The Department of Transportation was created to be a tool for “coping with the tremendous problems of coordinating and integrating all modes of transport to provide the best means of moving people and goods in the most economical manner.” (So said Alan Boyd, who would become the first Secretary of Transportation, in 1966 when he defended the plan for USDOT creation in our predecessor publication.)

However, the constituent parts of USDOT are still grouped along modal lines – separate modal administrations for aviation, highways, mass transit, intercity rail, pipelines, and seaports. Those modes don’t inherently coordinate themselves any more than cats automatically herd themselves.

The 1966 DOT Act provided a Secretary and an Under Secretary (since renamed Deputy Secretary) to provide overall guidance and decision-making, and a General Counsel and an Assistant Secretary for Administration to assist in those areas. The law also allowed for four other Assistant Secretaries, “who shall be appointed by the President, by and with the advice and consent of the Senate, and who shall perform such functions, powers, and duties as the Secretary shall prescribe from time to time.”

The Secretary was given the authority to define the issue areas for which these four aides, who could cut across all modal lines in performing their functions, would pursue. This broad legislative deference was the standard practice at the time. In 1949, the defense law gave the new Defense Secretary three Assistant Secretaries without defined roles, in 1953 Congress created two undefined AS positions at the new Department of Health, Education, and Welfare, and the 1965 law creating the Department of Housing and Urban Development similarly gave the HUD Secretary four at-large Assistant Secretary slots.

By the late 70s, the Congressional approach had shifted toward a larger number of Assistant Secretaries with more rigid roles. For instance, the 1977 law creating the Department of Energy created no less than eight at-large Assistant Secretaries, but also prescribed a list of eleven fields that those eight persons, collectively, had to cover. (The 1977 law also added a new wrinkle where the President would identify the particular function of the job when nominating the Assistant Secretary, giving the Senate an effective veto over each AS’s job structure.)

By 1979, when the Department of Education was created, Congress had decided to be even more proscriptive, and section 202 of that organic act specifically defined the roles of each Assistant Secretary. The 1988 law elevating Veterans Affairs to Departmental status emulated the Energy Department (a list of roles that the AS’s collectively had to cover). And the law cobbling together the Department of Homeland Security in 2003 created no less than a dozen AS’s and prescribed roles for a few.

With the flexibility initially afforded to USDOT, the Secretary had the ability to define the roles of his Assistant Secretaries. As the first Secretary, Alan Boyd had no precedent to rely on and described his thinking in a December 1968 oral history interview:

Two of them fell out very rapidly. Public Affairs, and Research and Technology. And then we got into the whole issue, and I knew we wanted an assistant secretary to be responsible for what ultimately became Policy Development…

…and then we got into the question on a fourth assistant secretary – what should his functions be, and we were quite enamored of the idea that we ought to have an Assistant Secretary for Urban Affairs, feeling quite rightly that this was going to be the area of greatest concern and… that there was no good coordinating mechanism short of the Secretary for the relationships between highways, mass transit, and airport[s]… And after we kicked that around for quite awhile, we decided we couldn’t afford to do that because it would have been presumptuous as all hell in view of the fact that the Urban Mass Transit [Administration] was over in HUD, and we were gearing up to take it away from them…

…And then we got into a discussion of whether or not this fourth assistant secretary should be responsible for safety. And that seemed to make a fair amount of sense, but part of the problem there was that by law the safety functions of the FAA were redelegated… to the Federal Aviation Administrator. Also by law, the rail safety functions were transferred directly to the rail administrator. And we could see nothing but trouble coming out of that if we tried to set up an Assistant Secretary for Safety, particularly with the concern on the part of the Congress and the aviation community about the Secretary trying to get his hands in this…

So, I had been very much interested in international transportation . It seemed to me that most of the developed countries… had to have somewhat similar transportation problems to those in the United States…Also, I had been for some time concerned… that there was too much [international transportation] policy being made by technical people, and that the considerations often were not broad enough. So, I thought that we needed somebody to deal with that. And it seemed a fairly innocuous sort of thing to set up an Assistant Secretary for International Affairs…

In the beginning, each new Secretary shuffled the job descriptions around to meet the evolving needs of the time. The second Secretary, John Volpe, combined Policy with International Affairs to free up the fourth AS for his priorities, “Environment and Urban Systems.” Later, in response to the wave of airline hijackings, Volpe demoted Public Affairs below the AS level and created a new Safety & Consumer Systems role for famed General Benjamin O. Davis Jr. to combat hijackers.

