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Practice Notes
The Army’s Legislative Proposal Process
Advancing Army Initiatives through Law
By Michael Jones
This is the second article in a series by Michael Jones concerning legislative affairs. A Primer on the National Defense Authorization Act, the first piece in the series, can be found in issue 3, 2022.
For [sixty-one] consecutive years, the House has proven that our collective commitment to U.S. national security can help us rise above partisanship. Instead of focusing on what divides us, each year we choose to pass a defense bill that fulfills Congress’ constitutional obligation to ‘provide for the common defense’ – and we do so by focusing on what we have in common as Americans.1
In 2012, as a relatively new major at a combatant command (COCOM) headquarters, I once had a discussion with a flag officer concerning his dissatisfaction with a statutory constraint that I referenced in a legal opinion. Although I do not recall the precise legal issue at hand, I do remember his question to me, which was something to the effect of “why can’t we change this law?” I was completely caught off guard by this concept. At the time, the prospect seemed almost ludicrous, like he was asking me to turn lead into gold. Change the law? Was that even possible? How would I even go about doing such a thing? I now know that it is indeed possible, and, in fact, it is something the Army does every year with varying degrees of success.
For example, in 2022, the Department of Defense (DoD) reviewed hundreds of legislative proposals from the military Services, COCOMs, and other components as part of its legislative program.2 Many of these proposals were submitted for possible inclusion in the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023.3 While not all of these proposals were adopted, many were, and they can have a profound impact on the authorities judge advocates (JAs) rely on each day.
Most JAs are at least familiar with the NDAA, the annual defense policy bill that can have significant ramifications on how the military conducts its day-to-day activities.4 In what often seems like magic to those that do not closely follow the process, it appears at the President’s desk ready for signature each autumn or winter.5 In fact, it is one of the few pieces of legislation that can consistently move through Congress each year, so it has become a popular vehicle for all kinds of legislative priorities, some of which have little or nothing to do with national security or defense.6
However, in reality, the NDAA is a product of numerous inputs, hearings, and deliberate engagements, including legislative proposals the Army develops and the DoD submits to Congress for inclusion.7 It is critical for JAs, those legal practitioners who are often directly impacted by the reforms imposed by the NDAA each year, to understand that mechanisms exist to influence the contents of the NDAA through the legislative proposal process and that they can access those mechanisms to amend or create new law.8
Within the DoD, the primary references for preparing and submitting legislative proposals is DoD Directive 5500.01, Preparing, Processing, and Coordinating Legislation, Executive Orders, Proclamations, Views Letters, and Testimony.9 This reference, working in conjunction with the Office of Management and Budget (OMB) Circular A-19,10 largely outlines the process for preparing and staffing legislative proposals that are developed within the DoD. Notably, this directive specifies that it is the DoD’s policy that only a “single coordinated DoD position shall be expressed and transmitted to the White House, OMB, and to . . . Congress with respect to each legislative proposal.”11 It further provides that the DoD will not submit proposals “without prior approval of the General Counsel of the Department of Defense (GC DoD), or to . . . Congress without prior approval of the GC DoD, in consultation with the Assistant Secretary of Defense for Legislative Affairs . . . , acting on behalf of the Secretary of Defense.”12 Legislative submissions are tightly controlled to ensure that any proposal ultimately submitted to Congress for consideration is fully vetted and supported by the Department and the Administration, but this should not deter JAs from considering potential changes to existing laws or from seeking to introduce new laws that would enhance or improve our practice and benefit the Army.
For Army JAs seeking to submit a legislative proposal, they should follow the process outlined in Army Regulation (AR) 1-20.13 This regulation provides the technical guidance on where to send proposals and what a proposal package should contain.14 The Office of the Judge Advocate General Administrative Law Division can also provide assistance and guidance on staffing, technical drafting, and developing legislative proposals. While the staffing process is important, many considerations must be addressed prior to undertaking an effort to change the law or create new law.15 Here we will focus on three important factors those making the effort should consider prior to drafting and staffing a new legislative proposal: whether a change in the law is necessary, the type of change we are seeking, and the appropriate congressional committee of jurisdiction.
