Sestak the Unqualified
By: Daniel Foster
The Corner
Byron York digs deeper into a point I made the day the Obama administration's Sestak memo was released -- namely:
<<< In short, it appears that there is no "advisory position" in existence that Sestak would
1) be qualified for and
2) consider preferable to a Senate run and
3) allow him to retain his House seat. >>>
I was thinking of the two presidential boards I knew of: the Economic Recovery Board and the Intelligence Advisory Board. Byron rightly points out that there is a third -- the newly-created Management Advisory Board, aimed at improve "productivity, the application of technology, and customer service" in government.
But like the other two, the PMAB excludes government employees. So does just about every two-bit council and commission in the Executive, on separation of powers concerns:
<<< Even a lesser group, like the recently recast President's Council of Advisors on Science and Technology, is made up of "distinguished individuals and representatives from sectors outside of the federal government."
Rep. Sestak would be ineligible for all of them.
There's a good reason for the rules. Having a member of Congress serve on a presidential advisory board would violate the separation of powers.
"An advisory board is the president's way to get confidential advice, and if you have a member of Congress on the board, are they functioning as a member of the president's board or as a member of Congress?" asks a former White House lawyer. In any conflict with Congress, a president could never claim privilege over the advice he received if a member of Congress were part of the board giving him the advice.
"From a separation of powers view," says another former White House attorney, "a president wants command and control over his executive officers, and he wants input to come either from a member of the executive branch or a person reporting only to the executive branch." >>>
So how to explain the Sestak offer? Either the Obama administration (and President Clinton!) didn't know the relevant rules, or they didn't mind lying to Sestak, or they don't mind lying to us.
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