Tillerson Rescinds Delegated Authorities Department-Wide, Further Gums Up Foggy Bottom

Posted: 12:19 am ET
Updated: 9:05 pm PT
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According to the Foreign Affairs Manual (FAM), a delegation of authority states the specific actions for which an officer has authority, as well as the limitations and special conditions that apply to the authority. A delegation of authority is subject to any legally prescribed condition or criteria of execution, whether or not mentioned in the delegation. The FAM identifies two authorities:

(1) Authorities originally assigned to the Secretary or the Department: Unless otherwise specified in law, the Secretary of State may delegate authority to perform any of the functions of the Secretary or the Department of State to officers and employees under the direction and supervision of the Secretary. If the Secretary so specifies, such functions may be redelegated by the delegated officer or employee to any officers and employees under the delegated officers direction and supervision (see 22 U.S.C. 2651a); and

(2) Authorities originally assigned to the President: If an authority was originally assigned to the President, there must be a delegation of authority from the President to the Secretary or the Department before a Department of State delegation of authority to a Department officer can be signed. In addition, unless otherwise specified in law, authorities originally delegated from the President may only be redelegated to officials who are appointed by and with the advice of the Senate (see 3 U.S.C. 301).

We heard from sources that Secretary Tillerson has rescinded all delegated authorities last week. The two sources are not Public Affairs shop officials.  The revocation of authorities is department-wide and includes everything apparently from the Authorization for Use of Military Force (AUMF), the Joint Comprehensive Plan of Action (JCPOA) sanctions, and  even routine authorities related to military exercises. 

One called it “completely insane.”

Another said, “Basically it’s a clusterfuck.”

Icky, Sticky Bubble Gum’s Gonna Eat Ya

The Bureau of Administration’s A/GIS/DIR is supposed to maintain a database of delegated authorities including those rescinded. But, of course, those are not public.  On July 20, the Federal Register published the May 1 delegation of authority by Tillerson to the Director of the Office of U.S. Foreign Assistance Resources.

Below are some examples of delegated authorities:

Secretary of State to the Assistant Secretary for Diplomatic Security:  Diplomatic The Secure Embassy Construction and Counterterrorism Act of 1999 (Foreign Relations Authorization Act, FY 2000 and 2001, Title VI, Public Law 106-113) (22 U.S.C. 4865), established two security requirements for U.S. diplomatic facilities abroad:  collocation and setback.  The authority to waive these requirements has been delegated from the Secretary of State to the Assistant Secretary for Diplomatic Security, except for chancery and consulate buildings.

OFM’s Director and Deputy Director: Requests from foreign missions for the Department to certify to the Department of the Treasury the reciprocal income tax exemption privileges that are provided to employees of the U.S. mission in the respective country.  Such certifications are required under 26 U.S.C. 893(b).  The authority to make such certifications has been delegated to OFM’s Director and Deputy Director.

Deputy Legal Advisers: Per 22 CFR 172.4 and 172.5 (approval of testimony and production of documents by Department employees, delegated to the Deputy Legal Advisers by Delegation of Authority No. 206, dated September 7, 1993).

Under Secretary for Management : The Secretary of State is responsible for control of the organizational structure and assignment of functions in the Department of State.  The Secretary has delegated this authority to the Under Secretary for Management (M). Other authorities delegated to M are (not an exhaustive list):  

  • Department of State Delegation of Authority No. 311, Negotiation, Conclusion and Termination of Treaties and Other International Agreements; 
  • Department of State Delegation of Authority No. 147, Delegation of Authorities vested in the Secretary by Title II of the Basic Authorities Act (primarily foreign mission administration), dated September 13, 1982; 
  • Department of State Delegation of Authority No. 147-1, covering acceptance of gifts and vehicles overseas, dated December 21, 1990.

Bureau of Consular Affairs: We don’t know how many delegated authorities there are in totality but the Bureau of Consular Affairs alone has 27 delegated authorities going back to 1969. We understand that this was recently just been renegotiated.  Here are some (not an exhaustive list):

  • Delegation of Authority 119 (2/13/1969):  Authority to designate persons who shall be authorized and empowered to administer oaths in connection with the execution of passport applications.
  • Delegation of Authority 143 (10/30/1981):  Delegation of Authority to Issue Certificates of Authentication for Documents Maintained by the Office of Passport Services Department of State.
  • Delegation of Authority 253 (9/1/2002):  Delegation from the Secretary of State to the Assistant Secretary for Consular Affairs Exceptions from Port-of-Entry Special Registration, Fingerprinting and Photographing (Class A Referrals).
  • Delegation of Authority 261 (9/16/2003):  Intercountry Adoption Act of 2000 – Authority of the Secretary of State under the Hague Adoption Convention and the IAA delegated to the Assistant Secretary for Consular Affairs.
  • Delegation of Authority 361 (7/15/2013):  Authority to disclose certain visa information to national security officials for a national security purpose.
  • Delegation of Authority 298 (4/9/2007):  Delegation by the Assistant Secretary for Consular Affairs to the Deputy Assistant Secretary for Overseas Citizens Services; the Managing Director, Overseas Citizens Services; the Director, Office of Children’s Issues, Overseas Citizens Services; and the Director, Office of American Citizens Services, Overseas Citizens Services, of Authority to Issue Hague Adoption Certificates and Custody Declarations.
  • Delegations of Authorities 367 (9/17/2013)and 367-3 (3/30/2015): Authority to administer and enforce immigration and nationality laws, and re-delegation of certain of those authorities to CA/VO, CA/VO/L/A, and CA/VO/L/R.

