A Response to Professor Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency

David Zaring University of Pennsylvania Law School

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Mariano-Florentino Cuéllar’s “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency 1  is both a work of history and a reminder of echoes of the past in contemporary policymaking.  It compares the great post-9/11 bureaucratic reorganization, which created the Department of Homeland Security (DHS), with one great post-Depression bureaucratic reorganization, which created the Federal Security Agency (FSA).  As the government increasingly pairs its most important policy initiatives with regulatory reorganization—I am thinking of financial reform, but you can substitute global warming or healthcare regulation if you would like—Cuéllar’s inquiry into how substantive values may be imported into a newly structured agency is central to the future of the administrative state.   Most importantly, his case study of the FSA asks whether an administration’s oversight of an agency can help it meet its policy goals.  This question is particularly relevant in light of recent responses to perceived crises of economic and international security. In this response, I want to discuss three implications of Cuéllar’s project and sound a skeptical note about the possibility of achieving useful social goals through the radical expansion of a security agenda and security apparatus.

As a descriptive matter, I take Cuéllar to be identifying a paradox in both the modern and historical task of homeland security.  The need for security is perceived to involve strong and serious legislative delegations; a check on that security tends to come not from the courts, nor from the usual strictures of administrative process, but from Congress itself.  And so, he observes, a massive reorganization of the security bureaucracy tends to result in a massive increase in congressional oversight.  But the paradox lies not only in the strange balance between broad delegations and close supervision.  The problem, it seems to me, also involves questions of institutional competence.   Congress is not adept at the mundane task of agency supervision—at least not always so; proof of this lies in its willingness to delegate a great deal of day-to-day supervision to the courts and the public, through notice and comment and “fire alarm” notifications, as McNollgast has explained.2 Even when Congress does get involved, the expansive legal powers granted to these security superagencies can give Congress less of an angle for the kind of close supervision it perceives as necessary (though this problem is less severe for Congress than it is for the courts, who must defer to broad legal delegations).

I also understand Cuéllar to be identifying a trap for an unwary Congress in broad delegations that Presidents go on to define—sometimes aggressively, as Franklin D. Roosevelt began to do with the FSA and as George W. Bush did with DHS.  Congress, in Cuéllar’s view, needs to think carefully about the decision to create a broad delegation, given that missions of such agencies have a way of evolving.

Second, Cuéllar is arguing that the technique of bureaucratic reorganization can, in fact, serve a purpose.  At least from Roosevelt’s perspective, the creation of FSA served policy goals; by combining the agencies, Cuéllar argues, the Roosevelt administration could better control them.   To this end, the FSA is an interesting data point, but the usefulness of central control is still not clear.  After all, following Hurricane Katrina, President Bush was criticized for having placed FEMA in DHS.3 In my view (and in the view of others), the reorganization distracted FEMA’s attention from national disaster preparation, making the agency’s response to the hurricane less effective.  Centralizing many bureaucratic functions in one agency can make the agency unwieldy and impossible to supervise, rather than docile and responsive to political oversight.  The example of an agency that did not groan under its own weight is some evidence to the contrary—but the FSA did not enjoy a long life.4  Rather than winning the day on this matter, then, I think that Cuéllar has opened an avenue for future research.

Third, Cuéllar observes that security can—and did—serve as an organizational principle for both the Department of Homeland Security and the old FSA.  Yet he notes that much of the political advantage of big security agencies lies in the malleability of the term “security.”

That “security” confers power is not new, but Cuéllar’s article usefully delves into some of the reasons why it is important.  Using the example of the FSA, he argues that claims of security can shape public perception and motivate legislators to support an administration’s priorities.

