Inherently Governmental Functions and Other Work Reserved for Performance by Federal Government Employees: The Obama Administration’s Proposed Policy Letter

L. Elaine Halchin
Specialist in American National Government

Kate M. Manuel
Legislative Attorney

Shawn Reese
Analyst in Emergency Management and Homeland Security Policy

Moshe Schwartz
Specialist in Defense Acquisition

On March 31, 2010, the Office of Federal Procurement Policy (OFPP) in the Office of Management and Budget (OMB) issued a proposed policy letter on inherently governmental functions and other "work reserved for performance by federal government employees." While not final, the policy letter represents the Obama Administration's proposed guidance for agencies determining (1) whether particular functions are inherently governmental and (2) when functions closely associated with the performance of inherently governmental functions and critical functions should be performed by government personnel. Under existing law, agencies cannot contract out inherently governmental functions, and they must give "special consideration" to using government personnel in performing functions closely associated with the performance of inherently governmental functions. No limitations upon contracting out critical functions currently exist, although legislation introduced in the 111th Congress (S. 924) would, if enacted, require agency heads to ensure that "mission essential functions" are performed by government employees. Some commentators consider mission-essential functions to be critical ones. 

In keeping with the requirements of Section 321 of the Duncan Hunter National Defense Authorization Act for FY2009 (P.L. 110-417), which tasked OMB with developing a "single consistent definition" of "inherently governmental function," the proposed policy letter adopts the definition of the Federal Activities Inventory Reform (FAIR) Act. The FAIR Act defines an "inherently governmental function" as one that is "so intimately related to the public interest as to require performance by Federal Government employees." However, neither the proposed policy letter nor the notice from OFPP introducing it indicates whether or how the Obama Administration would amend the definitions of "inherently governmental function" in the Federal Acquisition Regulation, OMB Circular A-76, or other executive branch regulations and policy documents. 

The proposed policy letter defines a "critical function" as one that is "necessary to the agency being able to effectively perform and maintain control of its mission and operations." This definition, and the accompanying guidance on when critical functions and functions associated with the performance of inherently governmental functions should be performed in-house, also respond to the requirements of Section 321 of the Duncan Hunter National Defense Authorization Act. Among other things, Section 321 tasked OMB with developing criteria that agencies could use in identifying critical functions and positions that should be performed by government personnel to ensure that agencies develop and maintain "sufficient organic expertise and technical capacity." President Obama's March 4, 2009, memorandum on government contracting similarly charged OMB with clarifying when outsourcing is "appropriate." 

The proposed policy letter raises several legal and policy issues of potential interest to Congress, given recently enacted and proposed legislation regarding inherently governmental functions and other limitations upon contracting out (e.g., P.L. 111-8, P.L. 111-84, P.L. 111-117, H.R. 1436, H.R. 2142, H.R. 2177, H.R. 2682, H.R. 2736, H.R. 2868, S. 924). Key among these issues are (1) the relationship between the proposed policy letter and other executive branch authorities on inherently governmental and related functions; (2) whether the proposed policy letter would necessarily result in changes in agencies' use of contractors to perform certain functions that some Members of Congress and commentators claim are inherently governmental (e.g., security services during contingency operations); and (3) the potential demands of any new requirements upon the acquisition workforce.


Date of Report: April 26, 2010
Number of Pages: 20
Order Number: R41209
Price: $29.95

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Navy Nuclear Aircraft Carrier (CVN)Homeporting at Mayport: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

The Navy's five Atlantic Fleet nuclear powered aircraft carriers (CVNs) are all homeported at Norfolk, VA. The Department of Defense's (DOD's) final report on the 2010 Quadrennial Defense Review (QDR), released on February 1, 2010, endorses the Navy's desire to establish a second Atlantic Fleet CVN home port by homeporting a CVN at Mayport, FL. Navy plans call for having Mayport ready to homeport a CVN in 2019. 

Transferring a CVN from Norfolk to Mayport would shift from Norfolk to Mayport the local economic activity associated with homeporting a CVN, which some sources estimate as being worth hundreds of millions of dollars per year. 

DOD's proposal to homeport a CVN at Mayport has become an issue of strong interest to certain Members of Congress from Florida and Virginia. Certain Members of Congress from Florida have expressed support for DOD's proposal to homeport a CVN at Mayport, arguing (as do DOD and the Navy) that the benefits in terms of mitigating risks to the Navy's Atlantic Fleet CVNs are worth the costs associated with moving a CVN to Mayport. Certain Members of Congress from Virginia have expressed skepticism regarding, or opposition to, the proposal, arguing that the benefits in terms of mitigating risks to the Navy's Atlantic Fleet CVNs are questionable or uncertain, and that the funding needed to implement the proposal could achieve greater benefits if it were spent on other Navy priorities. 

