The President's Reorganization Authority: Review and Analysis
Released: 2001-03-08T00:00:00

Context

Reorganization authority was delegated by Congress to the President (5 U.S.C. 901-912)from time to time under various forms between 1932 and 1984. The rationale for this delegation wasto be found in the view that the key to effective and efficient government lay in delegation byCongress to the President of broad authority to reorganize the departments, agencies, and programadministration, subject only to a "legislative veto." Reorganization was viewed in large measure asa technical, non-political exercise best left to the "experts" in the executive branch.

From the early 1960s on, however, questions were raised in congressional deliberations asto the constitutional basis for such authority and processes, and the political wisdom of assigningbroad reorganization authority to the President. Successive reorganization acts, despite changes inprocedures and limitations on what could be included in reorganization plans, remained based onthe concept of permitting the President to submit proposals to Congress that would go into effectunless either house prevented activation by passing a motion of disapproval. This legislative vetoprocess was increasingly criticized as the years passed.

Also, the reorganization process began to be questioned as to both its utility and its potentialfor increasing conflict and distrust between the branches. Congress, in successive reorganizationacts, gave the President authority to skirt the regular legislative process, yet when the Presidentinvoked the authority, his actions were criticized by some for violating constitutional procedures. The White House appeared to some observers to be forwarding reorganization plans simply to justifyits request for reorganization authority. Plans were submitted that arguably would not have beenaccepted as legislation using the regular legislative process, thus increasing tensions between thebranches. The process was rigid; that is, no amendments were permitted, even technicalamendments agreed to by all the parties. After each presidential "misuse," Congress responded byadding restrictions and exemptions, gradually circumscribing the power until the reorganization planprocess (as provided in the 1977 Reorganization Act, as amended) was a mere shadow of thebaseline 1949 Reorganization Act. With the 1983 Chadha decision ( Immigration and NaturalizationService v. Chadha ; 462 U.S. 919) striking down the legislative veto, the utility and desirability ofthe Reorganization Act, compared to following the regular legislative process, came in to question. Whereas "fast track" options within the larger legislative process retain their appeal under certaincircumstances (and reorganization of the executive branch may indeed be one of thosecircumstances), no President since 1984 has requested the renewal of the reorganization authority.

Origins and Early Use of the President's Reorganization Authority

While questions regarding how best to organize the executive branch were raised in theConstitutional Convention, the Constitution itself is nearly silent on organizational matters. (2) The document does reflect,however, the clear intention that Congress is to play a critical role in the organization, design andmanagement of the executive branch. It is Congress, not the President, that establishes departmentsand agencies, and to whatever degree it chooses, the internal organization of agencies. It isCongress, through law, that determines the mission of agencies, personnel systems, confirmation ofexecutive officials, and funding, and ultimately evaluates whether the agency shall continue inexistence. All of which is not to downplay the role of the President as chief manager, but rather toreaffirm the intention of the Framers with respect to the role of Congress as co-manager of theexecutive branch.

The co-managership concept has been criticized by proponents of the theory of the dominantPresident that has enjoy ascendency (beginning with the Progressive Movement), throughout mostof the last century. While Secretary of Commerce, President Herbert Hoover (1929-1933) had beena proponent of the idea that Congress should delegate to the President authority to proposereorganizations of the executive branch subject to some form of congressional disapproval. (3) Near the end of his term,Hoover was successful in persuading Congress, when passing the Economy Acts of 1932 and 1933,to include a provision assigning the President reorganization authority. (4)

Hoover, a Progressive in his politics, believed that "economy and efficiency" in the executivebranch were possible only if the President could act decisively according to "scientific managementprinciples." (5) From thispoint of view, Congress and the legislative process were viewed as too cumbersome and prone toparticularistic interest group pressures. Support for the reorganization plan concept and process thusrested from the beginning on a negative opinion of congressional processes and Congress' allegedinability to move wisely and expeditiously on issues of organizational management. This criticalview, held by many members of Congress themselves, (6) has been recurrent over the years and continues to this day to be amajor rationale offered for proposals to renew the President's reorganization authority. (7)

