Homeland Security: Department Organization And Management -- Legislative Phase

Congressional research reportFeb 25, 2003

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Order Code RL31493

Report for Congress

Received through the CRS Web

Homeland Security: Department Organization

And Management—Legislative Phase

Updated February 25, 2003

name redacted

Specialist in American National Government

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Homeland Security:

Department Organization and

Management—Legislative Phase

Summary

After substantial congressional entreatment, President George W. Bush gave

impetus to the creation of a Department of Homeland Security when, on June 6,

2002, he proposed the establishment of such an entity by Congress. At the time, bills

to mandate a department were pending in both houses of Congress. The President’s

action was viewed as an effort to move beyond the coordination efforts of the Office

of Homeland Security, established by E.O. 13228 of October 8, 2001, to a strong

administrative structure for managing consolidated programs concerned with border

security and effective response to domestic terrorism incidents.

The President transmitted his department proposal to the House of

Representatives on June 18, where it was subsequently introduced by request (H.R.

5005). The House approved the bill in amended form on July 26. The Senate did not

begin consideration of the legislation until after the August congressional recess.

Senate deliberations on the matter were slower due to partisan and parliamentary

factors as well as a few highly contentious issues, such as the civil service protections

and collective bargaining rights of the employees of the new department. When both

houses of Congress reconvened after the fall elections, a new, compromise

department bill was introduced in the House (H.R. 5710), which considered and

adopted the measure on November 13. Six days later, the Senate approved the

original House bill (H.R. 5005) as modified with the language of the compromise

legislation (H.R. 5710), which had been offered as an amendment. The House

cleared the Senate-passed measure for the President’s signature. Ultimately,

President Bush largely obtained what he wanted in the legislation mandating the

department (P.L. 107-296; 116 Stat. 2135). This report is no longer being updated.

CRS Report RL31751, Homeland Security: Department Organization and

Management—Implementation Phase, assesses the implementation of the

Department of Homeland Security provisions of the Homeland Security Act of 2002.

Contents

Department Tradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Departmentalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Department of Health, Education, and Welfare . . . . . . . . . . . . . . . . . . . . . . 10

Homeland Security—Coordination Office . . . . . . . . . . . . . . . . . . . . . . . . . 14

Homeland Security—Initial Department Bills . . . . . . . . . . . . . . . . . . . . . . . 17

Homeland Security—Markup of Department Bills . . . . . . . . . . . . . . . . . . . 21

Homeland Security—Floor Action on Department Bills . . . . . . . . . . . . . . . 25

Homeland Security—Continued Floor Action on Department Bills . . . . . . 29

Legislative Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Adequate Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Inappropriate Program Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Administrative Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

General Management Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Human Resources Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

S. 2452 (Lieberman)/H.R. 4660 (Thornberry) . . . . . . . . . . . . . . . . . . . 35

H.R. 5005 (Armey) (by request) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

H.R. 5710 (Armey) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Related Congressional Literature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Related CRS Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

List of Tables

Table 1. Federal Executive Departments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Table 2. Primary Components Transferred to the Department of Homeland

Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Table 3. Officials Reporting Directly to the Secretary of Homeland Security . . 20

Homeland Security:

Department Organization and

Management—Legislative Phase

In the aftermath of the September 11, 2001, terrorist attacks on the World Trade

Center and the Pentagon, the term homeland security came to be used in public

parlance as a reference to American efforts at combating terrorism. To coordinate

these efforts, President George W. Bush established, with E.O. 13228 of October 8,

2001, an Office of Homeland Security (OHS) within the Executive Office of the

President and a Homeland Security Council (HSC), under his chairmanship.1 He also

appointed an Assistant to the President for Homeland Security to direct OHS, and

shortly thereafter, on October 29, the President inaugurated Homeland Security

Presidential Directives, which, while somewhat similar to executive orders, are not

published in the Federal Register.

While these events were transpiring, more elaborate organization designs for

realizing and maintaining homeland security began to appear. On October 11, 2001,

Senator Joseph Lieberman introduced a bill (S. 1534) for himself and Senator Arlen

Specter establishing a Department of National Homeland Security. The head of the

new department, who would have been a member of the Cabinet and the National

Security Council, “would have the rank and power,” said Senator Lieberman, “to

ensure that the security of our homeland remains high on our national agenda, and

that all necessary resources are made available toward that end.”2 In brief, this

official would have been the principal administrator of homeland security programs

and operations. By contrast, the director of OHS is a coordinator of homeland

security policy, administration, and operations. Six months later, after the director

of OHS had become embroiled in controversy over his declining to appear before

congressional committees to discuss his activities, the director of the Office of

Management and Budget reportedly said that President Bush might be interested in

the departmental option as a solution to the issue of a presidential adviser, which is

one of the roles of the OHS director, testifying before congressional committees.3 On

May 2, Senator Lieberman introduced an expanded version of his initial bill (S. 2452)

for himself, Senator Specter, and Senator Bob Graham. A companion bill was

offered in the House that same day by Representative Mac Thornberry for himself

and six cosponsors. The legislation would have mandated both a Department of

See Federal Register, vol. 66, Oct. 10, 2001, pp. 51812-51817.

Congressional Record, daily edition, vol. 147, Oct. 11, 2001, p. S10646.

Elizabeth Becker, “Domestic Security: Bush Is Said to Consider A New Security

Department,” New York Times, Apr. 12, 2002, p. A15.

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National Homeland Security and a National Office for Combating Terrorism within

the Executive Office of the President.4

President Bush gave impetus to the creation of a Department of Homeland

Security when, on June 6, 2002, he proposed the establishment of such an entity by

Congress. The President’s action was viewed as an effort to move beyond the

coordination efforts of OHS to a strong administrative structure for managing

consolidated programs concerned with border security and effective response to

domestic terrorism incidents.5

On June 18, the President transmitted to the House of Representatives proposed

legislation to establish a Department of Homeland Security. It was subsequently

introduced by request (H.R. 5005). According to a legislative strategy announced by

Speaker Dennis Hastert and Minority Leader Richard Gephardt, the House would

begin working with this proposal on an expedited basis. Plans called for an initial

review and modification of the administration bill by the standing committees of the

House having jurisdiction over homeland security matters, followed by a similar

review and refinement of the measure by an ad hoc select panel under the direction

of Majority Leader Dick Armey.6 The bill would then be sent to the House floor for

final action. The Senate elected to work with the department bill (S. 2452) sponsored

by Senator Lieberman. The resulting House and Senate bills would then be

reconciled in conference.

Department Tradition

Within the federal government, the departments are among the oldest primary

units of the executive branch, the Departments of State, War, and the Treasury all

being established within a few weeks of each other in 1789. The heads of the

departments are the members of the traditional Cabinet; since 1792, they have, by

statutory specification, constituted a line of succession, after the Speaker of the

House and the President pro tempore of the Senate, to the presidency in the event of

a vacancy in both that office and the vice presidency.7 The Constitution is referring

to these officials when it authorizes the President, in Article II, section 2, 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.” In brief, they and

their organizations are the administrative arms of the President.8

See Congressional Record, daily edition, vol. 148, May 2, 2002, pp. S3874-S3880.

For the President’s remarks, see Weekly Compilation of Presidential Documents, vol. 38,

June 10, 2002, pp. 963-965; also see White House Office, The Department of Homeland

Security (Washington: June 2002).

See CRS Report RL31449, House and Senate Committee Organization and Jurisdiction:

Considerations Related to Proposed Department of Homeland Security, by (name redacted).

See 1 Stat. 239; the line of succession is currently specified at 3 U.S.C. 19.

Harold Seidman, “A Typology of Government,” in Peter Szanton, ed., Federal

Reorganization: What Have We Learned? (Chatham, NJ: Chatham House, 1981), p. 37.

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The departments were the preeminent administrative entities of the executive

branch throughout most of the 19th century. The creation of the U.S. Civil Service

Commission in 1883 inaugurated the tradition of enduring independent

agencies—that is, nondepartmental entities with a degree of independence from

presidential supervision—followed by the launching of independent regulatory

bodies in 1887 with the Interstate Commerce Commission. In many regards, the

departments have remained “the most prestigious of the organizational types” of the

executive branch, currently being 14 in number.9

Table 1. Federal Executive Departments

Department

Creation

Modification

State

1789

War

1789

Treasury

1789

Navy

1798

Interior

1849

Justice

1870

Post Office

1872

Agriculture

1889

Commerce and Labor

1903

Labor

1913

Defense

1947

Initially named the

National Military Establishment

Health, Education,

and Welfare

1953

Education later separated

Housing and Urban

Development

1965

Transportation

1966

Energy

1977

Education

1979

Veterans Affairs

1988

Ibid.

Subsumed by Defense

Reorganized as U.S. Postal Service

Labor later separated

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Departmentalization

When does departmentalization occur? What factors contribute to the creation

of a new federal department? Several considerations can be offered in response to

these questions. Departmentalization involves the thematic consolidation of existing

programs and entities in a single, hierarchically organized, administrative structure.

These components may be modified during the transfer process, and new programs

may be created and assigned to the new department as well. Departmentalization

also serves to strengthen presidential management of program administration by the

new department, and emphasizes the importance of these collective programs for the

nation. Finally, departmentalization occurs because it has the political support of

relevant interest groups that regard the change as beneficial in terms of proximity to

the President and national prestige.

Three years after launching the New Deal to realize the economic recovery of

the nation, President Franklin D. Roosevelt, in 1936, organized the President’s

Committee on Administrative Management to assess and make recommendations

concerning, among other matters, the role of the President in the managerial direction

and control of all executive branch departments and agencies and the streamlining

of the executive branch, which counted a number of temporary, experimental, and

redundant component entities. Reporting in January 1937, the committee recounted

the evolution of the executive branch, finding that it had “grown up without plan or

design like the barns, shacks, silos, tool sheds, and garages of an old farm.” This led

the panel to conclude that the “structure of the Government throws an impossible

task upon the Chief Executive,” with the result that: “No President can possibly give

adequate supervision to the multitude of agencies which have been set up to carry on

the work of the Government, nor can he coordinate their activities and policies.”10

To rectify this situation, the committee recommended, in part, increasing the number

of Cabinet departments from 10 to 12, and requiring and authorizing “the President

to determine the appropriate assignment to the 12 executive departments of all

operating administrative agencies and fix upon the Executive continuing

responsibility and power for the maintenance of the effective division of duties

among the departments.”11 In brief, in the hierarchical model recommended by the

panel, as many of the executive administrative agencies as possible would have been

transferred to one of the departments and become subject to the supervision of the

head of the department. These department heads, in turn, would have been subject

to the direction of the President. Implementation of these recommendations, said the

committee, would “make effective management possible by restoring the President

to his proper place as Chief Executive.”12

Underlying the work of the committee regarding these matters was a theory of

organization developed by one of the panel’s principal members, Luther Gulick, a

proponent of orthodox or classical organization doctrine derived largely from

U.S. President’s Committee on Administrative Management, Administrative Management

in the Government of the United States (Washington: GPO, 1937), pp. 29-30.

Ibid., p. 31.

Ibid.

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business administration and the scientific management movement of the early 20th

century.13 Schuyler Wallace, who had been a member of the staff of the President’s

Committee on Administrative Management, expanded upon many of Gulick’s views

in his 1941 assessment of federal departmentalization.14 Of particular interest are his

proffered considerations which enter into the construction of a department. Among

the first of these are quantitative considerations. Beginning with the President, he

comments “that the boundaries of a chief executive’s span of control cannot be easily

ascertained and described in a mathematical formula of universal applications.”15

History records that the traditional Cabinet has grown from six members in 1789

(including three heads of departments), to nine members in 1900 (including eight

heads of departments), to 15 members in 2002 (including 14 heads of departments).

Since the presidency of John F. Kennedy, other officials, such as the ambassador to

the United Nations, have been appointed with Cabinet rank, meaning that they attend

Cabinet meetings and otherwise receive related documents. By regulating the

number of officials appointed with Cabinet rank, the President may exert some

restraint upon the size of this body. Furthermore, he may use other specialized

forums, such as the National Security Council and the Homeland Security Council,

to exercise managerial control of selected department heads.