The Navy estimates the nonrecurring cost of transferring a CVN to Mayport at $589.7 million, including $490.7 in Military Construction (MilCon) funding for construction work at Mayport to make Mayport capable of homeporting a CVN, and $99 million in other one-time costs. The $490.7 million in MilCon funding includes $46.3 million in dredging costs that the Navy requested in its FY2010 budget. Congress, as part of its action on the FY2010 defense budget, approved the request for $46.3 million for dredging. The conference report (H.Rept. 111-288 of October 7, 2009) on the FY2010 defense authorization act (H.R. 2647/P.L. 111-84 of October 28, 2009) states: 

The conference agreement includes authorization for $46.3 million for channel and turning basin dredging at Naval Station (NS) Mayport, Florida. The Navy requested this project in order to allow a nuclear aircraft carrier to enter Naval Station Mayport on a temporary basis with an embarked air wing, full stores, and under any tidal conditions. The conferees authorize funding for this project based on the Secretary of the Navy and Chief of Naval Operations' assurances that the dredging is needed for current operational considerations to permit the use of Mayport as a transient dock and is 'required irrespective of the final decision on aircraft carrier homeporting at Mayport.' 

The conferees emphasize that the inclusion of an authorization for dredging at NS Mayport is not an indication of conferee support for the establishment of an additional homeport for nuclear aircraft carriers on the east coast, or intended to influence the ongoing Quadrennial Defense Review, which may include a recommendation on the establishment of a second east coast homeport for nuclear aircraft carriers. Furthermore, the conferees note that this funding is provided solely to permit use of Mayport as a transient port, and that any potential designation of Mayport as a nuclear carrier homeport will require future authorizations from the Committees on Armed Services of the Senate and the House of Representatives. (Page 870) 

The Navy's proposed FY2011 budget requests about $2 million in MilCon planning and design funding for the project to establish a CVN homeport at Mayport.


Date of Report: April 23, 2010
Number of Pages: 45
Order Number: R40248
Price: $29.95

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Navy Ship Names: Background for Congress

Ronald O'Rourke
Specialist in Naval Affairs

Names for Navy ships traditionally have been chosen and announced by the Secretary of the Navy, under the direction of the President and in accordance with rules prescribed by Congress. Rules for giving certain types of names to certain types of Navy ships have evolved over time. There have been exceptions to the Navy's ship-naming rules, particularly for the purpose of naming a ship for a person when the rule for that type of ship would have called for it to be named for something else. Some observers in recent years have perceived a breakdown in, or corruption of, the rules for naming Navy ships. 

The 10 most recently named aircraft carriers have been named for U.S. presidents (8 ships) and Members of Congress (2 ships). Virginia (SSN-774) class attack submarines are being named for states. An exception occurred on January 8, 2009, when the Secretary of the Navy announced that SSN-785, the 12th ship in the class, would be named for former Senator John Warner. Destroyers are named for U.S. naval leaders and heroes. Littoral Combat Ships (LCSs) are being named for small and medium-sized cities. San Antonio (LPD-17) class amphibious ships are being named for U.S. cities. An exception occurred on April 23, 2010, when the Secretary of the Navy announced that LPD-26, the 10th ship in the class, would be named for the late Representative John P. Murtha. The Navy announced on June 27, 2008, that the first LHA-6 class amphibious assault ship would be named America, a name previously used for an aircraft carrier (CV-66) that served in the Navy from 1965 to 1996. Lewis and Clark (TAKE-1) class cargo and ammunition ships are being named for noted explorers and pioneers of various kinds. Joint High Speed Vessels (JHSVs) are being named for American traits and values. An exception has occurred with JHSV-4, the Navy's second JHSV (JHSVs 1 and 3 are to be operated by the Army), which the Secretary of the Navy announced on March 25, 2010, was being named Fall River. Fall River is a city in Massachusetts that is the location of Battleship Cove, a maritime museum and war memorial with several deactivated warships, including a post-World War II cruiser named Fall River. 

The Navy historically has only rarely named ships for living persons. At least 11 U.S. military ships since the 1970s have been named for persons who were living at the time the name was announced. 

Members of the public are sometimes interested in having Navy ships named for their own states or cities, for older U.S. Navy ships (particularly those on which they or their relatives served), for battles in which they or their relatives participated, or for people they admire. Citizens with such an interest sometimes contact the Navy, the Department of Defense, or Congress seeking support for their proposals. 

