Homeland Security: Department Organization and ManagementLegislative Phase
Report for Congress
Homeland Security: Department Organization
And Management—Legislative Phase
Updated February 25, 2003
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
Department Organization and
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 This report is no longer being updated.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.
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
Inappropriate Program Transfers.............................32
General Management Requirements..........................33
Human Resources Management..............................34
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
Table 3. Officials Reporting Directly to the Secretary of Homeland Security..20
Department Organization and
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, and2
that all necessary resources are made available toward that end.” 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 is3
one of the roles of the OHS director, testifying before congressional committees. 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
1See Federal Register, vol. 66, Oct. 10, 2001, pp. 51812-51817.
2Congressional Record, daily edition, vol. 147, Oct. 11, 2001, p. S10646.
3Elizabeth Becker, “Domestic Security: Bush Is Said to Consider A New Security
Department,” New York Times, Apr. 12, 2002, p. A15.
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.
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
4See Congressional Record, daily edition, vol. 148, May 2, 2002, pp. S3874-S3880.
5For 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).
6See CRS Report RL31449, House and Senate Committee Organization and Jurisdiction:
Considerations Related to Proposed Department of Homeland Security, by Judy Schneider.
7See 1 Stat. 239; the line of succession is currently specified at 3 U.S.C. 19.
8Harold Seidman, “A Typology of Government,” in Peter Szanton, ed., Federal
Reorganization: What Have We Learned? (Chatham, NJ: Chatham House, 1981), p. 37.
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
De partment Creation Modif i cation
War1789Subsumed by Defense
Navy1798Subsumed by Defense
Post Office1872Reorganized as U.S. Postal Service
Commerce and Labor1903Labor later separated
Defense1947Initially named the
National Military Establishment
Health, Education, 1953Education later separated
Housing and Urban1965
T r ansportation 1966
9 Ib i d .
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
10U.S. President’s Committee on Administrative Management, Administrative Management
in the Government of the United States (Washington: GPO, 1937), pp. 29-30.
11Ibid., p. 31.
12Ib i d .
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
13See 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.
14For 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,nd
IL: Richard D. Irwin, 1967); Herbert A. Simon, Administrative Behavior, 2 ed. (New York:
Macmillan, 1957); Dwight Waldo, The Administrative State (New York: Ronald Press,
15Schuyler Wallace, Federal Departmentalization: A Critique of Theories of Organization
(New York: Columbia University Press, 1941), p. 43.
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 of16
duty as his aides, might be restored to their old positions.
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 lack18
of administrative feedback arrangements for monitoring subordinates’ behavior;
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
16U.S. President’s Committee on Administrative Management, Administrative Management
in the Government of the United States, p. 5.
17Wallace, Federal Departmentalization, p. 48.
18See Herbert Kaufman with Michael Couzens, Administrative Feedback: Monitoring
Subordinates’ Behavior (Washington: Brookings Institution, 1973).
19Regarding this consideration and much more, see Jane E. Fountain, Building the Virtual
State: Information Technology and Institutional Change (Washington: Brookings
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 reasons21
that inspired them had ceased.
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 system22
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 self-
evident, yet such is far from the case,” and proceeds to demonstrate that these are not23
clearly understood concepts. Furthermore, he admits:
20I. M. Destler, Presidents, Bureaucrats, and Foreign Policy: The Politics of Organizational
Reform (Princeton, NJ: Princeton University Press, 1974), p. 224.
21Dean Acheson, Present at the Creation: My Years in the State Department (New York: W.
W. Norton, 1969), p. 214.
22Wallace, Federal Departmentalization, pp. 62-63.
23Ibid., p. 91.
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 efficiency24
accruing from a given emphasis.
“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 holding-
company 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
24Ibid., p. 97.
25Ibid., pp. 94, 98.
26Ibid., p. 131.
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 not27
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
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
27Ibid., p. 76.
28U.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, Houseth
Select Committee on Post-War Military Policy, A Single Department of Armed Forces, 78nd
Cong., 2 sess., H.Rept. 1645 (Washington: GPO, 1944).
29U.S. Congress, Senate Committee on Naval Affairs, Unification of the War and Navy
Departments and Postwar Organization for National Security, by Ferdinand Eberstadt, 79thst
Cong., 1 sess., committee print (Washington: GPO, 1945).
3061 Stat. 495.
3163 Stat. 578.
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 the33
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 its35
accomplishment through a presidential reorganization plan. 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
32See 60 Stat. 812.
