One proposal floated early in the Trump administration was the combination of the Departments of Education and Labor.

The executive branch can't execute such dramatic action unilaterally; Congress would have to enact legislation for an overhaul of that magnitude. But how federal agencies like the Labor Department, which are created by Congress, organize their leadership is more of an open question.

Last year, the Congressional Review Service published papers exploring, in part, the degree to which federal agencies can reorganize internal oversight. The papers were in response to more than 30 reorganization proposals issued through executive orders, directives, and public recommendations by the Trump administration.

Some of those proposals—like merging Labor and Education—were simply unimaginable under the Democratically controlled House of Representatives.

So the Trump administration downshifted, and began to focus on areas where restructuring could occur without Congressional approval.

"This is the scalpel approach," said Erin Sweeney, an ERISA attorney with Miller & Chevalier who previously was a senior benefits attorney at EBSA.

Can EBSA do that?

Still, there may be legitimate questions as to whether EBSA has the authority to reorganize its principal rule-making oversight from a career position to a political position. A similar reorganization is being concurrently implemented at Labor's Wage and Hour Division.

The papers from the CRS, which provides legal an policy analysis to lawmakers, shows the statutes governing federal agencies differ on how much discretion they give to agency heads to delegate power.

"Whether a proposed reorganization that would transfer functions or duties within an agency to another part of the same agency requires congressional authorization would depend on the particular governing statute and appropriations specific to that agency," according to one CRS paper, Organizing Executive Branch Agencies: Who Makes the Call?

"Executive authority to implement any reorganization proposal ultimately will depend on the circumstances of the particular plan at issue and the precise scope of authority delegated by Congress," the paper says.

"The question is, 'who has authority here,'" said Sweeney. "Congress is the entity that sets up agencies. But does Congress have authority to decide how an agency organizes itself?"

That answer is unclear, said Sweeney, who noted that the statutes governing the Department of Labor and the Department of Education on organizational issues widely vary.

"They are really different. The Education statute says the Secretary has authority to allocate and re-allocate functions. But the Labor statute is not nearly as specific," she said.

Last week, senior Democratic lawmakers with oversight over EBSA requested the documents behind the administration's reorganization, and answers to a series of questions to explain why it was being pursued. They also requested the reorganization be delayed.

Their line of questioning suggests the lawmakers, or their staffers, are unfamiliar with existing agency protocol on reorganizations.

Under the reorganization of Labor's Wage and Hour Division, a proposal was sent to the Office of the Assistant Secretary for Administration & Management, a division of the Labor Department that supports business operations, human resources, and strategic planning agency-wide.

If a reorganization proposal is approved by OASAM, it is then sent to the Secretary of the Labor Department. That procedure is standard, said Sweeney.

"Presumably, those documents exist," said Sweeney, who also noted that Preston Rutledge, Assistant Secretary of Labor for EBSA, has a long reputation as a "rule follower."

Would Congress have standing to sue EBSA?

EBSA worked with all the relevant DOL offices during the reorganization process, without third-party consultants, a Labor Department spokesperson said.

According to the Labor Department spokesperson, the reorganization will help ensure EBSA's policy work–which includes research, economic analysis, and regulatory work–is better integrated and will foster collaboration.

The new structure will give EBSA's regional offices a greater voice in the National Office, help ensure the consistency of enforcement activities nationwide, a provide expanded opportunity for career advancement within the agency, the spokesperson said.

If House Democrats determine that EBSA has exceeded it statutory authority in implementing the reorganization, what remedy can they pursue?

Would Congress have standing to sue EBSA to block the reorganization?

"I'm not aware of a precedent for that, but it's possible," said Sweeney.

As of late afternoon on October 1, EBSA's organizational chart had yet to be updated on the Labor Department's website. A request for comment to the Labor Department as to whether it would be was not returned before press time.