From Federal Security to Homeland Security: Law, Politics, and Organization in the American Security Agenda

Marianao-Florentio Cuéllar

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Americans listening to one of President Franklin Roosevelt’s fireside chats on a cabinet-sized radio in the late 1930s could not have imagined the eventual birth of the Internet technology used to disseminate this Article. They would have been hard pressed to imagine the spectacular growth of East Asian economies, or perhaps even the fall of the Soviet Union. They might have been just as surprised, however, at what remains the same in the early twenty-first century. For all that has changed over the course of six or seven decades, in many respects Americans today share a common reality with their forebears from the late 1930s. First, their lives play out against a backdrop of insecurity: financial instability, natural disasters such as Hurricane Katrina, and potential external threats. Second, their government is characterized by the competition to secure control over the organizations that implement the laws that regulate markets and public health, provide services, manage security risks, and otherwise shape people’s lives. How these two dynamics affect each other remains central to the future of American public law.

President Franklin Roosevelt was perhaps bolder than most leaders of his day in recognizing that the modern nation-state was—and continues to be—in the business of providing security to its citizens. In the face of pronounced crises engendering a profound sense of insecurity among the public, the administration pursued a sprawling strategy of enacting financial, pension, health, and ultimately national defense policies aimed at reducing the risks that Americans faced in their lives.1 It also reshaped the federal government in far-reaching ways that, as we shall see, continue to affect America in the twenty-first century.

Twenty-first century America remains concerned about security—and rightly so. From the Sacramento River Delta to the electric power grid, our national infrastructure remains too vulnerable to terrorist attacks and natural disasters.2 A deliberate attack or a serious accident at any one of over a hundred chemical facilities could unleash a cloud of toxic gas harming over a million people.3 The International Atomic Energy Agency recorded over one hundred incidents of nuclear smuggling between 1993 and 2006.4 These threats reflect not only structural vulnerabilities forcing us to confront persistent risks, but also the fact that we face determined adversaries eager to do us harm. Though less commonly remarked upon in a post–Cold War world, geostrategic threats of a more conventional nature also remain a challenge, just as they were throughout the twentieth century. Russia’s military action in Georgia, which produced approximately 100,000 refugees,5 and the continuing conflict between drug cartels and the Mexican government, which killed over 5,000 people last year,6 are just two examples of developments with the potential to affect American interests. Domestic and international efforts to grapple with these problems sometimes raise important legal and policy questions in agencies such as the Department of Homeland Security (DHS) and the Department of Justice, and many such questions have received sustained attention in recent years.

Just as important are some questions lingering since Roosevelt’s day that have received far less scrutiny and lie at the fertile intersection of public law, organizational theory, and national security. How, for example, does security get defined, and what happens if the concept encompasses a range of disparate missions—as with terrorism prevention and natural disaster response in the case of DHS—that prove difficult to harmonize? How does organizational design affect the work of agencies charged with keeping us safe? And how is the evolution of the executive branch, playing out against the backdrop of political competition and legal questions about separation of powers, affected by debates about the nation’s responsibility to secure its citizens? These questions obviously mattered in recent history, as made plain by the already difficult history of the DHS. But unbeknownst to many Americans, our history foreshadowed many of the same dilemmas during an episode worthy of closer attention.

To see why, we must return to Roosevelt’s time and appreciate the following irony. During the 1930s, the Roosevelt administration spurred major growth in the federal state by stressing government’s role as guarantor of the nation’s security.7 With security as a lodestar, administration priorities led to now-familiar statutory changes catalyzing financial regulation, retirement and unemployment benefits, food safety policies, and energy rules. As the New Deal matured, security-related rationales taking subtly distinct forms—emphasizing international, geostrategic concerns—also bolstered the case for expansive federal power and even blended with the more expansive domestic risk-reduction ideas in the period before World War II. In 1939, for example, the administration wove together multiple strands of its security trope while using a sliver of legal authority for executive reorganization to forge a colossal new Federal Security Agency (FSA). It then proceeded to justify the executive branch’s new legal architecture by arguing that the ability to face international threats depended on the strengthened domestic capacity, provided by the FSA, to implement the law effectively in domains such as health and education.8

