Introduction
What is the President’s authority to reorganize the executive branch? The Constitution vests authority in Congress as an instance of its power to enact legislation; to create the departments, agencies, and offices within the executive branch; to define their duties; and to fund their activities. The President may create, reorganize, or abolish an office that he established, but he cannot fundamentally reorganize the executive branch in direct violation of an act of Congress.
The President traditionally has “acquiesce[ed] in the need for reorganization legislation in order to restructure or consolidate agencies within the Executive Branch.”[REF] Prior Reorganization Acts were valuable to the President, in part because they incorporated expedited parliamentary procedures, and to Congress because they included a one-house legislative veto. But in 1983, the Supreme Court of the United States, in INS v. Chadha, found the legislative veto to be unconstitutional.[REF] While Reagan-era legislation purported to offer a procedure to preserve presidential reorganization authority, that authority has never been used and so remains untested.[REF] The most recent Reorganization Act expired in 1984.
The President retains whatever reorganization authority Congress has delegated to him by law, as well as the ability to develop task forces and commissions and to work with Congress on reorganization plans. The exact limits of the President’s authority to reorganize the executive branch “can properly be analyzed only in light of the particular changes which are proposed” and the relevant statutory authority.[REF]
Does the President Have Authority Under Article II of the U.S. Constitution to Reorganize the Executive Branch on His Own?
Article II of the U.S. Constitution provides three potential sources of authority for the President to reorganize the executive branch on his own. Each, however, falls short of that goal.
First, the Executive Vesting Clause specifies that “[t]he executive Power shall be vested in a President of the United States of America.”[REF] This grants the President “those authorities that were traditionally wielded by executives” subject to constitutional constraints.[REF] The Founders did not leave this as a kingly power to change government functions at will. Rather, the power to execute the laws extends only as far as the laws allow.[REF] For entities created by Congress, the power to enact, amend, or abolish these executive departments and agencies and their functions belongs to Congress.[REF] Article II’s Take Care Clause—that “[The President] shall take Care that the Laws be faithfully executed”[REF]—“refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”[REF]
Yet the U.S. Supreme Court has recognized that the Executive Vesting Clause did not compel the President to execute the laws alone.[REF] “To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.”[REF] May the President therefore reorganize the executive branch through subordinates in executive departments and agencies? Two more Article II clauses are pertinent, but the answer remains no.
Second, the Appointments Clause reads, “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…[the] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”[REF] That provision enables the President to select officers who will implement his policies.[REF] Subject to statutory restrictions,[REF] the President may remove those who prove obstinate,[REF] but the power to appoint and remove officers “alone does not ensure that all decisions made by administrative officials will accord with the President’s views and priorities.”[REF]
Third, the Opinion Clause enables the President to “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”[REF] This allows the President to obtain information from, and to “consult with and try to persuade,” his subordinates in the course of their official conduct.[REF] President George Washington used this process to direct subordinates’ official actions, but the relevant statutes “commonly delegated final authority directly to him.”[REF] These provisions do not enable the President to reorganize the executive branch on his own or though subordinates.[REF]
Congress, not the President or the U.S. Constitution, creates and organizes the offices and departments that the Appointments and Opinion Clauses address by virtue of the Necessary and Proper Clause.[REF] “The organizational function of this clause was recognized from the outset. Among Congress’s first acts were establishing executive departments and staffs.”[REF] When the First Congress created the Treasury Department, for example, it established therein “distinct offices—Secretary, Comptroller, Auditor, Treasurer and Register—and their duties.”[REF] Congress sets “to whatever degree it chooses, the internal organization of agencies,” their missions, “personnel systems, confirmation of executive officials, and funding, and ultimately evaluates whether the agency shall continue in existence.”[REF]
Congress may delegate broad authority to executive branch officials to implement, change, and even reorganize their functions.[REF] The First Congress, however, “set a precedent” of delegating “statutory powers and instructions…to specified officials of or below Cabinet rank, rather than to the President.”[REF] The President’s Article II authority to oversee those powers does not amount to directing every decision that is made by someone within the executive branch.[REF]
Congress can also use the Appropriations Clause to curb the President’s reorganization efforts, even efforts authorized by substantive statutes.[REF] The power of the purse remains “the most complete and effectual weapon” against “carrying into effect” an executive reorganization plan and any other “just and salutary measure.”[REF] An executive branch officer’s statutory authority to execute reorganization schemes “can only be affected by passage of a new law.”[REF] But Congress can simply amend an appropriations law if it does not like where reorganization is headed,[REF] and the Anti-Deficiency Act prohibits officers and employees of the U.S. government from going around the will of Congress in any way that involves incurring obligations in excess of appropriated funds.[REF]
The result is that the President does not have constitutional authority to reorganize the executive branch on his own.