33Wallace, Federal Departmentalization, p. 82.
34The 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.
35U.S. President’s Committee on Administrative Management, Administrative Management
in the Government of the United States, p. 32.
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 of37
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 and38
recommended a Department of Welfare which included health activities. 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 master39
the details in a reasonable period.
3653 Stat. 561; the statute was a limited realization of another recommendation of the
President’s Committee on Administrative Management.
37Louis Brownlow, A Passion for Anonymity: The Autobiography of Louis Brownlow,
Second Half (Chicago: University of Chicago Press, 1958), p. 417.
38See 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.
39U.S. Commission on Organization of the Executive Branch of the Government, Task Force
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
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
Report on Public Welfare (Appendix P), Functions and Activities of the National
Government in the Field of Welfare, by The Brookings Institution (Washington: GPO,
40U.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,
41U.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,
42See 63 Stat. 203.
43Congressional Record, vol. 95, Aug. 16, 1949, pp. 11520-11560.
44Ibid., vol. 96, July 10, 1950, pp. 9843-9864.
45U.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.
46Ibid., pp. 94-98.
4767 Stat. 18; Reorganization Plan 1 of 1953 appears at 67 Stat. 631.
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’s49
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 top-
level 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 management50
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 the51
young Department, straining its capacity to cope with all of its functions.
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
48Rufus E. Miles, Jr., The Department of Health, Education, and Welfare (New York:
Praeger, 1974), pp. 25-26.
49Ibid., p. 27.
50Ibid., p. 28.
51Ibid., p. 29.
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
52Edward 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.
53Prepared, 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).
54See Federal Register, vol. 66, Oct. 10, 2001, pp. 51812-51817.
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
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
55Representative 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.
56Eric Pianin and Bill Miller, “For Ridge, Ambition and Realities Clash,” Washington Post,
Jan. 23, 2002, pp. A1, A10.
57Dave Boyer, “Ridge Reluctant to Testify in Senate,” Washington Times, Feb. 27, 2002, p.
A4; Alison Mitchell, “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.
58George 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.
59Bill 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,
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
Washington Post, May 3, 2002, p. A25.
60Elizabeth Becker, “Big Visions for Security Post Shrink Amid Political Drama,” New York
Times, May 3, 2002, pp. A1, A16.
61NewsHour Focus, Newsmaker: Tom Ridge, May 9, 2002, transcript available at NewsHour
62Editorial, “Faltering on the Home Front,” New York Times, May 12, 2002, p. 14.
63Elizabeth Becker, “Domestic Security: Bush Is Said to Consider a New Security
Department,” New York Times, Apr. 12, 2002, p. A15.
64See Congressional Record, daily edition, vol. 148, June 18, 2002, pp. H3639-H-3641.
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.
65U.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).
66The 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).
Table 2. Primary Components Transferred
to the Department of Homeland Security
House Bill Senate Bill
(H.R. 5005, as introduced)(S. 2452, as initially reported)
Animal and Plant Health InspectionAnimal and Plant Health Inspection
Service (DOA)Service (DOA) (in part)
Critical Infrastructure Assurance OfficeCritical Infrastructure Assurance Office
Federal Emergency Management AgencyFederal Emergency Management Agency
Immigration and Naturalization ServiceImmigration and Naturalization Service
National Domestic Preparedness OfficeNational Domestic Preparedness Office
National Infrastructure Protection CenterNational Infrastructure Protection Center
U.S. Coast GuardU.S. Coast Guard
U.S. Customs ServiceU.S. Customs Service
Chemical, Biological, and Nuclear
Security, Non-proliferation, and
Verification Programs (DOE)
Civilian Biodefense Research Programs
Computer Security Division (NIST)
Domestic Emergency Support Teams
Environmental Measurements Laboratory
Federal Computer Incident Response
Federal Protective Service (GSA)
Lawrence Livermore National Laboratory
National Biological Weapons Defense
Analysis Center (DOD)
National Communications System (DOD)
National Infrastructure Simulation and
Analysis Center (DOE)
House Bill Senate Bill
(H.R. 5005, as introduced)(S. 2452, as initially reported)
Nuclear Incident Response (DOE)
Office for Domestic Preparedness (DOJ)
Office of the Assistant Secretary for
Public Health Emergency Preparedness
Plum Island Animal Disease Center
Select Agent Registration and
Enforcement Program (HHS)
Strategic National Stockpile (HHS)
Transportation Security Administration
U.S. Secret Service
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.
