Note: This Morning Zen post is part of an ongoing series that is exploring specific areas of H.R. 2646 that will need to be addressed in order to create a mental health bill that reflects the full range of needed services and supports to help those with mental illness thrive in the community.

~ H.R. 2646 (The Murphy Bill) attempts to address a management issue through legislation ~ 

For the past two years, there has been a constant drumbeat from members of Representative Murphy’s committee that the Administrator of SAMHSA had been a major obstacle to getting committee questions answered about how SAMHSA approaches its responsibilities. Read our review of the recent hearing featuring Administrator Hyde testifying in front of the House committee and you will get a good feel for the level of animosity expressed during the hearing. It is clear that there was no love lost on either side.

Unfortunately, this frustration with Administrator Hyde also shapes the structural foundation of H.R. 2646, creating an approach to mental health reform that, while full of claims of how the “broken mental health system” will be fixed with its passage, is woefully out of touch with the complexities of the mental health service delivery system at the local and state level. (Read our detailed analysis here.)

Frustrated as they might be, Congress can’t “fire” Administrator Hyde, as the separation of powers between the executive branch and the legislative branch dictates that while Congress has the authority to investigate and allocate funds, the power to replace senior leadership is the purview of the Executive Branch. However, there is nothing to stop Congress from abolishing the position of the SAMHSA Administrator. No position, no Hyde.

Assistant Secretary position
Here is the language in the bill that will effectively give Administrator Hyde her pink slip (H.R. 2646, page 14, line 12):

• SEC. 102. TRANSFER OF SAMHSA AUTHORITIES. IN GENERAL.—The Secretary of Health and Human Services shall delegate to the Assistant Secretary all duties and authorities that— as of the day before the date of enactment of this Act, were vested in the Administrator of the Substance Abuse and Mental Health Services Administration; and are not terminated by this Act.

In the recent hearing on H.R. 2646, Congressman Murphy said the creation of the Assistant Secretary position would “elevate [the position] in terms of authority (2:28 mark in the video). However, the job duties of the proposed Assistant Secretary are eerily similar to those of the current Administrator. Attempting to further clarify both the rationale behind the creation of the Assistant Secretary position and plans for SAMHSA as an agency, Representative Collins (NY) stated that “no one is suggesting SAMHSA go out of business, but a rebalancing necessary.”

Regardless of where you stand on the effectiveness of SAMHSA Administrator Pamela Hyde, addressing those frustrations by attempting to legislate a management issue is just plain wrong, bad law and bad practice.

It may be wrong, but precedence does exist
In 2006, the mid-term elections were coming, and there was mounting frustration with Secretary of Defense, Donald Rumsfeld. Politicians on both sides of the aisle were using him as political chum, and the calls for his removal were getting louder and louder. But, what could they do? During that tumultuous time, Michael Dorf, then a professor at Cornell University Law School, provided a beautifully concise description of how, with just a bit of sleight of hand, Congress could get rid of Rumsfeld. Dorf included historical context for this type of chicanery, going all the way back to the full-scale sacking of federal judges during the transition in power between John Adams and Thomas Jefferson.

• “Still, there is a precedent for just this sort of end run. Following the defeat of John Adams and the Federalist Party by Thomas Jefferson and the Republicans in the election of 1800, Adams and the lame-duck Federalist Congress created new federal judgeships, and packed the courts with Federalists before the change in power. After they took office, the Jeffersonians simply abolished the new federal judgeships. With no judgeships to fill, the Federalists ceased to be judges.”

Dorf concluded his essay in 2006 by questioning whether or not Congress should use such measures to appease personal frustrations with appointed officials in the Executive Branch.

• “There’s an irony for you. With the nation’s security at stake, and with Congressional Democrats and Republicans increasingly united in their displeasure with Rumsfeld’s conduct of the war, whether he stays or goes should be anything but a political question.”

If the Jeffersonians could do it in 1800, why shouldn’t the architects of  H.R. 2646 do it now?
Building a bill from a frustration about the job performance of the SAMHSA Administrator narrows the lens of objectivity to one of partisanship and personal agenda. Ironically, should this bill see the light of day and pass, by the time it does there will be a new administration and Pam Hyde will have moved on to other, less headache-filled adventures.

The question we need to ask ourselves as advocates, and then ask our elected officials, “Is this the most prudent way to deal with a management issue?”  Do we need an “extreme makeover” because we are frustrated with the SAMHSA Administrator? Is this the way Congress should address frustration with Executive Branch management issues in the future?

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Scott Bryant-Comstock
President & CEO
Children’s Mental Health Network