Federalism and Homeland Security: Our Constitutional System of Governance

By Nadav Morag, Ph.D., University Dean of Security Studies

We’re celebrating the 225th birthday of the U.S. Constitution with a week-long blog series covering topics related to American freedom and democracy. In our first post, Dr. Morag looks at how the constitution impacts lawmakers’ ability to craft homeland security policy.

CTU Homeland Security StudiesAll governing systems have their pros and cons and the constitutional system that we have in the United States is no exception.  One could argue that the single theme that has served as a central thread throughout American history is the old argument between Thomas Jefferson and James Madison over the role, power and authority of state versus federal governments. The power struggle between the states and local authorities which have pushed for the greatest degree of local autonomy, and the federal government which has generally worked over the years to increase its power at the expense of state and local governments, has defined American history. Though the United States fought a Civil War over this issue, the argument continues today. It can be seen, in the context of disputes over hot button issues such as abortion, gay rights, the death penalty, school prayer and a host of other matters.

Authority Debates
The debate over federal vs. state and local powers and authorities also has a profound impact on the homeland security enterprise.  Homeland security covers a range of sub-disciplines including: intelligence, law enforcement, counter-terrorism, emergency management, emergency response, public health, cybersecurity and critical infrastructure protection. The latter covers a host of sectors including: electricity, water, chemicals, agriculture and banking, logistics.  Homeland security also affects all tiers of government: federal, state, local and tribal and therefore requires coordination between each of the levels as well as a determination of who holds responsibility and authority.  Situations in which competing agencies and levels of government are engaged in a tug-of-war for influence and funding, such as homeland security issues, tend to be ripe for this sort of rivalry.  Counterterrorism policy provides a good example of this.

Within the United States, (as opposed to the overseas mission) intelligence-gathering, with respect to suspected terrorist activities, as well as the investigation and prosecution of suspected terrorists, is essentially carried out by both state/local and federal authorities.  The Federal Bureau of Investigation (FBI) has statutory authority to run terrorism investigations and engages in intelligence-gathering against suspected terrorists. The FBI is unable to accomplish this mission on its own because it has fewer than 14,000 field agents compared with state and local law enforcement agencies who have just under 800,000 personnel. Consequently, the FBI partners with state and local agencies as well as other federal law enforcement agencies such as the Coast Guard, Immigration and Customs Enforcement, Customs and Border Protection, in forming joint investigatory bodies known as JTTFs (Joint Terrorism Task Forces). These task forces share information with additional state and local law enforcement partners in the context of state and regional fusion centers.  This means that while the federal government may have the lead on terrorism investigations, much of the intelligence-gathering and preliminary investigation is carried out by state and local law enforcement agencies without direct control or even supervision from the FBI.  State and local law enforcement bodies are, after all, the first line of defense and these agencies are directly responsible for public safety in their individual jurisdictions. As a result, they view their respective roles and missions in this context differently than what the FBI or the federal government may believe their role to be.  This basic disconnect between counterterrorism policy at the federal level and the policies carried out by state and local authorities means that these issues need to be bridged through dialogue and negotiation between both parties. The entire system rests on personal relationships and the willingness of different entities to cooperate.

Homeland Security Jurisdiction
Similar problems related to competing agencies also impact other Homeland Security issues such as disaster response/recovery and public health.  When a natural disaster strikes, the local authorities, who have direct jurisdiction, will typically respond first. If overwhelmed, they will reach out to the state authorities, local jurisdictions inside and outside of the state as well as governments outside the state that have signed a memoranda of understanding with the local and state governments of the impacted area.  The federal government can also be called upon, particularly via the Federal Emergency Management Agency (FEMA). FEMA is a part of the Department of Homeland Security and provides disaster relief and funding for recovery.  In some cases, state authorities can choose to call out the state National Guard or even request support from the federal military. Like other parts of American governance, the military is divided between a federal military establishment and state militia National Guard entities.  Here, as in other areas of Homeland Security, the federal government does not have direct authority to run the whole disaster response and recovery effort.  Similarly, in the public health realm, state, county and municipal public health agencies work with federal entities such as the Centers for Disease Control (CDC). But these agencies have their own local responsibilities and do not take orders from the federal government. In public health, the federal government often takes a largely supporting role through funding, expertise and medical staff backup.
One way the federal government is able to increase its ability to control what the state and local authorities do is through federal funding.  The federal government cannot force a local fire service or local law enforcement agency to follow certain policies and procedures, but they can insist that these entities follow federal protocols if they accept federal funding.  Here too, as in so many other things, there is often some considerable wiggle room for state and local authorities to interpret federal requirements in different ways.

The time-honored debate over federal vs. state and local power is very much alive in the homeland security realm. Policymaking requires the voluntary cooperation of agencies at all levels of United States governance. While it may be confusing at times, it is the American way.

Image credit: Flickr/Andrew Bardwell

CTU Faculty - Nadav MoragNadav Morag, Ph.D., is University Dean of Security Studies, at CTU. He works on projects for the Department of Homeland Security and the Department of Defense and is a published author on terrorism, security strategy, and foreign policy. Connect with Dr. Morag on Twitter @CTUSecurity.