Homeland Security Watch

News and analysis of critical issues in homeland security

February 11, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on February 11, 2014

This is the tenth in a series of posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text reproduced immediately below.

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Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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Law presumes to frame the future.  It especially endeavors to put boundaries around risk. In making law a tyrant, legislature, judge, regulator, or free persons entering a self-made contract consider possibilities and say: this far and no farther.

Publius (probably Madison) argues, “In republican government, the legislative authority necessarily predominates. ” (Federalist 51)  It was clearly the intent and expectation of the Framers at Philadelphia that Congress would predominate.

In our time this singular authority of Congress has been supplemented.  In 1928 the US Supreme Court found in J.W. Hampton, Jr., & Co. v. United States that legislative authority could be delegated so-long as Congress, “shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform…”

In Mistretta v United States (1989) the Court explained,

Applying this “intelligible principle” test to congressional delegations, our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.

From such small seeds the s0-called Administrative State has grown large, including components of the Department of Homeland Security.  On this legal basis agencies make law (try to frame the future) in a manner consistent with intelligible principles set out by Congress and understandings of emerging context.

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The bicameral character of the federal legislature emerges principally from political compromises used to persuade less populous states to support the Constitution.  The Federalist, see especially No. 62, notes three substantive benefits that might serendipitiously emerge from this political necessity:

First,  two legislative bodies will seriously impede the ability of any foreign or domestic cabal from seizing authority.

Second, longer-serving Senators less responsive to the electorate will help contain the sometime over-wrought passions of the demos. (Recall Senators were not elected directly by voters until 1913.)

Third, by virtue of serving longer — and probably being drawn from those with legislative experience at the state level — Senators are more likely to exercise wisdom regarding the “objects and principles of legislation.”

Further to the third point, Madison (or Hamilton, historians disagree on No. 62) offers:

It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people of the value of those aids which may be expected from a well constituted senate?

More than two centuries of legislative history convinces me of these bicameral benefits.  But the decade-plus since the Department of Homeland Security’s creation has coincided with a particular trough in Congressional effectiveness.  Over this period a case can be made that one body or the other has served to mitigate a greater harm originating in the other body.  But over this particular time in regard to homeland security, two chambers has probably meant mostly double-trouble.

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8 Comments »

Comment by William R. Cumming

February 11, 2014 @ 2:54 am

A brilliant and interesting post brimming with opportunities for comment and thoughtful analysis!

First, missed almost completely by the Founders is what has come to be called the NATIONAL SECURITY STATE! Largely erected by the impact of WWII and the Atomic Age [see for example Gary Wills' BOMB POWER] the NSS was probably a necessary response to the rise of Hitler and Stalin. Unfortunately as always occurred as far back as the Peleponesian [sic] Wars enemies learn often from their enemies.

I could argue that our Constitution has largely been shredded by the NSS and its secrecy. It is said that the current President spends 2/3rds of his time on military and FP issues. Yet his State of the Union message was silent on the NSS.

And the incorporation without analysis of HLS into NSS was simply co-option IMO of a stronger bureaucracy of a weaker one largely out of hubris and ignorance since the NSS bureaucracy has largely destroyed the Constitution while pretending to defend it.

Some might ask why National Security Law is the most popular elective in American Law Schools [it did not exist as a subject before Ronald Reagan's Administration] and far outshines Constitutional Law as far as demand.

Comment by William R. Cumming

February 11, 2014 @ 3:18 am

It is very important to understand that the concept of DELEGATION BY CONGRESS that led to the creation of the modern Administrative State primarily during the NEW DEAL and allowed a strong legislative branch to exist at the federal level is totally separate and apart from the NSS! WHY?

The Administrative State relies on the concept of an administrative record created to support official actions and prevent arbitrary and capricious decision-making! The NSS has no administrative record, primarily because of secrecy, and therefore almost all of its decisions are arbitrary and capricious.

Recommend all read Senator Patrick Daniel Moynihan’s last book SECRECY!

Comment by William R. Cumming

February 11, 2014 @ 3:25 am

Note SECRECY listed below the next to last book, not the last!

Extract from Wikipedia:

Career as scholar

In addition to his career as a politician and a diplomat, Moynihan worked as a sociologist. He was Director of the Joint Center for Urban Studies at Harvard University and the Massachusetts Institute of Technology, as well as a Fellow on the faculty in the Center for Advanced Studies at Wesleyan University from 1964 to 1967. In magazines such as Commentary and The Public Interest, he published articles on urban ethnic politics and on the problems of the poor in cities of the Northeast.

Moynihan coined the term “professionalization of reform,” by which the government bureaucracy thinks up problems for government to solve rather than simply responding to problems identified elsewhere.[37]

Soon after his 1971 return to Harvard, having served two years in the Nixon White House as Counselor to the President, Moynihan became a professor in the Department of Government. In 1983 he was awarded the Hubert H. Humphrey Award given by the American Political Science Association “in recognition of notable public service by a political scientist.”[citation needed] He wrote 19 books, leading his personal friend, columnist and former professor George F. Will, to remark that Dr. Moynihan “wrote more books than most senators have read.” He also joined the Maxwell School of Citizenship and Public Affairs as a public administration faculty after retiring from the Senate.

