Homeland Security: Scope of the Secretary's Reorganization Authority

Order Code RS21450

Updated August 9, 2005

CRS Report for Congress

Received through the CRS Web

Homeland Security: Scope of the Secretary’s

Reorganization Authority

name redacted

Legislative Attorney

American Law Division

Summary

In July of 2005, the Secretary of Homeland Security announced a major

reorganization of the Department. While many of the proposed changes may be

effectuated administratively, some might require legislative action due to limits on

reorganization authority under the Homeland Security Act of 2002 (P.L. 107-296).

Section 872 of the Homeland Security Act gives the Secretary of Homeland Security the

authority to reorganize functions and organizational units within the Department either:

(1) independently, 60 days after the Secretary provides notice of such an action to the

appropriate congressional committees, or (2) through the President’s submission of a

reorganization plan. The Secretary, however, may not abolish agencies, entities,

organizational units, or functions established or required to be maintained by statute.

This report examines the scope of the reorganization authority provided in §872 with a

focus on (1) the Secretary’s independent authority to reorganize the Department and (2)

what is meant by the term organizational units, the basic administrative structures that

the Secretary is empowered to “establish, consolidate, alter, or discontinue.” This report

will be updated as warranted.

The Scope of Section 872

Section 872 of the Homeland Security Act of 2002 (HSA; 6 U.S.C. §§ 101 et seq.)

gives the Secretary of the Department of Homeland Security (DHS) the authority to

reorganize functions and organizational units within DHS, subject to specified limits.

Specifically, §872 authorizes the Secretary of Homeland Security to (1) allocate or

reallocate functions among the officers of DHS and (2) establish, consolidate, alter, or

discontinue organizational units within DHS. The reorganization authority provided by

§872 may be exercised in one of two ways: (1) pursuant to the reorganization plan

initiated by the President (§1502(b)) or (2) independently by the Secretary, 60 days after

the Secretary provides notice of such an action to the appropriate congressional

committees with an explanation of the rationale for the action. Congress does not appear

to have any type of expedited veto authority (constitutionality aside) that could prevent

Congressional Research Service ˜ The Library of Congress

CRS-2

a proposed reorganization from going into effect and would likely have to pass a law to

prevent such a reorganization from occurring.1

In carrying out the reorganization authority, the Secretary, pursuant to §872(b) may

not abolish any agency, entity, organizational unit, program, or function expressly

established either by the HSA or another statute in the process.2 Section 872(b) is the

only strict limitation on the Secretary’s administrative reorganization authority. However,

other provisions of the HSA appear to qualify the Secretary’s reorganization authority,

including §821, which requires the Secret Service to be maintained as a distinct entity in

DHS and §888, which requires the Coast Guard to be maintained as distinct entity in

DHS.3 While the Secretary’s reorganization authority appears broad, legislation would

seem to be required for any action that would (1) abolish an agency, entity, organizational

unit, program, or function expressly created by Congress or (2) do more than move a

function or establish, consolidate, alter, or discontinue an organizational unit.

Organizational Units. Section 872(a) gives the Secretary the authority to

establish, consolidate, alter, or discontinue organizational units within the Department;

however, the term is not defined in the HSA. Consequently, there is some question as to

how the term organizational units limits the Secretary’s authority, although a court may

apply a considerable degree of deference to the Secretary’s organizational decisions.4

Because no dispositive legislative history has been found discussing the scope of an

organizational unit, case law may be helpful.

In Adams v. United States, 350 Border Patrol agents claimed that they were entitled

to, rather than exempt from, overtime pay under the Fair Labor Standards Act because

they were not executive employees within the meaning of the act (i.e., supervisors,

1

In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court struck down Congress’s use of the

legislative veto, a device by which Congress could approve or disapprove executive decisions

through legislative actions that were short of a public law: one-house vetoes, two-house vetoes,

and committee vetoes. Congress no longer relies on one-house or two-house vetoes, but

committee and subcommittee vetoes continue to be a part of executive-legislative

accommodations. For more information see CRS Report RS22132, Legislative Vetoes after

Chada, by (name redacted).

