Federal Hurricane Recovery Coordinator: Appointment and Oversight Issues
CRS Report for Congress
Federal Hurricane Recovery Coordinator:
Appointment and Oversight Issues
Henry B. Hogue
Analyst in American National Government
Government and Finance Division
Summary
On November 1, 2005, President George W. Bush issued an executive order
directing the Secretary of Homeland Security to establish a new position that would
coordinate federal Gulf Coast recovery and rebuilding efforts.1 The executive order
specifies that this official “shall be selected by the President and shall be appointed by
and report directly to the Secretary.” Subsequently, the President selected then-Federal
Deposit Insurance Corporation Board of Directors Chair Donald Powell for the new
position, and Secretary Michael Chertoff formally appointed him. This method of
establishing and making an appointment to a departmental position is unusual, and it
may conflict with the constitutional role of Congress in the appointment and oversight
processes. This report will not be updated.
In the aftermath of Hurricanes Katrina and Rita, dissatisfaction with the response of
the Federal Emergency Management Agency (FEMA) at the Department of Homeland
Security (DHS) was widespread among elected officials. The magnitude and scope of the
disasters led some to call for a centralized authority to coordinate federal, state, and local
activity in the aftermath of the hurricanes. Some Members of Congress urged the
President to designate a Cabinet-level, or other prominent, official to head federal relief
operations.2 In addition, some Members proposed the creation of a federal authority that
would oversee the recovery and rebuilding of the Gulf Coast Region. Several bills have
been introduced that would establish, or assign to an existing entity, a centralized
authority to oversee the recovery and rebuilding phases. For example, some legislative
1 U.S. President (G.W. Bush), “Establishment of a Coordinator of Federal Support for the
Recovery and Rebuilding of the Gulf Coast Region,” E.O. 13390, Federal Register, vol. 70, Nov.
4, 2005, p. 67327-67328. The order is issued under the authority of “the Constitution and the
laws of the United States of America, including the Homeland Security Act of 2002 ... and the
Robert T. Stafford Disaster Relief and Emergency Assistance Act.”
2 Eric Lipton and Scott Shane, “Storm and Crisis: The Emergency Agency,” New York Times,
Sept. 3, 2005, p. A17; Julie Mason, “Bush Vows to Aid Flow of Benefits to Victims; President
Also Designates Sept. 16 as a Day of Prayer,” Houston Chronicle, Sept. 9, 2005, p. A24.
Congressional Research Service ˜ The Library of Congress
proposals would create authorities to coordinate and facilitate the federal response in
conjunction with state and local governments.3 Other proposals focus on maintaining
accountability for funds appropriated in response to the disasters by, for example,
assigning financial oversight responsibilities to chief financial officers or inspectors
ge n e r a l . 4
The Bush Administration initially appeared reluctant to establish a hurricane “czar”
who would take on all response, recovery, and rebuilding functions.5 In what was seen
as an interim step, however, on September 9, 2005, DHS Secretary Michael Chertoff
relieved FEMA Director Michael Brown of responsibility for the agency’s Gulf Coast
response and appointed Coast Guard Vice Admiral Thad Allen as the “Principal Federal
Official (PFO) overseeing Hurricane Katrina response and recovery effort [sic] in the
field.”6
Position of Coordinator
Some seven weeks later, on November 1, 2005, President Bush issued Executive
Order (E.O.) 13390, which directed the creation of a central figure in the Administration’s
efforts to support the Gulf Coast recovery and rebuilding phases. Specifically, the
President directed Secretary Chertoff to establish within DHS the position of Coordinator
of Federal Support for the Recovery and Rebuilding of the Gulf Coast Region
(coordinator). Under the order, the coordinator is to be selected by the President and
appointed by the Secretary.7 The Secretary is further directed to provide the coordinator
with appropriate personnel, funds, and other resources of the department for the purposes
of carrying out the mission identified by the President. This mission is to “work with
executive departments and agencies to ensure the proper implementation” of the
President’s policy, as articulated in the order.8 That is, to:
provide effective, integrated, and fiscally responsible support from across the Federal
Government to support State, local, and tribal governments, the private sector, and
faith-based and other community humanitarian relief organizations in the recovery and
rebuilding of the Gulf Coast region affected by Hurricane Katrina and Hurricane Rita9
(the “Federal Response”).
