131 Pages Posted: 6 Nov 2006 Last revised: 16 Feb 2010
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 U.S. 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, anti-prostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucracies of the 20th 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.
The 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. The creation of the FSA also appears to have fomented more subtle (intended and unintended) impacts on matters such as the organization of congressional committees overseeing the agency's legal functions, and the prospects for bureaucratic autonomy among the agency and its bureaus.
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 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. History reveals how presidential administrations and bureaucratic actors once used that ambiguity to bolster political coalitions supporting social welfare and regulatory mandates. The recent spike of interest in homeland security is furnishing similar opportunities to reshape the domestic regulatory state.
Keywords: National security, administative law, positive political theory, bureaucracy, organizations, discretion, Franklin Roosevelt, New Deal, Federal Security Agency, Department of Health, Education, and Welfare, homeland security, Public Health Service, FDA, Social Security, separation of powers
Suggested Citation: Suggested Citation
Cuéllar, Mariano-Florentino, 'Securing' the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953. Stanford Public Law Research Paper No. 942447; University of Chicago Law Review, Vol. 76, p.587, 2009. Available at SSRN: https://ssrn.com/abstract=942447 or http://dx.doi.org/10.2139/ssrn.942447