Hogue, Henry B.

UNT Digital Library

1 U.S. President (G.W. Bush), “Establishment of a Coordinator of Federal Support for theRecovery 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 thelaws of the United States of America, including the Homeland Security Act of 2002 ... and theRobert 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; PresidentAlso Designates Sept. 16 as a Day of Prayer,” Houston Chronicle, Sept. 9, 2005, p. A24.Congressional Research Service ˜ The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RS22334November 28, 2005Federal Hurricane Recovery Coordinator:Appointment and Oversight IssuesHenry B. HogueAnalyst in American National GovernmentGovernment and Finance DivisionSummaryOn November 1, 2005, President George W. Bush issued an executive orderdirecting the Secretary of Homeland Security to establish a new position that wouldcoordinate federal Gulf Coast recovery and rebuilding efforts.1  The executive orderspecifies that this official “shall be selected by the President and shall be appointed byand report directly to the Secretary.”  Subsequently, the President selected then-FederalDeposit Insurance Corporation Board of Directors Chair Donald Powell for the newposition, and Secretary Michael Chertoff formally appointed him. This method ofestablishing and making an appointment to a departmental position is unusual, and itmay conflict with the constitutional role of Congress in the appointment and oversightprocesses.  This report will not be updated.In the aftermath of Hurricanes Katrina and Rita, dissatisfaction with the response ofthe Federal Emergency Management Agency (FEMA) at the Department of HomelandSecurity (DHS) was widespread among elected officials.  The magnitude and scope of thedisasters led some to call for a centralized authority to coordinate federal, state, and localactivity in the aftermath of the hurricanes.  Some Members of Congress urged thePresident to designate a Cabinet-level, or other prominent, official to head federal reliefoperations.2  In addition, some Members proposed the creation of a federal authority thatwould oversee the recovery and rebuilding of the Gulf Coast Region.  Several bills havebeen introduced that would establish, or assign to an existing entity, a centralizedauthority to oversee the recovery and rebuilding phases.  For example, some legislativeCRS-23 See, for example, S. 1843, which would create an Office of the Louisiana Katrina RecoveryAdministrator 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.  Brownsubsequently resigned as head of FEMA.  (“Statement by Homeland Security Secretary MichaelChertoff,” 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 arevested in the Secretary” (6 U.S.C. § 112(a)(3)).8 E.O. 13390, § 3(a).9 Ibid., § 1.proposals would create authorities to coordinate and facilitate the federal response inconjunction with state and local governments.3  Other proposals focus on maintainingaccountability for funds appropriated in response to the disasters by, for example,assigning financial oversight responsibilities to chief financial officers or inspectorsgeneral.4The Bush Administration initially appeared reluctant to establish a hurricane “czar”who would take on all response, recovery, and rebuilding functions.5  In what was seenas an interim step, however, on September 9, 2005, DHS Secretary Michael Chertoffrelieved FEMA Director Michael Brown of responsibility for the agency’s Gulf Coastresponse and appointed Coast Guard Vice Admiral Thad Allen as the “Principal FederalOfficial (PFO) overseeing Hurricane Katrina response and recovery effort [sic] in thefield.”6  Position of CoordinatorSome seven weeks later, on November 1, 2005, President Bush issued ExecutiveOrder (E.O.) 13390, which directed the creation of a central figure in the Administration’sefforts to support the Gulf Coast recovery and rebuilding phases.  Specifically, thePresident directed Secretary Chertoff to establish within DHS the position of Coordinatorof 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 andappointed by the secretary.7  The secretary is further directed to provide the coordinatorwith appropriate personnel, funds, and other resources of the department for the purposesof carrying out the mission identified by the President.  This mission is to “work withexecutive departments and agencies to ensure the proper implementation” of thePresident’s policy, as articulated in the order.8  That is, to:provide effective, integrated, and fiscally responsible support from across the FederalGovernment to support State, local, and tribal governments, the private sector, andfaith-based and other community humanitarian relief organizations in the recovery andrebuilding of the Gulf Coast region affected by Hurricane Katrina and Hurricane Rita(the “Federal Response”).9CRS-310 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. 1,2005, available online at [http://www.whitehouse.gov/news/releases/2005/11/20051101-6.html],accessed 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.13389, Federal Register, vol. 70, Nov. 4, 2005, p. 67325-67326.The coordinator is also directed to “lead the process” of developing the principlesand goals of the federal response and to communicate them to the federal officialsinvolved.10  Consistent with these principles and goals, the coordinator is to lead thedevelopment of the policies and programs constituting the federal response, monitor theimplementation of these policies and programs, and “ensure that those polices [sic] andprograms are consistent with the principles and goals of the Federal Response.”11  Thecoordinator is to be the principal point of contact for Congress, state and localgovernments, the private sector, and community leaders, and will be “responsible formanaging information flow, requests for actions, and discussions regarding” the federalresponse with these interested parties.12The executive order directs department and agency heads to be responsive to thecoordinator, to provide, “consistent with applicable law, ... such information as theCoordinator deems necessary to carry out” the mission, and to “otherwise cooperate withthe coordinator to the greatest extent practicable” in support of the mission.13On the day this executive order was issued, President Bush selected Federal DepositInsurance Corporation (FDIC) Board of Directors Chair Donald E. Powell to be thecoordinator.