As the House of Representatives reorganizes itself for the 112th Congress, it is time to revisit, yet again, what to do about the jurisdiction of the House Homeland Security Committee. Specifically, how should “Rule X,” which determines Committee organization and oversight, be formulated to ensure that homeland security is best served. Since its creation as a “Select” (aka “temporary”) Committee in 2003 during the 108th Congress, there has been a constant drumbeat of experts, pundits, and Department of Homeland Security officials calling for oversight and legislative jurisdiction to be unified under one Committee. Reports abound of the 100+ Committees and Subcommittees that DHS has to appear before and of legislation getting stalled because of jurisdictional infighting inside of Congress. Those outside of Washington are probably scratching their heads and wondering why does this matter? Isn’t it really an insider’s game of turf battle and power grabs?
Well, yes and no. There is obviously a tradition in DC of protecting one’s turf and preserving power. And that has played a significant role in not only how Congress treats homeland security, but in how the Department has developed. The jurisdictional fights, while inherently D.C., have a tremendous impact on how homeland security has developed and how it will continue to grow. Split jurisdiction means that the Department lacks a clear guiding voice on how it should move forward on security issues. Instead, it has many keepers in some areas — all of whom have different and potentially conflicting interest. The jurisdictional split also means that the Department does not have a clear overseer to hold it accountable and ensure that efficiencies and effectiveness are front and center. As a result, DHS reports to many, causing it to be sluggish and not able to fully maximize its resources to the homeland security mission.
When the Homeland Security Act was passed and DHS was created, 170,000 employees and 22 departments and agencies were merged. Among the entities that moved to the new Department:
- Coast Guard - Department of Transportation
- TSA – Department of Transportation
- U.S. Customs Services – Department of Treasury
- Secret Service – Department of Treasury
- Immigration and Naturalization Service – Department of Justice
- Border Patrol- Department of Justice
- Animal and Plant Health Inspection Service – Department of Agriculture
- Critical Information Assurance Office – Department of Commerce
- National Infrastructure Protection Center – FBI
- Various other entities from Agriculture, Commerce, Defense, Energy, GSA, Health and Human Services, Justice, & Treasury
The creation of DHS was the biggest reorganization of the government since the Department of Defense was created in the National Security Act of 1947. In creating the agency, Congress deemed it necessary to rethink how we approached federal governance in a post-9/11 world. The new Department was to help the nation heal and be prepared for the next attack. Its mission was (and is) simple, as described on the DHS website:
to lead the unified national effort to secure the country and preserve our freedoms. While the Department was created to secure our country against those who seek to disrupt the American way of life, our charter also includes preparation for and response to all hazards and disasters. The citizens of the United States must have the utmost confidence that the Department can execute both of these missions.
Unfortunately for the agency, confidence is constantly being questioned as the agency has tried to manage itself over the past 7 years. Whether uniting jurisdiction in one Committee will solve the agency’s problems is unknown and questionable, but the voices of those who say it is the right thing to do are many. For example:
- The 9/11 Commission: Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership.
- CSIS/BENS Task Force on Congressional Oversight of the Department of Homeland Security: The result is a Department of Homeland Security that is hamstrung by a system of Congressional oversight that drains departmental energy and invites managerial circumvention. Until Congress confronts the hard task of correcting this mismatch, DHS is at risk of failing to achieve its full potential.
- The Center for Public Integrity: The Department of Homeland Security is still coping with an extraordinary number of demands from Capitol Hill, which are tripping up a fledgling organization. And the crazy quilt of oversight is making it difficult for Congress to provide cogent guidance on budgeting, organization, or priorities for a department still struggling on all those fronts.
- Homeland Security Policy Institute: Congress must not let its homeland security efforts remain unfocused and dispersed. Consolidation of authority under a single permanent standing committee is the best answer to a problem that has already persisted two years too long.
- Heritage Foundation: It has been seven years since the Department of Homeland Security was created, and yet Congress has still not reformed oversight of homeland security. The lack of congressional action has become something of a joke, even catching the attention of institutions like National Public Radio that would normally dismiss oversight of a department as an “inside the Beltway” issue.