Although President Franklin Roosevelt had some interest in executive reorganization duringthe New Deal years, he was more focused toward creating new agencies and programs than inconsolidation and retrenchment. The Reorganization Act was rarely used and allowed to lapse in1935. As America faced heightened international pressures, however, Roosevelt indicated renewedinterest in executive reorganization as a tool for increasing presidential authority and for preparingAmerica to meet its wartime responsibilities. (8) One product of this changed political climate was passage of theReorganization Act of 1939. (9) This Act provided that for two years the President could submitreorganization plans that would go into effect unless Congress disapproved by a concurrentresolution of disapproval. As far as Congress was concerned, the objective was for the President touse the authority "to reduce expenditures to the fullest extent consistent with the efficient operationof Government." President Roosevelt, never persuaded that the principal purpose of reorganizingwas saving of money, took the opportunity to successfully propose in Reorganization Plan No. 1 theestablishment of an Executive Office of the President. (10) During World War II, the President was given authority underTitle I of the War Powers Act to make temporary, emergency wartime reorganizations for theduration of the war plus six months. (11)

In 1945, Congress again granted the President authority for two years to submitreorganization plans. (59 Stat. 613). This Act was similar in most respects to the 1939 Act in thatit provided for congressional rejection of a plan by a concurrent resolution, (12) and expressly prohibitedthe abolition or transfer of all functions of executive departments and certain designated agencies.

Reorganization Act of 1949

Congress next renewed the President's reorganization authority by passing the ReorganizationAct of 1949 (63 Stat. 203), major provisions of which remained in force until 1977. Although theAct was patterned, in the main, after the Reorganization Acts of 1939 and 1945, there were severalimportant differences. (13) At the urging of the first Hoover Commission, whose report appeared in 1949, (14) Congress gave thePresident much greater latitude than he had enjoyed under the earlier Acts because it appeared toauthorize submission of plans to reorganize executive departments and virtually all agencies. Oncea reorganization plan was submitted, Congress could not amend the plan but had either to accept orreject it in toto . A reorganization plan "... is effective at the end of the first period of 60 calendardays of continuous session of Congress after the date on which the plan is transmitted to it unless,between the date of transmittal and the end of the 60 day period, either House passes a resolutionstating in substance that the House does not favor the reorganization plan." The 1949 Act, therefore,established a one-house veto procedure for reorganization plans.

In the immediate wake of the Hoover Commission Report and the passage of theReorganization Act, a large number of reorganization proposals were effected by the regularlegislative process, administrative order, and lastly, by reorganization plans. With respect to thelatter, President Truman in 1949 initially submitted eight reorganization plans, of which six becameeffective, while in 1950, 20 of the 27 were allowed to go into effect. These plans included proposalsfor strengthening the Executive Office of the President, broadening the authorities of independentregulatory commission chairmen, and transferring the Public Roads Administration to theDepartment of Commerce. Legislative bills were also enacted, most notably the National SecurityAct Amendments. The ease with which most of the reorganization plans became effective reflectedtwo factors: the existence of a consensus that the President ought to be given deference andassistance by Congress in meeting his managerial responsibilities, and the fact that most of thereorganization plans were pretty straightforward proposals of an organizational character. This highrate of passage, however, was misleading in that it tended to obscure the emergence, even at thisearly date, of opposition to the reorganization process itself.

In the 28 years between 1949 and 1977, the Reorganization Act of 1949 was renewed seventimes. As renewals were sought, debated, and granted, amendments were adopted altering theoriginal Act. The thrust of these amendments was toward limiting the President's discretion in whatcould be included in reorganization plans, and what procedures would have to be followed in theapproval process. The limitations included modifications to the effect that only one plan could besubmitted within a 30 day period, and could include only logically consistent subject matter. A plancould not create new legal authority. This latter point was important to Congress as it prevented thereorganization procedures from being used to circumvent congressional authority to legislate. In1964, Congress eliminated the President's authority to submit plans proposing the creation orabolition of new executive departments. (15) Each restrictive limitation could, arguably, be traced to whatthe majority in Congress believed at the time to be an abuse by the White House of the discretionpermitted in the procedures. A good deal of distrust attributable to the reorganization processappeared to emerge between the branches. (16)

With considerable regularity throughout this period, many in Congress challenged theReorganization Act on constitutional grounds. The chairman of the House Government OperationsCommittee, Representative Jack Brooks, was both persistent and consistent over the years in voicingobjections to the procedures provided in the Reorganization Act. He argued that the procedureproduced a situation where the President was making law without the constitutionally requiredapproval of both houses of Congress and the subsequent signature of the President.

Reorganization Act of 1977

The President's authority to submit Reorganization Plans under the Reorganization Act of1949, as amended, expired on April 1, 1973, and was not renewed by Congress until 1977. Soonafter his inauguration, President Jimmy Carter requested Congress to renew this authority, includingcertain suggested revisions. Hearings were held in both the House and Senate on the President'sproposal, and major amendments were offered. After considerable debate, the bill passed and wassigned by the President on April 6, 1977. (91 Stat. 29; 5 U.S.C. 901-912).