But for all its success reconstructing the national agenda around an expansive conception of security, by the late 1930s the administration was losing capacity to secure its own control of the outsized federal state it had created. In Humphrey’s Executor v United States,9 the Supreme Court refused to let the President fire a Federal Trade Commission official whose term had been fixed by Congress, thereby eviscerating presidential power over an ever-multiplying empire of independent commissions and opening the door to even greater congressionally imposed limits on presidential power.10 In the process, the Court rejected the view that proper presidential supervision of the executive branch under Article II depended on the power to fire senior officials, an idea central to the Court’s prior conception of executive power articulated a few years before in Myers v United States.11 Meanwhile, Congress was increasingly designing the structure of agencies like the Social Security Board to disrupt presidential control,12 independent of any executive department.”).] blocking White House staff expansion, and refusing to grant reorganization authority the Roosevelt administration considered essential to securing control of a rapidly growing federal state.13

It turns out that these security problems—the control politicians seek to secure over agencies with expansive legal powers, and the security that modern nation-states promise citizens when justifying why public bureaucracies must be given such powers in the first place—intersect. Time and again, whether the subject is the Roosevelt-era FSA or the Bush-era DHS, these two security problems turn out to be deeply enmeshed within the web of federal regulatory power. Bureaucratic control helps executive branch officials and their lawyers promote a particular definition of security through legal interpretations, public communications, legislative initiatives, and discretionary decisions. Security concerns, meanwhile, shore up public justifications for organizational changes affecting political control over law’s implementation. By understanding how these two problems intersect, we can grasp underappreciated tensions coursing through public law—such as how agencies shape public perceptions about the laws they implement, how the definition of “security” has changed as the architecture of the executive branch has evolved, and how to understand the consequences of forging a modern-day DHS.

The history of the FSA nicely illustrates how politicians exploit reorganizations, particularly during or in anticipation of national security emergencies, to reshape agencies’ legal mandates by controlling their bureaucratic power. Although the FSA has been all but forgotten, even cursory scrutiny reveals it to be among the more important bureaucracies created in twentieth-century America. The FSA was the gangly and occasionally brash adolescent—equal parts wartime soldier and audacious dreamer—that matured into the federal government’s sprawling health, welfare, and civil defense apparatus. The agency was born amidst a tangle of administrative changes enshrined in statutes as the New Deal morphed into the American response to World War II. Its litany of statutory responsibilities at once confirms what has today become a familiar picture of federal functions—encompassing medical research, civil defense, social security, federal education assistance, weapons development, and food and drug regulation. But the list also scrambles modern sensibilities about the line dividing conventional national security functions from domestic regulatory activities.

President Roosevelt began blurring that line nearly two and a half years before the Pearl Harbor attacks.14 On April 25, 1939, he delivered a long-expected announcement about his plans to reshape the architecture of the executive branch. The change in architecture had been on the President’s agenda for over twenty-four months, but the specific changes he had in mind had only become possible after Congress grudgingly gave the President limited reorganization powers three weeks earlier. Thwarted in an ambitious effort to create a cabinet-level Department of Public Welfare the previous year, the Roosevelt White House nonetheless announced in April that it would use its more modest reorganization power to unify a half-dozen bureaus involved in health regulation, economic security, and education in a new subcabinet Federal Security Agency. From then on, the FSA expanded steadily. By 1943, the FSA’s bureaus included the Public Health Service (PHS), the Social Security Board, the Office of Education, the Food and Drug Administration, the Office of Community War Services, a War Research Service, and nearly a dozen other organizations. By 1953, the agency had become the Department of Health, Education, and Welfare (HEW). And by the 1970s, HEW’s budget accounted for nearly half of federal nondefense expenditures, dwarfing the national budget of every country except Soviet Russia.15

To observers situated in the early twenty-first century, however, the name of the Federal Security Agency foreshadows DHS more than it does a welfare agency. Legal history readily demonstrates that the meaning of “security” is versatile, with the term eliciting concepts of economic risk reduction more easily in the 1930s than today. Some aspects of the FSA’s work, however, nonetheless fit readily with more modern applications of the term, presaging its subsequent evolution. It was the FSA that facilitated the resettlement of Japanese Americans. It was the FSA that laundered White House funds and funneled them into secret biological weapons research even when the United States had signed a treaty that should have raised, at a minimum, serious concerns about such activity.16 FSA officials presided over the rapid growth of a national system to train workers for war-related occupations. They set up recordkeeping systems to assist a national military draft. The agency’s inspectors prevented food contamination while insisting their mission was essential to the performance of the military, and they sought to limit the spread of sexually transmitted diseases among military personnel. And the agency performed these tasks while it continued—and expanded—its role of paying social security benefit checks, providing medical services to underserved American communities, screening new drugs, and printing books for the blind.17