Similarly, since 1929, when the President’s staff was increased from a single

personal secretary to three such aides and an administrative assistant, the White

House staff has grown to supplement the Chief Executive’s span of control over

departmental management. When making a plea for such increased staffing in 1937,

the President’s Committee on Administrative Management famously asserted:

The President needs help. His immediate staff assistance is entirely inadequate.

He should be given a small number of executive assistants who would be his

direct aides in dealing with the managerial agencies and administrative

departments of the government. These assistants, probably not exceeding six in

number, would be in addition to the present secretaries, who deal with the public,

with the Congress, and with the press and radio. These aides would have no

power to make decisions or issue instructions in their own right. They would not

be interposed between the President and the heads of his departments. They

See Luther Gulick, “Notes on the Theory of Organization” in Luther Gulick and L.

Urwick, eds., Papers on the Science of Administration (New York: Institute for Public

Administration, 1937), pp. 1-45.

For critiques of, and alternatives to, orthodox organization theory, see Warren G. Bennis,

Changing Organizations: Essays on the Development and Evolution of Human Organization

(New York: McGraw-Hill, 1966); Bertram M. Gross, The Managing of Organizations: The

Administrative Struggle, vol. 1 (New York: Free Press, 1964); Daniel Katz and Robert L.

Kahn, The Social Psychology of Organization (New York: John Wiley and Sons, 1966);

Douglas McGregor, The Human Side of Enterprise (New York: McGraw-Hill, 1960); John

D. Millett, Organization for Public Service (Princeton, NJ: D. Van Nostrand, 1966);

William G. Scott, Organization Theory: A Behavioral Analysis for Managers (Homewood,

IL: Richard D. Irwin, 1967); Herbert A. Simon, Administrative Behavior, 2nd ed. (New York:

Macmillan, 1957); Dwight Waldo, The Administrative State (New York: Ronald Press,

1948); Stephen J. Wayne, The Legislative Presidency (New York: Harper and Row, 1978).

Schuyler Wallace, Federal Departmentalization: A Critique of Theories of Organization

(New York: Columbia University Press, 1941), p. 43.

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would not be assistant presidents in any sense. Their function would be, when

any matter was presented to the President for action affecting any part of the

administrative work of the Government, to assist him in obtaining quickly and

without delay all pertinent information possessed by any of the executive

departments so as to guide him in making his responsible decisions; and then

when decisions have been made, to assist him in seeing to it that every

administrative department and agency affected is promptly informed. Their

effectiveness in assisting the President will, we think, be directly proportional to

their ability to discharge their functions with restraint. They would remain in the

background, issue no orders, make no decisions, emit no public statements. Men

for these positions should be carefully chosen by the President from within and

without the Government. They should be men in whom the President has

personal confidence and whose character and attitude is [sic] such that they

would not attempt to exercise power on their own account. They should be

possessed of high competence, great physical vigor, and a passion for anonymity.

They should be installed in the White House itself, directly accessible to the

President. In the selection of these aides, the President should be free to call on

departments from time to time for the assignment of persons who, after a tour of

duty as his aides, might be restored to their old positions.16

By 1947, White House Office staff numbered over 200, and would be twice that

number by the end of the century. Along the way, the President would appoint a

chief of staff to help him manage his retinue of personal aides who strengthen his

span of control over department management.

Wallace also observes that, “just as there are limits to the chief executive’s span

of control, so also are there limits to the control which can be exercised by any of his

subordinates.”17 For the head of a large department, such limits include his or her

span of control, or how many officials are routinely reporting directly to him or her.

It also includes contending with excessive layers of middle management or an

abundance of management control positions, which can contribute to a sluggish

administrative system and delayed system outcomes. Other limits may include lack

of administrative feedback arrangements for monitoring subordinates’ behavior;18

inadequate information technology applications to supplement hierarchical

communications structures for effective staff edification, guidance, and

development;19 and insufficient planning capability for forecasting new challenges,

developing departmental goals and performance measures, and instilling a sense of

mission unity. Regarding this last consideration, experience with the early Policy

Planning Staff of the Department of State is worth recalling. The group, composed

of senior department staff, was hurriedly put together in late April 1947 to assist

Secretary of State George C. Marshall with quickly developing recommendations for

U.S. President’s Committee on Administrative Management, Administrative Management

in the Government of the United States, p. 5.

Wallace, Federal Departmentalization, p. 48.

See Herbert Kaufman with Michael Couzens, Administrative Feedback: Monitoring

Subordinates’ Behavior (Washington: Brookings Institution, 1973).

Regarding this consideration and much more, see Jane E. Fountain, Building the Virtual

State: Information Technology and Institutional Change (Washington: Brookings

Institution, 2001).

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addressing the economic and political crises mounting in war-ravaged Europe. “The

staff did so,” observes one analyst, “making a central contribution to what was soon

dubbed the Marshall Plan.”20 Marshall’s successor, Dean Acheson, described the

intentions of the former Army Chief of Staff when creating this planning entity.

The General [as Marshall was often called] conceived the function of this group

as being to look ahead, not into the distant future, but beyond the vision of the

operating officers caught in the smoke and crises of current battle; far enough

ahead to see the emerging form of things to come and outline what should be

done to meet or anticipate them. In doing this the staff should also do something

else—constantly reappraise what was being done. General Marshall was acutely

aware that policies acquired their own momentum and went on after the reasons

that inspired them had ceased.21

Returning to Wallace’s observations on departmentalization, he comments:

there is no assurance ... that the creation of large departments will lead to an

extension of the career systems upward. In the opinion of opponents of this

method of administrative integration, the contrary may well be the case. The

very size of the department will make the problem of civilian control over the

bureaucracy appear to be a more difficult one. This will undoubtedly be seized

upon by advocates of democratic control and by spoilsmen as an excuse to push

the system of political appointment downward rather than the merit system

upward.22

This matter also has implications for the control which can be exercised by the

head of a large department over his or her organization. If middle and upper

management positions are largely political appointees, the head of the proposed

department may have the experience of dealing with highly transitory strangers of

varying competence who were, for the most part, unilaterally selected by the White

House. By contrast, filling middle and upper management positions with career civil

servants has somewhat greater potential generally for realizing more enduring,

knowledgeable, and capable departmental leadership, even though cases may result

where a careerist fails to perform management responsibilities adequately.

Turning to “the determination of the criteria by which the subordinate

administrative units should be grouped together in a departmental structure,” Wallace

proffers “that the process of departmentalization rests upon four major concepts of

organization: (1) function; (2) work processes; (3) clientele; and (4) territory.” He

quickly cautions that “these several modes of organization may seem to be selfevident, yet such is far from the case,” and proceeds to demonstrate that these are not

clearly understood concepts.23 Furthermore, he admits:

I. M. Destler, Presidents, Bureaucrats, and Foreign Policy: The Politics of Organizational

Reform (Princeton, NJ: Princeton University Press, 1974), p. 224.

Dean Acheson, Present at the Creation: My Years in the State Department (New York: W.

W. Norton, 1969), p. 214.

Wallace, Federal Departmentalization, pp. 62-63.

Ibid., p. 91.

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No one has ever advocated the construction of departments solely upon the basis

of function, or work processes, or clientele or territory. Instead, in the very

nature of things, functional, technical, clientele, and territorial factors enter into

the construction and operation of all national or large-area departments. Such

considerations vary from division of work to division of work, and practice and

common sense take them into account as existing departmental organizations

demonstrate. Back of all technical considerations, however, lie large questions

of national policy and purpose which have a bearing upon present practices and

proposed innovations. Given a particular set of assumptions respecting public

policy—e.g., the desirability of maintaining constitutional government, the

normal judicial processes, legislative control over the administration, etc.—the

problem then is the emphasis which should be laid upon one relevancy rather

than another, i.e., function, clientele, etc., in a given social context and the

particular devices which can be adopted to offset any disadvantages to efficiency

accruing from a given emphasis.24

“The most widely utilized basis of departmental integration,” he continues, “is

that of function or purpose,” defined as “the grouping of subordinate administrative

units in a departmental pattern upon the basis of the underlying purpose to which they

each have been dedicated.” Reliance upon work processes involves “the bringing

together in a single department ... those who have had similar professional training

or who make use of the same or similar equipment.” Departmentalization based

upon clientele “should result in the concentration in a single department of those

subordinate administrative units which are designed to serve some particular segment

of the body politic.”25 Finally, departmental organization may be “based upon place

or territory,” and “has long been used as a basis of interdepartmental organization,”

such as in the regional divisions of the Department of State.26

Although these concepts were offered as bases for departmental integration,

Wallace also mentions “another principle of administrative organization, that of

devolution of operating autonomy.”

This is best exemplified in the realm of economic organization by the holdingcompany mode of organization. Instead of concentrating full and final authority

in the hands of a single executive, holding companies usually organize their

component parts more or less as independent economic units, in many cases

directed by independent presidents, immediately responsible to independent

boards of trustees. In all such holding companies some measure of coordination

is imposed, but the techniques by which it is achieved differ radically. In some

situations the board of directors of the top holding company constitutes a

majority of the board of directors of each of the operating units. In other cases,

the chief executives of the various operating units report directly to the president

of the top company. But in any case, devolution rather than integration is the

outstanding characteristic of these economic units. The actual administration and

management of the various operating organizations is under the direction and

supervision of its immediate management. Such coordination as exists, apart

from financial and certain technical considerations, is confined to broad

Ibid., p. 97.

Ibid., pp. 94, 98.

Ibid., p. 131.

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questions of business policy or to that limited sphere in which it is thought either

that standardization of procedure is imperative or that the overall facilities of the

parent organization make possible a contribution of administrative efficiency not

otherwise attainable.27

A few years after the publication of Wallace’s departmentalization study, the

creation to two new massive federal departments gave particular credence to some

of his observations.

Department of Defense

In the aftermath of World War I, the establishment of a Department of National

Defense, unification of the armed forces, and the creation of an independent Air

Force began to be discussed in various quarters in the United States. Sometimes

these issues dramatically captured public attention, perhaps no more so than in the

fall of 1925 during the court martial of Colonel Billy Mitchell. Congress began

exploring these matters in early 1944.28 Subsequently, proposals for a central

intelligence agency and improved arrangements for the mobilization of war resources

were added to the debate, and an elaborate plan, embracing all of these considerations

in fulfillment of “national security,” was offered by Secretary of the Navy James

Forrestal.29 This plan was largely enacted with the National Security Act of 1947,

which created the National Military Establishment, headed by the Secretary of

Defense and embracing, as subunits, Army, Navy, and Air Force departments; the

Central Intelligence Agency; the National Security Council; and the National Security

Resources Board.30 Forrestal became the first Secretary of Defense. In 1949, based

upon his experience, he proposed amendments to the National Security Act, which

Congress adopted, strengthening the supervisory authority of his position and

changing the name of the National Military Establishment to the Department of

Defense.31

Creation of the National Military Establishment/Department of Defense had

been under consideration in Congress for approximately three years and ultimately

came to be guided by a plan of some detail. Establishment of the new department

involved very few agencies: the Department of War became the Department of the

Army, but the U.S. Army Air Forces was transferred to the new Department of the

Air Force, and the Department of the Navy, like the other two armed services

Ibid., p. 76.

U.S. Congress, House Select Committee on Post-War Military Policy, Proposal to

Establish a Single Department of Armed Forces, 78th Cong., 2nd sess., hearings pursuant to

H. Res. 465, Apr. 24-May 19, 1944 (Washington: GPO, 1944), and, U.S. Congress, House

Select Committee on Post-War Military Policy, A Single Department of Armed Forces, 78th

Cong., 2nd sess., H.Rept. 1645 (Washington: GPO, 1944).

U.S. Congress, Senate Committee on Naval Affairs, Unification of the War and Navy

Departments and Postwar Organization for National Security, by Ferdinand Eberstadt, 79th

Cong., 1st sess., committee print (Washington: GPO, 1945).