Is a Change in the Law Necessary?
As most JAs are aware, the Army has broad authority to develop and implement internal policies and regulations with minimal constraints.16 Such policies and regulatory authorities can be significant. Given the relative ease with which they can be promulgated, especially when compared to the fairly arduous process associated with amending or creating Federal law, it is important to ensure that we have explored all possible, non-statutory options prior to proceeding. Due to the volume of legislative proposals submitted to Congress each year from the various executive branch agencies, OMB and the DoD will sometimes limit the number of total submissions to avoid advancing proposals that are not a true priority.17 In fact, the annual Guidelines for Preparation of Legislative Proposals for the DoD Legislative Program states that legislation should be “used sparingly and only when required to meet specific requirements or goals and, then, only after all other avenues (including administrative avenues) have proven unsuccessful.”18 This means that a legislative proposal should only be submitted after exploring all other possible options for achieving the desired change.
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What Type of Legislative Change Are We Seeking?
Once we have determined that a legislative change is in fact necessary, we must then carefully consider the type of change we want to see implemented. Laws, in their most general sense, establish legal relationships.19 Within the NDAA context, we are mostly focused on “authorizations” that confer legal duties or delegate legal duties to officials within the DoD.20 Most legislative proposals advanced by the DoD seek to grant new authority to an official, expand a grant of authority that an official already holds, or shift authority to a different official.21
For example, a FY 2022 NDAA provision authorized the Secretary of Defense to conduct a pilot program to direct hire military spouses for positions located outside the United States.22 It illustrates a grant of new authority to an official, in this case the Secretary of Defense, to carry out an activity that was not previously sanctioned. The new authority was permissive in that it delegated authority that “may” be exercised.23 Judge advocates should attempt to view current law through the lens of “grants of authorities,” try to specifically identify if a gap exists, and then try to determine the best way to fill that gap either through a grant of new authority or by modifying the scope of existing authority. Attorneys with experience in legislative drafting and research are useful resources to consult during this phase to help determine the scope of the issue and ensure that other statutory provisions that address the problem do not already exist.24
The Army’s legislative proposal process is designed to provide inputs to the NDAA for possible inclusion in the final bill.
A recent example of the Army’s successful change to the law involves a modification to the statute that controls the type of information that recruiters receive from secondary schools and institutions of higher education.25 The Army developed and submitted a legislative proposal that would require schools to provide student email addresses in addition to the other information that they are already required to provide.26 This was a much needed change, incorporated via the NDAA, to reflect the way that potential recruits communicate.27 Although the change was ultimately a small one, it materially impacted recruiters’ ability to engage with potential recruits with just a subtle expansion of existing authority to fill a gap caused by evolving technological norms. Narrowly identifying the “authorities gap” keeps the legislative proposal focused on the key issue and thereby makes it easier to capture the intended legal effect, which should be the primary concern of any legislative drafter.28
What Is the Congressional Committee with Jurisdiction?
At first blush, this may seem like an odd question to address early in the legislative proposal process, but the congressional committee with jurisdiction over the proposed legislation can materially impact the timing, format, and success of a submission. Congressional committees are integral to the legislative process in the United States and each committee is responsible for overseeing a specific policy area.29 The U.S. Senate currently has twenty-four committees.30 The U.S. House of Representatives has twenty-six committees.31 The two committees with primary jurisdiction for oversight of policy issues within the DoD are the Senate Armed Services Committee32 and the House Armed Services Committee.33 Given their area of responsibility, most legislative proposals developed within the DoD are referred to these committees for possible inclusion in the annual NDAA because the subject matter pertains to an issue or topic that falls under the jurisdiction of the committee. However, that is not always the case. Both the Senate and the House of Representatives have their own processes for determining to which committee a piece of legislation is referred.