2

See P.L. 107-296, §§ 872, 1502. This report will refer to public law citations, since the

Secretary of Homeland Security has also used these citations in its correspondence with

Congress.

3

See e.g., §424 (requiring the Transportation Security Administration to be maintained as a

distinct entity — expired Nov. 24, 2004); §471 (prohibiting the President’s Reorganization plan

(§1502) from combining the Bureau of Customs and Border Protection and the Bureau of

Citizenship and Immigration Services — expired on March 1, 2003 (see discussion in text under

§871(a)(1)).

4

Chevron Inc., v. Natural Resources Def. Council, 467 U.S. 837, 844 (1984). In Chevron, the

Supreme Court found a regulation promulgated by the Environmental Protection Agency to be

a reasonable interpretation of the Clean Air Act Amendments of 1977. Where the statute is

ambiguous, Chevron dictates that a court may not substitute its own construction of a statutory

provision for a reasonable interpretation made by the administrator of an agency. See also P.L.

107-296, §1103 (stating that nothing in the Homeland Security Act (HSA) should be construed

to limit judicial deference to actions made by the Secretary of Homeland Security).

CRS-3

foremen, or managers who managed a Federal agency or any subdivision thereof,

including the lowest recognized organizational unit with a continuing function).5 The

Adams court relied on a 1975 OPM advisory letter that defined organizational units to

mean “an established and defined organizational entity with regularly assigned employees.

This requirement distinguishes supervisors who are responsible for planning and

accomplishing a continuing workload from ‘leaders’ who head temporary groups formed

to perform a special assignment of limited duration, or who direct the work of other

employees assigned to a project but do not exercise full supervision over such

employees.”6 The Adams case appears to suggest that an organizational unit may be a

relatively small administrative structure.

Furthermore, in applying canons of statutory construction to the HSA, it appears

Congress intended an organizational unit to be something smaller than an agency or other

statutorily created entity. In the limitation provision of §872(b)(1), for example, Congress

placed the term organizational units after the terms agency and entity, but before the

terms program and function. This placement suggests Congress may have intended an

organizational unit to be smaller than an agency and entity on the general assumption that

things of a higher order are named at the beginning of an enumeration and that Congress

does not intend to be superfluous.7 In §471(b) of the HSA, Congress again suggests that

an organizational unit may be a small administratively created structure. Section 471(b)

authorizes the Secretary (through the President’s Reorganization Plan) to reorganize the

functions or organizational units within the Bureau of Citizenship and Immigration

Services. Because the provision places an organizational unit within the Bureau, it

appears Congress also intended the term to be something smaller than a bureau.

The definition of the term organizational units, in essence, affects the Secretary’s

authority to reorganize DHS. Because §872(a) only allows the Secretary to establish,

consolidate, alter, or discontinue organizational units within the Department, it might be

argued that the Secretary is only allowed to establish, consolidate, alter, or discontinue

units smaller than an agency, entity, or bureau. An office, advisory committee, or

laboratory, for example, might arguably qualify as something smaller than an agency,

entity, or bureau. Changes to structures other than organizational units would apparently

need to be categorized as a reallocation of functions among the officers of the Department

or be conducted pursuant to new legislative action to avoid an unauthorized action.

Nonetheless, because the term organizational units is not defined in the HSA or discussed

in any relevant legislative history, the scope of the term is not completely clear.

Section 872(a)(1). Section 872(a)(1) indicates that the Secretary may, pursuant

to §1502(b) (i.e., the President’s Reorganization Plan), allocate or reallocate functions

among the officers of DHS and establish, consolidate, alter, or discontinue organizational

units within DHS, provided the Secretary does not abolish any agency, entity,

organizational unit, program, or function expressly established by the HSA. This implies

5

46 Fed. Cl. 616 (Fed. Cl. 2000).

6

FPM Letter No. 551-7. The Federal Claims Court recognized the “checkered history” of the

letter, but still felt it captured the relevant standard.

7

See 2A Norman J. Singer, Statutes and Statutory Construction, §§ 47.17 at 284, 47.19 at 292

(6th ed. 2000).