61 Stat. 495.

63 Stat. 578.

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departments, came under the supervision of the Secretary of Defense. In 1946, the

House and Senate had collapsed their defense-related committees into single armed

services panels in each chamber, and the new department largely fell within their

legislative and oversight jurisdiction.32

In 1941, Wallace had recognized that a Department of National Defense might

be established on an integrated basis, with a strong head supervising subordinate

leaders of the armed services components or, alternatively, on a devolution basis,

following the holding company model. Discussing this latter version, he wrote:

It would certainly embrace two component parts—a Division of War and a

Division of Navy. It might also embrace a Division of Military Aviation. Each

of these great divisions might be headed by its own secretary and might remain

practically autonomous in the conduct of its own internal affairs. Above the

three secretaries might be placed a secretary of National Defense. His primary

function might be, first, the reception of routine reports from the two or three

major divisions as the case might be, and the transmission of such segments of

these reports as he might think necessary to the chief executive, and second, the

coordination of the overlapping activities of the component parts of the

department. ... Moreover, he might undertake certain military activities now

carried on by neither the Department of War nor that of the Navy, or certain

functions such as propaganda which are in reality not a technical part of the

fighting service.33

This arrangement, of course, was rejected in the National Security Act of 1947,

but the matter of which model to adopt would be revisited six years later in the case

of another new department.

Department of Health, Education, and Welfare

Created in 1953 by reorganization plan, the Department of Health, Education,

and Welfare was rooted in the social welfare administration of the New Deal, the

Social Security Board and the Federal Security Agency being primary components.34

The President’s Committee on Administrative Management had recommended

establishing a Department of Social Welfare in 1937, and may have envisioned its

accomplishment through a presidential reorganization plan.35 However, the initial

statute authorizing the President to propose reorganization plans—the Reorganization

Act of 1939—prohibited the use of this method to establish any new executive

See 60 Stat. 812.

Wallace, Federal Departmentalization, p. 82.

The Social Security Board, established in 1935 (49 Stat. 620), was transferred to the

Federal Security Agency by Reorganization Plan 1 of 1939 (53 Stat. 1423), which mandated

the latter agency and included within it the Office of Education, Public Health Service, U.S.

Employment Service, Civilian Conservation Corps, and National Youth Administration.

U.S. President’s Committee on Administrative Management, Administrative Management

in the Government of the United States, p. 32.

CRS-11

department.36 Consequently, another strategy was followed, as Louis Brownlow, the

chairman of the President’s committee and author of Reorganization Plan 1 of 1939

recounted in his memoirs.

Part 2 of Plan I set up a Federal Security Agency. This was to take the place of

the department of social welfare that had been a feature of our original

recommendations. Forbidden to create a department, “F.D.R.” created an

agency. Forbidden to call its head a “secretary,” he called him an

“administrator.” Forbidden to give a salary of $10,000 a year, equal to that of

members of the Cabinet and incidentally to that of members of the two houses

of Congress, he provided for the administrator a salary of $9,000 a year.

Actually, the Federal Security Agency became in everything but words a major

department of the government, although it was not until the early days of the

Eisenhower administration that it was set up as the Department of Health,

Education, and Welfare, and its administrator blessed with the title of

“Secretary.”37

Following the creation of the Federal Security Agency, attention continued to

be given to elevating its programs to departmental status. A majority of the members

of the first Hoover Commission on Organization of the Executive Branch of the

Government (1947-1949) recommended the establishment of a department for

education and social security programs, but would have returned some Federal

Security Agency responsibilities to the Department of Labor and located federal

health activities in a separate United Medical Administration. Three members of the

panel dissented from this separation of health and welfare functions and

recommended a Department of Welfare which included health activities.38 A

Brookings Institution assessment of grouping health, education, employment, and

social security and relief functions in a single department, which was prepared for the

Hoover Commission, expressed reservations about this prospect:

department heads are usually laymen serving ordinarily for relatively short terms,

frequently with little prior experience in the substantive work of the department.

In the present instance the problems which will come to the President will

apparently lie in distinctly professional fields and deal with substantive matters

or broad issues of administration. Only under exceptional circumstances could

a single department head deal competently with so diverse a range of technical

activities. When the President has to consider substantive issues it would seem

entirely possible that he might get more help from several heads of smaller

departments than from the head of one big one because one could scarcely master

the details in a reasonable period.39

53 Stat. 561; the statute was a limited realization of another recommendation of the

President’s Committee on Administrative Management.

Louis Brownlow, A Passion for Anonymity: The Autobiography of Louis Brownlow,

Second Half (Chicago: University of Chicago Press, 1958), p. 417.

See U.S. Commission on Organization of the Executive Branch of the Government, Social

Security, Education, Indian Affairs: A Report to the Congress (Washington: GPO, 1949),

pp. 3-4, 7-12, 37-42.

U.S. Commission on Organization of the Executive Branch of the Government, Task Force

(continued...)

CRS-12

President Harry S. Truman sent a reorganization plan to Congress in June 1949

for a Department of Welfare40 and another in May 1950 for a Department of Health,

Education, and Security.41 Both plans built upon the programs of the Federal

Security Agency. Under the terms of the Reorganization Act of 1949, a plan could

be rejected by the adoption of a simple resolution in either house of Congress.42 The

President’s Department of Welfare plan was rejected in the Senate on a 60-32 vote

adopting a resolution (S.Res. 147) of disapproval;43 the Department of Health,

Education, and Security plan was rejected in the House on a 249-71 vote adopting a

resolution (H.Res. 647) of disapproval.44

On February 2, 1953, newly installed President Dwight D. Eisenhower, with his

party in majority control of both houses of Congress, announced in his State of the

Union message that he would shortly send to Congress “a reorganization plan

defining new administrative status for all Federal activities in health, education, and

social security.”45 The promised plan for a Department of Health, Education, and

Welfare (HEW) was delivered on March 12.46 Support for the proposal was

sufficiently strong that Congress expedited approval and implementation of the plan

through the adoption of a joint resolution, which the President signed into law on

April 1.47

The HEW plan had been prepared by Oveta Culp Hobby, whom Eisenhower had

named to head the Federal Security Agency. A former commander of the Women’s

Army Corps who had served under Eisenhower in the European theater during World

War II and an ardent personal supporter of his presidential candidacy, she was

elevated to become the first head of the new department. She made the plan as

simple as possible so as to avoid congressional disapproval, which meant little detail,

no vesting of the various legal authorities of the Surgeon General or the

Commissioner of Education in the new secretary, and no transfers of organizations

(...continued)

Report on Public Welfare (Appendix P), Functions and Activities of the National

Government in the Field of Welfare, by The Brookings Institution (Washington: GPO,

1949), p. 6.

U.S. General Services Administration, National Archives and Records Service, Office of

the Federal Register, Public Papers of the Presidents of the United States: Harry S. Truman,

1949 (Washington: GPO, 1964), pp. 310-311.

U.S. General Services Administration, National Archives and Records Service, Office of

the Federal Register, Public Papers of the Presidents of the United States: Harry S. Truman,

1950 (Washington: GPO, 1965), pp. 443-445.

See 63 Stat. 203.

Congressional Record, vol. 95, Aug. 16, 1949, pp. 11520-11560.

Ibid., vol. 96, July 10, 1950, pp. 9843-9864.

U.S. General Services Administration, National Archives and Records Service, Office of

the Federal Register, Public Papers of the Presidents of the United States: Dwight D.

Eisenhower, 1953 (Washington: GPO, 1960), p. 33.

Ibid., pp. 94-98.

67 Stat. 18; Reorganization Plan 1 of 1953 appears at 67 Stat. 631.

CRS-13

or programs from other parts of the government. It was initially proposed that the

head of the department would manage the organization with an under secretary and

three assistant secretaries, one each for the primary health, education, and welfare

components.48 This arrangement had the support of an important congressional

figure, Senator Robert A. Taft, who reportedly “thought this was a logical division

of responsibilities and would be conducive to good management.”

For quite different reasons, the American Medical Association and the various

national education associations also recommended separate assistant secretaries

for health, education, and welfare. Each interest group thought that if it had an

assistant secretary to concern himself with its specific functions, he would

become an effective spokesman within the Administration for the group’s

interests.49

Analysts at the Bureau of the Budget (predecessor to the Office of Management

and Budget) opposed the assistant secretary trinity, “concerned that these three

appointees might become captives of the pressure groups and the bureaucracy,

working in league with one another, and told Mrs. Hobby that she needed some toplevel assistants to aid her in her job.” Ultimately, the plan mandated two assistant

secretaries “to perform such functions as the Secretary may prescribe” and an

equivalent special assistant to the secretary for health and medical affairs. However,

the secretary, nonetheless, “had a tiny staff of her own choosing and an unusually

small number of supporting civil servants,” as well as an unwieldy management

structure.50

At the time HEW officially came into being in 1953, the organization was no

infant. It had over 34,000 employees with total expenditures of $5.4 billion,

including $2.0 billion in general funds and $3.4 billion in Social Security trust

funds. It was clear that the Social Security program would grow steadily and

rapidly for many years, assuming the system was preserved in its form at that

time. What was far less clear was how the other components of the Department

would change. Nobody really realized how forces and events during the next

twenty years would throw one responsibility after another on the shoulders of the

young Department, straining its capacity to cope with all of its functions.51

When the department began operations, authority for its programs was not

clearly vested in the secretary, which led to friction between the head of the

organization and subordinate leaders within the health, education, and welfare

components. Interest groups sometimes exploited the situation. The secretary

seemingly did not have an effective management structure or adequate supporting

staff, the latter shortcoming contributing to the Brookings warning about the

manageability of a department dealing with so many distinct professional fields. To

some, HEW appeared to be the “holding company” mode of organization described

Rufus E. Miles, Jr., The Department of Health, Education, and Welfare (New York:

Praeger, 1974), pp. 25-26.

Ibid., p. 27.

Ibid., p. 28.

Ibid., p. 29.

CRS-14

by Wallace. As late as July 1962, when he stepped down as the head of HEW in

order to run for the Senate, Abraham Ribicoff reportedly “complained that the

department was so large and so diverse as to be unmanageable. After becoming a

senator in 1962,” it was observed, “Ribicoff consistently supported legislation to

dismantle the department.”52

Creation of the Department of Health, Education, and Welfare had been under

consideration in Congress, at various times, in one way or another, for about a dozen

years, and ultimately came to be realized with a proposal of little detail. As a result,

management arrangements were unwieldy. Establishment of the new department

involved only the components of the Federal Security Agency. The 1946

consolidation of congressional committees resulted in Senate panels on finance and

on labor and public welfare and in House panels on education and labor and on ways

and means, which would largely have legislative and oversight jurisdiction over the

programs of the new department. However, because HEW had been established by

a reorganization plan, none of these committees had an opportunity to contribute to

the development of the initial operating arrangements of the new department.53

Homeland Security—Coordination Office

Shortly after the terrorist attacks of September 11, 2001, President George W.

Bush established, with E.O. 13228, the Office of Homeland Security (OHS) within

the Executive Office of the President. Former Pennsylvania Governor Tom Ridge

was named to head the new entity and to serve, as well, as the Assistant to the

President for Homeland Security. “The mission of the Office shall be to develop and

coordinate the implementation of a comprehensive national strategy to secure the

United States from terrorist threats or attacks,” said the executive order, and “to

coordinate the executive branch’s efforts to detect, prepare for, protect against,

respond to, and recover from terrorist attacks within the United States.”54

Critics of OHS and Ridge’s role contended that the executive order did not give

him adequate authority, including remedial budgetary power, over agency efforts at

combating terrorism. In response, Ridge said that his close proximity and easy access

to the President gave him all the authority he needed to do his job. Some were not

convinced by Ridge and sought to reconstitute OHS with a statutory mandate and

more explicit responsibilities and powers. Others favored a different course of

action, consolidating relevant programs and hierarchical administrative authority in

a new department. Among the first to pursue this approach was Senator Lieberman,

who introduced his initial proposal (S. 1534) a few days after the establishment of

Edward Berkowitz, “Health and Human Services, Department of,” in George Thomas

Kurian, ed., A Historical Guide to the U.S. Government (New York: Oxford University

Press, 1998), p. 279.

Prepared, in part, in furtherance of realizing efficiency and economy in government,

reorganization plans were usually referred to the House Committee on Expenditures in the

Executive Departments (later Government Operations and now Government Reform) and

the Senate Committee on Expenditures in the Executive Departments (later Government

Operations and now Governmental Affairs).

See Federal Register, vol. 66, Oct. 10, 2001, pp. 51812-51817.

