The Homeland Security Act: Everything the Founders Warned Us About

The Homeland Security Act of 2002 represents one of the most significant expansions of federal power in American history. Born from national tragedy and fear, 22 agencies were consolidated into a bureaucracy of critical mass. Formed under the guise of protecting us, one must ask: Are we actually safer, or have we traded essential liberties for the appearance of security?

Never Let a Good Crisis Go to Waste

Looking at the history, this was an expansion of federal authority rather than targeted reform. The failures of the government, a disconnect where agencies were not speaking to one another, were rewarded with more power and budget than ever before. I cannot think of many circumstances where poor execution is rewarded, but this is par for the course based on Washington’s rationalization.

The simple fix seems so obvious: addressing the information-sharing problems that created this significant intelligence failure. Instead, we got 240K agents and a budget that rivals or exceeds other countries’ total spending.

Here’s what we forget: the intelligence sharing problems could have been solved with technology and policy changes that didn’t require such a drastic over-correction. Easy solutions would be to have the FBI and CIA mandated to share information through secure databases. Local law enforcement could have been given increased access to federal terrorism intelligence, and all parties could have been working hand in hand.

What started as anti-terrorism became immigration enforcement through agencies like ICE. Extensive mission expansion. Started as anti-terrorism, became immigration enforcement, disaster response, cybersecurity, election security - a list that continues to grow without clear limits.

Let the Constitution Be Your Expert

We’re at a point where it has become customary now to forego our 4th amendment rights. Think about your TSA experience, surveillance, and data sharing. We can easily look at how the Tenth Amendment was violated when states lost their power to manage locally for emergency and disaster responses.

Don’t look too far to see how this Act has undermined basic constitutional protections. Fourth Amendment protections have been severely weakened when surveillance without warrants has become routine. Where else would a TSA search be considered legal? The Tenth Amendment’s intent appears largely ignored when the federal government takes over what should be state and local responsibilities - think emergencies & disasters. Can you point to where there is Due Process when we have secret watch lists, detention powers, and reduced judicial oversight?

Administrative decision-making with minimal court review, elimination of judicial discretion in detention, statutory barriers to federal court access, non-reviewable agency discretion, summary removal procedures - the list of examples is plenty.

We Were Warned About This

The founders made clear the dangers of unchecked federal power; their foresight knew no bounds, and they were very well aware of what could happen if we did not keep the government in check, to allow it to expand its power and to forsake our constitutional rights.

DHS represents many of the concerns the founders had about unchecked federal power. Would we not feel safer on airplanes with armed pilots, stronger cockpit doors, and a proven path? We have TSA agents groping us and confiscating nail clippers and 3.4 ounce bottles…cologne and a nail file are not dangerous weapons. Don’t trust private? Well, in government hands, a 2015 audit showed a 95% fail rate, and a 2017 audit showed an 80% fail rate. I’ll take my chances.

Creating a Dangerous Reality

You almost can’t name a crisis that hasn’t turned into a reason to expand DHS powers. Pandemics, health security, cyber, and hurricane disasters? DHS gets involved in health security. Cybersecurity threat? Obviously, that’s DHS territory now. Hurricane? Why are we bypassing states and localities that handle what they know best? Election concerns? DHS creates a new division for “election security.”

This should come as no surprise; many knew this would happen when the Homeland Security Act passed: what were sold as temporary emergency measures have shown a troubling tendency to become permanent, and DHS consistently seeks to expand its authority.

The Case to Abolish ICE

We need to backtrack and begin amending and reforming the Department of Homeland Security, and abolish one of its most powerful children, ICE.

ICE represents many of the problems with DHS expansion: constitutional violations in immigration enforcement were not what the founders had in mind. ICE has become the man behind the curtain of government intrusion that operates with limited oversight and ultimate authority.

ICE didn’t exist 25 years ago, and prior to its existence, we already had a system in place to carry out the missions that ICE embarks on, yet ICE and the Homeland Security Act were put in place. The public’s anger over these agencies’ existence is warranted.

What’s Next?

Abolish ICE and restore pre-2003 immigration enforcement. Return immigration enforcement to a reformed INS that operates within clearer constitutional boundaries, but with strict oversight.

Remove constitutional violations. Eliminate surveillance programs that violate the Fourth Amendment, ones that come without a warrant. Retain due process, no admin detention centers. Dismantle watch lists. Restore property rights within border zones. Congressional authorization for any new bestowed powers, that have hard sunset dates.

Let the FBI do their job and handle domestic terrorism investigations. Let the CIA handle foreign intelligence. Fix information sharing through secure technology platforms.

Privatize airport security completely and let airlines and airports compete on actually keeping passengers safe, not just creating the appearance of security. Think what you want about corporations, but they do have an interest in thriving and staying in business, surely they can beat these documented failure rates.

Return power to states and localities. Who better knows their communities better than federal bureaucrats in Washington? Federal coordination makes sense - federal control does not.