The third Secretary, Claude Brinegar, demoted Urban Systems and moved Environment under Davis’s purview to create an AS for Congressional and Intergovernmental Affairs. The fifth Secretary, former House Budget Committee chairman Brock Adams (D-WA), wanted to create a new AS for Budget and Programs to utilize the incredible talents of his aide Mort Downey, so he spun Research and Technology off into its own “Directorate” (which later became the Research and Special Programs Administration). He also combined Government Affairs with Public Affairs. And since Adams answered to a penny-pinching President, he left the fourth AS post empty.

Through the Reagan-Bush years, Public Affairs went back and forth from the AS level to a step down from that. Secretary Federico Peña split up the policy AS into one for domestic policy and one for aviation and international affairs. That lineup – Transportation Policy, Aviation and International Affairs, Budget and Programs, and Governmental Affairs – stayed constant through inertia until 2012, when a funny thing happened.

Even back in 2012, the slow pace of Senate confirmation of executive branch nominees had become worrisome. The Senate managed to pass a bipartisan law (P.L. 112-166) removing a number of lower-level positions from the list of those posts requiring Senate confirmation, and this included the Assistant Secretary of Transportation for Budget and Programs. But the 2012 law also defined the roles of the other three DOT Assistant Secretaries into permanent law and repealed the ability of the Secretary to change those roles as necessary.

(The 2012 law also failed to remove the Budget nominee from the Senate confirmation list because the AS for Budget also serves as Chief Financial Officer, and a separate law requires Senate confirmation of all departmental CFO’s.)

Ever since then, the only way to address an evolving need has been to create a new AS job, which Congress has done by law, creating four more posts since then without removing any prior roles, for a total of nine:

Locking the roles of all Assistant Secretaries into permanent law may have been bad policy, because priorities change over time. But it was done, however badly, in response to a real problem (slow Senate confirmation of nominees). That problem no longer exists – the logjam got so bad that the Senate majority went “nuclear” a few months ago and made it possible to confirm scores of low-level nominees, like Assistant Secretaries of Transportation, at once via en bloc confirmations.

Since the reason for taking away the Secretary’s authority to designate the roles for at least some of his Assistant Secretaries (Senate confirmation logjam) no longer exists, why not restore some of that authority? Congress could choose to add the requirement from the Energy Department’s statute allowing the Senate effective veto power over the job description, or not.

Either way, a Secretary would have the freedom to put a top person, with the authority given by Senate confirmation, at work on cross-cutting priorities. The creation of the post of Under Secretary of Transportation, to whom the policy Assistant Secretaries now answer, allows for flexible policy staffing that could easily be reassigned to emerging role AS’s.

Hypothetical examples:

• Safety. Secretary Boyd’s hesitance to name an Assistant Secretary for Safety made sense in 1966, but the legal and normative foundation for keeping the Secretary out of aviation and rail safety decisions has eroded considerably since then. In particular, an Assistant Secretary for Safety could go a long way towards instilling a uniform safety culture across all modes.
• Competition. There is a bipartisan sense in today’s politics that the federal government has allowed the pendulum to swing too far towards market concentration and that this is having negative effects on prices and customer service. A Secretary (particularly one in a populist-leaning Administration) might find it useful to have an Assistant Secretary monitoring market concentration and competition across all modes of transportation, not just the ones like airlines where the Secretary has a specific legal role.
• Climate change/resiliency. Call it what you will, it is going to be a continuing issue to deal with across all modes. A Democratic Administration could create an AS for Climate Change to help monitor multimodal emissions and promote electrification. A Republican Administration could create an AS for Resilient Infrastructure to help standardize the assumptions for future extreme weather events across modes (rebuilding roads to an assumed flood level 3 feet higher makes less sense if the railroad is only rebuilding the adjoining multimodal rail yard to an assumed flood level 1 foot higher, etc.).

In many ways, today’s USDOT looks like a 1966 filing cabinet in a world of cloud computing.  It is meticulously organized by mode, but structurally incapable of dealing with the cross-cutting problems that define modern mobility. Congress has spent decades locking Assistant Secretary roles into rigid statutory bureaucracies even as the transportation system’s biggest challenges ignore those boundaries entirely. Now, with the Highway Trust Fund perpetually flirting with insolvency and requiring regular general-fund bailouts just to stay afloat, the mismatch between 20th-century organizational charts and 21st-century realities is becoming untenable. Loosening the statutory straitjacket and restoring the Secretary’s ability to deploy high-level leadership flexibly would not be a bureaucratic reshuffle for its own sake. It may be the only way USDOT can coherently respond to a future in which the funding model is collapsing, the policy problems are converging, and yet the old modal silos remain just where they were decades ago.

The views expressed above are those of the author and do not necessarily reflect the views of the Eno Center for Transportation.