3 See, for example, S. 1843, which would create an Office of the Louisiana Katrina Recovery
Administrator in the Executive Office of the President.
4 See, for example, H.R. 3737, S. 1738, H.R. 3810, H.R. 3813, and S. 1700.
5 Mike Allen, “Cheney Wins — Again,” Time Magazine, Sept. 26, 2005, p. 13.
6 “Statement by Homeland Security Secretary Michael Chertoff,” Sept. 9, 2005, available at
[http://www.dhs.gov/dhspublic/display?content=4795], accessed Nov. 14, 2005. Brown
subsequently resigned as head of FEMA. (“Statement by Homeland Security Secretary Michael
Chertoff,” Sept. 12, 2005, available at [http://www.dhs.gov/dhspublic/display?content=4801],
accessed Nov. 14, 2005.)
7 By law, all “functions of all officers, employees, and organizational units of the Department are
vested in the Secretary” (6 U.S.C. § 112(a)(3)).
8 E.O. 13390, § 3(a).
9 Ibid., § 1.
The coordinator is also directed to “lead the process” of developing the principles
and goals of the federal response and to communicate them to the federal officials
involved.10 Consistent with these principles and goals, the coordinator is to lead the
development of the policies and programs constituting the federal response, monitor the
implementation of these policies and programs, and “ensure that those polices [sic] and
programs are consistent with the principles and goals of the Federal Response.”11 The
coordinator is to be the principal point of contact for Congress, state and local
governments, the private sector, and community leaders, and will be “responsible for
managing information flow, requests for actions, and discussions regarding” the federal
response with these interested parties.12
The executive order directs department and agency heads to be responsive to the
coordinator, to provide, “consistent with applicable law, ... such information as the
Coordinator deems necessary to carry out” the mission, and to “otherwise cooperate with
the coordinator to the greatest extent practicable” in support of the mission.13
On the day this executive order was issued, President Bush selected Federal Deposit
Insurance Corporation (FDIC) Board of Directors Chair Donald E. Powell to be the
coordinator.14 Secretary Chertoff formally appointed Powell to the position as a non-
career member of the Senior Executive Service, with a salary of $152,000.15 As FDIC
chair, Powell was compensated at Level III of the Executive Schedule16 — $149,200 at
the time of his coordinator appointment.17 The coordinator position is organizationally
located in the immediate office of the Secretary.
Also on November 1, President Bush issued E.O. 13389,18 which created the Gulf
Coast Recovery and Rebuilding Council (council) in the Executive Office of the President
(EOP). Under the order, the council is to be chaired by the Assistant to the President for
Economic Policy, and its membership is to include the coordinator, the heads of all of the
departments (except the Department of State), the Administrator of the Environmental
Protection Agency, the Chair of the Council of Economic Advisors, the Administrator of
the Small Business Administration, the Director of the Office of Management and Budget,
and the Assistants to the President for Domestic Policy and for Homeland Security and
10 Ibid., § 3(b).
11 Ibid., § 3(c).
12 Ibid., § 3(d).
13 Ibid., § 4.
14 “Fact Sheet: Coordinating Federal Support for Gulf Coast Rebuilding,” news release, Nov. 1,
visited Nov. 3, 2005.
15 Telephone conversation with representative of the Department of Homeland Security, 11/8/05.
16 5 U.S.C. § 5314.
17 Office of Personnel Management Salary Table No. 2005-EX, available at
[http://www.opm.gov/oca/05tables/html/ex.asp], accessed Nov. 8, 2005.
18 President (G.W. Bush), “Creation of the Gulf Coast Recovery and Rebuilding Council,” E.O.
Counterterrorism. The chair is also empowered to designate additional executive branch
officers and employees as council members.19 The executive order directs the council
chair to lead the council “in consultation with the Coordinator.”
