Legislative Hurdles and Unintended Consequences: Potential Pitfalls of Vice President Biden’s Interest in Cabinet Restructuring

Now that former Vice President Joe Biden has emerged as the Democratic Party’s presumptive nominee for president in the 2020 general election, he and his team have started to think about a possible presidential transition. According to a Washington Post report, the former vice president has said that he is considering “elevating some White House offices to Cabinet-level positions,” including “the Office of Science and Technology Policy; the global health security pandemic office; and a separate climate change operation that ‘goes beyond the EPA.’” It is unclear if Vice President Biden was suggesting that the individual directors of the former two offices would simply be elevated to Cabinet rank, or if all three of the aforementioned were under consideration to become full-fledged agencies or departments at the Cabinet level. Vice President Biden would not be the first 2020 Democratic presidential contender to articulate a desire to create new federal agencies and departments.

This piece discusses the legislative hurdles to this reported goal, two potential administrative consequences, and the contrast between Vice President Biden’s desire to presumably create new federal departments and President Donald J. Trump’s views on this issue.

I. Legislative Hurdles

If Vice President Biden was indeed talking about simply elevating the directors of the first two offices to Cabinet rank, conferral of honorary “[c]abinet status . . . is a matter of courtesy, not a question of formal authority.” The president can do this unilaterally, as President Barack Obama did when he elevated the Administrator of the Small Business Administration to his Cabinet in 2014. Giving Cabinet rank to an individual is a “largely symbolic gesture” that mostly involves the extension of a formal invitation to the president’s quarterly Cabinet meetings. In a hierarchy-concerned bureaucracy, this symbolism can send a message about how important the president deems an issue to be. Still, some criticize the focus on Cabinet rank as an effort “to distract from what [an administration is] not doing” through substantive reforms.

By contrast, to create new federal departments or elevate entire White House offices to Cabinet-level status, the president would need Congress to enact authorizing legislation. The Constitution provides that Congress has the power to establish offices in the executive branch “by Law.” Although the Democrats currently control the House of Representatives, the Republicans control the Senate. While this dynamic could change after the 2020 election, the politically divided makeup of the legislative branch necessarily narrows the path to ambitious government reorganization.

The example of Congress’s 2002 establishment of the Department of Homeland Security (DHS), in the wake of the September 11 terror attacks, offers some insight into the potential pitfalls of bureaucratic reordering of the executive branch and the process of elevating a White House office to Cabinet department status. The September 11 attacks were an acute, catastrophic event that exposed a troubling “lack of coordination and intelligence sharing among government agencies.” These concerns led to DHS’s creation. While many argue that climate change and cybersecurity pose grave ongoing threats to the American public, it remains to be seen whether these arguments would motivate Congress to restructure the executive branch. Moreover, Vice President Biden would need to make the case that this restructuring would actually address the issues in question. Congress may prefer to work within the existing bureaucratic framework, bolstering current agencies or offices instead of embarking upon a wholly new path.

But a proposal to formally elevate and build out a health security and pandemic response office could perhaps garner bipartisan support.1  We do not yet know the extent to which the public will demand reorganization of the executive branch in the wake of the COVID-19 pandemic. Given the extraordinary spending and policing measures that have characterized state and federal responses to the virus to date, it is not inconceivable that even a divided Congress might rethink the form of America’s public health bureaucracy. (That said, Congress may well pivot to wanting to spend less money, considering the coronavirus response’s explosion of fiscal deficits.) Creating a new federal department, however, is not necessarily a panacea: in a 2015 report he issued the day he retired from Congress, Senate Committee on Homeland Security and Governmental Affairs Ranking Member Tom Coburn took the relatively new DHS to task for failing to “successfully execut[e] any of its five main missions” in the years since its inception.