In the Senate, referral is to the committee of “jurisdiction over the subject matter which predominates in such proposed legislation.”34 Accordingly, even if a bill has multiple subjects, the predominate matter is the controlling factor. Referring a bill to more than one committee is permitted in some circumstances, but, ordinarily, bills are referred to the committee with jurisdiction over the main subject addressed.35 In the House of Representatives, the Speaker refers the measure to committee in such manner as to ensure to the maximum extent feasible that each committee that has jurisdiction has an opportunity to review the matter.36 When legislation is multiply referred, the Speaker is required to identify the “primary” committee of referral, which is the committee that has jurisdiction over the main subject matter of the bill.37 Referral to multiple committees is more common in the House of Representatives.38
The Army’s legislative proposal process is designed to provide inputs to the NDAA for possible inclusion in the final bill.39 In practice, this means that matters falling within the respective armed services committees’ jurisdiction are likely to be received and considered as part of the NDAA process.40 However, matters that fall within other committees’ jurisdiction face a less certain fate.41 Accordingly, when developing a proposal concept, shaping it to fall under the jurisdiction of the House and Senate Armed Services Committees increases its chances of eventual inclusion in the NDAA.
Conclusion
While advancing a legislative proposal may not be appropriate in all cases, JAs should be aware that this is a viable option that can be pursued under the right conditions and with the correct levels of coordination and approval. Practitioners in the field often have the most practical and direct experience with the laws that govern the DoD and are best positioned to see how they are being implemented and applied. As a result, they are also able to identify potential gaps in authorities, technical flaws in the way legislation is drafted, or instances where legislation may need to be reshaped to achieve its intended effect.
These matters may not be obvious to practitioners at higher levels. Judicious use of the Army’s legislative program is a powerful tool to influence our practice and improve the quality of life, support, and services for Service members across the DoD. While I was not ultimately able to “change the law” for my COCOM client, I have now seen first-hand that the Army is able to successfully advance legislative proposals each year on a range of issues. Hopefully more Army JAs will be aware of the legislative proposal process and apply it to improve processes or advance Army initiatives. TAL
Mr. Jones is an attorney-advisor in the Legislation Division in the Office of the Judge Advocate General at the Pentagon.
Notes
1. Democratic-Led House Passes Annual Defense Bill for the 61st Consecutive Year, House Armed Servs. Comm. (Sept. 23, 2021), https://democrats-armedservices.house.gov/press-releases?ID=A39C9C1F-3CE1-4324-8FCB-3AF91B6BE5F2.
2. This assertion is based on the author’s recent professional experiences as the Legislative Attorney, Office of the Judge Advocate General from Aug. 2019 to present [hereinafter Professional Experiences].
3. Id.; James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, 136 Stat. 2395 (2022).
4. See, e.g., John M. Donnelly, Lawmakers Press for Sweeping Military Justice Changes, Roll Call (Nov. 30, 2021, 1:01 PM), https://rollcall.com/2021/11/30/lawmakers-press-for-sweeping-military-justice-changes.
5. See generally Jim Garamone, Biden Signs National Defense Authorization Act Into Law, U.S. Dep’t of Def. (Dec. 23, 2022), https://www.defense.gov/News/News-Stories/Article/Article/3252968/biden-signs-national-defense-authorization-act-into-law (discussing the $816.7 billion allotment to the Department of Defense); Kanishka Singh, U.S. President Biden Signs $770 Billion Defense Bill, Reuters (Dec. 27, 2021, 4:33 PM), https://www.reuters.com/world/us/us-president-biden-signs-770-billion-defense-bill-2021-12-27 (discussing President Biden’s signing of the NDAA).
6. See, e.g., Joe Gould, Grouse About This: A Funny-Looking Bird Is Holding Up Key National Defense Legislation, Def. News (Sept. 27, 2016), https://www.defensenews.com/congress/2016/09/28/grouse-about-this-a-funny-looking-bird-is-holding-up-key-national-defense-legislation (discussing how disagreements over whether the NDAA should include a provision barring the placement of the sage grouse on the endangered species list disrupted the NDAA process in 2016).
