American Law Division,
wrote this section with contributions from Barbara L. Schwemle (7-8655) and Henry B. Hogue (7-0642), Analysts in
American National Government in the Government and Finance Division.
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House staff required by 3 U.S.C. §113 or in the annual budget justification for the EOP submitted
to Congress with the President’s budget. Another area that might be the subject of congressional
oversight could be the vetting process for high-level appointees. Such oversight might review the
variations in and content of the White House questionnaire, and the processes for background
investigations and financial disclosure.
Should it be determined that the increase of presidential advisors that are not subject to advice
and consent of the Senate is not adequately addressed by leaving it to the various committees of
jurisdiction, Congress may wish to consider the creation of a special or select joint committee to
address this particular issue. For example, a joint committee could be created with jurisdiction
over only those executive branch employees that are created by executive order, presidential
memorandum, regulation, or other non-legislative action and, therefore, not otherwise subject to
advice and consent of the Senate. Such a committee could consist of both House and Senate
Members, because it would be exercising oversight prerogatives held by both chambers and not
textually committed functions such as the confirmation power, which rests exclusively with the
Senate. Thus, by concurrent resolution (H. Con. Res., S. Con. Res), Congress could establish a
committee to review the qualifications, duties, and responsibilities of those persons given
positions by the President without the advice and consent of the Senate. Membership could be via
appointment by the Speaker and Minority Leader in the House and the Majority and Minority
Leaders in the Senate, or it could be left to the political caucuses in both the House and Senate.
The committee could be politically balanced with equal number of members from both political
parties, or, similar to the existing standing committees, reflect the prevailing partisan ratio of the
Congress. To perform its functions, the committee could be delegated the authority to hold
hearings, administer oaths to witnesses, issue and enforce subpoenas, and report on its findings.
Although the committee activities would be similar to a confirmation hearing, there would be no
final vote on the qualifications or fitness of the appointee to hold the job. Nevertheless, such a
committee would arguably be in a position to perform oversight of the hiring of presidential
advisors and could provide a mechanism for Congress to more consistently review the
qualifications of those being given substantial influence over the development of policy within
the White House and the executive branch.
Potential advantages to such a committee might include the fact that it would be a single entity
dedicated to the sole purpose of vetting non-advice and consent advisors. Such a specialized
function would allow the committee to, over time, become well-versed in addressing the
numerous legal and political issues that it may face; not the least of which would likely be a
recalcitrant executive branch. Moreover, because the committee would have only the one
function, it would not be distracted by other more pressing legislative concerns and, thus, would
be able to dedicate all of its time to performing oversight.
On the other hand, it might be argued that a thorough vetting of such positions requires
underlying knowledge and expertise in the programs and policies that the advisor would likely be
working on. Such a body of knowledge already exists among the Members and staff of the
existing standing committees of jurisdiction. Therefore, the standing jurisdictional committees
may be in a better position to conduct the necessary oversight of such influential positions.
Moreover, many of the standing committees already perform oversight of the executive branch
and may be more familiar with the legal and political nuances that accompany a particular policy
issue, implementing White House office, or executive agency.
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Selected Special Assistants and Advisors

Appendix.
Table A-1. Selected Legislation Introduced in the 111th Congress Related to Selected
Appointments in the Administration of Barack Obama, as of October 1, 2009
Legislation Sponsor
Date
Introduced
H.Amdt. 49 to
Rep. Jack Kingston
7/13/2009
H.R. 3170
H.R. 3226
Rep. Jack Kingston
7/15/2009
H.R. 3569
Rep. Steve Scalise
7/15/2009
H.Con.Res. 185
Rep. Marsha Blackburn
9/15/2009
H.R. 3613
Rep. Randy Neugebauer
9/22/2009
H.Res. 778
Rep. Jerry Moran
9/24/2009
S.Amdt. 2440 to
Sen. David Vitter
9/17/2009
H.R. 2996
S.Amdt. 2498 to
Sen. Susan Collins
9/22/2009
H.R. 2996
S.Amdt. 2548 to
Sen. David Vitter
9/24/2009
S.Amdt. 2440 to H.R. 2996
S.Amdt. 2549 to
Sen. David Vitter
9/24/2009
H.R. 2996
Source: Legislative Information System (LIS) at http://www.congress.gov. Prepared by Jerry W. Mansfield.
Note: The legislation is arranged by introduction date in the House of Representatives fol owed by the Senate.
By selecting the bill number in the Legislation column, the current status may be determined.

Author Contact Information

Barbara L. Schwemle
Vivian S. Chu
Analyst in American National Government
Legislative Attorney
bschwemle@crs.loc.gov, 7-8655
vchu@crs.loc.gov, 7-4576
Todd B. Tatelman
Henry B. Hogue
Legislative Attorney
Analyst in American National Government
ttatelman@crs.loc.gov, 7-4697
hhogue@crs.loc.gov, 7-0642


Acknowledgments
A team of CRS analysts, attorneys, and information research specialists contributed to the report, as noted
in the table on key policy staff. Lorraine H. Tong, Analyst in American National Government, and
Maureen Bearden, Information Research Specialist in the Government and Finance Division, also provided
support and assistance.
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Selected Special Assistants and Advisors

Key Policy Staff
Area of Expertise
Name
Phone
E-mail
Executive Office of the President;
Barbara L. Schwemle
7-8655
bschwemle@crs.loc.gov
White House Appointments
Political Appointments in the Federal
Henry B. Hogue
7-0642
hhogue@crs.loc.gov
Government
U.S. Constitution, Congressional
Todd B. Tatelman
7-4697
ttatelman@crs.loc.gov
Oversight
U.S. Constitution, Appointments
Vivian S. Chu
7-4576
vchu@crs.loc.gov
Clause
Background Investigations and Security Frederick M. Kaiser
7-8682
fkaiser@crs.loc.gov
Clearances
Financial Disclosure and Outside
Jack H. Maskel
7-6972
jmaskel @crs.loc.gov
Employment Limitations
Office of Management and Budget
Clinton T. Brass
7-4536
cbrass@crs.loc.gov
(OMB); Chief Performance Officer and
Deputy Director for Management,
OMB
Office of Information and Regulatory
Curtis W. Copeland
7-0632
cwcopeland@crs.loc.gov
Affairs(OIRA), OMB; Administrator of
OIRA
Information Policy; Federal Chief
Wendy R. Ginsberg
7-3933
wginsberg@crs.loc.gov
Information Officer and Administrator,
Office of Electronic Government,
OMB
Foreign Policy; Special Envoys and
Susan B. Epstein
7-6678
sepstein@crs.loc.gov
Special Representatives
Kennon H. Nakamura
7-9514
knakamura@crs.loc.gov
Information Research Specialist;
Jerry W. Mansfield
7-0106
jmansfield@crs.loc.gov
Knowledge Services Group,
Government and Finance Division





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