The
role of the White House in coordinating federal policy across the
government is an important part of the debate surrounding the
reorganization of government to improve homeland security. While
broad support has emerged for the President's proposed Department
of Homeland Security (DHS), striking differences exist between how
the House and the Senate see the White House coordinating policy
with other federal agencies.
Even
after the DHS is created, a high degree of coordination will be
necessary among agencies retaining homeland security missions. Last
October, the President created the Office of Homeland Security
(OHS) to be responsible for such policy coordination.
Legislation passed by the House (H.R.
5005) would codify the existence of the OHS as an independent
office within the White House--providing a flexible and efficient
means for the Administration to coordinate homeland security
policy. The Senate, however, is debating the National Homeland
Security and Combating Terrorism Act of 2002 (S. 2452), which would
replace the OHS with a National Office for Combating Terrorism
subject to direct congressional oversight. Rather than expedite
policy coordination, such a move would create a plethora of
coordination problems for the White House and federal agencies.
Congressional Micromanagement
Title II of S. 2452 would establish a
National Office for Combating Terrorism in the Executive Office of
the President in addition to the DHS. The Director of this new
office would be subject to Senate confirmation and required to
testify before myriad committees. Under the law, the authority of
the National Office and its Director would overlap that of the
Secretary of the Department of Homeland Security.
Such
overlap would greatly weaken homeland security policy, since
neither the Secretary nor the Director could be viewed as neutral
in his or her efforts to advise the President or coordinate policy.
Further, giving Congress authority over both the new department and
the President's principal adviser and manager would tip the balance
of power between the executive and legislative branches in favor of
Capitol Hill.
Proponents of this approach argue that
detailed statutory authority is necessary to influence the budgets
and policies of Cabinet agencies. The opposite is likely to prove
true, however. Because S. 2452 would detach responsibility for
coordinating federal policy from the President, the National Office
would have to rely on its relationship with Congress to influence
federal agencies.
Federal agencies with homeland security
responsibilities already have well-established interest groups in
Congress in the form of the committees and subcommittees that
oversee them. Under this arrangement, when a dispute arises with a
Cabinet Secretary, the Director of the National Office is likely to
prove powerless in front of a congressional authorizing committee
or appropriations subcommittee with a vested interest in the
agency. By shifting responsibility for administering the federal
government from the President to Congress in this manner, the
Senate bill could raise serious constitutional concerns.
The
U.S. Constitution vests the executive power in the President
alone and further
commands that "he shall take Care that the Laws be faithfully
executed." The
courts have recognized that the President can do so only with the
help of a personal staff that is directly answerable to him.
Accordingly, the Supreme Court has imposed some clear limits on
Congress's attempts to interfere with the President's managerial
authority, even over congressionally created positions. The Supreme Court has
been particularly reluctant to allow another branch to interfere
with the deliberative process and communications between the
President and his advisers in the White House.
In
short, Congress does not have the same power to specify the duties
of (or micromanage, as the case may be) the President's senior
advisers in the White House as it does to specify the duties of
agency officers and staff. Congress is on even shakier ground when
it attempts to interfere with the President's interagency review or
coordination function. That is a constitutionally based
presidential obligation.
Thus, the Senate bill touches on two areas
of serious constitutional concern. The legislation interferes with
the deliberative process and communications the President receives
from senior White House advisers, and it does so with regard to the
advisers' appointed role of overseeing for the President the work
of various agencies. The constitutional line is not absolutely
clear, but the separation of powers doctrine counsels that such
interference should be avoided where possible. The House bill may
come close to the constitutional line, in that any codification of
advisory structures within the White House is problematic, but it
also does not dictate the workings of the OHS and leaves the
appointment of its head to the President alone. The President has
indicated he is willing to accept the House provision.
The
Senate bill may well cross the constitutional line and force a
veto. Its provisions
are as offensive to the doctrine of separation of powers as
hypothetical legislation that would purport to specify how the U.S.
House of Representatives and the U.S. Senate are to coordinate or
resolve differences between their legislative committees. Even if
the hypothetical bill attempted to codify the existing practices of
each legislative body, each branch would vociferously object--and
rightfully so.
The
House leadership has its own method of coordinating committee
activity and resolving disputes. It makes no sense to give the
President any say in that process, and it is even more problematic
to give him a veto over any changes the House might later want to
make. The Senate has its own traditions and rules regarding which
bills are brought to the floor and other rules that govern floor
debate, the filibuster, and privileged motions. The Senate would
never give the President a voice and veto over any changes in its
internal rules.
The
President's authority to coordinate executive branch activities is
no less constitutionally based, and he should remain free to change
the interagency review process in the White House at any time
without congressional approval.
Independent Policy Coordination
When
President Bush signed Executive Order 12398 on October 8, 2001, and
created the OHS, he gave it responsibility for developing a
national strategy, coordinating interagency policy, and advising
him on homeland security issues. The Homeland Security Act of 2002
(H.R. 5005), passed by the House on July 26, would codify the OHS
as it now exists without limiting the President's authority over
it.
Before October 8, the National Security
Council (NSC) was responsible for coordinating homeland security
policy. Although the
President has determined that homeland security must be addressed
outside of the NSC, he clearly recognizes that the NSC provides a
proven institutional model for flexible coordination of policy.
Under the National Security Act of 1947, the President
determines the responsibilities and authorities of the NSC. In his
executive order, President Bush provided similar flexibility to the
OHS. This arrangement enables both the Assistant to the President
for National Security and the Director of OHS to provide him with
unencumbered advice. Neither official requires Senate confirmation,
and neither official is required to testify before congressional
committees. As a result, when they coordinate federal policy, they
speak on behalf of the President and his agenda, increasing their
clout in the interagency process.
Because of these similarities, some
critics suggest disbanding the OHS and relying on the NSC for
homeland security policy. This approach not only failed to
prevent the September 11 attacks, but, more important, also failed
to coordinate adequately federal homeland security policies
implemented after 1995. While protecting the homeland is a national
security concern, it is unique from the NSC's traditional military
and diplomatic concerns and relies on the work of additional
federal agencies that historically have served non-security roles.
Relegating homeland security to the status of one among many issues
addressed by the NSC would likely downplay its importance at a time
when it is most vital.
The
OHS has proven successful in coordinating federal homeland security
policies, despite not winning every bureaucratic battle (such as
Director Tom Ridge's proposal to consolidate border security
agencies). Even
though OHS was formed a few months before the President had
presented his fiscal year 2003 budget request, it was able to
influence both budgets and personnel during that process--the very
area in which critics believed it would be least successful. For
example, even federal agencies such as the Department of Justice
that stood to lose programs and personnel as part of the
President's first responder initiative accepted the program. In
coming years, the OHS will be active in the budget process from the
outset, which will increase its overall influence.
The Path Forward
As
Congress considers creation of the DHS, the Senate measure that
seeks to micromanage how the White House will manage the
interagency process should be abandoned. Members of Congress may be
tempted to usurp presidential authority in this manner, but that
would be a recipe for disaster.
The
NSC provides a proven model for how an independent office in the
White House that is accountable only to the President would work.
The Senate should agree either to adopt the language in Title X of
the House bill without amendment, creating OHS as a similar
independent office, or ignore the issue and allow the President's
executive order to dictate the process. Should the President
receive a bill including provisions similar to those in Title II of
the Senate bill, he should veto it as he has already threatened to
do.
Michael
Scardaville is Policy Analyst for Homeland Security in the
Kathryn and Shelby Cullom Davis Institute for International Studies
and Todd F.
Gaziano is Director of the Center for Legal and Judicial
Studies at The Heritage Foundation.