CRS-15

OHS. He and Representative Thornberry would introduce more elaborate versions

of this legislation (S. 2452 and H.R. 4660) in early May 2002.55

By late January 2002, Ridge, according to the Washington Post, was “facing

resistance to some of his ideas, forcing him to apply the brakes on key elements of

his agenda and raising questions about how much he can accomplish.” OHS plans

engendering opposition from within the executive branch reportedly included those

to streamline or consolidate agencies responsible for border security; improve

intelligence distribution to federal, state, and local agencies; and alert federal, state,

and local officials about terrorist threats using a system of graduated levels of

danger.56

At about this same time, Ridge began to become embroiled in controversy over

his refusal to testify before congressional committees. Among the first to request his

appearance were Senator Robert C. Byrd and Senator Ted Stevens, respectively, the

chairman and ranking minority member of the Committee on Appropriations. Ridge

turned down their initial, informal invitation and later formal requests of March 15

and April 4.57 When Ridge declined the request of Representative Ernest Istook, Jr.,

chairman of the House Appropriations Subcommittee on Treasury, Postal Service,

and General Government, appropriations for the Executive Office of the President

were threatened, prompting Ridge to offer to meet with Istook and other

subcommittee members in an informal session.58 Thereafter, Ridge arranged other

informal briefings with members of the House Committee on Government Reform

and a group of Senators, and agreed to a similar such session with members of the

House Committee on Energy and Commerce. These informal meetings, however,

did not appear to abate the controversy that Ridge’s refusals to testify had

generated.59

Representative Thornberry had introduced legislation (H.R. 1158) on March 21, 2001, to

establish a National Homeland Security Agency which closely resembled his subsequent

departmental proposal, but the organization was not denominated a department and,

therefore, its head did not have Cabinet status.

Eric Pianin and Bill Miller, “For Ridge, Ambition and Realities Clash,” Washington Post,

Jan. 23, 2002, pp. A1, A10.

Dave Boyer, “Ridge Reluctant to Testify in Senate,” Washington Times, Feb. 27, 2002, p.

A4; (name redacted), “Congressional Hearings: Letter to Ridge Is Latest Jab in Fight Over

Balance of Powers,” New York Times, Mar. 5, 2002, p. A8; Mark Preston, “Byrd Hold

Firm,” Roll Call, Apr. 18, 2002, pp. 1, 26.

George Archibald, “Panel Ties Funding to Ridge Testimony,” Washington Times, Mar. 22,

2002, pp. A1, A14; George Archibald, “White House Mollifies House Panel,” Washington

Times, Mar. 23, 2002, pp. A1, A4.

Bill Miller, “Ridge Will Meet Informally with 2 House Committees,” Washington Post,

Apr. 4, 2002, p. A15; George Archibald, “Ridge Attends Private Meeting on Hill,”

Washington Times, Apr. 11, 2002, p. A4; Elizabeth Becker, “Ridge Briefs House Panel, but

Discord Is Not Resolved,” New York Times, Apr. 11, 2002, p. A17; Bill Miller, “From Bush

Officials, a Hill Overture and a Snub,” Washington Post, Apr. 11, 2002, p. A27; Amy Fagan,

“Democrats Irked by Ridge’s Closed House Panel Meeting,” Washington Times, Apr. 12,

2002, p. A6; Stephen Dinan, “Ridge Briefing Called ‘Stunt’,” Washington Times, May 3,

(continued...)

CRS-16

Assessing the situation in early May, a New York Times news analysis proffered

that, “instead of becoming the preeminent leader of domestic security, Tom Ridge

has become a White House adviser with a shrinking mandate, forbidden by the

president to testify before Congress to explain his strategy, overruled in White House

councils and overshadowed by powerful cabinet members reluctant to cede their turf

or their share of the limelight.” In support of this view, the analysis noted that the

Pentagon did not consult with Ridge when suspending air patrols over New York

City—a special assistant to the Secretary of Defense explained this action by saying,

“We don’t tell the Office of Homeland Security about recommendations, only about

decisions”—and the Attorney General unilaterally announced a possible terrorist

threat against banks in April.60 Asked about this assessment by Jim Lehrer on the

PBS Newshour, Ridge called it “false” and said, “I just don’t think they have spent

enough time with me on a day-to-day basis.”61 Shortly thereafter, a New York Times

editorial opined that one of the reasons Ridge “lost these turf battles is that he failed

to build a constituency for change in Congress. His refusal to testify before

Congressional committees has not helped.”62

Ridge’s problems had not escaped White House attention. In his April 11, 2002,

testimony before the Senate Committee on Governmental Affairs concerning Senator

Lieberman’s proposal for a homeland security department, Mitchell E. Daniels, Jr.,

the director of the Office of Management and Budget, indicated that the President

might eventually decide to create the department as envisaged in the Lieberman bill.

In addition, Daniels said he would consider creating a working group with Senator

Lieberman to discuss the legislation.63 Subsequently, Daniels, Ridge, White House

Chief of Staff Andrew H. Card, Jr., and White House counsel Alberto R. Gonzales

would constitute the principal members of a secret group that would begin drafting

the President’s departmental plan on April 23. This proposal was unveiled on June

6, 2002. The President’s surprise announcement was viewed not only as an attempt

to regain the initiative in the nation’s efforts at combating terrorism, but also to move

beyond the coordination efforts of OHS to a strong administrative structure for

managing consolidated programs concerned with border security and effective

response to domestic terrorism incidents. The President transmitted a draft bill

detailing his plan for the department on June 18, and it was formally introduced

(H.R. 5005) on June 24.64 An alternative model was provided by Senator Lieberman

(S. 2452) and Representative Thornberry (H.R. 4660), to create both a Department

(...continued)

2002, p. A9; Bill Miller, “On Homeland Security Front, a Rocky Day on the Hill,”

Washington Post, May 3, 2002, p. A25.

Elizabeth Becker, “Big Visions for Security Post Shrink Amid Political Drama,” New York

Times, May 3, 2002, pp. A1, A16.

NewsHour Focus, Newsmaker: Tom Ridge, May 9, 2002, transcript available at NewsHour

Index, [http://www.pbs.org/newshour/newshour_index.html].

Editorial, “Faltering on the Home Front,” New York Times, May 12, 2002, p. 14.

Elizabeth Becker, “Domestic Security: Bush Is Said to Consider a New Security

Department,” New York Times, Apr. 12, 2002, p. A15.

See Congressional Record, daily edition, vol. 148, June 18, 2002, pp. H3639-H-3641.

CRS-17

of National Homeland Security and a new Executive Office of the President entity,

the National Office for Combating Terrorism.

Homeland Security—Initial Department Bills

By the time the President’s draft legislation was formally introduced, House

leaders had agreed that it would be the legislative vehicle for that body to develop a

mandate for a Department of Homeland Security. According to the agreed-upon

plan, the bill would be referred to standing committees, which would (for

approximately three weeks) consider and recommend modifications, as deemed

appropriate, within their jurisdictions. The bill would then be referred to a select

committee on homeland security which, under the chairmanship of the Majority

Leader, would produce (after approximately two weeks) a version of the legislation

for floor consideration.

In the Senate, by the time the President’s draft legislation was unveiled, Senator

Lieberman’s second bill (S. 2452) to establish a Department of National Homeland

Security had been ordered to be reported, with amendments, from the Committee on

Governmental Affairs.65 It was determined that this measure would be the legislative

vehicle for the Senate to develop a mandate for a Department of Homeland

Security.66 The resulting Senate-passed bill and the counterpart approved by the

House would then be sent to conference for reconciliation, and that version of the

legislation would be considered by each house.

At the outset, the House and Senate bills differed in some major regards. The

House bill would have transferred approximately two dozen primary components to

the new department; the Senate bill would have transferred one-third of these primary

components. Table 2 generally reflects these comparative differences.

U.S. Congress, Senate Committee on Governmental Affairs, National Homeland Security

and Combating Terrorism Act of 2002, report to accompany S. 2452,107th Cong., 2nd sess.,

S.Rept. 107-175 (Washington: GPO, 2002).

The discussion of S. 2452 in this section (Phase 1) refers to the version of the bill ordered

to be reported from the Committee on Governmental Affairs on May 22 (S.Rept. 107-175).

CRS-18

Table 2. Primary Components Transferred

to the Department of Homeland Security

House Bill

(H.R. 5005, as introduced)

Senate Bill

(S. 2452, as initially reported)

Animal and Plant Health Inspection

Service (DOA)

Animal and Plant Health Inspection

Service (DOA) (in part)

Critical Infrastructure Assurance Office

(DOC)

Critical Infrastructure Assurance Office

(DOC)

Federal Emergency Management Agency

Immigration and Naturalization Service

(in part)

National Domestic Preparedness Office

(FBI)

National Domestic Preparedness Office

(FBI)

National Infrastructure Protection Center

(FBI)

National Infrastructure Protection Center

(FBI)

U.S. Coast Guard

U.S. Customs Service

Chemical, Biological, and Nuclear

Security, Non-proliferation, and

Verification Programs (DOE)

Civilian Biodefense Research Programs

(HHS)

Computer Security Division (NIST)

Domestic Emergency Support Teams

(DOJ)

Environmental Measurements Laboratory

(DOE)

Federal Computer Incident Response

Center (GSA)

Federal Protective Service (GSA)

Lawrence Livermore National Laboratory

(DOE)

National Biological Weapons Defense

Analysis Center (DOD)

National Communications System (DOD)

National Infrastructure Simulation and

Analysis Center (DOE)

CRS-19

House Bill

(H.R. 5005, as introduced)

Senate Bill

(S. 2452, as initially reported)

Nuclear Incident Response (DOE)

Office for Domestic Preparedness (DOJ)

Office of the Assistant Secretary for

Public Health Emergency Preparedness

(HHS)

Plum Island Animal Disease Center

(DOA)

Select Agent Registration and

Enforcement Program (HHS)

Strategic National Stockpile (HHS)

Transportation Security Administration

(DOT)

U.S. Secret Service

Acronyms:

DOA = Department of Agriculture

DOC = Department of Commerce

DOD = Department of Defense

DOE = Department of Energy

DOJ = Department of Justice

DOT = Department of Transportation

FBI = Federal Bureau of Investigation, Department of Justice

GSA = General Services Administration

HHS = Department of Health and Human Resources

NIST = National Institute of Standards and Technology, Department of Commerce

The two bills also differed concerning the number and kinds of officials who

would be reporting directly to the head of the department. The House bill identified

as many as 12 officers who seemingly would have been reporting directly to the

Secretary, while the Senate bill identified half as many such officials. However, the

Senate bill made no reference to three positions—general counsel, Chief Financial

Officer, and Chief Information Officer—specified in the House bill. Table 3

generally reflects these comparative differences.

CRS-20

Table 3. Officials Reporting Directly

to the Secretary of Homeland Security

House Bill

(H.R. 5005, as introduced)

Senate Bill

(S. 2452, as initially reported)

Deputy Secretary

Under Secretary for Information Analysis

and Infrastructure Protection

Directorate of Critical Infrastructure

Protection

Under Secretary for Chemical,

Biological, Radiological, and Nuclear

Countermeasures

Under Secretary for Border and

Transportation Security

Directorate of Border and Transportation

Protection

Under Secretary for Emergency

Preparedness and Response

Directorate for Emergency Preparedness

and Response

Under Secretary for Management

Director of the Office of Science and

Technology

Inspector General

Commandant of the Coast Guard

General Counsel

Director of the Secret Service

Chief Financial Officer

Chief Information Officer

The House and Senate bills also reflected major differences regarding related

components. The House bill would have created only a new department and

presumed the continued existence of OHS and HSC established by E.O. 13228. If

the new department had been established by the House bill, an amendment to the

executive order could have appropriately adjusted the membership of the council.

The Senate bill, however, would have created a new department, made the head of

the department a member of the National Security Council, established a National

Office for Combating Terrorism within the Executive Office of the President

(presumably replacing OHS), and mandated a National Combating Terrorism and

Homeland Security Response Council to assist with the preparation and

implementation of a National Strategy for Combating Terrorism and Homeland

Security Response (presumably replacing HSC). Creation of a National Office for

Combating Terrorism posed a question as to the head of that entity, who would have

been subject to Senate confirmation, also serving as the principal presidential adviser

on homeland security. At the time, the situation was reversed: the Assistant to the

President for Homeland Security, who was a member of the White House Office

staff, also headed OHS and had declined to appear before congressional committees

because he was a presidential adviser.

