New DHS Secretary Kirstjen Nielsen would need Congress's approval to restructure the department.

New DHS Secretary Kirstjen Nielsen would need Congress's approval to restructure the department. Evan Vucci / AP

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House Votes to Ensure Lawmakers Can Oversee Homeland Security Reorganization

DHS condemns measure that would revoke secretary’s authority to make reforms unilaterally.

House lawmakers easily approved a measure on Monday to place tighter restrictions on the Homeland Security Department’s ability to reorganize itself, with members of Congress saying they wanted to ensure they had a voice in the process as the Trump administration looks to comprehensively restructure the federal government.

The DHS Accountability Enhancement Act (H.R. 4038) would repeal the existing authority the department has to unilaterally reorganize its array of offices and components. Lawmakers included the authority in the 2002 Homeland Security Act that created DHS in the aftermath of the September 11th terrorist attacks. To date, all DHS secretaries have maintained the ability to “establish, consolidate, alter or discontinue” functions and organizational units within DHS.

Congress has no authority to stop those changes, though DHS must provide notice of its proposals. DHS is still currently prohibited from abolishing “agencies, entities, organizational units or functions established or required to be maintained by statute,” according to the Congressional Research Service.

In March, President Trump issued an executive order calling on all federal agencies to develop a “comprehensive plan” to reorganize themselves. Agencies turned in the final drafts of those plans to the White House in September and are now working with the Office of Management and Budget to incorporate them in the administration’s fiscal 2019 budget proposal. OMB, in guidance issued after to Trump’s order, advised agencies to develop reforms that they could undertake unilaterally, as well those that would require congressional approval.

A Democratic aide on the House Homeland Security Committee said DHS has already discussed shifting some of its offices around, and Congress is looking to ensure it has a role in the process going forward.

“We want them to have congressional approval before they do these things,” the aide said. “We’re making sure Congress has a say in these kinds of reorganization efforts.”

DHS sharply criticized the measure, saying the unilateral reorganization authority is "particularly important today" given the rapid changes in the threats DHS faces. 

"DHS needs this authority to make organizational adjustments consistent with mission requirements that often change with evolving threats facing our nation," said Tyler Houlton, a department spokesman. He added the authority "will help streamline the department while allowing us to execute the mission of keeping the homeland and our citizens safe."

Rep. Mike McCaul, R-Texas, the chairman of the Homeland Security Committee, introduced the legislation and Rep. Bennie Thompson, D-Miss., the committee's ranking member, cosponsored it. House Democrats have called for more congressional oversight of Trump’s agency reform efforts, asking for hearings and copies of the plans themselves. A Senate subcommittee has held two hearings on how agencies are complying with Trump’s order.

On the House floor Monday, McCaul called DHS' unilateral authority an "outdated provision" that was "well-intentioned when it was first introduced." He voiced his support for working with the department, but said there was no reason DHS should be the only department in government with that authority. 

Rep. Filemon Vela, D-Texas, called the bill "necessary, common-sense legislation," noting Congress should have oversight of the "reorganization of an entire department." 

"The separation of powers doctrine compels the elimination of this provision," Vela said. 

Houlton, the DHS spokesman, promised the department would work with Congress to "address its concerns while keeping this important reorganizational tool so that DHS and Congress can still achieve organizational goals." He noted without that tool, the overlapping jurisdictions of committees on Capitol Hill would inhibit those changes from occurring. 

DHS has promised a “bottom-up approach” to its reform efforts, including by soliciting thousands of ideas from its employees. The deputy secretary has also gone on a listening tour to gather “ideas for improving effectiveness,” the department’s Director of Program Analysis and Evaluation Michael Stough told a Senate panel earlier this year.

DHS most notably used the authority Congress granted it in 2002 when then-Secretary Michael Chertoff announced in 2005 a “six-point agenda” that eliminated some directorates, merged some offices and made some components report directly to the secretary. Some changes required congressional approval but the secretary made many of the alterations using his unilateral authority. In the years since then, Congress has occasionally blocked the department’s reorganization efforts through the appropriations process. The Democratic committee aide said this would prevent lawmakers from having to take that step or from any changes slipping through the cracks without a congressional stamp of approval.