On the eve of Independence Day — on one of the most beautiful afternoons of the year so far — long-time contributor William R. Cumming has raised an intriguing issue regarding an instruction released by President Obama.
The issue was a particular concern of the Founders and deserves our continued vigilence. I happen to disagree with Bill’s interpretation, but I cannot claim the President’s language or intent is altogether clear. So we begin with the President’s words and then continue to Bill’s and my own.
The White House
June 30, 2010
SUBJECT: Long-Term Gulf Coast Restoration Support Plan
The oil spill in the Gulf of Mexico is the worst environmental disaster America has ever faced. The oil spill represents just the latest blow to an area that has already suffered significant hardship. In addition to fighting the spill, conducting environmental cleanup, and ensuring such a crisis does not happen again, we must help the Gulf Coast and its people recover from this tragedy. A long-term plan to restore the unique beauty and bounty of this region is therefore necessary.
As I announced on June 15, 2010, and pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, I assign to the Secretary of the Navy (Secretary) the responsibility to lead the effort to create a plan of Federal support for the long-term economic and environmental restoration of the Gulf Coast region, in coordination with States, local communities, tribes, people whose livelihoods depend on the Gulf, businesses, conservationists, scientists, and other entities and persons as he deems necessary. In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President (collectively, executive branch components).
Specifically, I direct the following:
Section 1. As soon as possible, the Secretary shall develop a Gulf Coast Restoration Support Plan (Plan), based on the following principles:
(a) The Plan shall provide a comprehensive assessment of post-spill needs, as well as a proposal for Federal assistance in the overall recovery of the region.
(b) The purpose of the Plan shall be to develop an approach that will ensure economic recovery, community planning, science-based restoration of the ecosystem and environment, public health and safety efforts, and support of individuals and businesses who suffered losses due to the spill.
(c) The Plan shall take into account resources already available to respond to the oil spill, and complement the on-going oil spill response efforts. The Secretary will also coordinate, as needed, with the State, Federal, and tribal trustees who have responsibility for directing the natural resource damage planning process under the Oil Pollution Act and other applicable law.
(d) The Plan shall identify long- and short-term objectives and, where applicable, how the achievement of these objectives will be measured.
Sec. 2. (a) This assignment is prescribed as an additional responsibility of the Secretary in accordance with section 5013 of title 10, United States Code. This additional responsibility may not be delegated under section 5013(f) of title 10, United States Code. (b) To assist in accomplishing the directive in section 1 of this memorandum, executive branch components shall make available information and other resources, including personnel, deemed by the Secretary to be necessary for development of the Plan.
Sec. 3. (a) Executive branch components shall carry out the provisions of this memorandum to the extent permitted by law, subject to the availability of appropriations, and consistent with their statutory and regulatory authorities and their enforcement mechanisms.
(b) Nothing in this memorandum shall be construed to impair or otherwise affect: (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Nothing in this memorandum shall relieve or otherwise affect the obligations of any responsible party under the Oil Pollution Act or other applicable law.
Sec. 4. The Secretary is hereby authorized to publish this memorandum in the Federal Register.
Signed/ BARACK OBAMA
Commenting on a prior post Mr. Cumming wrote:
Yes and the oldest and richest democracy (Republic) has now celebrated July 4th by putting the US Navy in charge of long term recovery in the Gulf of Mexico. The militarization of US domestic policy continues apace just as in foreign policy and relations. Salute that flag!
To which I replied:
Bill, Where did you see the US Navy assignment? I know about Secretary Mabus’ assignment. But I have perceived that as separate from his SecNav role — and much more connected to his background as a former Governor of Mississippi. If that’s wrong, want to know more.
Mr. Cumming responded:
Presidential proclamation published in Tuesday’s Federal Register. Sent it to you and will send again. John Paul Jones to the rescue!
To which I responded:
Bill, thanks for resending the reference. For the benefit of other readers a web version is available at:
As you know, I share your concern regarding militarization of government operations. As such, it is certainly appropriate to raise the concern in this case.
I would offer, however, that based on the (little) I know and my own reading of the President’s memorandum, I understand that Secretary Mabus is, essentially, being seconded from his current role as SecNav to a leadership position for both the National Security Staff and Domestic Policy Staff.
This is my reading of the intent of the following:
In addition to working with these stakeholders, the Secretary shall coordinate, as appropriate, with the heads of executive departments and agencies, as well as offices within the Executive Office of the President(collectively,executive branch components).
The reference to Executive Office of the President includes both NSS and DPS, especially a well-established recovery working group spanning the two EOP functions.
I agree the situation is ambiguous. I bet there will be some SecNav staff involved. And this is another example of an increasing tendency for us to turn to military resources (active or retired) for commmand and operational competence. It is a worrisome trend.
Mr. Cumming respectfully disagreed:
Having read thousands of these memos it looks like a formal delegation of authority to me. See 3 USC Section 301. By passes SECDEF and others. But hey Phil you could be right and only a designation.
As always I could be wrong but a designation names a person while a delegation names a postion. Basic black letter ADMINISTRATIVE LAW.
I guess this WH knows the difference and did what they wanted to do (accomplish)! Even though Roy Mabus is former governor in a Gulf Coast state I could name perhaps a 100 others better qualified to save the states of Florida, Alabama, Mississippi, Louisiana and TEXAS. In fact why not George W. Bush, tan, rested and ready? Give him a chance to redeem his Katrina castrophic efforts! This is not a joke. At least he is not eligible for re-election [but of course Jeb is also tan, rested and waiting his turn)! Hey this is a bipartisan or non-partisan response effort correct?
To which I offered a sort of rebuttal:
I will further note that Title 10 USC, section 5013 (f) as referenced in the President’s memorandum reads:
The Secretary of the Navy may assign such of his functions, powers, and duties as he considers appropriate to the Under Secretary of the Navy and to the Assistant Secretaries of the Navy. Officers of the Navy and the Marine Corps shall, as directed by the Secretary, report on any matter to the Secretary, the Under Secretary, or any Assistant Secretary.
The President’s memorandum explicitly excludes delegation under paragraph 5013 (f), which — at least in my reading — is the White House effort to give the former Governor, who happens to be SecNav, an additional duty, but to avoid militarizing the additional duty.
I wonder if there might not have been a less ambiguous way of accomplishing the same thing, but there seems to me a pretty clear and appropriate effort to focus this additional role outside the Department of the Navy.
Before retirement Bill Cumming was a long-time lawyer with the US government. I am neither a lawyer nor an experienced government official. If you have further insights — or suggestions — please add your comments.