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Government reorganization legislation was finally enacted in 1939, but in considerably different form than FDR had proposed. Independent agencies were exempted from any reorganization plans, and the plans would be subject to disapproval by adoption of concurrent resolutions, which are not signed by the president. FDR relented, saying he would abide by the concurrent “opinion” of Congress, though he still maintained that Congress could not unilaterally alter presidential authority previously granted by law.
In 1983, FDR’s views (and Hoover’s) were vindicated by the Supreme Court when it invalidated one- and two-house legislative vetoes as violating the “presentment clause” of the Constitution. The reorganization law was consequently amended in 1984 to provide for Congress’ approval of plans by enactment of joint resolutions. The law expired later that year and has not been renewed since.
Of the more than 100 reorganization plans submitted by presidents since 1939, 80 percent have been approved, including plans to create the Environmental Protection Agency, the National Oceanic and Atmospheric Administration, and the Office of Management and Budget (all three in 1970). The use of reorganization authority to create entirely new Cabinet departments has met with mixed results (and is now prohibited): President Dwight D. Eisenhower succeeded in 1953 in creating the Department of Health, Education and Welfare, while President John F. Kennedy failed in 1962 to create a Department of Urban Affairs and Housing.
Obama’s proposed reconfiguration of the Commerce Department will encounter a gnarly thicket of competing interest groups and committee jurisdictions. For instance, on the same day the president unveiled his plan in January, Senate Finance Chairman Max Baucus (D-Mont.) and House Ways and Means Chairman Dave Camp (R-Mich.) issued a joint statement warning against merging the “nimble” trade representative’s office into a “new bureaucratic behemoth.”
The bureaucratic box-shuffling coupled with fast-track constraints on Congress make the chances for enactment minuscule at best, especially under divided-party government. Congress has reorganized government countless times in the past without the aid of a presidential slam dunk and can do so again when necessary.
Don Wolfensberger is a Congressional scholar at the Woodrow Wilson Center, resident scholar with the Bipartisan Policy Center, and former staff director of the House Rules Committee.