As the FSA’s origins recede into history, however, scholars too have remained blind to certain puzzles about its birth, which shed further light on the intersection between organizational choices, legal implementation, and debates about the scope of national security. Why, for instance, did President Roosevelt create the FSA at all, particularly when doing so involved such an expenditure of scarce political capital, and resulted in the removal of some bureaus from agencies where they were already supervised by trusted political lieutenants? The meager scholarly literature on the subject, much of it written at the time of the merger or shortly thereafter, speculates that the President’s interest was in more “efficient” government without defining the concept or considering the more directly political implications of the White House move. Why did the agency so pervasively mix social welfare, regulatory, and national security functions years before World War II embroiled the United States? Indeed, what was meant by the reference to “security” used to justify expansive legal powers in the early years of the FSA? And how did the FSA’s creation impact the work of its bureaus?18 In one of the few scholarly references that are relevant to the subject, political scientist James Q. Wilson downplays the importance of the creation of HEW for the behavior of its component bureaus. But he does nothing to investigate the potential significance of the time those bureaus spent within the FSA, or the broader legacy of that agency.19

The answers to these puzzles implicate not only separation of powers and national security law, but also organization theory and the history of the administrative state. The key to understanding the importance of the FSA’s creation—as with DHS decades later—is recognizing that organizational changes can exert powerful, underappreciated influence on law’s implementation. First, public health bureaucrats work differently when buried in a Treasury Department dominated by fiscal concerns than when operating in an agency prioritizing health and economic security. Because organization is not neutral, the redistribution of authority within the executive branch can shape the law by facilitating a symbiotic burst of agency capacity-building coupled with presidential power to control that new capacity. Roosevelt’s creation of the FSA had major practical effects, and those effects went far beyond political symbolism. Archival records, news coverage, and White House memos describe how the new agency created a layer of bureaucratic appointees, allowing the President to have more control over important administrative agencies at a time when the FSA’s staff was meager and the agencies were previously either independent (as was the Social Security Board) or stuck in departments unsympathetic to their missions (as was the PHS under the Treasury). Roosevelt wanted the new agency to make it easier for him to control the flow of grant funds to states and local governments.20 The new layer of political appointees and lawyers allowed the administration to wring the maximum benefit out of broad legal authorities, to monitor developments in the bureaus, to harness the bureaus’ analytical capacities in the service of further legislative changes, and to ensure that they spoke with a more consistent voice to promote favorable public perceptions. In short, reorganization gave the White House more control, and more to control.

Second, agency architecture can help reshape public perceptions of the government’s legal responsibilities. Aware of the looming possibility of war, Roosevelt used his new degree of control over bureaucratic functions to frame discussion about the concept of “security”—defining it broadly enough to blur the distinctions between social services, economic security, health regulation, and geostrategic national security. Doing so served a political goal by giving moderate legislators skeptical of social programs but supportive of defense a new reason to support the FSA bureaus, and by reinforcing associations among many voters between national security goals and regulatory and social programs. With its new political and legal staff, its two-edged “security” mandate, and its relentless efforts to explain the essential importance of its work to the public, the FSA seemed to prosper during and after the war: it was able to keep and even grow its budget during a wartime period when other domestic agencies faced cuts in their budgets; it achieved expansions in its responsibilities (particularly in social security and health research) at a time when Congress was often hostile to the administration; and the public increasingly supported the transformation of the organization into a cabinet agency.

In retrospect, it may not seem remarkable to observe that the FSA’s creation allowed the administration to engage in an epistemic process of “framing” policy priorities by emphasizing their role in achieving the widely desired goal of “security.” In particular, developments regarding the FSA suggest the importance of two specific mechanisms—identified earlier in our discussion of refining existing theories—through which the blurring of the security concept could enhance the FSA’s prospects: one involves shaping the perceptions of the mass public about the meaning of security; the other involves the separate enlargement of legislative coalitions supporting agency functions by ambiguating the extent to which a vote for the FSA also constitutes a vote for national security or war-related efforts.