CRS-21

Concerning the need for both a homeland security coordinating office in the

Executive Office of the President and a department, Indiana University public affairs

professor Charles R. Wise warns: “Combining an interagency coordinating role with

the role of leader of a major department inevitably will raise concern that the head

of the department is using the coordinating role to further the interests of his or her

own department and will undermine the coordinating position by fostering

perceptions of partiality.”67 Moreover, while the Secretary of Homeland Security

would have been a major player in homeland security policy and practice, he or she

would not be the only leader involved in these matters, and the efforts of the

department would have to have been coordinated with those of other departments and

agencies having homeland security responsibilities.

Homeland Security—Markup of Department Bills

As the second week of July came to a close, the standing committees of the

House that had been considering the President’s proposal for a Department of

Homeland Security offered their recommendations for modifying the bill. A few

committees indicated disagreement with some of the primary component transfers

(see Table 2) that would have been made by the President’s legislation. The

Committee on Armed Services recommended that the Lawrence Livermore National

Laboratory and the Coast Guard remain in their current status, although some Coast

Guard functions were proposed for transfer. The Committee on the Judiciary

recommended transferring only the Office of National Preparedness of the Federal

Emergency Management Agency (FEMA) to the new department, not the entire

agency; moving only the enforcement responsibilities of the Immigration and

Naturalization Service (INS) to the new department and leaving the Service’s

administrative duties with the Department of Justice; and transferring the Secret

Service to the Department of Justice instead of the new department. The Committee

on Transportation and Infrastructure also proposed leaving the Coast Guard and

FEMA in their current status, and recommended that the recently established

Transportation Security Administration (TSA) be moved to the new department after

TSA was fully organized. The Committee on Ways and Means urged keeping the

revenue collecting authority of the Customs Service at the Department of the

Treasury rather than transferring the whole agency to the new department.68

Not bound by these standing committee recommendations, the House Select

Committee on Homeland Security began hearings on the President’s proposal on July

11, receiving testimony from Attorney General John Ashcroft, Secretary of Defense

Donald H. Rumsfeld, Secretary of State Colin Powell, and Secretary of the Treasury

Charles R. Wise, “Organizing for Homeland Security,” Public Administration Review, vol.

62, Mar-Apr. 2002, p. 137.

Associated Press, “House Panels Finish New Security Lineup,” Washington Times, July

13, 2002, p. A2; David Firestone, The Reorganization Plan: Congressional Panels Recast

Homeland Security Dept.,” New York Times, July 11, 2002, p. A18; Walter Pincus, Juliet

Eilperin, and Bill Miller, “Details of Homeland Plan Assailed: House Panels Vote to Block

Transfers of Some Agencies,” Washington Post, July 11, 2002, pp. A1, A4.

CRS-22

Paul H. O’Neill.69 A July 9 discussion draft of substitute language to the President’s

proposal, released by the chairman of the select committee, added detail to the

pending legislation, but made no adjustment of the primary components proposed for

transfer to the new department. A second discussion draft, very similar to the first

one, was released by the chairman on July 18; it was used by the select committee in

its July 19 markup, and the resulting legislation, as amended, was ordered reported

on a party-line vote at the end of the day.70

The House bill, as reported from committee, largely continued to reflect the

department component structure proposed by the President. A notable exception in

this regard, however, was the transference of only the enforcement responsibilities

of INS to the new department and leaving its administrative duties with the

Department of Justice. Among the more contentious issues before the committee

were civil service protections and collective bargaining rights for department

workers. The bill continued to vest broad authority in the secretary regarding these

matters. Institutional additions to the legislation, as introduced (the President’s

proposal), included:

! a special assistant to the secretary, appointed by the secretary and responsible

for several specified communications, policy advice, homeland security

mission assessment, and partnership matters regarding the private sector;

! a National Council of First Responders, composed of not less than 100

individuals appointed by the President for three-year terms and chaired by an

individual appointed by a Director of Homeland Security (not otherwise

identified in the bill), which was tasked with various information, education,

identification, and evaluation duties relative to first response matters and first

responders;

! a Privacy Officer, appointed by the secretary by designating a senior

department official to assume primary responsibility for privacy policy,

including, among other duties, assuring that the use of information

technologies sustain, and do not erode, privacy protections relating to the use,

collection, and disclosure of personal information; assuring full compliance

with the Privacy Act of 1974; evaluating legislative proposals involving

collection, use, and disclosure of personal information by the federal

government; and conducting a privacy impact assessment of proposed rules

of the department or that of the department on the privacy of personal

information, including the type of personal information collected and the

number of people affected;

David Firestone, “Top Bush Aides Urge No Change in Security Plan,” New York Times,

July 12, 2002, pp. A1, A16; Walter Pincus and Bill Miller, “4 Secretaries Endorse New

Homeland Department,” Washington Post, July 12, 2002, p. A4.

See U.S. Congress, House Select Committee on Homeland Security, Homeland Security

Act of 2002, a report to accompany H.R. 5005, 107th Cong., 2nd sess., H.Rept. 107-609

(Washington: GPO, 2002).

CRS-23

! an Office for Civil Rights and Civil Liberties, headed by a director responsible

for reviewing and assessing information alleging abuses of civil rights, civil

liberties, and racial and ethnic profiling by employees and officials of the

department;

! an Office of International Affairs, established within the office of the secretary

and headed by a director appointed by the secretary, which was to promote

information and education exchange with nations friendly to the United States

in order to promote the sharing of best practices and technologies relating to

homeland security; and

! a Homeland Security Council, established within the Executive Office of the

President with the President, Vice President, Attorney General, Director of

Central Intelligence, and Secretaries of Homeland Security, Health and

Human Services, Defense, the Treasury, State, Energy, and Agriculture as

members, to advise the President on homeland security matters; the staff of

the council were to be directed by a presidentially appointed executive

secretary; the council could be convened jointly with the National Security

Council.

The number of assistant secretary positions to which the President could make

unilateral appointments was reduced from not more than ten, as proposed by the

President, to not more than eight; the number of such positions for which the

presidential appointment was subject to Senate confirmation was reduced from not

more than six to not more than four. The provision in the House bill, as introduced,

authorizing the President, until the transfer of an agency to the new department, to

transfer to the Secretary amounts not to exceed 5% of the unobligated balance of any

appropriation available to such agency was adjusted, a 2% ceiling being set for

transfers for administrative expenses related to the establishment of the department

and a 3% ceiling being set for transfers for which the funds were appropriated.

Similarly, the President’s proposal to allow the secretary to transfer between

appropriation accounts upwards of 5% of any appropriation available to such official

in any fiscal year was reduced to upwards of 2%. The reported bill prohibited all

federal activities to implement the proposed Citizen Corps program known as

Operation TIPS (Terrorism Information and Prevention System), designed to recruit

private citizens to report “suspicious” activities of other individuals for collection in

a centralized database.71 Another provision specified that the legislation did not

authorize the development of a national identification system or card. Finally, as

noted below, although two definitions of the homeland security concept were

available to the select committee at the time of its markup, the panel did not include

any such explanation of the term in the reported bill.

In related developments, on July 15, the Brookings Institution released the first

comprehensive critique of the President’s proposal, suggesting, among other

See Bill Berkowitz, “AmeriSnitch,” The Progressive, vol. 66, May 2002, pp. 27-28; Ariana

Eunjung Cha, “Citizen Tips on Terrorists: Leads or Liabilities?,” Washington Post, June 19,

2002, pp. A8, A9; Ellen Sorokin, “Planned Volunteer-Informant Corps Elicits ‘1984' Fears,”

Washington Times, July 16, 2002, p. A4.

CRS-24

considerations, that it “merges too many different activities into a single department,”

should leave science and technology research and development responsibilities for

later deliberation, and begged a rethinking of congressional committee

arrangements.72 The following day, the President released the National Strategy for

Homeland Security, which offered a definition of homeland security that could be

used in determining the program composition of the new department. “Homeland

security,” it was stated, “is a concerted national effort to prevent terrorist attacks

within the United States, reduce America’s vulnerability to terrorism, and minimize

the damage and recover from attacks that do occur.”73 An alternative definition of

homeland security was offered in the marked-up version of the President’s proposal

containing the recommendations of the House Committee on Government Reform:

“the deterrence, detection, preemption, prevention, and defense against terrorism

targeted at the territory, sovereignty, population, or infrastructure of the United

States, including the management of the programs and policies necessary to respond

to and recover from terrorist attacks within the United States.”

In the Senate, the Committee on Governmental Affairs began a markup of the

Lieberman bill (S. 2452) on July 24, working with an amendment drafted by Senator

Lieberman. The following day, the committee authorized the chairman to withdraw

the version of the bill that had been amended and ordered favorably reported on May

22, then approved the modified amendment in the nature of a substitute to the text

of the withdrawn bill. The new version would have included largely the same

agencies and programs in the Department of Homeland Security as would have been

transferred by the House bill. Exceptions were the inclusion of the Computer

Security Division of the National Institute of Standards and Technology and the

National Bioweapons Defense Analysis Center of the Department of Defense, which

the House bill did not include. By contrast, the House bill would have transferred the

Environmental Measurements Laboratory of the Department of Energy, portions of

the Advanced Scientific Computing Research Program of the Lawrence Livermore

National Laboratory, portions of the Chemical Biological Defense Program of the

Department of Defense, the Plum Island Animal Disease Center of the Department

of Agriculture, and the Domestic Emergency Support Teams of the Department of

Justice, which the new Senate bill did not include in the Department of Homeland

Security. Also, the House bill would have transferred the Federal Law Enforcement

Training Center of the Department of the Treasury to the Attorney General, while the

Senate bill would have placed it in the new department.

The newly amended Senate bill also added most of the same senior officials—a

Chief Financial Officer, Chief Information Officer, general counsel, and Privacy

Officer—included in the House bill. It would have established six directorates within

the new department, including a large immigration directorate to which all of INS

would have been transferred. The House bill would have moved only the

enforcement functions of INS to the new department. Like the House bill, the newly

amended Senate bill would have removed critical infrastructure information, which

Ivo Daalder, et al., Assessing the Department of Homeland Security (Washington:

Brookings Institution, 2002), p. ii.

U.S. Office of Homeland Security, National Strategy for Homeland Security (Washington:

July 2002), p. 2, available at [http://www.whitehouse.gov/homeland/book/nat_strat_his.pdf].

CRS-25

was voluntarily shared by industry with the department, from the information access

arrangements of the Freedom of Information Act. However, unlike the House bill,

the new Senate bill would have established a National Office for Combating

Terrorism within the Executive Office of the President, mandated a National Strategy

for Combating Terrorism, and continued civil service protections and collective

bargaining rights for workers in the new department.

In the closing days of July, the Senate, contending with a schedule somewhat

crowded with other pending legislation, delayed taking up the Department of

Homeland Security legislation until it returned in early September from a summer

recess.74

Homeland Security—Floor Action on Department Bills

The House began consideration of the department bill (H.R. 5005), as reported

by the Select Committee on Homeland Security, on July 25, with debate extending

into the late night, then resuming the next day.75 Twenty-six amendments were in

order for consideration.76 Among those agreed to were amendments:

! establishing a Homeland Security Institute as a research and development

center;77

! requiring a plan within one year to consolidate and co-locate regional and field

offices in each city with existing offices transferred to the department;78

! establishing an office for state and local government coordination;79

! requiring biennial reports to Congress on the status of homeland security

preparedness, including an assessment for each state, and a report within one

year of enactment that assessed the progress of the department in

implementing the act to ensure that core functions of each entity transferred

Stephen Dinan, “Senate Putts Off Vote on Security,” Washington Times, July 30, 2002,

pp. A1, A8; David Firestone, “For Homeland Security Bill, a Brakeman,” New York Times,

July 31, 2002, p. A17; Bill Miller and Helen Dewar, “Senate to Delay Voting on Homeland

Department,” Washington Post, July 30, 2002, p. A2.

Congressional Record, daily edition, vol. 148, July 25, 2002, pp. H5621-H5704; Ibid., July

26, 2002, pp. 5793-H5888.

See U.S. Congress, House Committee on Rules, Providing for Consideration of H.R. 5005,

Homeland Security Act of 2002, report to accompany H.Res. 502, 107th Cong., 2nd sess.,

H.Rept. 107-615 (Washington: GPO, 2002).