Left. Right. Center. It seems that the jurisdictional issue is one that unites across the political spectrum. I have not seen outside of Congress a good analysis of why jurisdictional should not be consolidated. The strongest argument made to not consolidate in 2003-2004 was that expertise over the various portions of the Department resided with existing Committees. To create a new Committee without that expertise and historical knowledge would lead to more chaos according to many of the Committee Chairmen in that timeframe. Indeed, in creating the temporary “Select” Committee on Homeland Security in 2003, then Speaker Hastert tried to address this concern by naming almost all Chairmen to the Committee. That proved disastrous as many used the position to ensure that the Committee did not encroach upon their existing jurisdictions. The majority of Chairmen did not show up for the Committee’ mark-up of its first authorization bill, requiring then-Chairmen Chris Cox (R-CA) to defend against several dozen amendments offered by Democratic Members without a Republican majority. The result? The mark-up was canceled.
When the Committee became permanent at the beginning of the 109th, the jurisdictional fighting did not cease. A number of Committees raised concerns with the proposed Committee’s jurisdiction and pushed back. In a legislative history prepared by the Speaker’s Office in early 2005, a number of areas were identified as needing to remain with the existing Committees. They can be viewed here.
At the beginning of the 110th, with the Democrats taking over the House, there was discussion about how to revise jurisdiction. Some jurisdictional battles were resolved between Committees. For example, the Homeland Security and Transportation & Infrastructure Committees entered into a Memorandum of Understanding on how they would share jurisdiction over emergency preparedness and related issues. At the beginning of the 111th Congress, there was discussion once again about jurisdiction. No significant changes, however, were made to the House Homeland Security Committee’s jurisdiction.
So, looking forward to January, what changes should be made in Congress to the Committees to better oversee and legislate on homeland security issues? Here are a few suggestions:
- Emergency Preparedness/FEMA: Jurisdiction over FEMA and emergency preparedness issues should be transferred to the House Homeland Security Committee. While the Transportation & Infrastructure Committee will object, there are few reasons to keep jurisdiction at T&I. Under the current Rule, T&I has jurisdiction over generic emergency preparedness while Homeland has jurisdiction over emergency preparedness activities relating to terrorism. The same entity (FEMA) and personnel are responsible for both in today’s all-hazards approach to emergency preparedness.
- Border Security and Immigration: Homeland Security has jurisdiction over border security generally while Judiciary has jurisdiction over immigration, visa, and non-border enforcement (e.g. ICE). There is a larger question about whether immigration administration should be married with border security and whether USCIS belongs in DHS at all (but that is a subject of another blog). What is clear, however, is that non-border enforcement elements such as ICE should be within the jurisdiction of Homeland, esp. given its related work on CBP, over which it has jurisdiction.
- Secret Service: Currently, Judiciary has primary jurisdiction over most of Secret Service’s elements. Since the agency was moved to DHS, oversight and legislative authority over the agency should also be moved over.
- Federal Law Enforcement Training Center (FLETC): Another agency that moved to the Department, of which jurisdiction should be given to Homeland.
- Coast Guard: Currently T&I has primary jurisdiction over the Coast Guard. The agency itself is complicated and has a number of non-security functions and responsibilities. That said, authority over it should probably be moved over to Homeland Security.’
- Cybersecurity: Cybersecurity, other than that involving government-wide cybersecurity efforts relating to government computers, has never really had a home jurisdictionally. Originally, Homeland was going to be given jurisdiction over the issue in 2005, but other Committees protested so the rules were left silent on the issue, except for the existing government systems jurisdiction granted to Government Reform. As an issue that is too important to be left unaddressed, civilian cybersecurity efforts should be within the jurisdiction of Homeland Security. Military and intelligence efforts should remain within Armed Services and Intelligence.
There are other areas where overlapping jurisdiction can be further clarified. Among them are the Federal Protective Service, emergency communications, and some infrastructure protection programs. They should certainly be explored though the items listed above should clearly be addressed. If we are going to demand that DHS continue to improve and evolve in its efforts to protect America, then Congress must do its part to assure the agency is well-organized and armed with the right tools.