As crucial provisions of the 1949 Act were considerably altered, it was decided to redesignatethe law as the Reorganization Act of 1977. Among the changes approved were the following:

(1)the President would be allowed to amend a plan within 30 days after sending it to Congress;

(2)the prohibition against establishing, abolishing, transferring, or consolidating departmentswas expanded to prohibit also the abolition or consolidation of independent regulatoryagencies;

(3)no enforcement function or statutory program could be established by a plan;

(4)a resolution of disapproval was required to be introduced in each chamber; and

(5)no more than three plans could be pending before Congress at one time.

Section 905 of the Reorganization Act of 1977 listed additional limitations on the President'sauthority to submit Reorganization Plans as follows:

Â§ 905 Limitations on Powers

(a)A reorganization plan may not provide for, and a reorganization under this chapter may nothave the effect of --

(1) creating a new executive department,abolishing or transferring an executive department or independent regulatory agency,or all the functions thereof, or consolidating two or more executive departments, ortwo or more independent regulatory agencies, or all the functionsthereof;

(2) continuing an agency beyond theperiod authorized by law for its existence or beyond the time when it would haveterminated if the reorganization had not beenmade;

(3) continuing a function beyond theperiod authorized by law for its exercise or beyond the time when it would haveterminated if the reorganization had not beenmade;

(4) authorizing an agency to exercise afunction which is not expressly authorized by law at the time the plan is transmittedto Congress;

(5) increasing the term of an officebeyond that provided in law for the office; or

(6) dealing with more than one logicallyconsistent subject matter.

During consideration of legislation to renew the President's authority to submit reorganizationplans in 1977, Chairman Brooks partially achieved his objective of requiring a congressional voteon reorganization plans through an amendment to the bill. (17) As in the ReorganizationAct of 1949, a plan would become effective after 60 days unless either house passed a resolutiondisapproving it. At this point a Brooks-sponsored action-forcing requirement was included. Whenthe President submitted a plan to Congress, a resolution of disapproval had to be introduced at thesame time by the chairmen of the House Government Operations Committee and the SenateGovernmental Affairs Committee. The two committees would be required to makerecommendations to the House or the Senate, respectively, within 45 days, or the committees wouldbe deemed as having been discharged from consideration of the resolution. Since any Member couldmove for consideration of the resolution, it was believed unlikely that any future plan would go intoeffect without Congress having a chance to vote on it.

Under the authority of the Reorganization Act of 1977, President Carter submitted tenreorganization plans, all of which Congress permitted to become law, in each instance defeating aresolution of disapproval. None of the plans involved major reorganization proposals. (18) Reorganization authorityunder the 1977 Act was granted to the President for three years, later extended for an additional year. That authority expired on April 7, 1981.

Reorganization Act of 1984

The Reorganization Act of 1977 expired on April 7, 1981. Some in the new ReaganAdministration called for the renewal of the authority, although the President never made it a majorpart of his personal agenda. The Administration requested Congress in 1983 to renew the authority,and hearings were held on H.R. 1314 (97th Congress) by the Subcommittee on Legislation andNational Security of the House Government Operations Committee, chaired by RepresentativeBrooks, on April 12, 1983. The bill, which provided a number of substantive alterations to the 1977Reorganization Act, was intended by its sponsors to be a cooperative effort by the President andCongress to expedite reorganizations believed to be needed by the executive branch.

Court decisions during this immediate period, especially the Supreme Court's decision in INSv. Chadha (462 U.S., 919 (1983)), had a significant impact on deliberations in Congress. In Chadha ,the Supreme Court ruled that all legislative vetoes, including those attached to the reorganizationauthority, were unconstitutional.

In an effort to meet the requirements of the Chadha decision, H.R. 1314 required that a jointresolution be introduced in both the House and Senate upon receipt of a reorganization plan. Affirmative action on this resolution was required for the reorganization to become law. If eitherhouse failed to vote, such inaction would constitute disapproval of a plan. Also, in the unlikely eventthat a President vetoed the plan he had previously submitted, a veto override would require atwo-thirds vote of both houses.

Expedited procedures established in the 1977 Act were also significantly altered in H.R.1314. The 1977 Act, included a 60-day time period for congressional consideration of eachreorganization plan, and also provided that no more than three plans might be pending at any time. Brooks and Representative Frank Horton, as congressional sponsors of the legislation, believed thatthe time frame was overly burdensome, and therefore extended the period for congressionalconsideration to 90 days. Within the 90-day time period, other time limitations were extendedproportionately. The 1977 Act allowed 30 days from the date of submission for the President toamend the proposal. H.R. 1314 extended that allowance to 60 days. The time period in which aPresident might withdraw a reorganization plan was extended from 60 to 90 days.