Both of these strategies depend heavily on demonstrating to legislators, organized interests, and the public at large that the legal mandates the FSA was implementing were inextricably connected to national defense and the war effort. Regardless of whether the Roosevelt administration wanted to enter the war at the time the FSA was created, the White House was increasingly cognizant of a foreign policy crisis that could further complicate its domestic political goals. As one historian observed recently, it was by March 15, 1939—just over a month before the reorganization creating the FSA was publicly proclaimed—that “foreign affairs achieved the absolute dominance over domestic affairs that they were destined ever after to retain in [Roosevelt’s] mind.”21 The impending foreign policy problems made the President increasingly anticipate that the nation could find itself embroiled in war:

The experience was, for him, not dissimilar in some essentials to that of the spring of 1933 when, amid universal ruin and collapse, he had presided over the birth of the New Deal . . . . (“Never in my life have I seen things moving in the world with more cross currents or greater velocity,” he wrote in a personal letter on March 25, 1939).22

Nor was the President alone, as some legislators began to favor repealing federal neutrality laws to facilitate American involvement in the European theater.23

The administration’s goal of emphasizing the connection between the work of the FSA and national defense became easier to achieve because of the importance to the military of the new agency’s activities. The FSA’s functions not only contributed to an expansive conception of security that encompassed ordinary health, education, and public welfare activities, but also served ends specifically connected to domestic and international security in the conventional sense. These included the relocation of Japanese-Americans, technical assistance to law enforcement agencies engaged in police work against juvenile delinquents, the aforementioned research programs in biological weapons and related areas, an antiprostitution enforcement program designed particularly to protect the armed forces, and the development of disaster assistance programs to be deployed in case of war-related attacks against civilians. In addition, the FSA emphasized the defense-related import of a host of other activities, ranging from vocational education to nutrition. Together, these presidentially driven choices afforded the administration with an opportunity to affect how the public understood the concept of security and how legislators understood the payoffs of supporting the FSA as the nation prepared for war.24

If it is true that injecting a substantial national defense ingredient into the mix of “security” bureaus could serve the President’s goals, why did the White House wait to pursue this strategy until it could order a bureaucratic reorganization? Although the type of rebranding Roosevelt sought to pull off by melding domestic policy and national defense through an expansive “security” metaphor may not have been impossible without reorganization authority, it would have proven far more difficult. Imagine, for instance, how much more trying it would have been for FDR to discuss his expansive version of security during fireside chats if the agencies carrying out that work were scattered bits and pieces across the government (for example, the PHS at Treasury, the FDA at Agriculture, and the Office of Education at Interior). In effect, the reorganization delivered three things that redounded to the benefit of the rebranding. First, the administration gained a high profile opportunity to announce changes and make a case to the nation about its conception of security. The newspaper coverage of the reorganization announcement was intense. Roosevelt’s “warning to dictators” when he reorganized was widely disseminated.25 Second, the administration put in place a structure—consisting of appointees to oversee bureaus with the legal authority to control what they did—to better monitor bureau activities, anticipate threats, and coordinate actions to advance the “expansive” security message. Finally, the administration gained a staff whose job was in part to promote what the bureaus were doing across the country, build alliances, and manage external relationships in a manner that promoted the desired conception of security.

Third, the story of the FSA shows the malleability of the “security” concept in relation to law.26 Parallel to the aforementioned developments, the Roosevelt administration’s melding of functions within the FSA proved a harbinger for a conception of security that became increasingly identified with the military and national defense, to the point where that powerful association swallowed up the more flexible conception that Roosevelt first championed. In effect, Roosevelt’s reorganization set in motion a process showcasing the connections between three dynamics: public debates about “security” as a metaphor for the responsibilities of the modern nation-state, changes in organizational structure to bolster a particular understanding of “security,” and political strategies to control the law’s implementation. Such contestation belies the idea of security as an unambiguous prescriptive rationale for legal changes, raising often-neglected questions about the scope of national security law. As presidents, lawmakers, courts, and the public struggle with those questions, the fight over “federal” security in the Truman years provides a provocative reminder that the notion of security—in part because of its deep connections to the underlying origins of the nation-state itself—should be subject to as much contestation as conceptions of democracy or citizenship.

Indeed, the current concerns with homeland security have increasingly come to encompass infrastructures and public health mechanisms easily framed by some lawmakers or scholarly observers as critical to national life. Although the creation of a Department of Homeland Security appears to have fomented cuts in domestic regulatory mandates, such a development does not necessarily signal the demise of “security” as an organizing principle for promoting domestic regulatory and administrative activity. It is worth noting that both the rhetoric and the underlying substantive concerns advanced by some observers and policy entrepreneurs in the homeland security arena bear more than a passing resemblance to the FSA’s mandates more than six decades ago. Their basic message is as simple as it is reminiscent of McNutt’s and Roosevelt’s speeches: a narrow focus on violent, manmade, geostrategic threats is a poor recipe for security, and even when the focus remains on those more conventional threats to national defense, success depends heavily on the nation’s human and regulatory infrastructure. Public health, education, and infrastructure protection can be seen as central to the nation’s security even if one is focused on the narrower, geostrategic version of the concept. In the national experience with the FSA, policy entrepreneurs may find hints about the viability of political coalitions supporting the development of bureaucratic capacity to achieve a blend of regulatory, redistributive, and more conventionally understood geostrategic national security goals.27

Yet despite the legal stakes of defining security in contexts ranging from application of the Homeland Security Act to the scope of deference to the executive, scholars of national security law rarely address or even recognize the fundamental question of how to define security in the modern nation-state.