But I would like to spend the most time in this Essay worrying about Cuéllar’s final critical point.  That point involves the redefinition of security that comes with a reorganization.  As Cuéllar explains, the Roosevelt administration spent significant capital on the FSA because it believed that the agency could, by defining security expansively, contribute to health, education, and public welfare as well as to domestic and international security.  The modern-day DHS, by reaching so broadly into state, local, and national law enforcement and by integrating immigration, customs, counterterrorism, and drug enforcement, among many other things, also contains more than a whiff of the suggestion of total war.  And total wars are worth fighting only if absolutely necessary.  I think that actual domestic security almost always involves more bureaucratic slicing and dicing than it does consolidation.  And in the same vein, although security and social welfare are linked in grand theory, the best practice, endorsed by most modern bureaucracies under most conditions, is to keep social programs separated from the national defense.5

I think this separation is generally a good idea, and I think that it is an idea that was challenged by the FSA and continues to be challenged by DHS and the War on Terror, to little good end.  Today, considering the psychic space that terrorism occupies and the large budget appropriations available to agencies that can develop a War on Terror–based strategy, it is unsurprising that almost every agency has taken up the antiterrorism task.  None more so than DHS, of course, but the point here is that modern agencies are mimicking DHS rather than separating their goals from its goals.  In addition to creating a modern counterpart to Roosevelt’s security superagency, the Bush administration and Congress have reimagined existing agencies in terms of their roles in securing Americans against terror.  And so environmental protection has developed an antiterror component, as has the provision of housing services.  These new regulatory responsibilities have been difficult for agencies to handle, suggesting that a sober reevaluation of the involvement of civilian agencies in counterterrorism would be a good thing.

I think there are three reasons why agencies often fail at dealing with national security when they have otherwise been tasked with handling other questions of economic security and personal well-being.  First, there is a problem of fit—that is, the problem of using civil rules to find and deter terrorists, perhaps the quintessential uncivil actors.  Agencies often deal with economic security by extending benefits, but on conditions, such as granting licenses to financial institutions in return for voluntary compliance with reporting requirements.  But this typical mode of action is ill suited to reach terrorists who can opt out of regimes that depend on voluntary participation and who comprise a tiny segment of the public as a whole.   In Cuéllar’s terms, agencies like financial regulators may be good at one type of security (financial), but bad at another (national).

Second, these security-based antiterrorist measures diminish administrative effectiveness by going to extraordinary lengths to privilege agency discretion, thereby reducing agency accountability and, predictably, resulting in increasingly arbitrary, unreviewable agency action—a problem of overdiscretion.  It is a maxim of administrative law that the authority delegated to administrative agencies should be paired with safeguards on the abuse of that authority.  Accordingly, administrative agencies have traditionally operated publicly and openly, and usually pursuant to a tested and established framework of rules.  Agency rulemaking is governed by requirements for public notice and comment,6 while agency adjudication is subject to judicial review or, at a minimum, supervision by senior executive branch officials.7 But the administrative initiatives against terror use security concerns to justify changes from what have traditionally been participatory, reviewable rulemaking or adjudicatory processes to singular acts of discretion that are often undertaken in secret and thus effectively insulated from public view and from judicial or even supervisory review.  Furthermore, these measures often place this decisionmaking authority in the hands of midlevel or even street-level bureaucrats, such as office directors in the Department of the Treasury in the case of the terrorist-financing programs.  The allocation of discretion down to bureaucrats all but insulated from oversight has, at least in the case of antiterrorism regulation, become a license for arbitrariness.

Third, security concerns have led to the expansion of agency powers to regulate beyond areas of agency expertise.  Since 9/11, our bureaucracy has folded new industries into its regulatory purview and has adopted new investigative and rulemaking responsibilities—often responsibilities that are difficult to distinguish from criminal law enforcement.  Max Weber posited that bureaucracies would develop rational and task-specific expertise.8 But the new antiterrorism responsibilities of agencies have ignored this Weberian maxim.  Instead, agencies have been tasked with uncharacteristic, noncivil responsibilities, and have been told to fulfill those responsibilities without supervision.  The result has been predictably inexpert.  Security concerns may give agencies more power, but they do not guarantee that an agency will be able to use this power effectively.

As a result of these problems of fit, overdiscretion, and inexpertise, civil agencies have produced initiatives that burden proxy groups—most often the industries they regulate, but not terrorists.  This proxy problem means that the administrative war on terror overwhelmingly burdens law abiders who willingly participate in civil administrative schemes.9 Agency experience with regulation justified by national security confirms Cuéllar’s fears about its possible abuse.   Arguments of security seem to make it easier for agencies and executives to justify overreach, but the end result may be both inefficient and undesirable.