Table 3. Officials Reporting Directly
to the Secretary of Homeland Security
House Bill Senate Bill
(H.R. 5005, as introduced)(S. 2452, as initially reported)
Deputy SecretaryDeputy Secretary
Under Secretary for Information AnalysisDirectorate of Critical Infrastructure
and Infrastructure ProtectionProtection
Under Secretary for Chemical,
Biological, Radiological, and Nuclear
Under Secretary for Border andDirectorate of Border and Transportation
Under Secretary for EmergencyDirectorate for Emergency Preparedness
Preparedness and Responseand Response
Under Secretary for Management
Director of the Office of Science and
Inspector GeneralInspector General
Commandant of the Coast Guard
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.
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 the68
Treasury rather than transferring the whole agency to the new department.
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
67Charles R. Wise, “Organizing for Homeland Security,” Public Administration Review, vol.
68Associated 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.
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
!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
!a Privacy Officer, appointed by the secretary by designating a senior
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;
69David 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.
70See 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).
!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
!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
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
71See 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,
Washington Times, July 16, 2002, p. A4.
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
72Ivo Daalder, et al., Assessing the Department of Homeland Security (Washington:
Brookings Institution, 2002), p. ii.
73U.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].
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
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
cent er; 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
74Stephen 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.
75Congressional Record, daily edition, vol. 148, July 25, 2002, pp. H5621-H5704; Ibid., July
76See 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).
77Congressional Record, daily edition, vol. 148, July 25, 2002, p. H5694.
78Ibid., pp. H5697-H5698.
79Ibid., pp. H5702-H5703.
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
securi t y; 81
!requiring collaboration with employee representatives in the planning,
development, and implementation of any human resources management
!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
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
!protecting the rights of union employees who are transferred into the
department with the same job responsibilities as they had in their previous
organiz ation; 88
80Ibid., pp. H5703-H5704.
81Ibid., July 26, 2002, pp. H5800-H5804.
82Ibid., pp. H5809-H5813.
83Ibid., pp. H5817-H5829, H5837-H5838; the provisions, included in an en bloc manager’s
amendment, had been offered in H.R. 3844.
84Ibid., pp. H5854-H5861; many of the provisions had been offered in H.R. 4598, which was
approved by the House on June 26, 2002.
85Ibid., pp. H5793-H5798.
86Ibid., pp. H5798-H5799.
87Ibid., p. H5799.
88Ibid., pp. H5804-H5809.
!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
Concluding debate on July 26, 2002, the House voted 295-132 to adopt H.R.
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
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
Amendments approved the following day would have created an Office of
National Capital Region Coordination within the new department; clarified the
89Ibid., pp. H5817-H5817, H5837.
90Ibid., pp. H5845-H5850, H5869.
91Ibid., pp. H5850-H5853, H5869-H5870.
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.
92 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.
Homeland Security—Continued Floor Action on Department
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
!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 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);
93Congressional Record, daily edition, vol. 148, Nov. 13, 2002, pp. H85595-H8722.
!Metropolitan Medical Response System (Department of Health and Human
!National Communications System (Department of Defense);
!National Disaster Medical System (Department of Health and Human
!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
!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
!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 House-
passed 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
94Ibid., p. S10856.
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
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 2003-
2007 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
95Ibid., Nov. 15, 2002, p. S11169.
96Ibid., Nov. 19, 2002, pp. S11358-S11404.
97Ibid., Nov. 22, 2002, pp. H9040-H9114.
98P.L. 107-296; 116 Stat. 2135; see Weekly Compilation of Presidential Documents, vol. 38,
Nov. 25, 2002, pp. 2092-2095.
99U.S. Congressional Budget Office, H.R. 5005, Homeland Security Act of 2002, CBO Cost
Estimate (Washington: July 9, 2002), p. 1.
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 prospect100
of transferring or restructuring FBI and CIA counterterrorism responsibilities.
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
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
100Jim 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,
102U.S. General Accounting Office, Homeland Security: Key Elements to Unify Efforts Are
Underway but Uncertainty Remains, GAO Report GAO-02-610 (Washington: June 2002),
103Associated 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.
104Dan Davidson, “Some Fear Non-Security Programs May Suffer,” Federal Times, June 17,
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
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
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
105See CRS Report RL30795, General Management Laws: A Selective Compendium—107th
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
Congress, by Ronald C. Moe.
