Office of Home Security

[Johnsen, Dawn Elizabeth]

The appropriate question, it would seem, is whether the new position is
defined such that Gov. Ridge is an officer of the U.S. for purposes of the
Appointments Clause (i.e., exercises significant governmental authority), or
a presidential advisor (the placement of the position on the WH staff
supports the latter).  The Appointments Clause requires Senate confirmation
for principal officers, and Senate confirmation also is the default method
of appointment for inferior officers (though Congress may vest power to
appoint inferior officers in the President alone).  See, in addition to text
of Appointments Clause, Morrison v. Olson, 487 U.S. 654 (1988); Edmond v.
U.S., 520 U.S. 651 (1997); The Constitutional Separation of Powers Between
the President and Congress, 63 Law & Cont. Problems 514 (Winter/Spring
2000), quoting 18 Op. Att'y Gen. 171 (1885)("offices in the constitutional
sense 'are only those established or recognized by the Constitution or by
act of Congress"; "the President cannot create an office").

Dawn Johnsen


-----Original Message-----
From: Leslie Goldstein [mailto:lesl at UDEL.EDU]
Sent: Saturday, September 22, 2001 8:28 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Office of Home Security


This morning's NYT has clarified
1.  Bush created the office as part of his WH staff (yesterday's radio
intimated
that the salary for it woudl come from the $40 billion emergency
appropriation.)
2.  Congress IS planning to create the office as a permanent one, on e that
would
endure beyond Bush's personal preferences for arranging his WH staff.
LFG
Leslie Goldstein wrote:

> so the Q would be whetehr Congress after the fact legitimated these moves
by
> appropriating specifically for his salary in these posts or whether FDR
somehow
> just carved the money out of the White House budget or the defense budget
or
> what?
> Leslie
>
> Barrett John Q wrote:
>
> > > "David M. Driesen" wrote:
> > >
> > > > President Bush announced last night that he was creating and filling
a
> > > > new cabinet level position, the Office of Homeland Security.  He did
> > > > not say that he was asking Congress to create this position and
> > > > approve his nominee.
> >
> > I don't know the President's particulars for Gov. Ridge either, but one
> > quasi-precedent that came to my mind last night is FDR getting Justice
Jimmy
> > Byrnes, a former Senator and future Governor, to leave the Supreme Court
in
> > 1942 after serving there for only one Term.
> >
> > >From David L. Anderson's ANB entry on Byrnes:
> > "In October 1942 Roosevelt made Byrnes the head of the Office of
Economic
> > Stabilization, and in May 1943 the president issued an executive order
> > creating a superagency, the Office of War Mobilization (OWM), which
later
> > became the Office of War Mobilization and Reconversion (OWMR). As
OWM/OWMR
> > director with his office in the White House, Byrnes was essentially
> > "assistant president" for domestic affairs for the war's duration.
> > Roosevelt delegated sweeping executive powers to Byrnes to initiate
> > policies, plan programs, and coordinate all federal agencies in
production,
> > procurement, and distribution of all war materials--military and
civilian.
> > This arrangement relieved Roosevelt of managing the home front and
allowed
> > him to concentrate on the military and diplomatic conduct of the war.
> > Eclipsing the influence of Vice President Henry Wallace and War
Production
> > Board chairman Donald Nelson, Byrnes directed such diverse aspects of
> > American life as food rationing, sports scheduling, closing time for
bars,
> > and absentee voting for soldiers. "
> >
> > JQB
> >
> > ***************************
> >
> > John Q. Barrett
> > Professor of Law
> > St. John's University School of Law
> > 8000 Utopia Parkway
> > Jamaica, N.Y.  11439
> >
> > direct:  (718) 990-6644
> > School of Law:  (718) 990-6600
> > Law Faculty fax:  (718) 990-2199
> > School of Law fax:  (718) 591-1855
> > email:  barrettj at stjohns.edu