Fourth, the problem of regulating organizational structure permeates—and perhaps inevitably defines—modern separation of powers.28 Presidential control of agency architecture—including who runs the agency, what bureaus are within it, how the public views those bureaus, and who (other than the President) runs the bureaus—can substitute for direct presidential power to command subordinate officials. The consequences of structural innovation, moreover, show robust “presidential administration” to be in fact a longstanding phenomenon, one that courts should regulate when policing the border between legislative and executive authority.

As certain courts and policymakers have realized over the years, many problems in the separation of powers doctrine involve questions about the amount of actual control a president can exercise over the bureaucracy. By the time of the Sierra Club v Costle29 decision, for example, courts routinely approached separation of powers questions by trying to calibrate precisely the extent of presidential power over internal agency matters.  In Costle, the court simultaneously acknowledged the value of judicial oversight of the President-agency relationship while recognizing that such oversight could also adversely impact the bureaucracy. Indeed, right after Humphrey’s Executor,30 the stage was already set for the rise of a more functionalist paradigm in separation of powers law. With its decision in Humphrey’s Executor, the Court simultaneously denied the White House a major instrument of control and ratified legislative experimentation with structures insulated from presidential control (for example, independent commissions).31

The White House responded to such constraints through a determined effort to gain the executive reorganization authority that eventually led to the creation of the FSA. Despite the difficulties created by decisions such as Humphrey’s Executor, the swelling size of the federal government relative to the size of the White House staff, and basic problems obtaining information across government, greater presidential success in achieving structural goals is likely to be associated with greater power to affect what federal bureaus actually do. Indeed, Presidents’ relative successes in achieving structural goals such as the creation of the FSA or DHS further blur a distinction—quite central to some otherwise cogent accounts of separation of powers—between presidential “oversight” and “directive authority.”32 True, directive authority implies that the president holds a special power to legally compel a decision from a subordinate, whereas oversight implies a power to force consultation and the production of information—something short of a specific decision. But in the absence of such explicit “directive” authority, presidential power to reorganize who holds directive authority within organizations (as Roosevelt did when he placed the Social Security Board inside the FSA), to appoint loyal political supervisors to bureaus, and to control the flow of information to and from bureaus can limit the significance of formal distinctions between “oversight” and “directive authority.”

Even if some subordinate executive branch officials let their responses to presidential requests turn on the distinction between oversight and directive authority, it is far from obvious that all or even most employees would be so passionately invested in the distinction. Structural changes can therefore help a president limit the significance of formal distinctions between oversight and directive authority. Accordingly, because separation of powers doctrine only makes sense if it encompasses some limits on presidential power, and structural arrangements are a key determinant of such power, courts should (other things being equal) closely scrutinize structural changes pursued by the White House. In fact, courts genuinely concerned with policing the extent of executive power will be left with little choice but to scrutinize the extent of structural power the president in fact has been able to accrue, rather than merely relying on a formal examination of whether the president has made claims of authority that improperly violate the distinction between oversight and directive authority.33

* * *

Regardless of how courts resolve the tensions inherent in supervising presidential control over the structure of the executive branch, Americans should appreciate how much the debates about the scope of national security end up affecting that structure. On June 7, 2002, President George W. Bush announced a major initiative reshaping the architecture of the federal government to promote greater security for the American people.34 DHS was the result. Unmistakable parallels link that initiative to Roosevelt’s creation of the FSA sixty-three years earlier. Like Roosevelt, President Bush faced a national electorate growing increasingly concerned about international threats. The early twenty-first century White House, like its predecessor in the 1930s, harbored an ambitious domestic policy agenda that would be affected by the reorganization. Both administrations faced hostility over their accumulation of presidential power,35 and nonetheless sought to use reorganization to enhance their control over how laws are implemented in a sprawling regulatory state. Both ultimately succeeded in achieving their respective reorganizations.