Committee action, previously required within 45 calendar days following submission, wasextended to 75 calendar days. If the committee failed to report a resolution within that period, itwould be deemed to have been discharged and the resolution would be placed on the appropriatecalendar.

Another significant innovation in H.R. 1314 was the requirement that an implementationsection be included in the President's message accompanying the reorganization plan. Such aprovision was recommended by the General Accounting Office in its report of March 20, 1981entitled: Implementation: The Missing Link in Planning Reorganizations . The GAO had found thatagencies were experiencing considerable problems in implementing reorganization plans:

Agencies reorganized under the ReorganizationAct of 1977 experienced substantial startup problems. These included delays in obtaining keyagency officials, inadequate staffing, insufficient funding, inadequate office space, and difficultiesin establishing administrative support functions such as payroll and accounting systems.

Solving these startup problems distracted agencyofficials from concentrating on their new missions during the critical first year of operation. Thesestartup problems could be alleviated by including in future reorganization plans front-endimplementation planning objectives. (19)

An "implementation provision" was added to Section 903(b) of Title 5:

In addition, the President's message shallinclude an implementation section which shall (1) describe in detail (A) the actions necessary orplanned to complete the reorganization, (B) the anticipated nature and substance of any orders,directives, and other administrative and operational actions which are expected to be required forcompleting or implementing the reorganization, and (C) any preliminary actions which have beentaken in the implementation process, and (2) contain a projected timetable for completion of theimplementation process. The President shall also submit such further background or otherinformation as the Congress may require for its consideration of theplan.

The intent of the House Committee on Government Operations in including this provisionwas to "assure that during the planning of a reorganization proposal, the Administration gaveappropriate emphasis, in staff time and resources, to studying implementation requirements in orderto reduce, if not eliminate, the substantial problems which have been found to exist in theimplementation of past reorganization plans." (20)

The Committee considered, and concluded, that the restrictions in the 1977 ReorganizationAct on the subject matter that may properly be included in reorganization plans submitted toCongress should be continued.

The House considered the legislation on April 10, 1984 and the Senate on October 11, 1984. President Ronald Reagan signed the Act ( P.L. 98-614 ) on November 8, 1984. The provisions of theAct were to remain in effect for less than two months, expiring on December 31, 1984. During thisperiod the President did not submit any reorganization plans nor did he subsequently request renewalof the authority.

What About the Future?

Reorganization of the executive branch has been, and will be, a continuous process. Lawsare passed requiring that new agencies be created or terminated, existing agencies be altered, orprograms initiated or discontinued. Within departments and agencies, reorganizations are conductedunder secretarial direction and usually follow from changes in secretarial priorities or changes inavailable resources. Organizational change is the norm in agency life, not the exceptional action. In this larger context, the President's reorganization authority might be considered a minor element. It has not been used since President Carter's last reorganization plan in 1980. Yet, the reorganizationplan concept retains much of its appeal.

When supporters call for a renewal of the President's reorganization authority, what,precisely, are they calling for? Is the call intended to revive the Reorganization Act of 1984 with itsprovisions, or is it for a bill with provisions more closely resembling the 1949 Reorganization Act? In either case, will the executive branch find the reorganization authority worth having without thesimplified process associated with the legislative veto provision?

It appears that what most supporters have in mind is the reintroduction of an expeditedprocess similar to the 1984 act, but without a number of the congressional exemptions andlimitations accreted over the years. The principal argument favoring renewing the President'sreorganization authority appears to be that this will encourage the President, through the Office ofManagement and Budget, to take the initiative in organizational management issues, something thathas not been the case in recent years.

Critics, on the other hand, argue once again that the regular legislative process is not onlyconstitutional, but tends to contribute to whatever wisdom there may be on the subject by lettingCongress and the interest groups have their say. If a bill, introduced properly, and permitted tofollow normal procedures does not pass, the working assumption ought to be that it did not persuadea majority as to its propriety and efficacy and thus failure is democratically justified. To somedegree, therefore, critics argue that the expedited procedures of the reorganization act areundemocratic.

In recent years, executive branch reorganization, per se , has been out-of-fashion. Labeledas "box shuffling" by its critics, greater faith has been placed by would-be management reformersin changing management practices rather than organizational structures. The reinventinggovernment exercise of the Clinton-Gore Administration emphasized performance rather thanpolitical accountability as the primary value for government management. Thus, organizationalissues were subordinated to the values of performance and results. In a sense, therefore, promotersof the reviving the President's reorganization authority are reasserting an earlier set of managementvalues and practices.