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The Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953 Mariano-Florentinocu6llart

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The Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953 Mariano-Florentinocu6llart "Securing" the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939-1953 Mariano-FlorentinoCu6llart American public law is affected by two important dynamics impacting the relation- ship 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 Americanpolitical development. In 1939, the Roosevelt White House overcame strong politicalopposition to central- ize vast legal responsibilitieswithin the FSA. Soon after its creation, the agency had ac- quired responsibility for social security, education, drug regulation,protection of the food supply, civil defense preparedness;supplying employees to war-relatedindustries, facilitat- ing the relocation of Japanese-Americans,antiprostitution enforcement, and biological weapons research. By 1953, the FSA engendered one of the most important American bureaucraciesof 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 do- mains of legal jurisdiction by building oversight capacity in an organizationalenviron- ment more congenial to the bureaus' functions It then used that control to publicly pro- mote a broader conception of the "security" issue that held the prospect of more tho- roughly protecting domestic programsimportant to the administration.And by render- ing ambiguous the distinction between domestic and internationalsecurity functions, the administration enlarged support for some of its signatureprograms at a time when the New Deal legislative coalition was eroding.In effect, the agency's amalgam of legal func- t 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 Coopera- tion. 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. The University of Chicago Law Review [76:587 tions epitomized the administration'sambitious conception of "security," which became sufficiently elastic to encompass legal responsibilities now routinely segregated into do- mains involving social services; economic security, health regulation, and geostrategic nationaldefense These dynamics illustrate limitations in prevailing theories of law and organiza- tion emphasizing deliberately engineered bureaucraticfailure or purely symbolic posi- tion-taking. They also showcase the historical connection between the design of public agencies,separation of powers; and the ambiguities inherent in the definition of "securi- ty" as a category of government responsibility.The recent spike of interest in homeland security is furnishing similar opportunitiesto reshape the domestic regulatory state. TABLE OF CONTENTS Introduction: Two Security Problems ............................................... 589 I. The Evolution of the FSA ............................................................. 598 A. The Case, Some Puzzles, and Its Context .......................... 600 B. Creation of the FSA: "To Strengthen the Arms of D em ocracy". .................................................................... 614 C. Overview of Evolution and Growth .................................. 620 D. Broadening the Scope of "Security" ................................. 630 II. Updating Theories of the Political Design of Legal Mandates.. 637 A. Building Blocks for a Theory of Law and Organization: Strategic Action, Divided Control, and Crisis ................. 638 1. Centrality of strategic action .......................................... 642 2. Divided control and prescriptive ambiguity ................. 645 B. Theoretical Refinements: Capacity-building, Coalition Expansion, and Endogenous Crisis .................. 647 1. Capacity-building ............................................................. 647 2. Coalition expansion ......................................................... 649 3. E ndogenous crisis ............................................................. 651 4. Shaping law by altering organizational evolution ........ 653 III. A pplying the Theory ................................................................... 655 A. Augmenting Capacity for Presidential Control ................ 656 1. Motivations: more control, and more to control .......... 656 2. Adding a layer of political staff ...................................... 660 3. Changing the organizational environment affecting presidential goals ............................................ 668 4. Using a broad mandate as cover for sensitive projects .............................................................. 669 5. Why Congress allowed greater presidential control when it had fought White House growth ......... 673 20091 "Securing" the Nation B. Enhancing Political Coalitions ............................................. 675 1. Shaping public perceptions of the meaning of "security" ..................................................................... 677 2. Enlarging legislative coalitions by am biguating functions ..................................................... 686 3. The connection between rebranding and bureaucratic reorganization ............................................ 694 IV. Implications and Extensions ....................................................... 696 A. Changing Capacity for Agency-driven Policy Innovation .................................................................. 697 B. Expanded Pressure for Legislative Reorganization ......... 699 C. An Organizational Gloss on Separation of Powers .......... 701 D. The Complexities of Security .............................................. 706 C onclusion ........................................................................................... 712 INTRODUCTION: TWO SECURITY PROBLEMS [T]here is nothing more difficult to carry out, nor more doubt- ful of success, nor more dangerous to handle, than to initiate a new order of things. For the reformer has enemies in all those who profit by the old order,and only lukewarm defenders in all those who would profit from the new order,this lukewarm- ness arisingpartly from fear of their adversaries,who have the laws in their favour; and partly from the incredulity of man- kind, who do not.., believe in anything new until they have had actual experience of it. - Niccolo Machiavelli' In a modern state the actual ruler is necessarily and unavoida- bly the bureaucracy,since power is exercised neither through parliamentary speeches nor monarchical enunciations but through the routines of administration. 2 -Max Weber Consider the following irony. During the 1930s the administration of Franklin Delano Roosevelt spurred major growth in the federal state 1 Niccolo Machiavelli, The Prince 24 (Oxford 1957) (Luigi Ricci, trans). 2 Max Weber, 3 Economy and Society: An Outline of Interpretive Sociology 1393 (Bedmin- ster 1968) (Guenther Roth and Claus Wittich, eds, and Ephraim Fischhoff, et al, trans). Whether and when a distinction can be drawn between "the bureaucracy" and presidential "enunciations" is, of course, a more complicated question in light of the Roosevelt administration's decisions about the Federal Security Agency. The University of Chicago Law Review [76:587 by stressing government's role as guarantor of the nation's security With security as a lodestar, administration priorities led to now-familiar statutory changes catalyzing financial regulation, retirement and unem- ployment benefits, food safety policies, and energy rules. As the New Deal matured, security-related rationales taking subtly distinct forms- emphasizing international, geostrategic concerns-also bolstered the case for expansive federal power and even blended with the more ex- pansive domestic risk-reduction ideas in the period before World War II. In 1939, for example, the administration wove together multiple strands of
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