Wednesday, December 02, 2009

Original intent and the White House Social Secretary

Sandy Levinson

The White House is apparently invoking the theory of separation of powers to prohibit Desiree Rogers, President Obama's Social Secretary, from testifying on the recent imbroglio regarding gate-crashing at the White House. My own view is that the White House is making a big mistake for no defensible reason. The reason for my title is that it is literally inconceivable that anyone drafting the Constitution would have imagined the position of White House Social Secretary, paid for with taxpayer funds, and that the majesty of separation of powers rhetoric would apply to a situation like this. I note, incidentally, that Ms. Rogers's salary is listed as $113000, the same salary received by her predecessor in the Bush Administration, Amy S. Zantzinger. I can't help noting that Ms. Zantzinger received more than the $107,836 received by Marcella Moira Green, the hitherto unknown "Ethics Advisor" in the Bush White House. There may be reasons for invoking presidential privileges to prevent associates from testifying before Congress (it might certainly be embarrassing to know what Ms. Green might have said in her capacity as ethics advisor to Bush), but this most certainly isn't one of them. This is simply yet more evidence that all presidents, regardless of political party and ostensible commitment to "transparency," take on royalist airs when taking their oath of office. Gerald Ford, recall, chose to testify on the Nixon Pardon, and the country survived just fine (and he died a reasonably beloved ex-President). The separation of powers will easily survive a decision by a gracious President to let his Social Secretary testify, even as he, perhaps defensibly, reminds the Congress that they indeed have no "right" to have her appear.



This is a political issue between the branches with no constitutional import.

This piffle consists of an inept executive staff failing to check its invitation list at a state dinner and then blaming the Secret Service for their omissions. This is not the proper subject of legislation and is thus not the proper subject for a congressional investigation.

GOP members of Congress are simply attempting to abuse their power to parade around barely dirty laundry of a Dem Administration.

With the nation in recession and the government hell bent on Peronist default, I can't believe this nonsense made it past one day's coverage buried at page A32 of the newspaper.

Who would have believed that Mr. DePalma would be defending the Obama Administration? As happy as that would usually make me, I do respectfully disagree with him that this is merely a political issue "with no constitutional import." The Madisonian system depends on the ability of Congress to engage in oversight of the executive. As the White House, especially, becomes more and more bloated with "special advisors," "czars" of this that and the other, and, yes, social secretaries, oversight becomes ever harder. And there really is no excuse for not making Ms. Rogers available other than she will indeed be subject to ridicule and harassment, but that's just another name for oversight.

Surely Congress can legitimately legislate about providing adequate presidential security. I agree that in this instance, it's very hard to see what legislation might ensue, and, of course, I do agree that GOP members are hardly in good faith in expressing outrage at the invocation of executive privilege.

Given how much she is being paid ... important after all since she is not a school teacher or some other trivial being ... Congress might be concerned with how their funds are being used. Legislation about properly protecting the President and official guests also seems possible.


I was serious all those times I posted that I would apply my same arguments for the Bush Administration to an Obama Administration. ;^)

I am having a hard time imagining constitutional legislation directing the President's social secretary or other staff to check guests against a guest list at state dinners.

This may be the most inconsequential application of the unitary executive principle of which I have run across. What's next? Legislation mandating invitations to state dinners be sent by certified mail?


Ah, very good. Sometimes when a topic gets too hot to discuss rationally, the underlying principle can be discussed by addressing parallel but less controversial equivalent situation. (As, for instance, Lincoln and Douglas saying if the subject of whether Congress can ban slavery in the territories is to hot to handle, could Congress ban whiskey).

I agree with you that passing a statute telling the President what format to use in sending out dinner invitations would be a bad idea as a matter of policy, but I don't see it as unconstitutional. And I suppose it would be constitutional (if perhaps silly) to establish a statutory procedure for the White House security detachment to determine whether each person showing up was on the guest list.

What would be an unconstitutional interference with executive prerogative would be for Congress to submit a guest list to the President and tell him that all these people and no others shall be invited to a given function.


Which enumerated Article I power would Congress be exercising in enacting a law directing the Executive staff in their conduct of Executive state dinners?


How many times have we been through this routine by now?

You ask me, by what Article I provision Congress can set procedures for Executive staff in their conduct of Executive dinners. I say that I don't see anything about, say, a White House social secretary in the Constitution at all, so by what Article I power can Congress create an Executive staff at all. You say that creating offices to allow effective executive operation is part of N&P.

At this point I say that authority to create an office implies power to create rules by which that office operates.

Consider the offices that are expressly authorized. Is it such a stretch to assume that authority to create a post office includes the authority to create the rules by which it operates? Or that authority to create a court system includes authority to create rules of evidence establishing what is an is not admissible.