At bottom, Cuéllar contends that there is an implication from this contingent use of the security term.  He argues that we need a definition of security in the modern nation-state.10 But, even if we should worry about repurposing civilian agencies as parts of the security apparatus, perhaps what we really need is not a definition, but recognition that we need to pay closer attention to the many definitions of security.  It may be that defining the term is impossible—agencies like the Committee for Foreign Investments in the United States have found it impossible to define terms like national or essential security with any precision.11 We must be careful that legal ideas designed to apply to narrowly defined problems of security are not applied to legal problems using broader definitions—or applications—of the same term.

Acknowledgments:

Copyright © 2010 University of Chicago Law Review.

David Zaring is an Assistant Professor of Legal Studies at the University of Pennsylvania.

  1. Mariano-Florentino Cuéllar, “Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 76 U Chi L Rev 587 (2009). For Professor Cuéllar’s Legal Workshop article, see Mariano-Florentino Cuéllar, From Federal Security to Homeland Security: Law, Politics, and Organization in the American Security Agenda, Legal Workshop (May 31, 2010), online at https://legalworkshop.org/2010/05/31/cuellar.
  2. See Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J L, Econ, & Org 243, 254 (1987) (arguing that the notice-and-comment system improves the efficiency of policies by disseminating information to affected parties); Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va L Rev 431, 433–35 (1989) (noting that the objections of targeted beneficiaries during notice and comment, so-called “fire alarms,” can decrease the monitoring costs of legislators). These three authors—McCubbins, Noll, and Weingast—have combined their names to form the author acronym “McNollgast.”
  3. See, for example, Eric Lipton, Ex-FEMA Leader Faults Response by White House, NY Times A1 (Feb 11, 2006) (reporting claims by former director of FEMA Michael Brown that “FEMA’s role within the Homeland Security Department had been subordinated to fighting terror”); Scott Shane, After Failures, Officials Play Blame Game, NY Times A1 (Sept 5, 2005) (discussing Senator Hillary Clinton’s plans to introduce a bill to remove FEMA from DHS); Susan B. Glasser and Josh White, Storm Exposed Disarray at the Top, Wash Post A1 (Sept 4, 2005) (“Some current and former officials argued that as (the DHS) worked to focus on counterterrorism, (it) has diminished the government’s ability to respond in a nuts-and-bolts way to disasters in general, and failed to focus enough on threats posed by hurricanes and other natural disasters in particular.”).
  4. One other, related quibble: Cuéllar concludes that FSA was a success on at least one metric—he observes that the agency was able to keep and grow its budgets.  But it is possible that foreign affairs was generally consuming a greater part of the budget, and so the parts of the agency that grew may have reflected less of a particular policy preference within the executive branch than something more uniform.  Roosevelt’s favored parts of the agency could have experienced, I assume, a loss of funds outweighed by growing expenditures in places like the Office of Community War Services, the War Research Service, and so on.  But we cannot tell whether this was the case by looking only at the aggregate budget.
  5. Of course, there will be cases in which local law enforcement officers are called upon to perform social service tasks—indeed these sorts of tasks have already been delegated frequently to them.
  6. For which the Administrative Procedure Act provides.  See 5 USC § 553.
  7. See 5 USC §§ 702, 704.
  8. Max Weber, 1 Economy and Society: An Outline of Interpretive Sociology 217–20 (Bedminster 1968) (Guenther Roth and Claus Wittich, eds) (Ephraim Fischoff, et al, trans) (originally published 1921) (setting forth the principles of “legal authority with a bureaucratic administrative staff,” which resulted in, among other things, the “rule-bound conduct of official business,” “specialized training” for government employees, and a “specified sphere of competence” for administrators).
  9. Of course, it may be that Americans are willing to accept certain levels or types of false positives—for example, that Americans feel it is worth overrestricting immigration from countries likely to produce terrorists.  But in our efficiency- and effectiveness-oriented analysis of the bureaucratic war against terror, we find that the level of false positives in these systems is quite high indeed, and that the cost of adapting task-specific civil administration to deal with terrorists is accordingly much larger than it might, at first blush, seem to be.
  10. Cuéllar, 76 U Chi L Rev at 596–97 (cited in note 1).
  11. See David Zaring, CFIUS as a Congressional Notification Service, 83 S Cal L Rev 81, 129–32 (2010).

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