The Homeland Security Act

December 2, 2001

by Charles E. Perry

A number of people are wondering if the Homeland Security Act is constitutional. They fear that it creates an American Gestapo, and that our rights will be thrown out in the name of security. Well, why don’t we just take a look at it and see for ourselves? That makes more sense than gnawing our fingernails and spewing rhetoric.

Section 1 of the Homeland Security Act gives us the short title of the act. Nothing unconstitutional there. Section 2 lists the findings of Congress which led to the act. Nothing unconstitutional there either. Both of those, in fact, are standard for laws passed by Congress. Nothing to worry about so far.

Section 3 establishes the Homeland Security Agency and lists its duties. In and of itself, there is nothing unconstitutional about establishing such an agency, since national defense is a power granted to Congress. There is nothing to say they cannot establish an agency to help in that effort. But what of the duties? Are any of them unconstitutional?

The first duty is: "To plan, coordinate, and integrate those United States Government activities relating to homeland security, including border security and emergency preparedness, and to act as a focal point regarding natural and manmade crises and emergency planning." No constitutional violation there. Those are all legitimate functions of government under the Constitution.

The second duty listed is: "To work with State and local governments and executive agencies in protecting United States homeland security, and to support State officials through the use of regional offices around the country." The federal government already does this, under the civil defense act. Does anyone think that act was unconstitutional?

The third duty: "To provide overall planning guidance to executive agencies regarding United States homeland security." And the fourth duty: "To conduct exercise and training programs for employees of the Agency and establish effective command and control procedures for the full range of potential contingencies regarding United States homeland security, including contingencies that require the substantial support of military assets." And the fifth and final duty: "To annually develop a Federal response plan for homeland security and emergency preparedness." I can’t find anything unconstitutional in any of it.

Section 4 transfers existing personnel and assets to the agency. Now, I’ve read the Constitution many times, and I can’t find a thing in it that forbids Congress from transferring people and assets from one agency of the federal to another. Nor can I see anything in it that threatens our basic liberties.

Section 5 creates three Directorates within the agency. The first is the Directorate of Prevention, which is to oversee internal security matters. The second is the Directorate of Infrastructure Protection, whose chief job is to come up with ways to protect our technology and the Internet. The third is the Directorate for Emergency Preparedness and Response, which combines the jobs of some other federal agencies. There is nothing inherently unconstitutional in any of it.

Sections 6 through 9 cover reporting requirements, budgeting requirements, EPA requirements, and the like. Pretty tame and boring stuff.

Having read the act, I have to wonder what the noise was all about. Like any federal agency, we should keep our eye on any regulations they promulgate, but the whole thing looks like it might be a good idea to me. Good ideas are rare in Washington, to be sure, and nobody can foresee all the consequences of any given law, but putting border security under one agency strikes me as reasonable. It may even help us keep better track of people residing in our country on visas. Since some of the hijackers of the September 11 attack were here on expired visas, that strikes me as a good idea.

No, I think the brouhaha about the act is just another example of partisan politics in action, with Democrats seeking ways to strike out at Bush while seeming to support him. By all means, let’s keep an eye on the agency. Let’s make sure that the regulations it makes never violates the Constitution, but let’s not get paranoid about it.

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Charles E. Perry is a freelance writer living in Michigan. He has done a variety of things in his life, including Ward Supervisor at the State of Michigan's Maximum Security Mental Facility. His degree is in accounting, but he discovered writing and now spends his time hunched over a keyboard, hollow-eyed, looking for just the right word. Perry is the author of "How Government Should Work: A Look at the Federalist Papers and the Constitution of the United States," currently pending publication.

Send the author an E mail at Perry@ConservativeTruth.org.

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