Congressional Record, daily edition, vol. 148, July 25, 2002, p. H5694.

Ibid., pp. H5697-H5698.

Ibid., pp. H5702-H5703.

CRS-26

to it were maintained and strengthened and recommending any conforming

changes in law necessary to the further implementation of the act;80

! protecting the union rights of employees transferred into the department and

allowing the President to exempt applications where there would be a

substantial adverse impact on the department’s ability to protect homeland

security;81

! requiring collaboration with employee representatives in the planning,

development, and implementation of any human resources management

system;82

! strengthening security controls over information resources that support federal

operations and assets;83 and

! facilitating the sharing of security information among federal, state, and local

governments.84

Among the amendments rejected during the House floor debate were proposals:

! establishing the Office of Homeland Security statutorily with a director

appointed by the President with Senate approval;85

! retaining FEMA as an independent agency with responsibility for natural

disaster preparedness, response, and recovery;86

! preserving the Customs Service as a distinct entity within the Department of

Homeland Security;87

! protecting the rights of union employees who are transferred into the

department with the same job responsibilities as they had in their previous

organization;88

Ibid., pp. H5703-H5704.

Ibid., July 26, 2002, pp. H5800-H5804.

Ibid., pp. H5809-H5813.

Ibid., pp. H5817-H5829, H5837-H5838; the provisions, included in an en bloc manager’s

amendment, had been offered in H.R. 3844.

Ibid., pp. H5854-H5861; many of the provisions had been offered in H.R. 4598, which was

approved by the House on June 26, 2002.

Ibid., pp. H5793-H5798.

Ibid., pp. H5798-H5799.

Ibid., p. H5799.

Ibid., pp. H5804-H5809.

CRS-27

! striking section 761 of the bill, which established a human resources

management system and inserting various provisions, including the authority

for the director of the Office of Personnel Management to adjust pay

schedules, except that employees transferred to the Department of Homeland

Security could not have their pay reduced; provided for suspension and

removal of employees in the interest of national security; and provided

remedies for retaliation against whistleblowers;89

! striking subtitle C of Title VII regarding voluntarily shared critical

infrastructure information; striking section 762 regarding advisory

committees; and inserting a new section dealing with remedies for retaliation

against whistleblowers;90 and

! defining the term “covered Federal agency,” for purposes of exemption from

disclosure under the Freedom of Information Act, to mean the Department of

Homeland Security and agencies with which the department shares critical

infrastructure information.91

Concluding debate on July 26, 2002, the House voted 295-132 to adopt H.R.

5005, as amended.

Returning from the August recess, the Senate began consideration of the House

bill establishing a Department of Homeland Security on September 3. That day, the

text of the Senate bill, as modified by the Committee on Governmental Affairs, was

submitted by Senator Lieberman as an amendment (S.Amdt. 4471) in the nature of

a substitute for the language of the House bill. During the opening discussion of the

legislation, Senator Robert Byrd indicated his intention to offer an amendment

designed to slow down the process by which components were transferred to the new

department in order to allow more time for careful consideration by Congress. His

amendment (S.Amdt. 4644) was subsequently submitted on September 18. By that

time, several other amendments had been offered and others would be submitted

later.

Initial amendments to the Lieberman substitute, which were adopted on

September 5, would have prohibited the Secretary of Homeland Security from

contracting with any corporate expatriate and improved flight and cabin security on

passenger aircraft. On September 17, after extended debate, a third amendment was

adopted, striking Title II of the Lieberman substitute, which would have established

a National Office for Combating Terrorism, and Title III, which would have

mandated a National Strategy for Combating Terrorism and Homeland Security

Response.

Amendments approved the following day would have created an Office of

National Capital Region Coordination within the new department; clarified the

Ibid., pp. H5817-H5817, H5837.

Ibid., pp. H5845-H5850, H5869.

Ibid., pp. H5850-H5853, H5869-H5870.

CRS-28

transfer of certain agricultural inspection functions of the Department of Agriculture;

enhanced the management and promotion of electronic government services and

processes by establishing an Office of Electronic Government within OMB, along

with a broad framework of measures requiring the use of Internet-based information

technology to enhance citizen access to government information and services;

identified certain sites as key resources for protection by the Directorate of Critical

Infrastructure Protection; amended various laws administered by the Secretary of

Veterans Affairs to take into account the assumption by the Secretary of Homeland

Security of jurisdiction of the Coast Guard; and improved the protection of

Department of Defense storage depots for lethal chemical agents and munitions

through strengthened temporary flight restrictions. An amendment approved on

September 19 would have strengthened criminal laws and provided greater

flexibilities to prevent and protect against cyber attacks.

Amendments adopted on September 24 would have mandated a National

Commission on Terrorist Attacks Upon the United States to conduct a

comprehensive investigation of the events of September 11, and established an Office

for State and Local Government Coordination within the office of the Secretary for

Homeland Security. An amendment (S.Amdt. 4644) offered by Senator Byrd

defining “homeland security” and otherwise establishing an incremental arrangement

for determining the composition of the new department was defeated on a 28-70 vote.

The following day, Senator Phil Gramm submitted an amendment (S.Amdt.

4738), which would have structured the department and created management

arrangements very similar to the President’s original proposal, but otherwise

containing many other portions identical to those of the Lieberman substitute.

Another amendment (S.Amdt. 4740), offered by Senator Ben Nelson, sought to

modify certain personnel provisions to effect a compromise between the flexibilities

in human resources management sought by the President and the continued civil

service protections and collective bargaining rights contained in the Lieberman

substitute. By this time, the President, in his September 21 radio address to the

nation and in September 23 remarks at an Army National Guard aviation support

facility in Trenton, NJ, was demanding Senate approval of his position on human

resources management. He indicated that he could accept the Gramm proposal,

adding that “anything less than that is a bill I cannot accept.”92

On September 26, attempts to invoke cloture on the Lieberman substitute failed

for the third and fourth times, as did an October 1 attempt to invoke cloture on the

Gramm amendment, leaving the outcome on legislating a Department of Homeland

Security in doubt. Further discussion of the matter was discontinued in the Senate,

both houses subsequently adjourning on November 8 for the fall elections.

White House Office, Office of the Press Secretary, “President Calls on Congress to Act,”

remarks at Army National Guard Aviation Support Facility, Trenton, NJ, Sept. 23, 2002, p.

3, available at [http://www.whitehouse.gov/news/releases/2002/09/print/20020923-2.html].

CRS-29

Homeland Security—Continued Floor Action on Department

Bills

When the House and the Senate reconvened on November 12, it was clear from

the recent election returns that the President’s political party would have majority

control of both houses of the l08th Congress. Furthermore, Representative Armey,

the House Majority Leader and chairman of the Select Committee on Homeland

Security, introduced, with bipartisan support, a new bill (H.R. 5710) to establish a

Department of Homeland Security, which was supported by the Bush Administration.

The bill was brought up for floor consideration the following day under a closed rule

(no amendments), and was approved on a 299-121 vote.93

Similar in many regards to the President’s original proposed legislation for

creating a homeland security department and the modified version (H.R. 5005)

adopted by the House in late July, the new House-passed bill would provide the

President many of the human resources management flexibilities he had sought,

mandate a National Homeland Security Council, and transfer the following

components to the new department:

! agricultural import and entry inspection functions (Department of

Agriculture);

! chemical and biological nonproliferation and verification research and

development program, nuclear smuggling programs, and nuclear assessment

program (Department of Energy);

! Critical Infrastructure Assurance Office (Department of Commerce);

! Domestic Emergency Support Teams (Department of Justice);

! Environmental Measurements Laboratory (Department of Energy);

! Federal

Computer

Administration);

Incident

Response

Center

(General

Services

! Federal Emergency Management Agency;

! Federal Law Enforcement Training Center (Department of the Treasury);

! Federal Protective Service (General Services Administration);

! Immigration and Naturalization Service, immigration enforcement functions

(Department of Justice);

! Lawrence Livermore National Laboratory, advanced scientific computing

research program (Department of Energy);

Congressional Record, daily edition, vol. 148, Nov. 13, 2002, pp. H85595-H8722.

CRS-30

! Metropolitan Medical Response System (Department of Health and Human

Services);

! National Communications System (Department of Defense);

! National Disaster Medical System (Department of Health and Human

Services);

! National Domestic Preparedness Office (Department of Justice, Federal

Bureau of Investigation);

! National Infrastructure Protection Center (Department of Justice, Federal

Bureau of Investigation);

! National Infrastructure Simulation and Analysis Center (Department of

Energy);

! National Oceanic and Atmospheric Administration, integrated hazard

information system (Department of Commerce);

! Office of Domestic Preparedness (Department of Justice);

! Office of Emergency Preparedness (Department of Health and Human

Services);

! Plum Island Animal Disease Center (Department of Agriculture);

! Strategic National Stockpile (Department of Health and Human Services);

! Transportation Security Administration (Department of Transportation);

! United States Coast Guard (Department of Transportation);

! United States Customs Service (Department of the Treasury); and

! United States Secret Service (Department of the Treasury).

On November 13, the Senate resumed consideration of the initial House-passed

bill (H.R. 5005) establishing a Department of Homeland Security. Pending on the

floor was the Lieberman substitute (S.Amdt. 4471), which was subsequently tabled

on a 50-47 vote.94 Senator Fred Thompson offered the text of the second Housepassed bill (H.R. 5710) creating a Department of Homeland Security as an

amendment (S.Amdt. 4901) for later consideration as a substitute to the language of

the initial House-passed department bill. The following day, Senator Lieberman

offered an amendment (S.Amdt. 4911) to make certain provisions of the Thompson

substitute noneffective. On November 15, the Senate, on a 65-29 vote, ended further

Ibid., p. S10856.

CRS-31

debate on the Thompson substitute (S.Amdt 4901).95 Four days later, the Thompson

substitute was adopted on a 73-26 vote, and the Senate then passed the House bill

(H.R. 5005), as amended, on a 90-9 vote and returned the measure to the House.96

The House agreed to the Senate-amended version of the bill on November 22,

clearing the measure for the President’s signature.97 President Bush signed the

legislation into law on November 25.98

Legislative Issues

Proposals to create a Department of Homeland Security raised many issues, not

the least of which were threshold questions concerning the value of the new entity.

President Bush contended that his proposal did not constitute an expansion of the

federal government, but merely consolidated existing programs within a more

efficient and effective management structure. However, neither the President’s

proposal nor the principal congressional bills made use of a definition of the concept

of homeland security to guide the component composition of the new department.

Moreover, whole agencies were proposed for transfer to the department with very

little effort to sort out non-homeland security functions and programs for more

appropriate administration elsewhere other than the new department. Of course,

attempts to sort out the homeland security programs of transferred agencies from

non-homeland security programs might have resulted in increased cost for additional

administrative overhead. Some contended that the creation of any new department

would result in budget expansion. In a July 9, 2002, cost estimate, the Congressional

Budget Office proffered that the initial House-passed bill (H.R. 5005) establishing

a new Department of Homeland Security “would cost about $3 billion over the 20032007 period,” which would be “in addition to projected net spending for ongoing

activities of the transferred agencies—about $20 billion in 2002, growing to $31

billion by 2007.”99

There were, as well, those who doubted that merely rearranging programs within

a new department would truly improve the nation’s defenses against terrorism.

Others maintained that, no matter how well management and operating arrangements

were fine-tuned legislatively, the effectiveness of the department and its leadership

could not be guaranteed. And still others wondered aloud who will be willing to

serve, for very long, in the leadership of such a department. Additional issues

concerning the scope of the President’s proposal, the transfer of non-homeland

security functions, and certain operating arrangements of the new department are

discussed below.

Ibid., Nov. 15, 2002, p. S11169.

Ibid., Nov. 19, 2002, pp. S11358-S11404.

Ibid., Nov. 22, 2002, pp. H9040-H9114.

P.L. 107-296; 116 Stat. 2135; see Weekly Compilation of Presidential Documents, vol. 38,

Nov. 25, 2002, pp. 2092-2095.

U.S. Congressional Budget Office, H.R. 5005, Homeland Security Act of 2002, CBO Cost

Estimate (Washington: July 9, 2002), p. 1.