I think we would both agree that Congress also has power to create offices and structures not expressly authorized in the Constitution. Article II, for instance, makes several references to "department heads," even though nothing in the constitution says what the department head are or even expressly authorizes Congress to create them. Your position appears to be that Congress may set down rules for agencies expressly authorized by the Constitution (the military, the post office, the patent office, the courts, etc), but not for implied agencies like, say cabinet departments.

But an agency that is created and not subject to any rules is a unaccountable loose cannon. (Well, OK the White House social secretary is very small loose cannon, but you get the idea). I grant you, the line between keeping agencies under an appropriate rule of law and absurd micromanagement is not always an easy one to draw. But that is a matter of policy, not of constitutional barrier. The constitutional barrier is dictating individual decisions, not establishing general procedures.

PS. Of courte I agree with you that this is the silliest flap since -- well, the last equally silly flap. But I also agree with Prof. Levinson that the executive branch (not just of the federal government, but of all government) has grown far beyond what anyone in 1787 could have imagined, and that keeping it under the rule of law is therefore critically important.


Without repeating the entire Unified Executive v. Imperial Congress debate, I would simply note that departments of the Executive created by the Congress pursuant to the N&P Clause to allow the Executive to exercise his or her powers are not unaccountable loose cannons unless directed by Congress. They are answerable to the Executive, who is in turn answerable to the voters.

PS. Of courte I agree with you that this is the silliest flap since -- well, the last equally silly flap. But I also agree with Prof. Levinson that the executive branch (not just of the federal government, but of all government) has grown far beyond what anyone in 1787 could have imagined, and that keeping it under the rule of law is therefore critically important.

I would also observe that Congress has far exceeded its limited grant of Article I enumerated powers and also needs to be kept under the rule of law. This libertarian conservative has no problem with leashing what both of them can do to the People. [Of course, foreign enemy combatants are a different kettle of fish ;^)]

I admit I am having trouble getting upset about this - or even seeing it as an important constitutional issue.

While I might prefer complete transparency, I cannot blame the President for wanting to protect his social secretary - for heaven's sake - from being used as a political tool by a group of congress-people.

There really is something to be said for such protective moves: do we really want only the most arrogant and self-inflated people to be willing to accept positions in the WH and elsewhere?

At the same time, I think Bart's suggestion that the SS is being unfairly scapegoated is without foundation. Who, after all, handles security at WH affairs? Probably not the social secretary.

-Signed, right-winger (AKA "teabagger for you real classy libs)

I agree that this is an extremely silly subject and an equally silly investigation. That does not make it beyond Congress’s power, however, and the White House is not basing its refusal to make the social secretary available on that ground (it did, after all, allow the head of the Secret Service to testify).

This leaves only two possible justifications for the White House’s position. First, it can argue that presidential aides enjoy absolute immunity from having to testify before Congress. This was the argument made by the Bush Administration in the Miers case, but it has no foundation in either law or logic, as Judge Bates held. It is interesting that the Obama Administration has decided to resurrect this argument.

Second, the White House could assert executive privilege. But it is hard to see how executive privilege would apply to questions about the social secretary’s role in checking names on a guest list. If the committee wants to get into deliberative matters (how the appetizers were chosen or who recommended the color of the drapes), objections could be asserted on a question by question basis.

What is amusing is that Candidate Obama argued that Congress should have ready access to all Presidential staff.

The problem most folks have with this situation is that Bart seems to be ignoring that uninvited guests gained access to the President and Vice-President--to the point of touching them--and the White House is unwilling to help in the investigation, simply blaming it on the police...

Perhaps we need adult leadership at 1600 Penna...

If it's silly for the President to refuse, then it's silly for Congress to insist.

In this case, it is the President, not Congress, who will remedy the breach in security; it is the President who needs to know how it happened -- and it's the President who could be harmed by having his security arrangements aired in public.

A gracious "reminder" will be forgotten as quickly as newspaper yellows in the sun. The fact that a member of the President's staff can be called before Congress for public testimony -- on virtually any pretext -- will be enshrined in the Congressional Record. Et voilá, you have a precedent.

The Supreme Court explicitly confirms the force of precedent every time it rules. The concept is not exclusive to the judicial branch. Rogers may look like a bit player here, but the controversy itself is not a trivial one. The tug of war between two branches of government -- with incursions and pushback -- is part and parcel of the fundamental, adversarial, checks and balances at the heart of American governance, politics and trial by law.

This has nothing to do with the Social Secretary position and everything to do with the Czars. Congress knows there will be a day when they will want a Czar to testify and they want to define a line in the sand as to what constitutes a "close advisor", i.e. Sec State, Sec Def, etc. vs staff. Congress wants and should want to consider Czar's as staff and not senior policy advisors who normally would be subject to vetting or confirmed by Congress.

"This is simply yet more evidence that all presidents...take on royalist airs when taking their oath of office."

