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Crisis in Bureaucracy: Homeland Security and the Political Design of Legal Mandates
Journal Article

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Stanford Law Review, Vol. 59, page(s): 673-759

Fall 2006

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this Article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the significance of legislative responses to a crisis and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion.

We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the President changed from opposing the creation of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the President changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more significantly, the President supported the massive new Department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the Department and instilling them with new homeland security responsibilities without additional budgets, the President forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security.

Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR's creation of a Federal Security Agency and Carter;' creation of an Energy Department) also seem to reflect politicians' efforts to enhance their control of administrative functions by making bureaucratic changes, and particularly by mixing domestic and national security functions; and, second, our analysis raises questions about some of the most often asserted justifications for judicial deference to agency legal interpretations.

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