The Trump administration has maintained that it can move forward with many of the proposals in its reorganization plan on its own without congressional approval, though with a few exceptions, it has yet to detail exactly which items it will push unilaterally.
The administration has told Congress it is still reviewing exactly what will require legislation and what it can accomplish on its own, but has estimated there are 10-12 proposals that the White House could institute without legislation. Congress has already taken some steps to prevent any unilateral reorganization activity, though it also has taken preliminary steps to advance legislation that would authorize expedited approval of reform efforts.
In a report dated in July but made public by the Federation of American Scientists this week, the Congressional Research Service analyzed each of the 32 reorganization proposals the White House unveiled in June. In most cases, CRS found that a lack of details from the administration made it difficult to fully assess how the reforms might be implemented. Exactly which agencies would absorb which functions, how they would be funded and the management details of specific programs remain unclear, the researchers said.
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Still, CRS dove into existing legislation to determine which proposals would likely require further congressional action, and which the administration could advance on its own. All told, CRS found 19 proposals that would likely require legislation, while 15 could at least mostly proceed administratively (the researchers broke some of the proposals out into their component pieces resulting in the two extra proposals in CRS' tally).
Likely Requires Legislation
- Merging the departments of Education and Labor into the Department of Education and the Workforce
- Shifting nutrition assistance programs into the Health and Human Services Department: The administration can take some steps on its own, as the Agriculture Department and HHS could coordinate rulemaking and guidance without Congress’ help. USDA can conduct pilot programs outside the bounds of its founding statutes and some public assistance programs have waiver authority for demonstration projects. The bulk of the changes would require congressional approval, however.
- Shifting the civil works portion of the Army Corps of Engineers to the departments of Transportation and Interior: Some emergency response functions could be transferred administratively, but the full scope of the proposal would likely require legislation. Congress included in a fiscal 2019 spending bill a prohibition on enacting the ACE reforms without congressional approval.
- Merging food safety programs: Perhaps more than any other proposal in this category, the administration can likely accomplish much of what it wants without Congress. By renaming some offices and reworking some interagency agreements and memoranda of understanding, the Food and Drug Administration and USDA can make some consolidations. The departmental changes will likely require legislation, however.
- Shifting some USDA housing programs to the Housing and Urban Development Department: Several provisions of authorizing law specifically refer to the Agriculture secretary, so those would have to be tweaked. CRS said HUD and USDA can better align the programs on their own, however.
- Merging the National Oceanic and Atmospheric Administration’s fishery service with the Fish and Wildlife Service: The administration would need legislation to move an agency from the Commerce Department to the Interior Department
- Consolidating environmental cleanup programs: Moving programs from Interior and USDA to the Environmental Protection Agency would require statutory changes, CRS said, to be followed by changes to existing executive orders
- Reorganizing the Office of Personnel Management: Margaret Weichert, the administration’s reorganization sherpa as the deputy director for management in the Office of Management and Budget, and now also OPM’s acting director, has consistently said the administration can accomplish much of this proposal on its own. OPM is already pressing forward in transferring many of its transactional services to the General Services Administration, but CRS said that may require statutory changes for funding purposes. Moving Retirement Services to GSA would also require legislation. The researchers added that moving OPM to the Executive Office of the President within the White House would require changes to the law that established the agency.
- Merging economic statistical agencies: At the very least, moving the Bureau of Labor Statistics from the Labor Department to the Commerce Department would require legislation. Commerce could likely reorganize the Census Bureau and the Bureau of Economic Analysis on its own.
- Divesting federal transmission assets: Current law blocks the executive branch from unilaterally considering selling off assets of the Power Marketing Administrations or the Tennessee Valley Authority.
- Restructuring, then privatizing, the U.S. Postal Service: CRS noted the Postal Service traces its roots back to not just federal law but the U.S. Constitution. The researchers did note, however, that the universal service obligation is loosely defined in law and the administration may be able to tweak it.
- Reforming the Transportation Department
- Reforming Freddie Mac and Fannie Mae: The federal mortgage finance agencies’ charters are written in statute and would require changes.