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 FDICchair, Powell was compensated at Level III of the Executive Schedule16 — $149,200 atthe time of his coordinator appointment.17  The coordinator position is organizationallylocated in the immediate office of the Secretary. Also on November 1, President Bush issued E.O. 13389,18 which created the GulfCoast 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 forEconomic Policy, and its membership is to include the coordinator, the heads of all of thedepartments (except the Department of State), the Administrator of the EnvironmentalProtection Agency, the Chair of the Council of Economic Advisors, the Administrator ofthe 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 andCRS-419 Ibid., § 2(a).20 Ibid., § 3.21 Ibid., § 5.  Use, after the first year, of appropriated funds in support of the council may beprohibited 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 HomelandSecurity Council,” E. O. 13228, Federal Register, vol. 66, Oct. 10, 2001, p. 51812-51817, § 2.Counterterrorism.  The chair is also empowered to designate additional executive branchofficers and employees as council members.19  The executive order directs the councilchair to lead the council “in consultation with the Coordinator.”  The purpose of the council is to take up issues related to the furtherance of thePresident’s policy on recovery and rebuilding of the Gulf Coast Region, as describedabove.  These issues may be brought to the council’s attention by the chair, thecoordinator, or, with the permission of the chair, any agency head on the council.  Thecouncil may make recommendations to the President regarding these issues.20  Thecouncil is to terminate after three years, unless the President extends it.21AnalysisThe coordinator and council established by the President’s executive orders may beseen as a unique framework for providing a government-wide response to a disaster ofunusual scope and magnitude.  An analysis of the framework, however, leads to twoquestions potentially of interest to Congress.  First, is the coordinator appointment con-sistent with the appointments clause of the Constitution, which gives Congress a role indetermining the appointment method for officers of the United States?  Second, willCongress have restricted access to the coordinator when carrying out its oversightfunction?President Bush has previously used his authority to establish a new coordinatingoffice in response to a national crisis.  As part of his response to the terrorist attacks ofSeptember 11, 2001, the President issued E.O. 13228, which established the Office ofHomeland Security (OHS) in the EOP.  At the same time, he appointed Tom Ridge as theAssistant to the President for Homeland Security.  The order provided that the head ofOHS would be the Assistant to the President for Homeland Security, thus making theOHS leader a member of the White House Office staff.  The executive order specified thatthe “mission of the Office [was] to develop and coordinate the implementation of acomprehensive national strategy to secure the United States from terrorist threats orattacks.”22  As a presidential advisor rather than a statutory official, Ridge lacked statutoryauthority and resources.  Nonetheless, as an assistant to the President, Ridge benefittedfrom access to, and the backing of, the President.  Operating under the President’sauthority, Ridge could potentially have held considerable sway in coordinating thehomeland security-related functions and budgets of numerous federal agencies.  Because Congress had an interest in the government-wide coordination of homelandsecurity activities and budgets, a number of congressional committees sought Ridge’stestimony during oversight hearings.  Arguing that presidential assistants rarely testifybefore congressional oversight committees, the Administration declined to allow RidgeCRS-523 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 PresidentialCoordination Office, by Harold C. Relyea.  See also CRS Report RL31351, PresidentialAdvisers’ Testimony Before Congressional Committees: An Overview, by Harold C. Relyea andJay R. Shampansky.  This report discusses the Ridge case and also identifies more than 70instances, 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] maydelegate any of the Secretary’s functions to any officer, employee, or organizational unit of theDepartment” (6 U.S.C. § 112(b)(1)).  It appears, for example, that the secretary could re-delegateto the coordinator such FEMA functions as those identified in 6 U.S.C. § 317(a)(2)(D), whichpertain to “recovery, by rebuilding communities so individuals, businesses, and governments canfunction on their own, return to normal life, and protect against future hazards.”27 Buckley v. Valeo, 424 U.S. 1, 126 (1976).to appear in that context.  