So this is really bonkers. Whoever advised Tillerson to rescind the delegation of authorities department-wide could not possibly be this dumb because this is one quick way of gumming up further the entire agency. Much more than it already has been gummed up.

Why yes, if you need a pass for the State Department parking garage, you have to ask Tillerson’s Front Office for that, too.

The parking garage permit needs the 7th Floor approval. Just think about that.

We’ve found an item from history that discusses delegation of authority at the Department and an executive under secretary position.  On December 30, 1968, then Counselor-Designate for the State Department Richard Foote Pedersen wrote a memorandum to the Secretary of State-Designate William P. Rogers, the 55th secretary of state who served as President Richard M. Nixon’s Secretary of State from January 22, 1969, until September 3, 1973.

The memo below is from history.state.gov.

 

Memorandum From the Counselor-Designate (Pedersen) to Secretary of State-Designate Rogers 1

Executive Leadership of Department

A number of studies over recent years have advocated designating the number three man in the Department as either “Executive” Under Secretary or “Permanent” Under Secretary. They recommend appointing a career officer to the position, and giving him full responsibility for the management of the Department, both in administration and in the execution of policy decisions. The concept is that the Secretary has so many responsibilities to the President, with foreign diplomats, in decision making, and in crises that he cannot “run” [Page 661]the Department; similarly that the job has become so large that the Under Secretary must be a true alter-ego and therefore does not have time to run the Department either.

The Herter Committee made such a recommendation in 1962 and the Foreign Service Association, under new and younger leadership, did so also in a report in 1968.2 Legislation would be required to establish such a title (and the supporters of such a change favor it); the function could, however, be bestowed without legislation.

Three main motivations are involved in the recommendations for an “Executive” Under Secretary: (a) A feeling that the Department has not been adequately “managed” either from an administrative or substantive point of view and is therefore not fully responsive to policy decisions, (b) a feeling that the Department does not adequately exercise its policy authority over operational activities of other agencies abroad, specifically AID and military assistance, but also USIA and others, and (c) a desire to further continuity and stability in policy and administrative practices at the professional level.

In spite of the persistence of such views, successive Secretaries of State have not adopted such recommendations. Politically-appointed Under Secretaries such as Ball and Dillon have exercised varying degrees of control over the operations of the Department, partly determined by their own personalities and partly by the nature of responsibility the Secretary was prepared to assign to them; professional diplomats have been given influential advisory but not really executive roles. Rusk’s own view is that the secret to effective operation of the Department is delegation of authority (essentially to the Assistant Secretary level), and he does not favor an “Executive” Under Secretary.

After reading a great deal of the literature, my own view is that while it is correct that there is a need for better administration and execution of decisions in the Department, the designation of responsibility for the operation of the Department to one man at the third level would cause more problems than it would solve. If fully executed in accordance with the recommendations, the office would in my view have too much authority vis-à-vis the Secretary and political leadership; it would also centralize too many functions in one man, who in effect would have to filter and be responsible for all activities and functions of the Department before they reached the Secretary. To administer the Department, to recommend and execute policy decisions, and to supervise and coordinate the foreign policy activities of other agencies are immense and disparate tasks. [Page 662]

On the other hand there are now seven people at Under and Deputy Under Secretary level (including ACDAAID and Peace Corps), and fourteen at Assistant Secretary level, plus probably a dozen detached people, who report directly to the Secretary of State. While most (not all) of these people need to have direct access to the Secretary, the Secretary does need effective intermediate screening and executive assistance procedures. The Under and Deputy Under Secretary positions are, of course, intended for such functions. I believe that, with the right delegation of responsibilities to these positions (and the right people in them), the present system can be made to work effectively and responsively to the decisions of the President and Secretary, at the same time meeting the criticisms leveled at the current situation.

The memo discussed top level policy and executive responsibilities but also methods of operation as follows:

Methods of Operation. Maximum delegation of authority of decision to Assistant Secretaries within their areas of responsibility. Access to Secretary by Assistant Secretaries to be retained fully i.e., Deputy Under Secretaries to be a review point but not a decision point on policies. For example, policy memoranda from operating bureaus would come “through” the Deputy Under Secretary, who might comment on them, but would not require his concurrence or his resolving differences between bureaus. The Under Secretaries would work with you as a team in an inner cabinet and would meet with you regularly for that purpose. (The heads of ACDAAID, Peace Corps, and USIA should also be included with this group at regular intervals.)

See why that’s necessary?  

How many cables must now read “At the Direction of the Secretary of State, I am ordering …”?

With delegation of authorities rescinded, who in S orbit has authority to make decisions at the State Department besides Secretary Tillerson? Have these folks all been Senate-confirmed so they can be invited to the Hill to be accountable for their decisions? Curious minds would like to know.

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2 responses

  1. I guess this includes USAID! See USAID’s ADS 101 “101.3.1 Agency Creation and Authority
    Effective Date: 09/19/2000
    The Foreign Affairs Reform and Restructuring Act of 1998, as contained in Public
    Law 105-277, abolished IDCA and established the U.S. Agency for International
    Development as an executive agency effective April 1, 1999. The President delegated
    to the Secretary of State in Executive Order 12163 authority for foreign assistance
    programs authorized in the Foreign Assistance Act. The Secretary delegated to the
    USAID Administrator authority for USAID programs in Department of State Delegation
    of Authority No. 293, as amended December 20, 2006.”

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