Congress has long maintained an interest in how Navy ships are named, and has influenced the naming of certain Navy ships. The Navy suggests that congressional offices wishing to express support for proposals to name a Navy ship for a specific person, place, or thing contact the office of the Secretary of the Navy to make their support known. Congress may also pass legislation relating to ship names. Measures passed by Congress in recent years regarding Navy ship names have all been sense-of-the-Congress provisions. In the 111th Congress, H.Con.Res. 83 would express the sense of the Congress that that a nuclear-powered aircraft carrier, either CVN-79 or CVN-80, should be named for former Senator Barry M. Goldwater, and H.Res. 330 would express the sense of the House of Representatives that the Secretary of the Navy should name an appropriate Navy ship in honor of Marine Corps General Clifton B. Cates of Tiptonville, TN. Section 1022 of the FY2010 defense authorization act (H.R. 2647/P.L. 111-84 of October 28, 2009) designated the historic Navy ship USS Constitution as "America's Ship of State."


Date of Report: April 26, 2010
Number of Pages: 17
Order Number: RS22478
Price: $29.95

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Unemployment Compensation (Insurance)and Military Service

Julie M. Whittaker
Specialist in Income Security

The Unemployment Compensation (UC) program contains several provisions relevant to current and former military service personnel and their families. The UC program does not provide benefits for military servicemembers on active duty. However, former active duty military personnel (and certain reservists) separated from active duty may be eligible for Unemployment Compensation for Ex-Servicemembers (UCX). 

Spouses of military service personnel who voluntarily quit a job to accompany their spouses on account of a military transfer may be eligible for UC benefits, based on the laws of the state where the civilian spouse was employed. 

Military service of business owners, employees, and employees' spouses may impact the state unemployment tax rate that certain employers face. States may choose to create provisions that remove or limit these tax increases in certain situations. 

Individuals should contact their state's unemployment agency to obtain information on how to apply for and receive unemployment benefits based upon military service. The U.S. Department of Labor maintains a website with links to each state's agency at http://www.workforcesecurity.doleta.gov/map.asp.


Date of Report: April 22, 2010
Number of Pages: 8
Order Number: RS22440
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The War Powers Resolution: After Thirty-Six Years

Richard F. Grimmett
Specialist in International Security

This report discusses and assesses the War Powers Resolution and its application since enactment in 1973, providing detailed background on various cases in which it was used, as well as cases in which issues of its applicability were raised. It will be revised biannually. 

In the post-Cold War world, Presidents have continued to commit U.S. Armed Forces into potential hostilities, sometimes without a specific authorization from Congress. Thus the War Powers Resolution and its purposes continue to be a potential subject of controversy. On June 7, 1995, the House defeated, by a vote of 217-201, an amendment to repeal the central features of the War Powers Resolution that have been deemed unconstitutional by every President since the law's enactment in 1973. In 1999, after the President committed U.S. military forces to action in Yugoslavia without congressional authorization, Representative Tom Campbell used expedited procedures under the Resolution to force a debate and votes on U.S. military action in Yugoslavia, and later sought, unsuccessfully, through a federal court suit to enforce presidential compliance with the terms of the War Powers Resolution. 

The War Powers Resolution P.L. 93-148 was passed over the veto of President Nixon on November 7, 1973, to provide procedures for Congress and the President to participate in decisions to send U.S. Armed Forces into hostilities. Section 4(a)(1) requires the President to report to Congress any introduction of U.S. forces into hostilities or imminent hostilities. When such a report is submitted, or is required to be submitted, section 5(b) requires that the use of forces must be terminated within 60 to 90 days unless Congress authorizes such use or extends the time period. Section 3 requires that the "President in every possible instance shall consult with Congress before introducing" U.S. Armed Forces into hostilities or imminent hostilities. 

From 1975 through 2009, Presidents have submitted 127 reports as the result of the War Powers Resolution, but only one, the 1975 Mayaguez seizure, cited section 4(a)(1), which triggers the time limit, and in this case the military action was completed and U.S. armed forces had disengaged from the area of conflict when the report was made. The reports submitted by the President since enactment of the War Powers Resolution cover a range of military activities, from embassy evacuations to full-scale combat military operations, such as the Persian Gulf conflict, and the 2003 war with Iraq, the intervention in Kosovo, and the anti-terrorism actions in Afghanistan. In some instances, U.S. Armed Forces have been used in hostile situations without formal reports to Congress under the War Powers Resolution. On one occasion, Congress exercised its authority to determine that the requirements of section 4(a)(1) became operative on August 29, 1983, through passage of the Multinational Force in Lebanon Resolution (P.L. 98- 119). In 1991 and 2002, Congress authorized, by law, the use of military force against Iraq. In several instances neither the President, Congress, nor the courts have been willing to trigger the War Powers Resolution mechanism.


Date of Report: April 22, 2010
Number of Pages: 81
Order Number: R41199
Price: $29.95

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