Where each administration differed sharply is in how it defined the concept of security that the newly strengthened legal architecture of government was supposed to serve. In Bush’s case, the reference to security primarily implicated the management of risks from terrorism or geostrategic threats, a narrowly focused mandate sharply conflicting with transferred bureaus’ broader missions and helping to create conditions making DHS perennially troubled.36 In Roosevelt’s case, the term security was meant to evoke a flexible conception of risk reduction that spread—as the FSA’s jurisdiction eventually did—across the now-segregated domains of public health regulation, social welfare policy, and national defense. Against that backdrop, early FSA officials managed to create an environment supporting their bureaus’ legal functions and adding to their resources rather than one calling for drastic reforms in agency priorities amid sharp resource constraints.37 Even after Roosevelt’s death, FSA Administrator Oscar Ewing continued articulating the same notion of security as “a sure knowledge that we shall not want for the basic necessities of life, no matter what Fate may have in store,”38 one that eerily parallels the views of some observers who criticize DHS for not being more steadily focused on the full range of risks facing Americans today.39

Today’s world of elaborate infrastructure problems, global nonstate actors, and mature regulatory agencies renders the historical context different from what prevailed when Roosevelt’s fireside chats were heard on cabinet-sized radios. The Bush administration’s narrow substantive definition of security, with implications that tend to cut against expansive regulatory activity in domains such as environmental protection or federal involvement in providing health services, is also different.40 But the cycle epitomizing fundamental conflicts over the architecture of law is not. Policymakers mold law by defining security, and then seek to command law’s implementation by securing control over public organizations. To assume that the idea of national security carries within it a set of self-evident priorities, free of strategic agendas or fraught disputes about separation of powers, is to ignore the history and shared questions that bind us to the Americans of the late 1930s.

Acknowledgments:

Copyright © 2010 University of Chicago Law Review.

Mariano-Florentino Cuéllar is a Professor of Law and Deane F. Johnson Faculty Scholar at Stanford Law School.