CRS-32

Adequate Scope. Some initially criticized the President’s proposal as an

inadequate response to what they viewed as intelligence failures, suggesting that, in

the context of considering the components of the new homeland security department,

the Federal Bureau of Investigation (FBI) and the federal intelligence community,

particularly the Central Intelligence Agency (CIA), should not escape scrutiny. Two

FBI units—the National Domestic Preparedness Office (15 employees) and the

National Infrastructure Protection Center (795 employees)—would have been

transferred to the new department under the President’s plan, and ultimately were in

the bill that was signed into law. The criticism, however, suggested that those

developing the President’s plan had not given adequate consideration to the prospect

of transferring or restructuring FBI and CIA counterterrorism responsibilities.100

Others questioned why the Bureau of Alcohol, Tobacco, and Firearms, the Drug

Enforcement Administration, and the Nuclear Regulatory Commission were not

included.101 GAO, among others, noted that, because the concept of “homeland

security” had not been defined, “certain organizational, management, and budgetary

decisions cannot currently be made consistently across agencies.”102 As the House

and the Senate were giving final approval to legislation establishing the department,

questions about its scope arose anew when the chairman of a counterterrorism study

commission recommended the creation of a national counterterrorism center to

improve cooperation among intelligence agencies and it was reported that senior

Bush Administration officials were seriously discussing the creation of a domestic

intelligence agency.103

Inappropriate Program Transfers. During the course of legislatively

establishing a Department of Homeland Security, some noted that the transfer of

whole agencies to the new department would result in it being responsible for the

administration of programs having nothing to do with homeland security and which,

consequently, might not receive adequate resources for their execution.104 These

included the marine safety responsibilities of the Coast Guard, the drug and child

pornography interdiction efforts of the Customs Service, the counterfeiting detection

and investigation program of the Secret Service and the research and non-native plant

and pest eradication efforts of the Animal and Plant Health Inspection Service. OHS

Director Tom Ridge, in his June 20, 2002, testimony before the Senate Committee

100

Jim VandeHei and Dan Eggen, “Hill Eyes Shifting Parts of FBI, CIA,” Washington Post,

June 13, 2002, pp. A1, A14; Tim Kauffman, “Focusing on Security,” Federal Times, June

17, 2002, pp. 1, 8; Bill Miller and Mike Allen, “Homeland Security Dept. Could Receive

Raw FBI, CIA Data,” Washington Post, June 19, 2002, p. A8.

101

Chet Dembeck, “Why Were These Agencies Left Out?,” Federal Times, June 17, 2002,

p. 8.

102

U.S. General Accounting Office, Homeland Security: Key Elements to Unify Efforts Are

Underway but Uncertainty Remains, GAO Report GAO-02-610 (Washington: June 2002),

p. 2.

103

Associated Press, “Panel Calls for Creation of Counterterrorism Center,” Washington

Times, Nov. 15, 2002, p. A14; Dana Priest and Dan Eggen, “Bush Aides Consider Domestic

Spy Agency,” Washington Post, Nov. 16, 2002, pp. A1, A13.

104

Dan Davidson, “Some Fear Non-Security Programs May Suffer,” Federal Times, June 17,

2002, p. 6.

CRS-33

on Governmental Affairs, acknowledged that the new department would have a

number of programs not directly related to countering terrorism, but did not indicate

any particular concern about this development. Sorting out these programs for

continued administration by their parent departments was an option for Congress, but

little effort was actually made in this regard for various reasons, not the least of

which was the possibility that it might result in increased cost for additional

administrative overhead. The desire to get the department quickly established, and

to do so before the adjournment of the 107th Congress, also were factors.

Administrative Structure. In creating the new department, Congress had the

responsibility for determining the appropriate administrative structure for the

secretary to manage, with efficiency, economy, and effectiveness, an organization of

some 170,000 employees (many of whom would be working in field facilities),

composed of diverse units, with shared responsibility and partnership with state and

local governments, as well as the private sector. A key consideration was the

secretary’s span of control over the operations of primary divisions and internal

agencies (e.g., the Coast Guard and Secret Service), together with such broad

departmental functions as human and information resources management, budget

setting, and financial management. Initial versions of both the House and Senate

bills appeared to support strong vertical management structures, and both were

seemingly weak in detailing horizontal working arrangements among headquarter’s

divisions and internal agencies and among field staff. Under the bill initially adopted

by the House, the Secretary of Homeland Security might have had as many as 15

senior officials of the department reporting directly to him or her (or more if the

assistant secretaries actually had this relationship); under the Senate bill recrafted in

committee, 17 senior officials seemingly would have been reporting directly to the

secretary.

Ultimately, the statute mandating the Department of Homeland Security placed

most of the entities and functions transferred to the new department within four

primary directorates for border and transportation security, emergency preparedness

and response, science and technology, and information analysis and infrastructure

protection. The Coast Guard and the Secret Service were excepted from this

arrangement and enjoy independent status within the department. The heads of these

six components, along with upwards of 12 assistant secretaries and approximately14

other senior officials, appear to report directly to the secretary. In general, the

statutory administrative framework established for the department appears to support

strong vertical management structures while being somewhat weak in detailing

horizontal working arrangements among headquarter’s divisions and internal

agencies.

General Management Requirements. During the 20th century, Congress

enacted a variety of general management laws prescribing how federal departments

and agencies shall manage assets and resources, prepare budgets, engage in the

purchase of goods and services, and conduct regulatory activities and their

evaluation.105 Some of these laws are generally inclusive in their application—they

105

See CRS Report RL30795, General Management Laws: A Selective Compendium—107th

(continued...)

CRS-34

automatically apply to all departments and agencies unless otherwise excepted.

Others are explicit, requiring amendment in order for their provisions to be

applicable to specific departments and agencies. As legislation establishing a

Department of Homeland Security progressed in the House and the Senate, questions

about the applicability of some of these laws were raised and were only sporadically

addressed. For example, the Subcommittee on Commercial and Administrative Law

of the House Committee on the Judiciary devoted a hearing to administrative law,

adjudicatory, and privacy issues posed by the House bill.106 Another case involved

the Government Performance and Results Act (GPRA).107 At one point, the Senate

bill, while not exempting the new department from GPRA requirements, provided

some GPRA-like results-based management obligations—a strategic plan, a

performance plan, and a performance report—for the department.108 Ultimately, the

statute mandating a Department of Homeland Security reflects special arrangements

in such areas as human resources management and procurement, but uncertainties

regarding the applicability of other general management laws are likely to arise.

Worth mentioning is the innovation of establishing a Privacy Officer within the

new department. This idea gained attention when OMB Controller Mark W.

Everson, in his July 9 testimony before the House Subcommittee on Commercial and

Administrative Law, commented: “Although the general counsel of an agency often

handles privacy issues, we recognize the special importance of these issues in the

homeland security context and are examining options for establishing a specialized

privacy officer within the new Department.”109 The Department of Justice has had

such an official since December 1998. The initial House-approved bill included a

Privacy Officer, an addition to the legislation made by the Select Committee on

Homeland Security, and the committee-modified Senate bill also provided for a

Privacy Officer, as did the final version of the legislation.

Human Resources Management. Although the President’s proposal

would have resulted in the transfer of almost 170,000 employees to the new

department, the initial version of the Senate legislation (S. 2452) would have

involved the transfer of about 119,500 personnel. The President’s proposal contained

a provision not included in the initial version of the Senate bill authorizing the

Secretary of Homeland Security, in regulations prescribed jointly with the director

of the Office of Personnel Management, to establish and, from time to time, adjust

105

(...continued)

Congress, by (name redacted).

106

U.S. Congress, House Committee on the Judiciary, Administrative Law, Adjudicatory

Issues, and Privacy Ramifications of Creating a Department of Homeland Security, hearing,

107th Cong., 2nd sess. July 9, 2002.

107

107 Stat. 285.

108

Cf. S. 2452, as modified in committee July 24-25, 2002, section 192(e) with 5 U.S.C. 306

and 31 U.S.C. 1115-1116.

109

U.S. Congress, House Committee on the Judiciary, Administrative Law, Adjudicatory

Issues, and Privacy Ramifications of Creating a Department of Homeland Security, p. 11;

also see Adam Clymer, “Privacy Officer Is Possibility at Security Department,” New York

Times, July 10, 2002, p. A17.

CRS-35

a human resources management system for some or all of the organizational units of

the department, “which shall be flexible, contemporary, and grounded in public

employment principles of merit and fitness.” In testimony before the Senate

Committee on Governmental Affairs on June 20, OHS Director Ridge indicated that

the President would request for the department “significant flexibility in hiring

processes, compensation systems and practices, and performance management to

recruit, retain, and develop a motivated, high-performance and accountable

workforce.” Government officials conducting a June 18 background briefing were

reported to have said that the Bush Administration’s legislation

would allow employees to carry over their union affiliations and current pay rates

to the new federal agency. Once the department is up and running, the secretary

would work with the Office of Personnel Management to develop personnel

rules. The secretary would also eventually decide whether to continue providing

employees with union rights.110

The provision raised various issues concerning staffing requirements, such as

adequate numbers of personnel and planning for the replacement of retiring staff;

hiring, particularly direct hiring which would not be merit-based and free of political

influence and otherwise devoid of preference for veterans; and pay, particularly pay

parity or equity for employees who are performing similar jobs.111 Civil service

protections and collective bargaining rights for department workers were among the

most contentious issues surrounding the establishment of the Department of

Homeland Security. Ultimately, the statute mandating the new department largely

supported the President’s position on these matters.

Legislation

S. 2452 (Lieberman)/H.R. 4660 (Thornberry). Establishes a Department

of National Homeland Security and a National Office for Combating Terrorism

within the Executive Office of the President. Introduced May 2, 2002, and referred

in the Senate to the Committee on Governmental Affairs, and in the House to the

Committee on Government Reform.

! May 22: Committee on Governmental Affairs ordered S. 2452, as amended,

to be reported on a 7-3 vote.

! June 20: Committee on Governmental Affairs hearing on a Department of

Homeland Security with OHS Director Tom Ridge as a witness.

! June 24: Committee on Governmental Affairs report (S.Rept. 107-175) on S.

2452, as amended, ordered to be printed.

110

Brian Friel, “New Agency Could Bring New Pay System,” GovExec.com, June 18, 2002,

available at [http://www.govexec.com].

111

See Tim Kauffman, “Critics See Few Job Protections at New Agency,” Federal Times,

June 24, 2002, p. 5; Tim Kauffman, “Retirements Threaten Homeland Security Staffing,”

Federal Times, June 24, 2002, p. 3.

CRS-36

! June 25: Committee on the Judiciary, Subcommittee on Technology,

Terrorism, and Government Information hearing on a Department of

Homeland Security.

! June 26: Committee on the Judiciary hearing on a Department of Homeland

Security with OHS Director Tom Ridge as a witness.

! June 26: Committee on the Judiciary, Subcommittee on Immigration hearing

on inclusion of the Immigration and Naturalization Service in a Department

of Homeland Security.

! June 26-27: Committee on Governmental Affairs hearings on the relationship

between a Department of Homeland Security and the intelligence community.

! June 28: Committee on Governmental Affairs hearing on a Department of

Homeland Security, weapons of mass destruction, and relevant science and

technology, research and development, and public health issues.

! July 10: Committee on Energy and Natural Resources hearing concerning a

Department of Homeland Security.

! July 10: Committee on Environment and Public Works hearing on a

Department of Homeland Security with Tom Ridge as a witness.

! July 16: Committee on Finance hearing on transfer of customs functions to a

Department of Homeland Security.

! July 16: Committee on Health, Education, Labor, and Pensions hearing on a

Department of Homeland Security.

! July 17: Committee on Agriculture, Nutrition, and Forestry hearing on a

Department of Homeland Security with Tom Ridge as a witness.

! July 24-25: Committee on Governmental Affairs began a markup of an

amendment to the text of S. 2452, authorized the chairman to withdraw the

version of S. 2452 that had been amended and ordered favorably reported on

May 22, then approved the modified amendment in the nature of a substitute

to the text of the bill.

! September 3: Senate began debate on H.R. 5005; the text of S. 2452 as

modified by the Committee on Governmental Affairs was offered by Senator

Joseph Lieberman (D-CT) as an amendment (S.Amdt. 4471) in the nature of

a substitute for the language of the House bill.

