Presidential National Security Authority and the Federal Workforce

Release Date: 10/03/02 00:00:00

For Immediate Release
Office of the Press Secretary
October 3, 2002

Since 1962 -- ever since federal workers have been allowed to unionize -- the President has retained the government-wide authority to exempt federal agencies from collective bargaining requirements if the agency's primary function revolves around national security work. In 1978, under President Jimmy Carter, this provision was codified into the law dealing with federal employees:

5 USC 7103 (b) (1)

The President may issue an executive order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that --

(A) the agency or subdivision has a primary function of intelligence, counterintelligence, investigative, or national security work, and,

(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

This provision has been employed by every President of the United States with care and deliberation. Dozens of federal agencies and subdivisions representing tens of thousands of exemplary federal employees have been exempted from collective bargaining requirements, including:

• FBI, CIA, and the Secret Service;
• Office of Enforcement at the Customs Service;
• National Preparedness Directorate of FEMA;
• Air Marshals within the Federal Aviation Administration;
• National Drug Intelligence Center; and,
• The Federal Research Division at the Library of Congress

Both the original Lieberman bill and the Breaux-Nelson-Chafee proposal significantly weaken the President's existing national security authority as it would apply to the proposed Department of Homeland Security -- the very department charged with helping to ensure the security of the American people. Simply put, the President would have less national security authority in the Department of Homeland Security than he has in every other department and agency.

Even under the so-called Breaux-Nelson-Chafee "compromise language" proposed in the Senate, the President of the United States could not exercise his long-standing authority unless he can first satisfy two new, burdensome standards that do not apply to any other department.

• First, in order to exercise his national security authority the President would have to show that an agency's mission has "materially changed." We know that even if the mission of the Border Patrol, Customs, or the Transportation Security Administration does not materially change, the threat to America very well may.   This creates the irony that if these agencies were left in their existing departments and not moved to the proposed Department of Homeland Security, the President would continue to exercise his complete national security authority. However, if they are moved, with the same employees and same mission to the Department of Homeland Security, the President would have less national security authority over the employees.

• Second, instead of finding that the agency itself has a primary function of "intelligence, counterintelligence, investigative, or national security work," under the Breaux-Nelson-Chafee language the President would have to determine that a "majority of the employees [within the agency] have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigations." (emphases added).  It is not clear that any agency of the Department -- or the entire government for that matter -- would be able to demonstrate that a majority of its employees had this narrowly defined task as their primary duty. And again, the irony is this test would not apply if the agency was left in its existing department.

The combination of these provisions would mean that the President would effectively be prevented from making decisions based on national security, no matter how urgent a crisis we find ourselves in and no matter how compelling the needs of the nation.

Every President from this point forward would essentially be prevented from making national security determinations for the employees of the Department of Homeland Security, but free to make national security decisions for the other fifteen Cabinet departments.

Existing Law Regarding Presidential National Security Authority

Versus Proposed Language Limiting Presidential Authority

Existing Law

5 USC 7103 (b) (1)

The President may issue an executive order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that --

(A) the agency or subdivision has a primary function of intelligence, counterintelligence, investigative, or national security work, and,

(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.

Proposed Limitation on Presidential Authority

Limitation on Exclusionary Authority

IN GENERAL -- No agency or subdivision of agency which is transferred to the Department pursuant to this Act shall be excluded from the coverage of Chapter 71 of title 5, United States Code, as a result of any order issued under section 7103(b)(1) if such title 5 after June 18, 2002, unless --

(A) the mission and responsibilities of such unit (or subdivision) materially change; and

(B) a majority of the employees within such unit (or subdivision) have as their primary duty intelligence, counterintelligence, or investigative work directly related to terrorism investigations.

In a time of war and threat to the America, the President should have the same national security authority for the Department of Homeland Security as he does for the Department of Education or the Environmental Protection Agency.

This page was last modified on 10/03/02 00:00:00