Bottom Line

The Homeland Security Act was supposed to make us safer by putting everything under one roof and improving coordination between agencies. Instead, it went wasting taxpayer money and making us sacrifice freedoms without making us more secure.

This isn’t an argument to ignore terrorism or abandon law enforcement. It’s an argument for constitutional law enforcement that worked well for over 200 years until politicians entered the fray.

The families of America deserved actual security after 9/11, instead what they got was an expansion of federal authority without corresponding increases in safety. They deserved constitutional enforcement that respected their rights and kept them safe. In this bargain we got a surveillance state that monitors our every move with impunity.

ICE should be abolished not because we want less immigration enforcement, but because we actually want immigration policy that works within constitutional limits. The choice isn’t between safety and freedom - we can have both. Twenty-three years after 9/11, it’s time to admit that creating ICE was a mistake.

References

Primary Government Sources:

H.R.5005 - 107th Congress (2001-2002): Homeland Security Act of 2002 https://congress.gov/bill/107th-congress/house-bill/5005

U.S. Department of Homeland Security - Homeland Security Act of 2002 https://dhs.gov/homeland-security-act-2002

Homeland Security Act of 2002 [Public Law 107–296] - DHS https://dhs.gov/sites/default/files/publications/hr_5005_enr.pdf

Compilation Homeland Security Act of 2002 - GovInfo https://govinfo.gov/content/pkg/CPRT-108HPRT90502/pdf/CPRT-108HPRT90502.pdf

Homeland Security Act of 2002 - Congress.gov Public Law https://congress.gov/107/plaws/publ296/PLAW-107publ296.pdf

Legal and Policy Analysis:

Homeland Security Act of 2002 | Wex - Legal Information Institute https://law.cornell.edu/wex/homeland_security_act_of_2002

Section-by-Section Summary of the Homeland Security Act of 2002 - AILA https://aila.org/section-summary-homeland-security-act-2002

1.1 The Homeland Security Act - USCIS https://uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/10-evidence-of-status-for-certain-categories/11-the-homeland-security-act

Immigration Policy and the Homeland Security Act Reorganization - Migration Policy Institute https://migrationpolicy.org/research/immigration-policy-and-homeland-security-act-reorganization

Testimony on the President’s Proposal for a Homeland Security Department - ACLU https://aclu.org/documents/testimony-presidents-proposal-homeland-security-department

The Department of Homeland Security, 20 Years On - ACLU https://assets.aclu.org/live/uploads/publications/dept_homeland_security_20_years_on.pdf

Building Meaningful Civil Rights and Liberties Oversight at the U.S. Department of Homeland Security - Center for American Progress https://americanprogress.org/article/building-meaningful-civil-rights-and-liberties-oversight-at-the-u-s-department-of-homeland-security/

Reforming the Department of Homeland Security Through Enhanced Oversight & Accountability - CNAS https://cnas.org/publications/reports/reforming-the-department-of-homeland-security-through-enhanced-oversight-accountability

TSA Security Testing:

TSA fails most tests in latest undercover operation at US airports - ABC News https://abcnews.go.com/US/tsa-fails-tests-latest-undercover-operation-us-airports/story

TSA Fails to Find 95 Percent of Weapons in Undercover Tests - Security Today https://securitytoday.com/articles/2015/06/02/tsa-fails-to-find-95-percent-of-weapons-in-undercover-tests.aspx

TSA Fails to Detect Weapons More Than 70 Percent of the Time - Conde Nast Traveler https://cntraveler.com/story/tsa-fails-to-detect-weapons-more-than-70-percent-of-the-time

ICE and Immigration Enforcement Analysis:

A Closer Look at DHS Interior Enforcement Practices - ILRC https://ilrc.org/community-resources/closer-look-dhs-interior-enforcement-practices

Abolish ICE . . . and Then What? - The Yale Law Journal https://yalelawjournal.org/forum/abolish-ice-and-then-what

The Abolish ICE Movement Explained - Brennan Center for Justice https://brennancenter.org/our-work/analysis-opinion/abolish-ice-movement-explained

Once Relatively Obscure, ICE Becomes a Lightning Rod - Migration Policy Institute https://migrationpolicy.org/article/once-relatively-obscure-ice-becomes-lightning-rod

Reference Sources:

Homeland Security Act of 2002 - Wikipedia https://en.wikipedia.org/wiki/Homeland_Security_Act_of_2002

Zadvydas v. Davis, 533 U.S. 678 (2001)

Immigration Detention and Removal Guide, National Immigration Law Center (2006)

Background on Judicial Review of Immigration Decisions, American Immigration Council (2024)

Supreme Court Limits Judicial Oversight on Visa Revocations, Jeelani Law Firm (2024)

Due Process in Immigration Proceedings, U.S. Court of Appeals for the Ninth Circuit (2024)