Intelligence Law School - Course 1: Lesson 4.4.1 Organic and Enabling Statutes Generally


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LESSON 4: STATUTORY LAW


4.4 Organic and Enabling Statutes (U.S. Code Title 50, Chapter 15: National Security)


4.4.1 Organic and Enabling Statutes Generally


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4.4.1 Organic and Enabling Statutes Generally

4.4.1.1 “Enabling Statute” Defined

So what’s an enabling statute?

Ø  Clarification: “Enabling Statute” vs. “Enabling Act”: Well, first of all, you should know that the terms “enabling statute” and “enabling act” are synonymous.

o   They mean the same thing and are used interchangeably.

o   The term “enabling act” is actually more commonly used.

o   I use the term “enabling statute” in this course because I don’t want to confuse you with unnecessary conflicting terminology.

o   We talk about “statutory law” in this course so I use the word “statute” instead of “Act.” But they mean the exact same thing.

Ø  Enabling Statute Defined: Black’s Law Dictionary defines an “enabling statute” or “enabling act” as: “A law that permits what was previously prohibited or that creates new powers; esp., a congressional statute conferring powers on an executive agency to carry out various delegated tasks.”[1]

o   So, essentially, an enabling statute is something that gives an agency the power to do something or instructs it how to carry out its execution of the laws it administers.

o   All agency-specific laws will fall into this category.

o   The laws that govern how the CIA functions will all fit into this category of “enabling statutes.”

Ø  Enabling Statutes vs. General Management Statutes: This is compared with “general management statutes” which apply to all agencies across the board, not just to CIA or just to intelligence agencies.

o   FOIA Example: An example of a general management statute is the Freedom of Information Act, which applies generally to all agencies.

o   National Security Act of 1947 Example: An example of an enabling statute is the National Security Act of 1947, which does things like create the CIA and list its powers.

§  This enabling act is critically important at the CIA, but not so much over at the EPA. The EPA has its own set of enabling statutes that control its functions.

 

4.4.1.2 “Organic Statutes” (i.e. Agency “Charters”) Defined

Organic Statutes are the first special kind of enabling statutes, and they are very relevant to all agencies, not just intel agencies.

Ø  “Organic Statute” Defined: An organic statute is the statute that creates an agency and sets out the powers and duties of its leadership. “Organic Statutes” are also called “Organic Acts.”

o   The term “organic statute” can be confusing to some students because some commentators use the terms “organic statute” and “enabling statute” interchangeably.

o   This is imprecise.[2]

o   Organic statutes are the special type of enabling statute that create a new agency and delineate the powers and responsibilities of its leadership. 

Ø  Agency “Charters:” In common parlance, organic statutes are sometimes referred to as an agency’s “charter.”[3]

o   This is especially prevalent in the Intelligence arena.

o   If you like to watch spy movies—and I assume you do if you’re listening to this course right now—you’ll hear savvy insiders talking about the CIA’s “charter” forbidding the agency from operating domestically.

o   Well, the CIA’s organic statute is the National Security Act of 1947, which created the agency, and its mission is honed by a multiplicity of subsequent legislation and administrative rules—most notably, Executive Order 12333 (Twelve Triple 3), which is a Presidential rule setting out the roles and responsibilities of the various agencies in the Intelligence Community.

Ø  DoD Organizational Charters: The Department of Defense uses the terms “organizational charter” and “chartering DoDD” interchangeably to describe its internal organic rules establishing subsidiary agencies within its organizational structure.[4]

 

Footnotes

[1] Black’s Law Dictionary 1420 (7th ed. 1999).

[2] NOTE: I separate the two because the term “enabling statute” applies not only to the legislation creating a new agency but also to subsequent amendatory statutes which grant an agency new powers or responsibilities. The term “organic statute” only applies to the founding legislation, so I find it’s more precise to use that term when describing the founding documents creating the various U.S. intelligence agencies. I spend a lot of time in Course II explaining the organic statutes of different intel agencies, and I’ve found it’s much less confusing for students if I carefully distinguish between the single “organic statute” that creates an agency, and the various “enabling statutes” that shape its powers and duties over time.

[3] The use of the word “charter” to refer to an agency’s organic statute is legally imprecise. While common usage of the term “charter” applies it to a variety of legal instruments including organic statutes, the term “congressional charter” actually has very specific meaning under U.S. law and is improperly applied to documents establishing intelligence agencies. A congressional charter is a statute by which the government of the United States establishes a corporation, not a governmental agency. For example, Fannie Mae and Freddie Mac are Government-Sponsored Enterprises. The Tennessee Valley Authority is an example of a government corporation; it produces and sells electric power as a corporation, but is chartered by the government. These are unique entities created to deal with problems Congress felt might be better addressed by a corporation rather than a government bureaucracy. “Charters” are “legal instruments by which a governmental entity (such as a city or state) grants rights, liberties, or powers to its citizens”—not to other governmental organizations. That’s why it’s more precise to use the term organic statute or enabling act when referring to the founding legislation of an intelligence agency. See Kevin R. Kosar, Congressional Research Serv., Congressional or Federal Charters: Overview and Current Issues (2007), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS22230_1-23-2007.pdf (“In the Anglo-American linguistic tradition, the word “charter” has been used to refer to many legal writs, including “articles of agreement,” “founding legislation,” “contracts,” “articles of incorporation,” and more. The varied uses of this term to refer to so many different legal writs may reflect the term’s etymology. “Charter” is derived from the Latin “charta” or, perhaps, the ancient Greek “chartês,” both of which mean “paper.” As used in federal statutory law, the term “charter” usually has carried a much more specific meaning.  A congressional or federal charter is a federal statute that establishes a corporation.”); see also generally Kevin R. Kosar, Congressional Research Serv., Federal Government Corporations: An Overview, (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL30365_1-7-2009.pdf.

[4] See U.S. Dep't of Defense, Instruction No. 5025.01, § 4 (Oct. 28, 2007) (defining “organizational charter” and “chartering DoDD” as “[a] DoDD that establishes the mission, responsibilities, functions, relationships, and delegated authorities of the Head of an OSD Component or other OSD PAS official, a Defense Agency, a DoD Field Activity, or other major DoD or OSD Component, as required. Also referred to as an “organizational charter” or “charter Directive.”  Chartering DoDDs comprise a unique DoDD format, developed by O&MP in coordination with DD, and are exempt from the 8-page limit for DoDDs.  Chartering DoDDs shall be signed by the Secretary or Deputy Secretary of Defense, except that where the Under Secretaries of Defense are delegated the authority in their chartering DoDDs, the Under Secretaries of Defense shall issue chartering DoDDs for their subordinate OSD PAS officials.”).

 


© 2012 David Alan Jordan. All rights reserved.