DHS may have been “set up to fail,” as a 2005 Washington Post article charged. To be sure, the “White House . . . initially opposed [DHS’s] creation,” and the department initially lacked the “investigative, intelligence and military powers” that it needed to carry out its “awesome responsibility of defending the homeland.” But ultimately, skeptical Republicans came around to support the creation of DHS. Though “leery about a vast new bureaucracy, they did not want to cede the homeland security issue to the Democrats.” Yet even after DHS obtained congressional approval, some troubling anecdotes from the creation of DHS highlight the difficulties inherent in establishing new departments.

President George W. Bush had initially created an Office of Homeland Security in the White House, which he appointed former Pennsylvania Governor Tom Ridge to lead. Ridge would go on to be the first Secretary of Homeland Security when his Office in the White House became its own department. Ridge staffers and other White House aides (dubbed the “Gang of Five”) worked secretly to map out a proposed department makeup out of fear that other Cabinet secretaries might work to scuttle any plans that would take key functions out of their own departments. But as they did so

[s]ome of the [Gang’s] decisions were almost random. [Harvard security expert and Ridge staffer Richard] Falkenrath thought it would be nice to give the new department a research lab that could bring cutting-edge research to homeland security problems. He called up a friend and asked which of the three Department of Energy labs would work. “He goes, ‘Livermore.’ And I’m like, ‘All right. See you later.’ Click.” . . . He did not realize that he had just decided to give the new department a thermonuclear weapon simulator, among other highly sensitive assets of the Lawrence Livermore National Laboratory.

This example may not even be the most egregious. Consider some of the following White House oversights:

The plan had been put together with such speed and secrecy that after its release angry officials had to explain to the White House how their agencies really worked. Energy Secretary Spencer Abraham was able to beat back the total transfer of Livermore after it became clear the Gang of Five had little idea what the lab did. A similar battle unfolded over the Department of Energy’s radiological detection teams, which were supposed to be folded in with FEMA. The White House had not realized that the teams consisted of employees with regular jobs who mobilized only during emergencies. [. . .]

Falkenrath was barraged by [Capitol] Hill staffers with questions he could not answer: If the Immigration and Naturalization Service was moving to the new department, why were immigration judges staying at the Justice Department? Falkenrath did not know there were immigration judges.

The story of DHS’s creation is a cautionary tale for those seeking to obtain Congress’s assent to a new federal department, no matter how bipartisan the support for addressing the issue in question may be. Furthermore, ongoing criticism from the right, the left, think tanks, and the media about DHS’s capacity to carry out its core functions demonstrates that simply establishing a new department may not solve the problem at hand, and that Congress may be wary of even trying.

Creating an independent agency may offer an alternative path to achieving Vice President Biden’s bureaucratic goals. Some believe that a major benefit of independent agencies is their ability to bring unbiased, nonpartisan expertise to bear on difficult problems, in an environment of stability and without fear of retribution. And if the Supreme Court finds the recently created Consumer Financial Protection Bureau’s (CFPB) one-director structure to be constitutional in a challenge now pending before the Court, a new agency could adopt a similar model, giving the first president under which it exists the opportunity to appoint a political ally as the single director and, as a result, nudge the agency’s policy in a preferred direction. Independent agencies are “somewhat insulated from presidential control. . . . In order to remove a member of an independent agency, the president typically must demonstrate that the member suffered some disability or engaged in misconduct. Independent agencies [ ] have more freedom than executive agencies to develop and to implement their own policies.” The CFPB’s one-director structure is not a traditional independent agency setup, as “independent agencies generally are led by a collegial group of individuals (usually five or seven) whose membership is closely balanced between the two major political parties.”

Although some take the view that the left sees “independent agencies as effective tools for advancing otherwise unpopular measures,” even Democratic presidents have sought to exercise some control over (or, at least, influence) independent agencies. President Bill Clinton, a Democrat, issued an executive order subjecting “the independents to the regulatory planning process administered by [the White House Office of Management and Budget] and overseen by the Vice President.” More recently, although President Obama’s administration, through then–Solicitor General Elena Kagan, defended the constitutionality of the independent Public Company Accounting Oversight Board at the Supreme Court, it did so on the ground that presidents can exert some “control over the agency, despite its independent status.” This view echoed Republican President Ronald Reagan’s view of executive power over independent agencies. Independent agencies do not always carry out the president’s wishes. For example, after a National Labor Relations Board (NLRB) union prosecution that cut against his administration’s labor policy goals, President Obama “disclaim[ed] responsibility for the NLRB’s actions,” citing the Board’s independence. Advocating for the establishment of new independent agencies, therefore, may backfire for presidents who seek to employ their power to achieve particular policy objectives.

