Why the Office of Homeland Security Should Remain Independent

Report Homeland Security

Why the Office of Homeland Security Should Remain Independent

August 23, 2002 9 min read

Authors: Todd Gaziano and Michael Scardaville

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),1 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 alone2 and further commands that "he shall take Care that the Laws be faithfully executed."3 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.4 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.5

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.6

The Senate bill may well cross the constitutional line and force a veto.7 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.8 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 1947,9 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.10 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).11 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.12

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.

1. This broad consensus on establishing a new agency for homeland security did not exist before the President's announcement requesting Congress to establish the DHS. To view the President's proposal on the new department, see www.whitehouse.gov/deptofhomeland.

2. Art. I, § 1, cl. 1.

3. Art. I, § 3.

4. See, for example, Myers v. United States, 272 U.S. 52 (1926). The now somewhat discredited case of Morrison v. Olson, 487 U.S. 654 (1988), recognizes an exception to the President's generally unfettered discretion to fire executive branch officers, but even that case recognizes some limits to Congress's authority to cabin a President's inherent constitutional authority.

5. See United States v. Nixon, 418 U.S. 683, 705-713 (1974).

6. See "OMB Statement of Administration Policy re: H.R. 5005-Homeland Security Act of 2002," July 25, 2002.

7. Ibid.

8. Presidential Decision Directive 62, signed on May 22, 1998, established the Office of the National Coordinator for Security, Infrastructure Protection and Counter-Terrorism in the NSC to fill this role. See http://www.fas.org/irp/offdocs/pdd-62.htm.

9. Public Law 80-253.

10. See, for example, Eric R. Taylor, "The New Homeland Security Apparatus, Impeding the Fight Against Agile Terrorists," Cato Institute Foreign Policy Briefing, June 26, 2002.

11. See, for example, Siobhan Gorman, "Border Agency Overhaul Proves Tricky for Bush Team," Government Executive Magazine, March 29, 2002, at http://www.govexec.com/dailyfed/0302/032902nj1.htm.

12. "OMB Statement of Administration Policy re: H.R. 5005."


Todd Gaziano

Former Director, Center for Legal & Judicial Studies

Michael Scardaville

Former Policy Analyst