  1. See David Kennedy, Freedom From Fear: The American People in Depression and War, 1929–1945 257 (Oxford 1999) (explaining that Roosevelt’s idea was to provide “present relief, future stability, and permanent security”).
  2. See Stephen E. Flynn, America the Resilient: Defying Terrorism and Mitigating Natural Disasters, 87 Foreign Aff 2, 3 (Mar–Apr 2008) (explaining that the shortage of emergency funds and an aging infrastructure place most Americans in a precarious position if disaster should strike).
  3. GAO, Homeland Security: Federal and Industry Efforts Are Addressing Security Issues at Chemical Facilities, but Additional Action Is Needed GAO-05-631T, 3 (Apr 2005), online at http://www.gao.gov/new.items/d05631t.pdf (visited May 3, 2010) (recommending that the DHS and EPA develop a comprehensive chemical security strategy to deal with this vulnerability).
  4. Council on Foreign Relation, Backgrounder: Loose Nukes (Jan 2006), online at http://www.cfr.org/publication/9549/ (visited May 4, 2010) (noting that eighteen of these incidents involved highly enriched uranium).
  5. Megan K. Stack, Conflict in Caucasus: Harsh Rhetoric; Thousands Displaced; Desperation Builds in Georgia, LA Times A10 (Aug 16, 2008).
  6. Gerard Vandenberghe, Calderon Vows to Win Mexico’s Drug “Cancer” Fight, Agence France-Presse (Feb 27, 2009), online at http://www.google.com/hostednews/afp/article/ALeqM5hg8uAcgZkimMk5ehEE4PaHhTRlNg (visited May 4, 2010).
  7. See Kennedy, Freedom from Fear at 249–57 (cited in note 1).
  8. See Franklin D. Roosevelt, Message of the President: Reorganization Plan No 1 of 1939 (Apr 25, 1939), reprinted in 5 USC App (stating that the purpose of the FSA is to “promote social and economic security, educational opportunity, and the health of the citizens of the Nation”).
  9. 295 US 602 (1935).
  10. Id at 629–30 (holding that the President does not have unlimited power to fire agency heads who are not executive officers).
  11. 272 US 52, 176 (1926) (holding that the President can fire the Postmaster General at his discretion even though Congress passed a statute requiring the President to get the consent of the Senate to fire him).
  12. See Martha Derthick, Agency Under Stress: The Social Security Administration in American Government 20–21 (Brookings 1990) (“Congress chose to make the [new Social Security Board
  13. See Harvey C. Mansfield, Federal Executive Reorganization: Thirty Years of Experience, 29 Pub Admin Rev 332, 337 (1969) (describing Roosevelt’s frustration); Kenneth S. Davis, FDR: Into the Storm, 1937–1940: A History 19 (Random House 1993) (noting that, after Roosevelt’s election to a second term, “the subject uppermost in his mind on this third morning of the new year was . . . governmental reorganization”).
  14. The most extensive existing scholarly commentary on the FSA appears to be in Rufus Miles’s The Department of Health, Education, and Welfare, which is about five pages long and contains virtually no analysis of White House motives for the reorganization, bureaus’ budgets, or news coverage of the department. See Rufus E. Miles, Jr, The Department of Health, Education, and Welfare 18–24 (Praeger 1974) (describing briefly the history of the FSA and its conversion into the Department of Health, Education, and Welfare). Perhaps influenced by the putative scope of his project’s focus on Health, Education, and Welfare as opposed to its predecessor agency, Miles stresses the expectations of those who participated in the FSA’s elevation to cabinet status, rather than those who forged the FSA. See, for example, id at 3 (“When HEW first came into being as a Cabinet department in 1953, it did not occur to any of its many midwives that it would grow so rapidly.”). A leading history of the US Public Health Service (PHS) dismisses the significance of the FSA by citing Miles, and then proceeds to explain the important changes the PHS experienced during the war period without considering how the bureau would have fared if it had remained at the US Department of the Treasury. See Fitzhugh Mullan, Plagues and Politics: The Story of the United States Public Health Service 111 (Basic Books 1989) (“The leadership, style, and work of the PHS was relatively unaffected by its new affiliation.”).
  15. For an overview of the origins, and components, of the FSA, see Mariano-Florentino Cuéllar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953, 76 U Chi L Rev 587, 598–637 (2009). For the text of the President’s announcement, see Roosevelt, Message of the President (cited in note 8) (explaining that the total overhead of the agencies involved in the reorganization is $235 million). See also Budget of the United States, 1980 (OMB 1979); Miles, Department of Health, Education and Welfare at 3 (cited in note 14) (discussing HEW’s budget in relation to that of other countries).
  16. The treaty the US had signed outlawing such work was The Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous, or Other Gases, and of Bacterial Methods of Warfare, 26 UST 571, TIAS No 8061 (1925) (“Geneva Protocol”). Although the United States had not ratified the treaty at the time, its signature would have presumably been understood to be a commitment not to frustrate the purposes of the treaty. See Edward T. Swaine, Unsigning, 55 Stan L Rev 2061, 2061–62 (2003).
  17. See Office of Government Reports, US Information Services, United States Government Manual, September 1941 362–63 (GPO 1941) (describing the activities of the FSA); Federal Security Agency, Services of the Federal Security Agency 4, 8, 10–11, 16 (GPO 1944) (same).
  18. The Brownlow Committee provided a prescriptive, public administration justification but does not explain why the President would expend the resources he did to implement parts of that vision. With respect to the supervision of transferred bureaus by political supporters, bureaus such as Education and the PHS were not—in contrast to the Social Security Board—independent commissions that might have triggered obvious concerns about political control. They were instead bureaus in departments overseen by White House loyalists such as Harold Ickes and Henry Morgenthau, Jr. It is also unusual for a president to transfer agencies from traditional executive departments—generally considered to be more tightly under presidential control—to an independent agency such as the early FSA. See David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946–1997 143–144 (Stanford 2003) (suggesting that presidents tend to prefer placing bureaus under more hierarchy in cabinet departments, rather than under less hierarchy in independent agencies). This makes Roosevelt’s transfer of Education and PHS somewhat more puzzling.