II. Potential Unintended Consequences

Assuming Vice President Biden’s Cabinet status proposal was about more than the symbolic invitation of certain individuals to Cabinet meetings, deciding to turn White House components like the Office of Science and Technology Policy into full-blown departments or agencies may have some unintended consequences. First, supporters of bold action on the policy areas in question may find that the decision to move entities and staff out of the White House actually ends up downgrading the issue’s importance in practice. And second, new departments may be subject to transparency laws with which certain White House offices would not otherwise need to comply.

While Cabinet heads enjoy institutional power, the “proximity to the president” that White House staff possess is “a blessing of no small value.” The accumulation of power and influence within the Executive Office of the President (EOP), at the expense of the Cabinet departments, is a trend that dates to President Franklin Delano Roosevelt’s administration. With his White House “aides sometimes issu[ing] instructions to cabinet officers’ subordinates,” President John F. Kennedy demonstrated “his conception of the presidential office as the moving force of government.” And under President Lyndon B. Johnson, the White House became “‘the operational center of the executive branch.” The result of this evolution has been that one “characteristic of the modern presidency is the rising influence of White House staff members on the president and the corresponding decline in cabinet influence.” Today, “the offices inside the West Wing . . . offer a kind of unrivaled power and access.”

Recent history demonstrates how the plan to move White House components out of the EOP may diminish the importance or perceived importance to the President of the policy issues with which these offices grapple. Upon the creation of DHS, “Ridge’s aides came to believe[ ] they had even less power than when they were mere presidential staffers.” As one Ridge staffer lamented about DHS’s relative influence, “[y]ou had a platform at the White House. Whenever you called a meeting at the White House, the other agencies came. . . . Now we’re over at the department and the agencies didn’t come; they came up with all sorts of excuses.” By contrast, to demonstrate the importance of Historically Black Colleges and Universities (HBCUs) to his administration, President Donald J. Trump relocated the White House Initiative on HBCUs from the Department of Education to the White House, meeting a demand from HBCU leaders. The leaders argued “that pulling [the Initiative on HBCUs] from the Education Department would provide the schools more direct access to the president.”2

 Also, the increasing reliance on White House officials may make Cabinet status “less relevant now” than in previous years. As such, creating a department to replace an office already in the White House, like the White House Office of Science and Technology Policy, may actually diminish rather than enhance that office’s power and importance.

As to the issue of transparency, the Freedom of Information Act (FOIA) generally governs agency obligations to disclose federal records. “Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement.” Such disclosure, however, is generally not required in the White House. Except for the White House Office of Science and Technology Policy, the Office of Management and Budget, and a few other White House components with “‘substantial authority independent of the President’ and [ ] a ‘self-contained structure,’” most elements of the Executive Office of the President are exempt from FOIA’s requirements. On one view, agencies subject to FOIA may operate under a fear of disclosure that “could undermine full and frank deliberation and self-criticism by government officials; the government could spend less time governing and more time on public relations and marketing; there might be meaningful losses of efficiency; private entities may be less willing to share . . . confidential information; [and] personal privacy may be compromised.” These requirements may incentivize presidents to keep things in house, so to speak.

Although the Office of Science and Technology Policy, as a component subject to disclosure, might not see much difference in FOIA obligations under Vice President Biden’s plan, the White House/agency distinction remains important when determining which executive branch structure best serves the President’s strategic interests and which other White House offices should and should not be moved. Even presidents who professed a commitment to transparency, like President Barack Obama, took care to ensure that certain White House offices were not subject to FOIA disclosure. The advantages of limiting disclosure—from efficiency to candor—are not lost on any president. Disclosure requirements therefore play a key role in ascertaining the practical effects of moving certain offices from the EOP to the Cabinet.