Does the President Have Statutory Authority to Reorganize the Executive Branch?
Under current law, the President has no statutory authority to reorganize the executive branch, except where acts of Congress delegate authority to make particular changes.[REF]
In 1932, Congress first enacted law delegating to the President broad authority to reorganize the executive branch according to specific guidelines.[REF] Since then, nine Presidents have sought and secured similar authority from Congress.[REF] The last to exercise that authority was Jimmy Carter; the last to receive it was Ronald Reagan. The most recent Reorganization Act expired in December 1984.[REF] Since then, Presidents George W. Bush and Barack Obama sought reorganization power from Congress,[REF] which introduced but did not enact legislation that would have granted them reorganization authority.[REF]
The history of delegated legislative authority for Presidents to reorganize the executive branch is informative for future usage with one caveat. Those acts were valuable in part because they provided expedited parliamentary procedures—in particular, a one-house legislative veto, which enabled either house of Congress to reject a President’s reorganization plan.[REF] In 1983, the U.S. Supreme Court held that the one-house veto violated the U.S. Constitution’s bicameralism and presentment requirements for lawmaking.[REF] In 1984, Congress enacted an alternate procedure along with reorganization authority: “that a joint resolution be introduced in both the House and Senate upon receipt of a reorganization plan.”[REF] No vote, no plan; no presidential signature, no plan. While that seems to follow the constitutional lawmaking process, President Reagan never used his reorganization authority, and these procedures remain untested.[REF]
As a result, the President currently has no general statutory authority to reorganize the executive branch.[REF] Yet Congress could decide to enact a law similar to the last-used Reorganization Act of 1977 or one of its progenitors.[REF] Even without statutory authority, the President may convene a task force or commission to study concerns within the executive branch and recommend changes to Congress.[REF] History provides several examples that met with varying degrees of success.[REF]
Conclusion
The President may be able to accomplish some reorganization goals through particular statutory delegations of authority, executive orders, department memos, management policies, and other devices. But to accomplish major reorganization objectives, he will need explicit statutory authority from Congress, a viable post-Chadha procedure to enact reorganization plans,[REF] and a feasible implementation strategy.[REF] As for the details of any reorganization plan, exact limits on the President’s authority to reorganize the executive branch “can properly be analyzed only in light of the particular changes which are proposed” and the relevant constitutional provisions and statutory authority.[REF]
—Paul J. Larkin, Jr., is Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. John-Michael Seibler is a Legal Fellow in the Meese Center.
Appendix
Reorganization Act Amendments of 1984, Pub. L. 98-614, 98 Stat. 3192 (1984) (expired 1984) (codified as amended at 5 U.S.C. § 901 (1984))
5 U.S.C. § 903—Reorganization plans:
(a) Whenever the President, after investigation, finds that changes in the organization of agencies are necessary to carry out any policy set forth in section 901(a) of this title, he shall prepare a reorganization plan specifying the reorganizations he finds are necessary. Any plan may provide for—
(1) the transfer of the whole or a part of an agency, or of the whole or a part of the functions thereof, to the jurisdiction and control of another agency;
(2) the abolition of all or a part of the functions of an agency, except that no enforcement function or statutory program shall be abolished by the plan;
(3) the consolidation or coordination of the whole or a part of an agency, or of the whole or a part of the functions thereof, with the whole or a part of another agency or the functions thereof;
(4) the consolidation or coordination of part of an agency or the functions thereof with another part of the same agency or the functions thereof;
(5) the authorization of an officer to delegate any of his functions; or
(6) the abolition of the whole or a part of an agency which agency or part does not have, or on the taking effect of the reorganization plan will not have, any functions.
The President shall transmit the plan (bearing an identification number) to the Congress together with a declaration that, with respect to each reorganization included in the plan, he has found that the reorganization is necessary to carry out any policy set forth in section 901(a) of this title.
(b) The President shall have a reorganization plan delivered to both Houses on the same day and to each House while it is in session, except that no more than three plans may be pending before the Congress at one time. In his message transmitting a reorganization plan, the President shall specify with respect to each abolition of a function included in the plan the statutory authority for the exercise of the function. The message shall also estimate any reduction or increase in expenditures (itemized so far as practicable), and describe any improvements in management, delivery of Federal services, execution of the laws, and increases in efficiency of Government operations, which it is expected will be realized as a result of the reorganizations included in the plan. In addition, the President’s message shall include an implementation section which shall (1) describe in detail (A) the actions necessary or planned to complete the reorganization, (B) the anticipated nature and substance of any orders, directives, and other administrative and operational actions which are expected to be required for completing or implementing the reorganization, and (C) any preliminary actions which have been taken in the implementation process, and (2) contain a projected timetable for completion of the implementation process. The President shall also submit such further background or other information as the Congress may require for its consideration of the plan.