Moynihan’s scholarly accomplishments led Michael Barone, writing in the Almanac of American Politics to describe the senator as “the nation’s best thinker among politicians since Lincoln and its best politician among thinkers since Jefferson.”[38] Moynihan’s 1993 article, “Defining Deviancy Down”,[39] was notably controversial.[40][41]
Selected books

Beyond the Melting Pot, an influential study of American ethnicity, which he co-authored with Nathan Glazer (1963)
The Negro Family: The Case for National Action, known as the Moynihan Report (1965)
Maximum Feasible Misunderstanding: Community Action in the War on Poverty (1969) ISBN 0-02-922000-9
Violent Crimes (1970) ISBN 0-8076-6053-1
Coping: Essays on the Practice of Government (1973) ISBN 0-394-48324-3
The Politics of a Guaranteed Income: The Nixon Administration and the Family Assistance Plan (1973) ISBN 0-394-46354-4.
Business and Society in Change (1975) OCLC 1440432
A Dangerous Place (1978) ISBN 0-316-58699-4
Best Editorial Cartoons of the Year, 1980 (1980) ISBN 1-56554-516-8
Family and Nation: The Godkin Lectures (1986) ISBN 0-15-630140-7
Came the Revolution (1988)
On the Law of Nations (1990) ISBN 0-674-63576-0
Pandaemonium: Ethnicity in International Politics (1994) ISBN 0-19-827946-9
Miles to Go: A Personal History of Social Policy (1996) ISBN 0-674-57441-9
Secrecy: The American Experience (1998) ISBN 0-300-08079-4
Future of the Family (2003) ISBN 0-87154-628-0

Comment by William R. Cumming

February 11, 2014 @ 8:32 am

Probably should have mentioned that Administrative law has its own knowledge basis and competencies.

Fewer than 4% of all lawyers admitted to all State Bars [there is no federal bar but there is a tiny shadow of the ABA called the Federal Bar Association] actually appear in State or federal courts [even administrative courts] as a paid lawyer representing a paying client!

And now over 50% of all law school grads are either never admitted to a State Bar or never practice law with paid or pro bono clients.

But lawyers do dominate federal and state legislatures.

The Legal Profession is badly in need of supervision from outside the profession. Lawyers have always furnished two things. One is information now often readily available elsewhere and cheaper. They also used to furnish judgment on legal issues often obtained at great difficulty over a lifetime of experience. Both Hamilton and Madison were lawyers.

Now however the signature of a lawyer often obtained as cheap as possible and the client does not even ask for the best legal approach but simply for the lawyer to ratify the action without opinion.

Even though lawyers admitted to the Bar are officers of the court, few judges take the time to help the State Bars police miscreants.

Comment by john comiskey

February 11, 2014 @ 8:43 am

National Security and most lately homeland security has assumed a larger role in American governance. As Bill argued, WWII and the Cold War were the impetus for the NSC.

9/11 was the impetus for the former Homeland Security Council (now part of the NSS).

I depart from Bill’s argument that the NSC largely destroyed the Constitution while pretending to defend it. The NSC and the former HSC do defend the Constitution. On occassion, there may have been errors in judgement and perhaps wrongdoings on the part of a few.

Atomic and nuclear bombs and terrorists who hijack planes and crash them into buildings are real threats. The Constitution dictates that the executive provide for the common defense.

National and homeland security are necessarily secret. Moynihan-like protectors of civil liberties serve to maintain the balance.

Note: the U.S. Constitution was also born of a largely secretive process and necessarily so.
Balancing fundamental rights with the need to protect requires compromise.

President Bush and President Obama have done a “fair” job of maintaining that balance. A rating of “fair” in balancing civil rights with national and homeland security is a great grade. While we strive for perfection, we might somehow achieve excellence.

Note: The last sentence is a paraphrase of Vincent Lombardi’s “Gentlemen, we will chase perfection, and we will chase it relentlessly, knowing all the while we can never attain it. But along the way, we shall catch excellence.”

Comment by Arnold Bogis

February 12, 2014 @ 1:35 am

John,

I would argue with one of your points: “National and homeland security are necessarily secret.”

Much of national security secrecy grew out of the nuclear age. If we are to believe, or desire, that homeland security be all hazards, I would argue that most-to-almost-all related information should be non-secret, non-FOUO, and open for all citizens to access.

Or should whole of community really mean that part of the community that has a clearance or is “official?”

Comment by William R. Cumming

February 12, 2014 @ 2:05 am

Thanks John and Arnold for thoughtful arguments!

In part, not totally, I argue from a position that money talks. Given that position the miniscule funding of say the State Department vis a vis DoD and the IC what is our reality? Should not the USA adequately fund study of the languages and cultures of the world instead of having such a militarized FP?

Sometimes the NSS will adopt an excellent guideline to police itself and protect the Constitution and then neither staffs or funds enforcement of that guideline.

The danger sign for me is when officialdom feels entitled as opposed to service to the Republic. Technically, secrecy is not supposed to be used to protect waste, fraud,and abuse. Yet many OIG’s have no access to classified programs, functions, and activities. And just because some General Counsel’s and Chief Counsel’s have been given clearances to have access to classified programs, functions,and activities does not mean they have conducted appropriate legal review of those programs.

The Attorney General of the US is not a statutory member of the National Security Council. Only two, Robert Kennedy and Edward Meese, have been Ex Officio members throughout the Administrations they served.

Senator Fritz Hollins of S.C. brought the U.S. Senate to within one vote of adding the AG to the NSC.

This failed reform, if adopted, would be a start in my opinion of properly defending the Constitution from erosion from operations of the NSS.

Comment by William R. Cumming

February 12, 2014 @ 2:16 am

The National Security Council, created by the National Security Act of 1947, as amended, has as its primary function integration of foreign policy, military policy, and domestic policy to protect the NATIONAL SECURITY of the U.S.

It is is supposed to be a coordinative agency by its statutory charter not an operational one. It once was a largely civilian agency but now staffed heavily by serving military officers. Reform might well reduce that militarization.

A quick read of the last decade book “Running the World” that is a light history of the NSC since its creation might give some insights to that organization unintended by the author.
author.

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