III. Contrast with President Trump

In contrast with Vice President Biden’s vision of a new department or three, the Trump administration has generally sought to shrink the bureaucratic footprint of the federal government. In the early days of the Trump presidency, then-White House Chief Strategist Steve Bannon “framed much of [President] Trump’s agenda with the phrase, ‘deconstruction of the administrative state.’” The Washington Post reported in April 2019 that President Trump was “moving to do what no president has accomplished since World War II: eliminate a major federal agency.” The agency to which the newspaper was referring was the Office of Personnel Management (OPM), which “is responsible for managing the civilian federal workforce; coordinating hiring, recruiting and performance policies; overseeing health insurance and retirement benefits; and ensuring that agencies adhere to laws governing employees’ rights under an apolitical merit system.” After bipartisan pushback made the proposal’s success “unlikely,” President Trump decided not to carry on with plans to dissolve OPM.

Still, the president has demonstrated a willingness “to contain the size and scope of a bureaucracy he [has] targeted as duplicative and inefficient—and rein in a workforce he views with skepticism.” The Trump Administration has forged ahead with plans to relocate certain parts of the federal government in moves that “will reduce real estate costs and shrink the offices, because [only] a fraction of . . . employees are moving.” President Trump has also pursued a reorganization of the federal government that would mitigate the redundant nature of various federal components. In 2018, then-Secretary of the Interior Ryan Zinke poked fun at the current state of affairs in Washington,

offer[ing] a scenario to show the jumble of government agencies that can oversee a single development project.

“If you have a trout and a salmon in the same stream, upstream you have a dam, downstream irrigation, and if that stream goes by a Forest Service holding, this is the way we’re presently organized: The salmon are organized by (the National Marine Fisheries Service). The trout are managed by Fish and Wildlife. The water flow and temperature is Army Corps of Engineers upstream, downstream irrigation is Bureau of Reclamation. The — if it goes past a Forest Service holding, surface is Department of (Agriculture), subsurface is [Bureau of Land Management], through me. And if you have a water compact then it’s a trifecta of (Bureau of Indian Affairs), the state and the tribe,” Zinke said.

The president’s reorganization plan would begin to break down these barriers by unifying Interior Department bureaus in regions “based on watersheds, trail systems and wildlife ecology, rather than political boundaries.” President Trump has also (briefly) considered privatizing the U.S. Postal Service, proposed merging the Department of Education and Department of Labor, and called for consolidating all public assistance programs under the Department of Health and Human Services (to be renamed the Department of Health and Public Welfare). Still, President Trump has created mechanisms within the executive branch to advance his own key policy priorities, including the White House Office of Trade and Manufacturing Policy early in his administration.

Conclusion

Presidents invariably seek to structure their executive branches in the most efficacious manner possible. Naturally, President Trump and Vice President Biden have different views on what that proper structure is. While conferring Cabinet rank status on individual executive branch officers can acknowledge a policy issue’s importance to a given president, elevating White House offices to Cabinet level—or creating new federal departments and agencies—is a complicated process with various hurdles and potential unintended consequences. These challenges are worth considering ahead of any government reorganization.

• 1The “global health security pandemic office” refers to the National Security Council Directorate for Global Health Security and Biodefense, which then-National Security Advisor John Bolton actually merged with two other directorates to form a counterproliferation and biodefense directorate.
• 2Under the Obama administration, the White House Initiative was an afterthought. Thurgood Marshall College Fund head Johnny Taylor made it plain, recently stating, "You know, at the end of the day where you live matters in so many ways, right? When we were in the Department of Education, this office, it was three levels down. It didn’t even report to the secretary of education. This reality speaks volumes about what the former administration and former administrations thought about HBCUs.” For years, HBCUs wanted a direct report to the White House. “One of the things we’d like to see is for the White House Initiative on HBCUs to have a direct report to the president,” Morgan State President Emeritus Earl Richardson stated.