Editor’s note: This article is part of a series on current challenges facing the federal bureaucracy from “Rethinking Our Democracy.” A joint initiative by the Center for Effective Government (@UChicagoCEG) at the University of Chicago and Protect Democracy (@protctdemocracy), “Rethinking our Democracy” produces a written series on key areas of institutional and democratic reform. All other articles can be found here.
When Congress established the Department of Homeland Security after the Sept. 11, 2001, terrorist attacks, it represented the largest federal government reorganization in 55 years. DHS subsumed 22 existing agencies and is now the U.S. government’s third-largest department and largest law enforcement agency.
As such, we might expect effective congressional oversight to be an essential component of ensuring that DHS performs its functions well and within the bounds of democratic and ethical norms. Yet 20 years on, congressional oversight of the department remains fractured. Of the 9/11 Commission’s major recommendations, only consolidating DHS oversight remains unimplemented. Why is congressional oversight so convoluted? How does this affect the bureaucratic functions of the department? And why hasn’t this situation changed?
What is different about DHS oversight?
DHS was created, at least in part, to consolidate homeland security functions in a single department. However, more than 90 congressional committees and subcommittees currently claim jurisdiction over some part of DHS. Notwithstanding 2017 and 2021 memorandums of understanding to coordinate jurisdictional issues “[t]o the maximum extent practicable,” congressional committees have retained piecemeal oversight of the department.
These committee jurisdictions are relics of the pre-DHS era when its components were part of various other departments. For example, upon U.S. Customs and Border Protection’s creation in 2003, it incorporated agencies, at least in part, from the Agriculture, Justice and Treasury departments. In the House alone, the Homeland Security, Foreign Affairs, Judiciary, Transportation and Infrastructure, Ways and Means, Agriculture and Appropriations committees all retain jurisdiction over some aspect of CBP. And CBP is just one component of DHS.
By contrast, the Department of Defense, the U.S. government’s largest department, is primarily overseen by congressional Armed Services Committees, with the Intelligence Committees playing a role in overseeing the department’s intelligence components.
Poor oversight hinders effectiveness and compliance
This convoluted oversight structure creates multiple problems. The most commonly cited concern about overlapping jurisdictions is the time senior leadership and staff must devote to testifying before committees and responding to congressional inquiries. According to some DHS experts, the extra time spent responding to congressional requests detracts from staff members’ ability to carry out administrative operations. It likewise hampers these officials’ ability to lead and oversee bureaucratic duties.
Officials on both sides of the oversight relationship have recognized this problem. Comments by former DHS secretary Michael Chertoff and former congressman David Dreier (R-Calif.) reflect widespread recognition that fragmented oversight distracts from the department’s operational focus to a degree that damages its performance.
Political polarization only amplifies this problem. One study found, for example, that lawmakers who strongly disagree ideologically with an executive agency proposal can use oversight procedures to slow its implementation. In one or two committees, this might serve as an important check on the executive branch. But compounded across 90 committees and subcommittees, these moves potentially represent a massive drain on agency time and resources.
Nor does this scenario necessarily offer an effective strategy for congressional influence. Research indicates that the more committees involved in an agency’s oversight, the less influential Congress is compared to the White House. In the case of DHS, this raises important questions about the ability of Congress to provide a check on potential misconduct.
A second problem is that of jurisdictional underlap. Conceptually, when two committees hold authority over an issue, there is jurisdictional overlap. When neither holds authority — or neither recognizes its own authority — there is jurisdictional underlap.
Jurisdictional underlap can lead to “jump balls” where no committee knows who should provide oversight when a problem arises. Such oversight gaps leave DHS open to abuses of power and threaten its ability to carry out its statutorily defined mission in a manner consistent with the rule of law. For example, in 2020 Congress provided little oversight when DHS’s Office of Intelligence and Analysis disseminated intelligence reports about journalists to law enforcement deployed in Portland, Ore.
Why hasn’t the congressional oversight problem been addressed?
Researchers from both sides of the aisle agree that congressional oversight of DHS needs to be consolidated. In theory, this consolidation could happen by implementing fairly straightforward changes to congressional committee jurisdictions. These jurisdictions could be codified in House or Senate rules, referred to as statutory jurisdictions. In practice, Congress determines jurisdictions using rules from the previous session with occasional, minor updates.
Why, then, hasn’t the problem been fixed?
There are at least two reasons. First, legislators are reluctant to adjust committee jurisdictions because the current system works to their advantage, providing both the funding and favor that improve reelection prospects. This argument gains additional salience when one considers the importance of DHS’s policy portfolio in popular discourse. Contributing to the national security or immigration debate — or, better yet, providing a juicy sound bite in a committee hearing — can prove invaluable for a politician seeking reelection. Members of Congress want to participate in important policy debates; retaining committee jurisdiction ensures that happens.
Second, although jurisdictional reform remains an underexplored area, scholars suggest that statutory reforms to committee jurisdictions are less consequential than one might assume because they are not the only means of jurisdictional change. In cases of jurisdictional ambiguity, House and Senate parliamentarians refer bills to one or more committees. These referrals establish precedents for future bills on the same subject, thereby offering common-law jurisdiction that is distinct from the statutory jurisdiction laid out in the formal rules.
There is evidence that formal changes to the rules typically follow more informal jurisdictional shifts. As such, statutory reforms primarily formalize parliamentarian-established referral practices rather than effect change themselves.
Congress can act to repair its DHS oversight structure — but only if it chooses to do so. The political incentives and the informal dynamics of jurisdictional change suggest that statutory reform alone may not be a realistic path to change; members of Congress would likely also need to commit to informal measures to consolidate DHS oversight jurisdictions. Unfortunately, as the 9/11 Commission notes, “Few things are more difficult to change in Washington than congressional committee jurisdiction and prerogatives.”
Scott Welder is an impact associate at Protect Democracy.
Christine Kwon is counsel at Protect Democracy and previously served as Lecturer in Law at Yale Law School.
Jennifer Dresden is a policy advocate at Protect Democracy and was previously associate director of Georgetown University’s Democracy and Governance Program.