7. Valerie Heitshusen & Brendan W. McGarry, Cong. Rsch. Serv., IF10515, Defense Primer: The NDAA Process 1 (2021).
8. This article does not address the process for submitting proposals or inputs to the annual appropriations bills that fund defense activities each year. That process is separate and distinct from the legislative program focused on defense policy issues.
9. U.S. Dep’t of Def., Dir. 5500.01, Preparing, Processing, and Coordinating Legislation, Executive Orders, Proclamations, Views Letters, and Testimony (15 June 2007) [hereinafter DoDD 5500.01].
10. Off. of Mgmt. & Budget, Exec. Off. of the President, Circular A-19, Legislative Coordination and Clearance (1979) (providing the guidelines by which OMB performs legislative coordination and clearance functions on all legislative proposals that Federal agencies develop (unless otherwise required by law)).
11. DoDD 5500.01, supra note 9, para. 3.1.
12. Id. para. ٣.٢.
13. U.S. Dep’t of Army, Reg. 1-20, Legislative Liaison (٢٥ Aug. ٢٠٢١).
14. Id. para. ٣-٢.
15. Professional Experiences, supra note 2.
16. See, e.g., 5 U.S.C § 553(a)(1) (providing an exception to the notice and publications requirements of agency rule making for military functions).
17. See, e.g., Complete List of Legislative Proposals in DoD Request for FY 2021 NDAA (Mar. 5, 2020) (unpublished Excel spreadsheet) (on file with author).
18. Off. of Gen. Counsel, Off. of the Sec’y of Def., Guidelines for Preparation of Legislative Proposals for the DoD Legislative Program, para. II(D) (2022) (unpublished guidelines) (on file with author).
19. Arthur J. Rynearson, Legislative Drafting Step-by-Step 4 (2013).
20. See id.
21. Professional Experiences, supra note 2.
22. National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, § 625, 135 Stat. 1541, 1772-74 (2021).
23. Rynearson, supra note 19, at 10.
24. Judge advocates should not be overly concerned with the technical drafting of the proposal at this stage. As part of the legislative proposal process, the Office of the Judge Advocate General will provide the technical drafting assistance necessary to properly format the proposal prior to submission.
25. 10 U.S.C. § § 503, 983.
26. U.S. Dep’t of Army, Increased Access to Potential Recruits (2020) (unpublished legislative proposal) (on file with author).
27. William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116–283, § 521, 134 Stat. 3388, 3597 (2021).
28. Rynearson, supra note 19, at 3.
29. See The Legislative Branch, White House, https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch (last visited May 15, 2023).
30. Committees, U.S. Senate, https://www.senate.gov/committees (last visited Apr. 24, 2023).
31. Committees, U.S. House of Representatives, https://www.house.gov/committees (last visited May 15, 2023).
32. About: History/Jurisdiction, U.S Senate Comm. on Armed Servs., https://www.armed-services.senate.gov/about/history (last visited May 15, 2023).
33. About, House Armed Servs. Comm., https://armedservices.house.gov/about/jurisdiction-and-rules (last visited May 15, 2023).
34. Mark J. Oleszek, Cong. Rsch. Serv., R46815, Committee Jurisdiction and Referral in the Senate 1 (June 10, 2021).
35. Id. at 2.
36. Thomas J. Wickham, Constitution Jefferson’s Manual and Rules of the House of Representatives, H.R. Doc. No. 115-177, at 627-28 (2019).
37. Id.
38. See Oleszek, supra note 34, at 2.
39. Dianne Smith-Neff, Army FY 2024 NDAA Legislative Proposal Process (Sep 2022–Mar 2024), at slide 1 (Aug. 4, 2021) (unpublished PowerPoint presentation) (on file with author).
40. Professional Experiences, supra note 2.
41. Id.