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Last Saturday, I wrote about press reports that the House and Senate Armed Services Committees were considering legislation to restrict the size of the NSC staff. On Tuesday, House Armed Services Committee Chairman Mac Thornberry announced that he would offer an amendment to the National Defense Authorization Act when it is debated on the House floor this week that would amend the National Security Act to require Senate confirmation of the National Security Advisor unless the NSC staff size is limited to 100 permanent staff and detailees. On Thursday, the Senate Armed Services Committee reported a mark-up of the Senate version of the NDAA that would limit the size of the NSC staff to 150 permanent staff and detailees.
As I noted last week, while I understand the motivation for these amendments and agree that the Obama NSC staff has grown much too large (much larger than the NSC staff on which I served), the problem should be addressed by the President and the National Security Advisor, not by Congressional fiat. Congress can place reasonable limits on funding for the NSC staff, but legislative restrictions on the NSC staff size, organization, or functions raise constitutional concerns because they interfere with the President’s ability to carry out his Article II responsibilities. Viewed reciprocally, it would raise constitutional concerns if the President were to veto the Legislative Branch Appropriations Act if he decided that oversight committee staffs were too large. Moreover, a Republican President would strongly object to, and indeed would likely veto, legislation authored by Congressional Democrats that would significantly restrict the size of his or her NSC staff, or attempt to limit its functions.
Instead of legislation, President Obama’s National Security Advisor, Susan Rice, should commit to shrink the size of President Obama’s NSC staff by the end of the year so that the next President does not inherit a bloated staff. The next President and his or her national security advisor can then decide on the size of their NSC staff.