The purpose of the council is to take up issues related to the furtherance of the
President’s policy on recovery and rebuilding of the Gulf Coast Region, as described
above. These issues may be brought to the council’s attention by the chair, the
coordinator, or, with the permission of the chair, any agency head on the council. The
council may make recommendations to the President regarding these issues.20 The
council is to terminate after three years, unless the President extends it.21
Analysis
The coordinator and council established by the President’s executive orders may be
seen as a unique framework for providing a government-wide response to a disaster of
unusual scope and magnitude. An analysis of the framework, however, leads to two
questions potentially of interest to Congress. First, is the coordinator appointment con-
sistent with the appointments clause of the Constitution, which gives Congress a role in
determining the appointment method for officers of the United States? Second, will
Congress have restricted access to the coordinator when carrying out its oversight
function?
President Bush has previously used his authority to establish a new coordinating
office in response to a national crisis. As part of his response to the terrorist attacks of
September 11, 2001, the President issued E.O. 13228, which established the Office of
Homeland Security (OHS) in the EOP. At the same time, he appointed Tom Ridge as the
Assistant to the President for Homeland Security. The order provided that the head of
OHS would be the Assistant to the President for Homeland Security, thus making the
OHS leader a member of the White House Office staff. The executive order specified that
the “mission of the Office [was] to develop and coordinate the implementation of a
comprehensive national strategy to secure the United States from terrorist threats or
attacks.”22 As a presidential advisor rather than a statutory official, Ridge lacked statutory
authority and resources. Nonetheless, as an assistant to the President, Ridge benefitted
from access to, and the backing of, the President. Operating under the President’s
authority, Ridge could potentially have held considerable sway in coordinating the
homeland security-related functions and budgets of numerous federal agencies.
Because Congress had an interest in the government-wide coordination of homeland
security activities and budgets, a number of congressional committees sought Ridge’s
testimony during oversight hearings. Arguing that presidential assistants rarely testify
before congressional oversight committees, the Administration declined to allow Ridge
19 Ibid., § 2(a).
20 Ibid., § 3.
21 Ibid., § 5. Use, after the first year, of appropriated funds in support of the council may be
prohibited by 31 U.S.C. § 1347 unless specifically appropriated or authorized.
22 U.S. President (G.W. Bush), “Establishing the Office of Homeland Security and the Homeland
Security Council,” E. O. 13228, Federal Register, vol. 66, Oct. 10, 2001, pp. 51812-51817, § 2.
to appear in that context. After written exchanges between the White House and the chair
and ranking member of the Senate Appropriations Committee, Ridge offered to come to
the Capitol and brief Members of Congress informally, outside the context of oversight
heari n gs . 23
The more recently created coordinator position has government-wide coordinative
functions similar to those of the head of OHS. The organizational location and potential
resources and authority of the position, however, differ from the OHS model. Nominally
a Senior Executive Service-level appointee, the coordinator enjoys unusual positional
power. His authority on the council exceeds that of any of the other members, many of
whom are Cabinet members. Although the coordinator is not the chair, the chair is to
consult with the coordinator in the leadership of the council. Furthermore, the coordinator
is the one council member who is empowered to bring issues to the council’s attention
without the chair’s permission. The coordinator, in his departmental role, is further
empowered by the President in relation to department and agency heads government-
wide. Consistent with existing law, these officials are to provide the coordinator with
information and otherwise cooperate with him carrying out the coordinator’s mission.