CRS-4

that in order to reorganize the infrastructure of DHS under §872(a)(1), the Secretary must

act through the President’s Reorganization Plan.8 The reorganization plan, including

modifications, was to become effective upon the earlier of (1) the dates specified in the

plan or (2) the end of the transition period (transition period means the 12-month period

beginning on the effective date of the HSA — i.e., November 25, 2002 to November 24,

2003).9 Since the President is not authorized to modify or submit another reorganization

plan under the HSA, the Secretary’s reorganization authority under §872(a)(1) seems to

also be similarly limited by these dates. Accordingly, the Secretary’s authority under

§872(a)(1) likely terminated on March 1, 2003 — the effective transfer date for many

agencies under President Bush’s Reorganization Plan and earlier of the two selections.

Section 872(a)(2). The authority under §872(a)(2) allows the Secretary to allocate

or reallocate functions among the officers of DHS and to establish, consolidate, alter, or

discontinue organizational units within DHS after providing 60 days, notice to the

appropriate congressional committees of such action with an explanation of the rationale

for the action. This authority is permanent, but it is limited by §872(b)(2), which

prohibits the Secretary from abolishing any agencies, entities, organizational units,

programs, or functions established or required to be maintained by statute. In essence,

this limitation requires the Secretary to maintain any of the aforementioned categories that

are created by law including those categories created by the HSA. Section 872(a)(2)

allows the Secretary to act independently of the President’s Reorganization Plan (section

§1502(b)), provided proper notification is supplied to the appropriate congressional

committees by the Secretary. Administrative reorganizations conducted pursuant to

§872(a)(2) become effective 60 days after providing notice to the appropriate

congressional committees unless legislation would prevent such an occurrence.

The Secretary’s Reorganization Plan of July 2005

Organizational Initiatives. On July 10, 2005, Secretary Chertoff announced a

six-point agenda for DHS designed to ensure that the Department’s policies, operations,

and structures are optimally aligned to address present and future potential threats to the

United States. Among the agenda’s six-points is a change that would “realign the DHS

organization to maximize mission performance.”10 The Secretary stated that details would

be announced in the coming weeks. The following describe some of the major structural

adjustments being proposed by the Secretary from available information.

Create a New Directorate of Policy. This new Directorate will serve as the

primary Department-wide coordinator for policies, regulations, and other initiatives and

8

However, the HSA states that the Secretary may act “pursuant to §1502(b),” rather than through

the reorganization plan, and it could be argued that the Secretary may, like the President, effect

a reorganization through a transmission of plan elements. The legislative history of the HSA in

conjunction with President Bush’s thinly detailed Reorganization Plan, however, more

appropriately supports the position that the Secretary must act through the President’s §1502(b)

Reorganization Plan as restricted by §1502(a), rather than independently.

9

See P.L. 107-296, §1502(d).

10

Press Release, Department of Homeland Security, Homeland Security Secretary Michael

Chertoff Announces Six-Point Agenda for Department of Homeland Security (July 13, 2005)

available at [http://www.dhs.gov/dhspublic/display?theme=43&content=4598&print=true].

CRS-5

will assume the policy coordination functions previously performed by the Border and

Transportation Security Directorate. It will include the: (1) Office of International

Affairs; (2) Office of Private Sector Liaison; (3) Homeland Security Advisory Council;

(4) Office of Immigration Statistics; and (5) Senior Asylum Officer.

Create a New Office of Intelligence and Analysis. This new office will

gather information from all relevant field operations and other parts of the intelligence

community for dissemination to the appropriate personnel. It will be led by a Chief

Intelligence Officer who will report directly to the Secretary and will be comprised of

analysts within the former Information Analysis Directorate.

Create a New Director of Operations Coordination. This new office will

allow DHS to conduct joint operations across all organizational elements of the

Department and coordinate incident management activities, among other things. The

Homeland Security Operations Center, which serves as the nation’s nerve center for

information sharing and domestic incident management, will be housed here.