After written exchanges between the White House and the chairand ranking member of the Senate Appropriations Committee, Ridge offered to come tothe Capitol and brief Members of Congress informally, outside the context of oversighthearings.23 The more recently created coordinator position has government-wide coordinativefunctions similar to those of the head of OHS.  The organizational location and potentialresources and authority of the position, however, differ from the OHS model.  Nominallya Senior Executive Service-level appointee, the coordinator enjoys unusual positionalpower.  His authority on the council exceeds that of any of the other members, many ofwhom are Cabinet members.  Although the coordinator is not the chair, the chair is toconsult with the coordinator in the leadership of the council.  Furthermore, the coordinatoris the one council member who is empowered to bring issues to the council’s attentionwithout the chair’s permission.  The coordinator, in his departmental role, is furtherempowered by the President in relation to department and agency heads government-wide.  Consistent with existing law, these officials are to provide the coordinator withinformation and otherwise cooperate with him carrying out the coordinator’s mission.The coordinator is then the focal point for “managing information flow, requests foractions, and discussions [with stakeholders] regarding” the Federal Response.24  Asspelled out in the executive order, the coordinator’s role is arguably operational, as he isto “ensure the proper implementation” of the President’s policy.25  Furthermore, althoughneither of the November 1 executive orders provide the coordinator with any statutoryauthority, the coordinator’s organizational location within DHS allows the Secretary ofHomeland Security to delegate such authority to him.26Given the positional power and authority of the coordinator, particularly if thesecretary delegates statutory authority to him, the question arises whether or not thecoordinator would be considered an officer of the United States under the appointmentsclause of the Constitution.  The Supreme Court has held that “any appointee exercisingsignificant authority pursuant to the laws of the United States is an ‘Officer of the UnitedStates,’ and must, therefore, be appointed in the manner prescribed” in the Constitution.27Article II, § 2, cl. 2 provides that: CRS-628 Spencer S. Hsu and Terence O’Hara, “A Bush Loyalist Tackles Katrina Recovery: OfficialsHope Wealthy Texas Banker Has the Skills to Manage Reconstruction,” Washington Post, Nov.21, 2005, p. A8.29 Telephone conversation with a representative of the White House, Nov. 23, 2005.[The President] shall nominate, and by and with the Advice and Consent of theSenate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of thesupreme Court, and all other Officers of the United States, whose Appointments arenot herein otherwise provided for, and which shall be established by Law: but theCongress may by Law vest the Appointment of such inferior Officers, as they thinkproper, 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 ofthe 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, creationof a position with the power and authority that the coordinator could have would requireaction by Congress rather than the President or the Secretary of Homeland Security.Because of the hybrid nature of the coordinator position, the lines of accountabilityare not clear.  As the current officeholder sees it, “My accountability is to the president... I report to the president.”28  Inasmuch as the coordinator is to be the focal point of thefederal government’s multibillion dollar recovery and rebuilding effort in the devastatedGulf Coast region, however, Congress may insist on direct accountability of that officialto congressional oversight committees.  Will these committees have unimpeded accessto the coordinator?  For those officials subject to Senate confirmation, the Senate usuallygains during that process a commitment from the nominee to respond to requests to testifywhen asked.  This commitment may not be necessary, under most circumstances, toobtain testimony.  A White House official has indicated that the reason the coordinatorposition was established in DHS, rather than the White House, was to facilitate the kindof 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 theposition.  Because it has features of both a departmental position and a White Houseposition, it is unclear if the coordinator will behave more like a department official or apresidential advisor with regard to providing testimony.  Will the coordinator’s activitiesas a council member in the EOP be open to the same level of oversight as hisdepartmental actions, or will these activities be subject to executive privilege claims?The unusual hybrid coordinator position was created by the President in response toa national crisis of unique dimensions.  This hybrid arrangement might arguably be moreeffective in coordinating federal recovery and rebuilding efforts than one in which theincumbent 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 infrastructureof DHS; and potential operational authority as delegated by the Secretary.  As an unusualkind of office, however, this arrangement raises some questions about Congress’sconstitutional appointment and oversight roles.  Congress might elect to establish, instatute, a different mechanism for coordinating these efforts along more customary linesof authority and accountability.

Federal Hurricane Recovery Coordinator: Appointment and Oversight Issues

https://digital.library.unt.edu/ark:/67531/metacrs7979/m1/1/high_res_d/RS22334_2005Nov28.pdf

Federal Hurricane Recovery Coordinator: Appointment and Oversight Issues

Abstract

Similar works

Full text

Available Versions

UNT Digital Library