The coordinator is then the focal point for “managing information flow, requests for
actions, and discussions [with stakeholders] regarding” the Federal Response.24 As
spelled out in the executive order, the coordinator’s role is arguably operational, as he is
to “ensure the proper implementation” of the President’s policy.25 Furthermore, although
neither of the November 1 executive orders provide the coordinator with any statutory
authority, the coordinator’s organizational location within DHS allows the Secretary of
Homeland Security to delegate such authority to him.26
Given the positional power and authority of the coordinator, particularly if the
secretary delegates statutory authority to him, the question arises whether or not the
coordinator would be considered an officer of the United States under the appointments
clause of the Constitution. The Supreme Court has held that “any appointee exercising
significant authority pursuant to the laws of the United States is an ‘Officer of the United
States,’ and must, therefore, be appointed in the manner prescribed” in the Constitution.27
Article II, § 2, cl. 2 provides that:
23 See Louis Fisher, The Politics of Executive Privilege (Durham, N.C.: Carolina Academic Press,
2004), pp. 224-226; and CRS Report RL31148, Homeland Security: The Presidential
Coordination Office, by Harold C. Relyea. See also CRS Report RL31351, Presidential
Advisers’ Testimony Before Congressional Committees: An Overview, by Harold C. Relyea and
Jay R. Shampansky. This report discusses the Ridge case and also identifies more than 70
instances, since 1944, when presidential advisors have testified before Congress.
24 E.O. 13390, § 3(d).
25 Ibid., § 3(a), emphasis added.
26 The law provides that “except as otherwise provided by this chapter, [the Secretary] may
delegate any of the Secretary’s functions to any officer, employee, or organizational unit of the
Department” (6 U.S.C. § 112(b)(1)). It appears, for example, that the secretary could re-delegate
to the coordinator such FEMA functions as those identified in 6 U.S.C. § 317(a)(2)(D), which
pertain to “recovery, by rebuilding communities so individuals, businesses, and governments can
function on their own, return to normal life, and protect against future hazards.”
27 Buckley v. Valeo, 424 U.S. 1, 126 (1976).
[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments are
not herein otherwise provided for, and which shall be established by Law: but the
Congress may by Law vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Therefore, if the coordinator is to exercise “significant authority pursuant to the laws of
the United States,” it could be argued that it is the role of Congress to prescribe, in law,
how an appointment to the position shall be made. In effect, it could be argued, creation
of a position with the power and authority that the coordinator could have would require
action by Congress rather than the President or the Secretary of Homeland Security.
Because of the hybrid nature of the coordinator position, the lines of accountability
are not clear. As the current officeholder sees it, “My accountability is to the president28
... I report to the president.” Inasmuch as the coordinator is to be the focal point of the
federal government’s multibillion dollar recovery and rebuilding effort in the devastated
Gulf Coast region, however, Congress may insist on direct accountability of that official
to congressional oversight committees. Will these committees have unimpeded access
to the coordinator? For those officials subject to Senate confirmation, the Senate usually
gains during that process a commitment from the nominee to respond to requests to testify
when asked. This commitment may not be necessary, under most circumstances, to
obtain testimony. A White House official has indicated that the reason the coordinator
position was established in DHS, rather than the White House, was to facilitate the kind
of communication with Congress that was a point of contention in the Ridge case.29
Additional oversight questions might arise, however, from the hybrid nature of the
position. Because it has features of both a departmental position and a White House
position, it is unclear if the coordinator will behave more like a department official or a
presidential advisor with regard to providing testimony. Will the coordinator’s activities
as a council member in the EOP be open to the same level of oversight as his
departmental actions, or will these activities be subject to executive privilege claims?
The unusual hybrid coordinator position was created by the President in response to
a national crisis of unique dimensions. This hybrid arrangement might arguably be more
effective in coordinating federal recovery and rebuilding efforts than one in which the
incumbent is more clearly an officer of the United States in DHS or, as in the OHS model,
a presidential advisor in the EOP. The office has the clear backing of the President;
government-wide information, cooperation, and access; the resources and infrastructure
of DHS; and potential operational authority as delegated by the Secretary. As an unusual
kind of office, however, this arrangement raises some questions about Congress’s
constitutional appointment and oversight roles. Congress might elect to establish, in
statute, a different mechanism for coordinating these efforts along more customary lines
of authority and accountability.
28 Spencer S. Hsu and Terence O’Hara, “A Bush Loyalist Tackles Katrina Recovery: Officials
Hope Wealthy Texas Banker Has the Skills to Manage Reconstruction,” Washington Post, Nov.
29 Telephone conversation with a representative of the White House, Nov. 23, 2005.