No - this is this evidence that Obama has taken on royalist airs. Your very next sentence citing Ford's testimony disproves your generalization.

DamnCat is absolutely correct. I confess I noted my infelicitous phrasing immediately after publishing my comment. So perhaps I shouldn't have said "all" presidents, simply "almost all"! Perhaps what accounts for Gerald Ford's becoming modesty is that, at the time, he was a completely unelected President who had not gone through a national campaign surrounded by toadies telling him how absolutely great he was (and, of course, he probably didn't think that members of Congress were absolute idiots, which I suspect is the perception of most presidents).

The tackiness of the gate-crashers certainly adds an air of silliness to the situation, but issues of access to the White House and other federal facilities are serious, and well within the scope of Congressional power. Congress reasonably wants to find out how this happened, and not just accept the White House' explanation. A competent inquiry into the breakdown would involve questioning all of those who had a role, including the social secretary. Granted, this inquiry may or may not turn out to be competent. It certainly won't be dignified. But it will be legitimate, and White House staff have been summoned to testify before congress in oversight hearings many, many times before, as anyone who can remember oversight of the Clinton admnistration will recall. The Congressional Research Service has a book of precedents, of congressional triumphs over the executive over the centuries. OLC has a series of memoranda by Wm. Rhenquist and Ted Olsen that set forth the executive's case. Ultimately, it comes down to politics: who will be first to blink? There are serious arguments on both sides What is amazing here is that Obama has drawn a line in the sand in such a stupid context.

[blockquote]... a gracious President...[/blockquote].

B. Hussein Obama is the least gracious person to inhabit the office of US President in history.

Mssr. a'barge apparently was lost in space from 1/20/01 to 1/20/09 to make that statement, not to mention during the Nixon presidency as well. Perhaps Mssr. a'barge would put Abe Lincoln second to Obama. I say garbage to Mssr. a'barge.

It is hard, I confess, to believe that Mr. A'Barge's statement evidences anything other than a virulent (and stupid) form of racism, given some of the other presidents we've had and their notable lack of "grace" (e.g., Andrew Jackson and Andrew Johnson, for starters). But Mr. A'Barge fails to recognize that my reference to 'gracious" had nothing at all to do with manners and everything to do with an allusion to the ability of royalty to dispense favors by their own "grace." This, of course, is derived from an identification of royalty with God. (I assume that references to Divine Grace have nothing to do with manners.) It would be a "gracious" act for President Obama to make Ms. Rogers available in precisely the same way that it would be "gracious" for Her Majesty Queen Elizabeth II to favor me with an inviation for high tea. The difference, of course, is that she is in fact a Queen and that President Obama is the head of what is said to be a Republican Form of Government, which is meant to dispense with such "grace."

A word as to "czars" -- please don't go that tedious route. The word has no set meaning, and used to apply to any number of people, including those the Senate confirmed.

As matter of whom the Congress can call to testify, "czar" will not be the test. It will be the specific job and/or subject at hand.

We might have too many people in government now -- don't know if the Dept. of Homeland Security was a useful idea -- but we had "czars" long before now.

Since Joe is concerned that the term “czar” is undefined, here is a proposed definition—an individual appointed by the President outside of the Appointments Clause to coordinate government policy with regard to a particular subject matter, usually involving multiple departments or agencies.

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As to mls' proposal

(1) It's useful to the extent that much commentary uses "czars" to apply to people not fit by said definition.

(2) "an individual appointed by the President"

So, if a Cabinet member appoints the individual, not a "czar"

"outside of the Appointments Clause"

Said clause grants the power of Congress to vest the appointment of "inferior officers" in the President alone, in Courts of Law, or in the Heads of Departments (whatever that means, Cabinet officers probably apply). Again, lots of "czars" grew out of just that. For instance, the "drug czar" arose from legislation.

"to coordinate government policy with regard to a particular subject matter, usually involving multiple departments or agencies"

Some people deemed "czars" have little power to "coordinate," particularly in respect to final approval. But, okay. Most officers "coordinate" something, and these days, getting a pencil probably requires many agencies.

So, that won't mean much, probably. Point is if a "czar" has any real power, s/he probably clearly can be called forth by Congress given their role in executing matters of legislative importance.

But, if somebody wants to actually define the term, I'm game. That would probably ruin it for those who speak of all these "czars," since suddenly they will look quite like any number of other "officers" out there.

I don't have any strong commitment to continuing the use of "czars." The real issue, for me, is an increasig presidential bureaucracy that is not subject to congressional oversight in the way that most presidential appointees are.

I'm unsure how much congressional oversight "most" presidential appointees really are these days, but Prof. Levinson's last comment is fine. Thomas Jefferson (see DOI) would blanch at the "swarms of officers" around these days.

I just was responding to his own use of the word "czar," which has been abused in popular coverage these days.

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