Homeland Security Watch

News and analysis of critical issues in homeland security

March 12, 2009

Homeland Security and Real Federalism

Filed under: Budgets and Spending,State and Local HLS — by Philip J. Palin on March 12, 2009

Matt Mayer at the Heritage Foundation has completed an important study analyzing federal, state, and local funding of homeland security.

The report emphasizes that homeland security is a “national enterprise.”  It also highlights that the federal role in the national enterprise is comparatively modest.  Mr. Mayer writes that in homeland security, “the instruments of national power do not reside on the banks of the Potomac River. Rather, the instruments of national power reside in the 50 state capitals and in the countless city halls and county commissions that appropriate billions of dollars annually for the men and women who patrol our streets, investigate potential terrorist plots, extinguish our structural and wild land fires, and respond in times of crises.”

Building on Chris Bellavita’s comments yesterday morning, the report describes one cloud after another cloud billowing across the horizon.  Instead of giving you the CliffsNotes version, please read the whole report.

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Comment by William R. Cumming

March 12, 2009 @ 8:17 am

A very useful and interesting report. What has really started to occur though is that the federal funding stream as supplemented by the STATES and LOCALs on Homeland Security continues to be somewhat incoherent as to results. The report also does not really look at the $50 B put out through HHS and CDC on Bioterroism and Pandemic Preparedness and Planning since passage of the Bioterrorism Preparedness and Response Act of 2002, as amended. The Public Health system had been allowed to spin down way to far since the 60’s and part of the money was just to help recover from that deficit. Local epidemiologists (sic) for example are a crucial link in health preparedness.
Above and beyond that the STATES really have to decide whether and when they are going to try and keep in place all of the 90,000 units of local government that they have allowed to develop. The 3400 counties are clearly necessary but even here there are almost 400 that have lost population in the last 50 years. Preparedness consists of personnel, equipment, training, exercises, resource and mobilization systems and the ability to expand through mutual assistance pacts and other approaches. The most successful state effort largely arising out of use of the National Guard for humanitarian purposes has been the rise of EMAC (Emergency Management Assistance Compact) which is triggered by the STATES and the Governors. That system really helps keep the FEDS from having to do everything and thus the FEDS should agree in advance, and amend the Stafford Act if necessary, to leave discretion with the Governors to trigger EMAC but allow direct federal funding for EMAC operations and even preparedness. Also the role and the capability of the National Guard in each state should be examined closely. This I call the STATE ROLE OF THE GUARD which is the term used in a NAPA study mandated by Congress and performed under FEMA auspices in the mid-90’s. The recommendations of that report should be acted upon.
Finally, a thorough study of the STATE and LOCAL role in domestic civil crisis management should be conducted. We have a federal system under the Constitution and the relationship of the Article One, Section 8 provision that Congress shall have the power “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions;” should be closely studied and its relationship to Article IV, Section 4 of the Constitution that provides “The United States shall guarantee to every State in this Union a Republican Form of Government; and on Application of the Legislature, or of the Exective 9when the Legislature cannot be convened) against domestic violence.”

All of the above has been the subject of terribly confused analysis by the lawyers in my judgement because of Title 18 of the US Code’s Posse Commitatus provision. This statute is alarmingly vague and its amendments are not at all clear. That statute should be clearly amended to indicate that it is only the federal criminal code and state criminal codes that cannot be enforced by actively serving federal troops including those National Guard individuals and units activate under Title 10 as opposed to their normal administration under Title 32 of the US Code. The last time that SCOTUS looked at the issue of the NG’s deployment was Persico v. US in 1983 in ruling that the dual oath to the STATE and Federal government taken by NG forces allowed overseas deployment of non-federalized NG units for training. Again the issues of federalism are both strength and weakness but there is no execuse for not doing the tough work of making the system respond to modern threats.

Comment by William R. Cumming

March 12, 2009 @ 8:21 am

Correction–Perpich vs US! Perpich was the Governor of Minnesota.

Comment by J.

March 12, 2009 @ 12:12 pm

I don’t get the criticism (not just by the author of the report) that DHS ought to attempt to rate the risk and capability of each state/city that gets federal funds. Talk about a no-win situation. How do you argue that Pittsburgh is less at risk than San Diego? God forbid if NYC doesn’t get the top slot every year, they will scream bloody murder. If you do it right, the politicians will skin you alive. If you continue the status quo, then you get blamed for underpaying someone. Far easier just to chop up the pie equally.

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