Homeland Security Watch

Comment by William R. Cumming

September 6, 2007 @ 2:31 am

In 1803 the US Supreme Court in a case entitled Little v. Bareme determined that each federal officer must have legal authority to act. Conceptually this means that while the President has authority in many instances, he/she may delegate under 3 USC Section 301 his/her authority as vested in the Presidency by Congress. Typically this is published in Executive Order format. Congress now vests authority often directly in the cabinet secretaries. These in turn are required by both the Administrative Procedure Act, as amended (originally enacted 1947) and the Federal Register Act, as amended (originally enacted in 1934) to provide published delegations so the public may know, as Little v. Bareme requires the authority of the officer taking action. DHS has published very very few delegations tracking either from the President or the Secretary. Since there is no such thing as “color of authority” in federal law or case law, either you have it or you do not, should this be a subject for Congressional review and DOJ concern for protecting the government in litigation?
By the way under the Vacancy Reform Act, GAO recently indicated that DHS was non-compliant generally. How has this changed in the 6 weeks since GAO reported on the issue in a published report. Is DHS and the President still avoiding “Advise and Consent” by the Senate?

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September 10, 2007 @ 9:00 am

[…] week, the House Homeland Security Committee convened a hearing about the NAO as noted here. Witnesses from DHS included Charlie Allen, Chief Intelligence Officer; Hugo Teufel, Chief Privacy […]