Rename the Information Analysis and Infrastructure Protection

Directorate, the Directorate for Preparedness. The Directorate for Preparedness

will facilitate grants and oversee nationwide preparedness efforts supporting first

responder training, citizen awareness, public health, and infrastructure. The renamed

Directorate will be managed by an Under Secretary and include (1) a new Assistant

Secretary for Cyber Security and Telecommunications; (2) a new Chief Medical Officer;

(3) an Assistant Secretary for Infrastructure Protection; (4) assets of the Office of State

and Local Government Coordination and Preparedness; (5) the U.S. Fire Administration;

and (6) the Office of National Capitol Region Coordination.

Other Proposed Changes. Other changes reportedly include (1) having the

Federal Emergency Management Agency (FEMA) report directly to the Secretary of

Homeland Security rather than to an Under Secretary; (2) moving the Federal Air Marshal

Service from the Bureau of Immigration and Customs Enforcement to the Transportation

Security Administration; (3) merging the Office of Legislative Affairs and the Office of

State and Local Government Coordination into the newly established Office of Legislative

and Intergovernmental Affairs; and (4) having the Office of Security report to the Under

Secretary for Management, rather than the Deputy Secretary for DHS.

Legislative Action. As previously mentioned, the Secretary of DHS has broad and

permanent authority to reorganize the Department, provided he gives appropriate notice

to Congress. The only explicit prohibition is that he not abolish any agency, entity,

organizational unit, program, or function established or required to be maintained by

statute. From the information that is available, it appears the Secretary is primarily

reallocating functions among the officers of DHS, consolidating certain responsibilities,

and establishing new organizational units. There are some proposed changes,

nonetheless, that might need legislative action. According to a July 13, 2005, letter from

DHS to Congress, the Secretary plans on seeking congressional action for the following

organizational changes:

!

Elevating the Assistant Secretary for the newly created Office of Policy

to an Under Secretary;

CRS-6

!

Eliminating the position of Under Secretary for Border and

Transportation Security; and

!

Requiring the Director of FEMA to report directly to the Secretary of

DHS, rather than the Under Secretary for Emergency Preparedness and

Response.

In DHS, all the current directorates were established by statute. Accordingly, it

would appear consistent with the presumed intent of Congress that completely new

directorates also be established by statute. Moreover, because the directorates currently

in place at DHS all contain agencies, bureaus, and other large entities, it is would seem

that establishing a new directorate is something beyond establishing an organizational

unit. Establishing a new directorate, therefore, would seem to need authorizing

legislation, and presumably, that is what the Secretary might be doing in his attempt to

seek legislation for the elevation of the Assistant Secretary position to an Under Secretary.

Relatedly, the abolition of an existing directorate might also require legislative

action, since each was established by statute. Indeed, this seems to be the course of action

being taken by DHS with respect to the elimination of the Under Secretary for the

Directorate of Border and Transportation Security. On the other hand, from the

information available, it appears DHS is not taking any legislative action to rename the

Directorate of Information Analysis and Infrastructure Policy, the Directorate of

Preparedness. Whether the renaming of a directorate is tantamount to an abolition of the

entity, however, may be unlikely. Some might argue, for instance, that the mere renaming

of a directorate that keeps some of its original components and gains others, is not an

abolition. Still, others might suggest that a renamed directorate, which contains

components fundamentally different than originally conceived, is not appropriate for

change through administrative fiat. Also unclear from the Secretary’s proposed plans is

the status of the Directorate of Emergency Preparedness and Response, which will have

many of its functions or organizational units consolidated or reallocated to FEMA or

elsewhere in the Department. This Directorate, nonetheless, is still a statutorily created

entity that may require further legislative action to dissolve it.

Legislation might also be needed, if not already provided elsewhere, for some of the

new personnel in the reorganization if they are an “Officer of the United States,” under

the Appointments Clause of the Constitution.11 An appointee (1) to a position of

employment (2) within the federal government (3) that carries significant authority

pursuant to the laws of the United States is required to be an “Officer of the United

States.”12 Until more information is made available regarding the Secretary’s proposed

administrative and legislative organizational initiatives, many uncertainties will continue

to exist.

11

12

U.S. Const. art. II, §2, cl. 2.

U.S. Dept. of Justice, Office of Legal Counsel, The Constitutional Separation of Powers

between the President and Congress, at 27 (1996).

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

copyright on any CRS report we have republished.