  19. Wilson dismisses the significance of the creation of HEW in 1953. See James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 267–68 (Basic Books 1989). But he fails to address the potential significance of the creation of the FSA a decade and a half before, and even his account of the relative insignificance of HEW’s creation is difficult to reconcile with the degree of conflict over this change and the internal administrative implications of elevating the FSA to cabinet status.
  20. See Internal White House Memorandum (Aug 11, 1939), available at Franklin D. Roosevelt Presidential Library, Federal Security Agency, 1939 Folder, Official File 3700 (explicitly requesting control of some relief grant funds).
  21. Davis, FDR at 423 (cited in note 13) (identifying Hitler’s invasion of Czechoslovakia in violation of the Munich Agreement as a watershed event in Roosevelt’s mind).
  22. Id at 429 (describing Roosevelt’s impending sense of a march toward war).
  23. Id at 427 (discussing Senator Pittman’s abortive introduction of a “neutrality bill” that responded to Roosevelt’s concerns regarding Hitler’s actions).
  24. For greater detail on the FSA’s war-related programs, see Cuéllar, 76 U Chi L Rev at 630–36 (cited in note 15).
  25. See, for example, Felix Belair, Jr, President Decrees Three Big Offices in Centralizing 21: Relief, Social Security and Lending Agencies Grouped in Reorganization Message—A Warning to Dictators—Democracies Need Not Always Be Weak, He Says, but Must Keep Tools Up to Date, NY Times 18 (Apr 26, 1939) (relaying Roosevelt’s message introducing his reorganization plan to Congress).
  26. See Cuéllar, 76 U Chi L Rev at 706–12 (cited in note 15).
  27. See Dara K. Cohen, Mariano-Florentino Cuéllar, and Barry R. Weingast, Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 Stan L Rev 673, 735–38 (2006) (arguing that the DHS reorganization cut individual agencies’ abilities to execute their regulatory mandates). See also Stephen Flynn, America the Vulnerable: How Our Government Is Failing to Protect Us from Terrorism 14–15 (HarperCollins 2004) (advocating a conception of security that encompasses critical infrastructure protection, public health, and natural disaster mitigation and relief).
  28. See Cuéllar, 76 U Chi L Rev at 701–06 (cited in note 15).
  29. 657 F2d 298, 312 (DC Cir 1981) (holding that the Environmental Protection Agency did not exceed its statutory authority under the Clean Air Act when it promulgated new coal-fired power plant emissions standards).
  30. 295 US at 631–32 (concluding that whether the President’s power to terminate a government official prevails over the authority of Congress to limit that power depends on the “character of the office”).
  31. Id at 625.
  32. See, for example, Peter L. Strauss, Overseer or “The Decider”? The President in Administrative Law, 75 Geo Wash L Rev 696, 759 (2007) (concluding that the default rule in separation of powers grants the President oversight authority to ensure laws are executed but not decisional authority to interpret statutes and promulgate rules).
  33. In some respects, the doctrinal progression in this domain reflects at least some attention to the position of sustained but prudent scrutiny of presidential control of structure. Such attention is evidenced in the adoption of an increasingly functionalist separation of powers jurisprudence that acknowledges dynamic changes, a somewhat more flexible standing jurisprudence including, in Massachusetts v EPA, 549 US 497 (2007), the recognition of “procedural” injuries that might encompass the executive branch’s failure to honor lawmakers’ decisions to vest authority in particular inferior officers rather than the president, and a concern with placing limits on reservoirs of presidential power to affect the structure of government by pressing the limits of agency authority.
  34. See Cohen, Cuéllar, and Weingast, 59 Stan L Rev at 692–93 (cited in note 27) (describing Bush’s June 7 announcement of the DHS reorganization plan).
  35. Compare Mariano-Florentino Cuéllar, The Untold Story of al Qaeda’s Administrative Law Dilemmas, 91 Minn L Rev 1302, 1304–05 (2007) (describing controversies regarding legal decisionmaking in the Bush administration) with Richard Polenberg, Reorganizing Roosevelt’s Government: The Controversy over Executive Reorganization, 1936–1939 55 (Harvard 1966) (discussing criticisms of Roosevelt’s alleged overreaching in bolstering executive power).
  36. See Cohen, Cuéllar, and Weingast, 59 Stan L Rev at 696–97 (cited in note 27) (discussing the preeminent focus of Bush administration homeland security policy on counterterrorism and geostrategic threats).
  37. Compare id at 728 (discussing the combined impact of revenue neutrality and new missions) with Cuéllar, 76 U Chi L Rev at 655–95 (cited in note 15) (discussing how the FSA’s broader security mission and layer of political officials contributed to capacity building).
  38. See Oscar R. Ewing, More Security for You, Am Mag 1, 2 (Jan 1949), available at Harry S. Truman Presidential Library, Papers of Oscar R. Ewing, Federal Security Agency, Speeches and Articles, 1948–1949, Box 38 (arguing that security allows Americans to go on with their daily lives free from fear of the “poorhouse”).
  39. See, for example, Stephen Flynn, The Edge of Disaster: Rebuilding a Resilient Nation 170 (Random House 2007) (asserting that terrorism is only one item on a “growing list of potentially catastrophic events that threatens the public” and arguing that the Bush administration has not sufficiently prepared for these other risks).
  40. See Cohen, Cuéllar, and Weingast, 59 Stan L Rev 673, 681 n 24 (cited in note 27). See also P.J. Crowley, Homeland Security and the Upcoming Transition: What the Next Administration Should Do to Make Us Safe at Home, 2 Harv L & Policy Rev 289, 293 (2008) (quoting the 2007 White House National Strategy for Homeland Security, which defined homeland security as “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”).

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