- Creating the Bureau of Economic Growth: The bureau would require legislation, as it would move programs from HUD, USDA and several other agencies into Commerce. Trump could ease the transition through executive order and by encouraging more interagency collaboration, CRS said.
- Reforming the U.S. Public Health Service Commissioned Corps: Congress would likely have to pass spending bills to slash the size of the Corps and to create a process by which agencies would pay for their services. The proposal to create a reserve component appears to already exist, CRS said.
- Reforming federal real property management: The administration would require statutory changes to many of the proposals included in this reform, such as allowing agencies to keep the proceeds from their property sales rather than depositing them into the Treasury. GSA could make some changes to its leasing practices administratively, however.
- Consolidating financial literacy programs: This would merge programs from an array of different agencies, which would require legislation.
- Streamlining small business programs: The administration would likely need legislation to move programs from USDA, Transportation and the Veterans Affairs Department into the Small Business Administration.
- Consolidating the Inter-American and U.S. African Development Foundations: The administration would require legislation to fold the two foundations into the U.S. Agency for International Development.
Likely Can Be Accomplished Without Legislation
- Optimizing humanitarian assistance: The administration has “broad authority” to reorganize the State Department and USAID under existing law.
- Consolidating development finance tools: This effort required legislation, but it has already been signed into law. The Better Utilization of Investments Leading to Development Act was tucked into a measure to reauthorize the Federal Aviation Administration and created the U.S. International Development Finance Corporation. It combines two existing development components, as Trump proposed.
- Reorganizing Washington-based USAID bureaus: Past USAID reorganizations have occurred administratively, CRS said.
- Consolidating veterans cemeteries: The Interior Department may have the authority to transfer the cemeteries from Army control to the Veterans Affairs Department, though CRS said the issue requires further analysis.
- Energy Department consolidations: Energy can administratively establish the Office of Energy Innovation and the Office of Energy Resources and Economic Strategy, CRS said, and Secretary Rick Perry has already created the Office of Cybersecurity, Energy Security and Emergency Response, as Trump called for in the proposal. Depending on the breadth of the changes, consolidating some programs that are tied to certain offices in statute may require legislation.
- Converting NASA centers into federally funded research and development centers: The Trump administration called for analysis into whether this should happen, which it has the authority to conduct.
- Consolidating management of federal graduate research fellowships: The National Science Foundation would become the home for such research, and it already has a history of partnering with agencies across government. Some agencies may have statutory conflicts, but the administration could largely move forward with this proposal.
- Expanding the U.S. Marshal Service’s role in protecting executive branch employees: CRS said it appears the administration has the authority to give USMS more authority in providing personnel for threat assessment and protection.
- Digitizing government: The National Archives and Records Administration has the authority, and is already planning, to stop accepting paper records by the end of 2022, as the White House proposed.
- Improving customer experience: OMB and GSA can write implementation guidance without the need for legislation, CRS said. The researchers added the proposal seems similar to many steps those agencies have already taken.
- Modernizing Federal Student Aid processing: A similar reform was already underway during the Obama administration and the Trump administration is moving that forward.
- Boosting cybersecurity workforce hiring: OMB and the Homeland Security Department would develop workforce plans with other agencies, and OPM would help identify available hiring authorities.
- Creating a new government think tank: GSA can establish the Government Effectiveness Advanced Research Center, which would function as a non-governmental public-private partnership to engage academics, nonprofits and private industry to help government agencies better deliver on their missions, using existing authority. The administration is already moving this proposal along, expecting to establish it in 2019.
- Moving all background checks to the Defense Department: The administration has maintained that it can fold the National Background Investigations Bureau—which President Obama created by executive order—into Defense on its own, though CRS said existing law “might be amended” to make the change happen. Trump is preparing an executive order to make the change.
- Strengthening program evaluation: OMB can implement this guidance on its own, CRS said.
CORRECTION: A previous version of this article listed the wrong parent agency of FDA.