Homeland Security

Authorizing DHS -- Progress Ahead?

By Paul Rosenzweig
Saturday, January 14, 2017, 3:25 PM

Every year, like clock work, the House and Senate Armed Services Committees produce a National Defense Authorization bill that governs the operations of the Department of Defense for the coming year. Whether you think well or ill of the provisions they adopt (for example, the provisions prevent transfers from Gitmo to the US) the process is a saluatary one by which the Legislative branch exercises positive, ongoing control over Executive conduct. It is, in short, exactly how legislative oversight is supposed to work.

It has therefore been a grave concern to many (including me) that the Department of Homeland Security has never had an authorization bill passed. Since the adoption of the Homeland Security Act of 2002, no comprehensive review of the Department's activities has been undertaken by Congress. Small portions of the Department have had their work reviewed and amended/directed (most notably FEMA after the Katria hurricane) but vast swaths of the Department operate on a continuing basis without the benefit of a full-blown review of their activities.

Equally important, since no Department-wide review has ever been undertaken by Congress, there has been no effort to prioritize DHS's many activities -- no attempt to say "let's do more of X and less of Y" by Congressional leaders. The result has been evident -- a Department that sets its own priorities through budgetary requests and responds, if at all, only to appropriations limitations. Even if, like me, you think that many (most?) of the Department's decisions make sense and are supportable, you have to be dismayed that our elected representatives have had virtually no say in the matter.

Why is that?

The answer is simple -- the proliferation of Congressional oversight of the Department has fractured jurisdiction among at least 8 committees of primary jurisdiction (Homeland, Ways & Means, Transportation & Infrastructure, Energy & Commerce, Intelligence, Judiciary, Government Reform, and Science, Space & Technology). Much has been written about the foolishness of this structure -- including several articles by me. But nothing has changed -- almost certainly because none of the Committee chairs have any interest in limiting or cutting back on their own jurisdiction. And so, whenever the House Homeland Committee has begun the process of a comprehensive DHS authorization bill, their efforts have been frustrated by sequential referrals and the low priority that other committees place on the subject. The result: Congressional inaction of the highest order.

This year, Chairman McCaul again sought to have the jurisdiction of the House committees realigned to enable his committee effectively oversee DHS. He didn't succeed. But he may have gotten the next best thing -- a Memorandum of Understanding (apparently brokered by Speaker Ryan) that puts Chairs of all 8 committees on record as committed to an authorization bill and, more importantly, a process for reconciling competing proposals and moving such a bill forward through the pre-clearance of relevant base text.

This is fundamentally good news. This agreement allows the Homeland Security Committee to coordinate the reauthorization effort. As Chairman McCaul put it: "the committee chairmen with jurisdiction over DHS have come together—for the first time—and formally agreed on a path forward to comprehensively reauthorize the Department in the 115th Congress and beyond."

In short, Congress may get back in the game and have an effective say about Homeland Security. As the process moves forward, one can only hope they take advantage of this opportunity.