! September 25: Senator Phil Gramm (R-TX) offered an amendment (S.Amdt.

4738) structuring the department and creating management arrangements very

similar to those in the President’s original proposal, but otherwise containing

many other portions identical to those of the Lieberman substitute. Another

amendment (S.Amdt. 4740), offered by Senator Ben Nelson (D-NE), sought

to modify certain personnel provisions to effect a compromise between the

flexibilities in human resources management sought by the President and the

CRS-37

continued civil service protections and collective bargaining rights contained

in the Lieberman substitute.

! November 13: the Lieberman substitute (S.Amdt. 4471) was tabled on a 50-47

vote. Senator Fred Thompson (R-TN) offered the text of the second Housepassed bill (H.R. 5710) creating a Department of Homeland Security as an

amendment (S.Amdt. 4901) for later consideration as a substitute to the

language of the initial House-passed department bill (H.R. 5005).

! November 14: Senator Lieberman offered an amendment (S.Amdt. 4911) to

make certain provisions of the Thompson substitute noneffective.

! November 15: Senate, on a 65-29 vote, ended further debate on the Thompson

substitute.

! November 19: Senate rejected the Lieberman amendment (S.Amdt. 4911) to

make certain provisions of the Thompson substitute (S.Amdt 4901)

noneffective, adopted the Thompson substitute on a 73-26 vote, passed H.R.

5005, as amended, on a 90-9 vote, and returned the measure to the House.

H.R. 5005 (Armey) (by request). Establishes a Department of Homeland

Security. Introduced June 24, 2002, and referred to the Select Committee on

Homeland Security, and, in addition, to the Committees on Agriculture,

Appropriations, Armed Services, Energy and Commerce, Financial Services,

Government Reform, Intelligence, International Relations, the Judiciary, Science,

Transportation and Infrastructure, and Ways and Means. Recommendations of the

standing committees provided to the select committee, which began consideration of

the bill on July 15; select committee hearings commenced July 12.

! June 20: Committee on Government Reform hearing on a Department of

Homeland Security with OHS Director Tom Ridge as a witness.

! June 26: Committee on Agriculture hearing on a Department of Homeland

Security.

! June 26: Committee on Armed Services hearing on a Department of

Homeland Security.

! June 26: Committee on Government Reform, Subcommittee on Civil Service,

Census, and Agency Organization hearing on transfer of consular affairs to a

Department of Homeland Security.

! June 26: Committee on International Relations hearing on a Department of

Homeland Security.

! June 26: Committee on the Judiciary hearing on a Department of Homeland

Security with OHS Director Tom Ridge as a witness.

! June 26: Committee on Ways and Means hearing on a Department of

Homeland Security.

CRS-38

! June 27: Committee on the Judiciary, Subcommittee on Immigration, Border

Security, and Claims hearings on the role of immigration on a Department of

Homeland Security.

! June 27: Committee on Science hearing on a Department of Homeland

Security.

! July 9: Committee on Energy and Commerce, Subcommittee on Oversight and

Investigations hearing on a Department of Homeland Security.

! July 9: Committee on the Judiciary, Subcommittee on Commercial and

Administrative Law hearing on administrative law, adjudicatory issues, and

privacy ramifications of creating a Department of Homeland Security.

! July 9: Committee on the Judiciary, Subcommittee on Crime, Terrorism, and

Homeland Security hearing on a Department of Homeland Security.

! July 10: Committee on Armed Services ordered reported, as amended, H.R.

5005.

! July 10: Committee on International Relations ordered reported, as amended,

H.R. 5005.

! July 10: Committee on the Judiciary ordered reported, as amended, H.R. 5005.

! July 10: Committee on Science order reported, as amended, H.R. 5005.

! July 10: Committee on Ways and Means order reported, as amended, H.R.

5005.

! July 11: Committee on Energy and Commerce ordered reported, as amended,

H.R. 5005.

! July 11: Committee on Government Reform considered recommendations on

H.R. 5005.

! July 11: Select Committee on Homeland Security hearing on a Department of

Homeland Security with Attorney General John Ashcroft, Secretary of

Defense Donald H. Rumsfeld, Secretary of State Colin Powell, and Secretary

of the Treasury Paul H. O’Neill as witnesses.

! July 12: Committee on Government Reform considered and approved H.R.

5005, as amended.

! July 15: Select Committee on Homeland Security hearing on a Department of

Homeland Security with Tom Ridge as a witness.

! July 16: Select Committee on Homeland Security hearing on a Department of

Homeland Security with Secretary of Agriculture Ann Veneman, Secretary of

Health and Human Services Tommy G. Thompson, Secretary of

CRS-39

Transportation Norman Y. Mineta, and Secretary of Energy Spencer Abraham,

among others, as witnesses.

! July 17: Select Committee on Homeland Security hearing on a Department of

Homeland Security.

! July 19: Select Committee on Homeland Security marked up and ordered

reported H.R. 5005, as amended (H.Rept. 107-609).

! July 25: House of Representatives began debate on H.R. 5005, as amended.

! July 26: House of Representatives completed debate and amendment of H.R.

5005 and approved the bill, as amended, on a 295-132 vote.

! November 22: House of Representatives agreed to the Senate-amended

version of H.R. 5005, clearing the measure for the President’s signature.

! November 25: President signed H.R. 5005, as amended, into law (P.L. 107-

296).

H.R. 5710 (Armey). Establishes a Department of Homeland Security.

Introduced November 12, 2002, and referred to the Select Committee on Homeland

Security. Brought to the House floor on November 13 for immediate consideration

upon the adoption, on a 237-177 vote, of a resolution (H. Res. 600) setting a closed

rule (no amendments) with one hour of debate on the bill; approved, without

amendment, on a 299-121 vote. Vacated in lieu of H.R. 5005, as amended in the

Senate.

Related Congressional Literature

U.S. Congress. House. Committee on Energy and Commerce. Creating the

Department of Homeland Security: Consideration of the Administration’s

Proposal. Hearings. June 25 and July 9, 2002. Washington: GPO, 2002.

U.S. Congress. House. Committee on Government Reform. Federal Interagency

Data-Sharing and National Security. Hearing. 107th Congress, 1st session, July

24, 2001. Washington: GPO, 2002.

–—. The Department of Homeland Security: An Overview of the President’s

Proposal. Hearing. 107th Congress, 2nd session, June 20, 2002. Washington:

GPO, 2002.

U.S. Congress. House. Committee on International Relations. Homeland Security

Act of 2002. Hearing and markup on H.R. 5005. 107th Congress, 2nd session,

June 26 and July 10, 2002. Washington: GPO, 2002.

U.S. Congress. House. Committee on the Judiciary. Subcommittee on

Administrative Law. Adjudicatory Issues, and Privacy Ramifications of

Creating a Department of Homeland Security. Hearing. 107th Congress, 2nd

session, July 9, 2002. Washington: GPO, 2002.

CRS-40

–—. Homeland Security Act of 2002. Hearing on H.R. 5005. 107th Congress, 2nd

session, June 26, 2002. Washington: GPO, 2002.

–—. Proposal to Create a Department of Homeland Security. Hearings. 107th

Congress, 2nd session, July 9, 2002. Washington: GPO, 2002.

U.S. Congress. House. Committee on Science. Amendment and Views to the Select

Committee on Homeland Security on H.R. 5005, the Homeland Security Act of

2002 (Including Committee Markup of H.R. 5005). Committee print. 107th

Congress, 2nd session, July 10, 17, 2002. Washington: GPO, 2002.

——. Creating a Department of Homeland Security. Hearing. 107th Congress, 2nd

session, June 27, 2002. Washington: GPO, 2003.

U.S. Congress. House. Committee on Transportation and Infrastructure and

Committee on Government Reform. Combating Terrorism: Options to Improve

Federal Response. Joint hearing. 107th Congress, 1st session, April 24, 2001.

Washington: GPO, 2002.

U.S. Congress. House. Select Committee on Homeland Security. H.R. 5005, the

Homeland Security Act of 2002, Days 1 and 2. Hearings, 107th Congress, 2nd

session, July 15, 16, 2002. Washington: GPO, 2002.

——. Homeland Security Act of 2002. Report to accompany H.R. 5005. 107th

Congress, 2nd session. H.Rept. 107-609, part 1. Washington: GPO, 2002.

——. Transforming the Federal Government to Protect America from Terrorism.

Hearing. 107th Congress, 2nd session, July 11, 2002. Washington: GPO, 2002.

U.S. Congress. Senate. Committee on Energy and Natural Resources. Homeland

Security. Hearing. 107th Congress, 2nd session. July 10, 2002. Washington:

GPO, 2002.

U.S. Congress. Senate. Committee on Governmental Affairs. President Bush’s

Proposal to Create a Department of Homeland Security. Hearing. 107th

Congress, 2nd session, June 20, 2002. Washington: GPO, 2002.

U.S. Congress. Committee on Health, Education, Labor, and Pensions. Homeland

Security. Hearing. 107th Congress, 2nd session, July 16, 2002. Washington:

GPO, 2002.

Related CRS Products

CRS Congressional Distribution Memoranda

Department of Homeland Security — Current Administrative Structure of Units

Proposed to Transfer, by (name redacted), June 28, 2002.

Functions Transferred to the Proposed Department of Homeland Security Arguably

Not Related to Homeland Security, by (name redacted), July 31, 2002.

CRS-41

Homeland Security: A Comparison of H.R. 4660, S. 2452, and H.R. 5005 (and

Related Orders), by William W. Ellis, July 12, 2002.

Intelligence Support to a Department of Homeland Security, by Dick Best, July 16,

2002.

Overview of Agencies and Programs Implicated in the Transfer of Functions and

Authorities to the Proposed Department of Homeland Security, by (name

redacted), June 24, 2002.

Reorganization Implementation Plans, by (name redacted), June 20, 2002.

Statutes Relating to Personnel Management and Pay Systems That May Be Affected

by Creating the Department of Homeland Security, by (name redacted), July

3, 2002.

Summary of Human Resources Management System Statutes and the Proposed

Department of Homeland Security, by (name redacted), July 18, 2002.

CRS Reports

CRS Report RS21251. Analysis of President’s Proposal Concerning the Office of

Inspector General for the Proposed Department of Homeland Security, by

(name redacted).

CRS Report RL31520. Collective Bargaining and Homeland Security, by (name

redacted).

CRS Report RL31497. Creation of Executive Departments: Highlights from the

Legislative History of Modern Precedents, by (name redacted).

CRS Report RL31472. Departmental Organization, 1947-2001, by Sharon Gressle.

CRS Report RL31514. Department of Homeland Security: Appropriations Transfer

Authority, by (name redacted).

CRS Report RS21366, Department of Homeland Security: Hypothetical

Organization Chart, by (name redacted).

CRS Report RL30795. General Management Laws: A Selective Compendium —

107th Congress, by (name redacted).

CRS Report RL31639. Homeland Security: A Topical Comparison of H.R. 5710

with H.R. 5005, by (name redacted).

CRS Report RS21295. Homeland Security and the Davis-Bacon Act, by (name

redacted).

CRS Report RS21268. Homeland Security: Data on Employees and Unions

Potentially Affected, by (name redacted).

CRS-42

CRS Report RL31504. Homeland Security: Departmentalization — Public

Administration Principles and Selected Past Experiences, by (name redacted).

CRS Report RL31548. Homeland Security Department Proposals: Scope of

Personnel Flexibilities, by Tom Nicola.

CRS Report RL31500. Homeland Security: Human Resources Management, by

(name redacted).

CRS Report RL31492. Homeland Security: Management Positions in the New

Department, by (name redacted).

CRS Report RL31148. Homeland Security: The Presidential Coordination Office,

by (name redacted).

CRS Report RL31513. Homeland Security: Side-by-Side Comparison of H.R. 5005

and S. 2452, 107th Congress, by the CRS Homeland Security Team.

CRS Report RL31449. House and Senate Committee Organization and Jurisdiction:

Considerations Related to Proposed Department of Homeland Security, by (nam

e redacted).

CRS Report RS21260. Information Technology (IT) Management: The ClingerCohen Act and Homeland Security Proposals, by (name redacted).

CRS Report RL31446. Reorganizing the Executive Branch in the 20th Century:

Landmark Commissions, by (name redacted).

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