Broad reorganization powers require Congress' approval
While the idea of shoving disparate agencies together into a new organizational chart now has credibility on Capitol Hill, nobody is sure how the bills creating a Homeland Security Department would be written to make all the pieces work together effectively. Will old boxes merely coexist on a new set of department stationery? Or would any Homeland Security Department have a free hand to consolidate or cancel redundant functions?
"That's one of the things we're trying to find out right now," said one Senate GOP source. "Making this a strong and effective department [means] giving it the authority it needs to make sure it is coherent."
It is challenging enough to move an agency with a comfortable perch in one department to someplace new in the government. It is especially daunting to rip up the legal authorities for many agencies and budgets and then sew them back together into a single body. The White House's proposal favors the ripping-up approach: "The secretary," it says, "should have broad reorganizational authority in order to enhance operational effectiveness, as needed."
That authority doesn't exist today. Under the Reorganization Act, most presidents from Harry Truman to Ronald Reagan could submit reorganization plans to Congress for approval. If neither house vetoed the plan, the plan was enacted. But the act expired in 1984 after the Supreme Court threw out the congressional veto process.
As a result, for the past 18 years, executive branch reorganizations have had to get a thorough vetting from Congress. Not surprisingly, few proposals survive intact. Norman Ornstein, resident scholar at the American Enterprise Institute, thinks the Bush administration wants "to allow the secretary, once he's got a new department, to rearrange the boxes and move authority and even move budget around without, in each instance, having to go back and get congressional approval. My guess is if this is what we're talking about, then Congress may look at it with a skeptical eye."
Giving the administration the power to reorganize could be crucial in creating a Homeland Security Department that will be organized by functions instead of by fiefdoms. Consider an example from the White House's proposal on the new department. Today, a ship coming into the United States falls under the jurisdiction of the Customs Service, the Immigration and Naturalization Service, the Coast Guard, and the Agriculture Department. Even if these groups are all moved into one department, a menacing ship could still face scrutiny from agents wearing four different uniforms.
Some government-watchers are doubtful about giving an executive department the sweeping power that would be needed to effectively combine the agencies. Gary Bass, the executive director of OMB Watch, says that such a move would undermine the Constitution's balance of powers. "If there was language that allowed the executive branch to fundamentally alter the functions or responsibilities of individual departments without consultation to Congress," he says, "then that shifts the balance in favor of the executive branch."
Alan Dean, a fellow with the National Academy of Public Administration, argues that open-ended authority to reorganize isn't necessary. The secretary of Homeland Security would have all the power he or she needs to get the job done, Dean says, if the legislation creating the new department gets the organizational structure right and strips subagency heads of independent authority. "The real question is, do we want somebody to run this department or not?" Dean says. "If you want the secretary to run the department, you give him all the statutory authority."
Civil-rights groups, meanwhile, are also awaiting details on the new department's powers and how it will carry out its work. The American Civil Liberties Union has called for an independent watchdog within Homeland Security. Laura Murphy, the head of the ACLU's Washington office, says that the operations of any new department will "bear watching."