Article

“Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953

Mariano-Florentino Cuéllar

Professor and Deane F. Johnson Faculty Scholar, Stanford Law School; Faculty Affiliate, Stanford Center for International Security and Cooperation

I appreciate helpful conversations with Daniel Carpenter, Michele Dauber, John Ferejohn, George Fisher, Rich Ford, Lawrence Friedman, David Golove, Jill Hasday, Daniel Ho, Don Hornstein, Lewis Kornhauser, David Luban, Eric Muller, Hari Osofsky, Robert Tsai, and Barry Weingast, as well as feedback from workshop participants at Berkeley, Iowa, Oregon, NYU, North Carolina, Southwestern, and Stanford’s Center for International Security and Cooperation. David Kennedy provided extremely helpful written comments on an earlier version of this Article. I also benefited greatly from the research assistance of Mindy Jeng, Shivan Saran, Britt Grant, Mrinal Menon, Connor Raso, Brad Hansen, and Jennifer Liu, as well as the staff of the Stanford Law School Library. I am also grateful to the staff at the National Archives in College Park, Maryland, the Franklin D. Roosevelt Presidential Library, and the Harry S. Truman Library. All of these people should be secure in the knowledge that they are not responsible for any errors or omissions. This is dedicated to Mateo, Ria, and Lucy.

American public law is affected by two important dynamics impacting the relationship between citizens and their government: how the executive branch defines national security, and how politicians compete to secure control of the vast public organizations through which governments implement the law. This Article analyzes the intersection of these dynamics by investigating the now-forgotten history of the US Federal Security Agency (FSA) and drawing perspectives from separation of powers, organization theory, and the study of American political development.

In 1939, the Roosevelt White House overcame strong political opposition to centralize vast legal responsibilities within the FSA. Soon after its creation, the agency had acquired responsibility for social security, education, drug regulation, protection of the food supply, civil defense preparedness, supplying employees to war-related industries, facilitating the relocation of Japanese-Americans, antiprostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the twentieth century: the Department of Health, Education, and Welfare. Yet little is known about precisely how or why the White House fought to create the FSA, why the agency pervasively mixed domestic regulatory and national defense functions both before and after World War II, or what its creation wrought for the legal mandates entrusted to the agency.

This Article’s analysis reveals how, on the eve of World War II, the White House sought to use the restructuring to achieve greater control over the agency’s multiple domains of legal jurisdiction by building oversight capacity in an organizational environment more congenial to the bureaus’ functions. It then used that control to publicly promote a broader conception of the “security” issue that held the prospect of more thoroughly protecting domestic programs important to the administration. And by rendering ambiguous the distinction between domestic and international security functions, the administration enlarged support for some of its signature programs at a time when the New Deal legislative coalition was eroding. In effect, the agency’s amalgam of legal functions epitomized the administration’s ambitious conception of “security,” which became sufficiently elastic to encompass legal responsibilities now routinely segregated into domains involving social services, economic security, health regulation, and geostrategic national defense.

These dynamics illustrate limitations in prevailing theories of law and organization emphasizing deliberately engineered bureaucratic failure or purely symbolic position-taking. They also showcase the historical connection between the design of public agencies, separation of powers, and the ambiguities inherent in the definition of “security” as a category of government responsibility. The recent spike of interest in homeland security is furnishing similar opportunities to reshape the domestic regulatory state.

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