While it’s taken literally years now, the series of scandals at the Veterans Administration is supposedly going to lead to reforms and improved care for those who served our country in uniform. Back in July, a panel commissioned by Congress concluded their study of the troubled department and released a list of suggested reforms which might put the ship back on course. Many of the proposed changes look promising and this week the President weighed in saying that he supported the majority of them, but one key element didn’t make the cut. The panel wanted to see increased oversight of the VA in the form of an eleven person panel composed of public and private sector figures who would mange the transition and monitor the implementation of reforms. (Government Executive)

A new, 11-member board of directors would supervise the care system to direct the transformation and set long-term strategy. The directors would be nominated by the care system chief and confirmed by the president for a five-year term, and serve an additional five years pending the board’s approval. The commission also called for a new performance management system that could benchmark VHA leaders to the private sector and create performance measures that reward top performers with awards.

President Obama has looked over that key aspect of the panel’s recommendations and decided that it dipped too deeply into the executive rice bowl.

Overall, Obama told congressional leadership he agreed with 15 of the Commission on Care’s 18 recommendations. He rejected a proposal to restructure the Veterans Health Administration governance, including the creation of an 11-member board of directors to set the agency’s long-term strategy. Obama said the Justice Department has told him the reform would violate the appointments clause of the Constitution. “The proposal would undermine the authority of the secretary and the under secretary for health, weaken the integration of the VA health care system with the other services and programs provided by the VA and make it harder — not easier — for VA to implement transformative change,” Obama wrote in a letter to House and Senate leaders.

Making this into a constitutional powers argument seems to be a weak gambit at best. Placing a panel in charge of a broad restructuring process rather than allowing it to be supervised by the same people who have mismanaged it for years seems like an easy call. As far as who has the power to establish and fill the board of directors, the proposal wasn’t taking control away from the executive branch. Prospective members of the board would be nominated by the chief of the newly established care system, but confirmed by the President. He would still have control over the selection process and could pick from the qualified candidates as he chose.

How is that a subversion of the appointments clause? Granted, it’s not the usual route taken when, for example, new Supreme Court justices are nominated, but even that is a collaborative process. Remember that the appointments clause includes the following phrase: …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.

I’m going to go out on a limb here and say that the members of an ad hoc board who are overseeing the reformation of a single department would qualify as an inferior office when compared to a member of the cabinet or a SCOTUS justice. As long as the White House has the power to confirm or deny the nominations to the board, there doesn’t seem to be any constitutional impediment here. More likely is the suggestion that the President bristles at any idea of his complete control of the VA being weakened or questioned. And given the VA’s record of performance, that’s a shaky argument to make.