(c) Any time during the period of 60 calendar days of continuous session of Congress after the date on which the plan is transmitted to it, but before any resolution described in section 909 has been ordered reported in either House, the President may make amendments or modifications to the plan, consistent with sections 903–905 of this title, which modifications or revisions shall thereafter be treated as a part of the reorganization plan originally transmitted and shall not affect in any way the time limits otherwise provided for in this chapter. The President may withdraw the plan any time prior to the conclusion of 90 calendar days of continuous session of Congress following the date on which the plan is submitted to Congress.
5 U.S.C. § 908—Rules of Senate and House of Representatives on reorganization plans:
Sections 909 through 912 of this title are enacted by Congress—
(1) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of resolutions with respect to any reorganization plans transmitted to Congress (in accordance with section 903(b) of this chapter [1]) on or before December 31, 1984; and they supersede other rules only to the extent that they are inconsistent therewith; and
(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner and to the same extent as in the case of any other rule of that House.
5 U.S.C. § 909—Terms of resolution:
For the purpose of sections 908 through 912 of this title, “resolution” means only a joint resolution of the Congress, the matter after the resolving clause of which is as follows: “That the Congress approves the reorganization plan numbered transmitted to the Congress by the President on , 19 .”, and includes such modifications and revisions as are submitted by the President under section 903(c) of this chapter. The blank spaces therein are to be filled appropriately. The term does not include a resolution which specifies more than one reorganization plan.
5 U.S.C. § 910—Introduction and reference of resolution:
(a) No later than the first day of session following the day on which a reorganization plan is transmitted to the House of Representatives and the Senate under section 903, a resolution, as defined in section 909, shall be introduced (by request) in the House by the chairman of the Government Operations Committee of the House, or by a Member or Members of the House designated by such chairman; and shall be introduced (by request) in the Senate by the chairman of the Governmental Affairs Committee of the Senate, or by a Member or Members of the Senate designated by such chairman.
(b) A resolution with respect to a reorganization plan shall be referred to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House (and all resolutions with respect to the same plan shall be referred to the same committee) by the President of the Senate or the Speaker of the House of Representatives, as the case may be. The committee shall make its recommendations to the House of Representatives or the Senate, respectively, within 75 calendar days of continuous session of Congress following the date of such resolution’s introduction.
5 U.S.C. § 911—Discharge of committee considering resolution:
If the committee to which is referred a resolution introduced pursuant to subsection (a) of section 910 (or, in the absence of such a resolution, the first resolution introduced with respect to the same reorganization plan) has not reported such resolution or identical resolution at the end of 75 calendar days of continuous session of Congress after its introduction, such committee shall be deemed to be discharged from further consideration of such resolution and such resolution shall be placed on the appropriate calendar of the House involved.
5 U.S.C. § 912—Procedure after report or discharge of committee; debate; vote on final passage:
(a) When the committee has reported, or has been deemed to be discharged (under section 911) from further consideration of, a resolution with respect to a reorganization plan, it is at any time thereafter in order (even though a previous motion to the same effect has been disagreed to) for any Member of the respective House to move to proceed to the consideration of the resolution. The motion is highly privileged and is not debatable. The motion shall not be subject to amendment, or to a motion to postpone, or a motion to proceed to the consideration of other business. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the resolution is agreed to, the resolution shall remain the unfinished business of the respective House until disposed of.
(b) Debate on the resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than ten hours, which shall be divided equally between individuals favoring and individuals opposing the resolution. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the resolution is not in order. A motion to reconsider the vote by which the resolution is passed or rejected shall not be in order.
(c) Immediately following the conclusion of the debate on the resolution with respect to a reorganization plan, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the appropriate House, the vote on final passage of the resolution shall occur.
(d) Appeals from the decisions of the Chair relating to the application of the rules of the Senate or the House of Representatives, as the case may be, to the procedure relating to a resolution with respect to a reorganization plan shall be decided without debate.
(e) If, prior to the passage by one House of a resolution of that House, that House receives a resolution with respect to the same reorganization plan from the other House, then—
(1) the procedure in that House shall be the same as if no resolution had been received from the other House; but
(2) the vote on final passage shall be on the resolution of the other House.