106U.S. Congress, House Committee on the Judiciary, Administrative Law, Adjudicatory
Issues, and Privacy Ramifications of Creating a Department of Homeland Security, hearing,thnd
107107 Stat. 285.
108Cf. 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.
109U.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.
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 providing110
employees with union rights.
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.
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.
110Brian Friel, “New Agency Could Bring New Pay System,” GovExec.com, June 18, 2002,
available at [http://www.govexec.com].
111See 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.
!June 25: Committee on the Judiciary, Subcommittee on Technology,
Terrorism, and Government Information hearing on a Department of
!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
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 House-
passed 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
!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.
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
!June 26: Committee on Armed Services hearing on a Department of
!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
!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
!June 27: Committee on the Judiciary, Subcommittee on Immigration, Border
Security, and Claims hearings on the role of immigration on a Department of
!June 27: Committee on Science hearing on a Department of Homeland
!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.
!July 10: Committee on International Relations ordered reported, as amended,
!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.
!July 11: Committee on Energy and Commerce ordered reported, as amended,
!July 11: Committee on Government Reform considered recommendations on
!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.
!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
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
!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.
!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-
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
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 Interagencythst
Data-Sharing and National Security. Hearing. 107 Congress, 1 session, July
–—. The Department of Homeland Security: An Overview of the President’sthnd
Proposal. Hearing. 107 Congress, 2 session, June 20, 2002. Washington:
U.S. Congress. House. Committee on International Relations. Homeland Securitythnd
Act of 2002. Hearing and markup on H.R. 5005. 107 Congress, 2 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.
–—. 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
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:
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:
Related CRS Products
CRS Congressional Distribution Memoranda
Department of Homeland Security — Current Administrative Structure of Units
Proposed to Transfer, by Sharon S. Gressle, June 28, 2002.
Functions Transferred to the Proposed Department of Homeland Security Arguably
Not Related to Homeland Security, by Jennifer E. Lake, July 31, 2002.
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,
Overview of Agencies and Programs Implicated in the Transfer of Functions and
Authorities to the Proposed Department of Homeland Security, by T. J.
Halstead, June 24, 2002.
Reorganization Implementation Plans, by Ronald C. Moe, June 20, 2002.
Statutes Relating to Personnel Management and Pay Systems That May Be Affected
by Creating the Department of Homeland Security, by Thomas J. Nicola, July
Summary of Human Resources Management System Statutes and the Proposed
Department of Homeland Security, by Thomas J. Nicola, July 18, 2002.
CRS Report RS21251. Analysis of President’s Proposal Concerning the Office of
Inspector General for the Proposed Department of Homeland Security, by
Diane T. Duffy.
CRS Report RL31520. Collective Bargaining and Homeland Security, by Jon O.
CRS Report RL31497. Creation of Executive Departments: Highlights from the
Legislative History of Modern Precedents, by Thomas P. Carr.
CRS Report RL31472. Departmental Organization, 1947-2001, by Sharon Gressle.
CRS Report RL31514. Department of Homeland Security: Appropriations Transfer
Authority, by Robert Keith.
CRS Report RS21366, Department of Homeland Security: Hypothetical
Organization Chart, by Sharon S. Gressle.
CRS Report RL30795. General Management Laws: A Selective Compendium —
CRS Report RL31639. Homeland Security: A Topical Comparison of H.R. 5710
with H.R. 5005, by Sharon S. Gressle.
CRS Report RS21295. Homeland Security and the Davis-Bacon Act, by Jon O.
CRS Report RS21268. Homeland Security: Data on Employees and Unions
Potentially Affected, by Gail McCallion.
CRS Report RL31504. Homeland Security: Departmentalization — Public
Administration Principles and Selected Past Experiences, by Harold C. Relyea.
CRS Report RL31548. Homeland Security Department Proposals: Scope of
Personnel Flexibilities, by Tom Nicola.
CRS Report RL31500. Homeland Security: Human Resources Management, by
Barbara L. Schwemle.
CRS Report RL31492. Homeland Security: Management Positions in the New
Department, by Henry B. Hogue.
CRS Report RL31148. Homeland Security: The Presidential Coordination Office,
by Harold C. Relyea.
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 Judy
CRS Report RS21260. Information Technology (IT) Management: The Clinger-
Cohen Act and Homeland Security Proposals, by Jeffrey W. Seifert.
CRS Report RL31446. Reorganizing the Executive Branch in the 20th Century:
Landmark Commissions, by Ronald C. Moe.