Reflections on Homeland Security and American Federalism
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Source: Brookings Institute.
Reflections on Homeland Security and American Federalism
Working Paper, May 13, 2002
Pietro S. Nivola, Senior Fellow,
Not the least of the many basic questions surrounding policy for
homeland security are these: Which tasks deserve the most
attention? And what level of government ought to handle them?
Surely, no society can seek to safeguard every conceivable target
of terrorism. Priorities have to be set. It is not yet clear how well
this process is proceeding. In recent months there has been much
talk, for example, about the vulnerability of nuclear power plants.
Yet, the chances that a terrorist attack could turn any U.S. nuclear installation into a
Chernobyl are practically nil. Concern would be better directed at hardening other
sites, like commercial chemical plants. (About as many people died in 1984 when
methyl isocyanate leaked from a plant in Bhopal, India, as perished in the World
Many hundreds of millions of dollars will be lavished on
newly federalized airport security systems. It remains hard
to tell how cost-effective the massive investment will be.
Politics are complicating matters. Contrary to the
politically correct norms still in effect, for instance, airport
screeners should be trained to do some form of profiling,
thereby singling out for extra scrutiny the passengers that
might pose a risk. Instead, the current practice appears to
rely on random searches—which means that an
85-year-old lady accompanied by family members is about as likely to be closely
searched as, let us say, a young male "student" from the Middle East traveling
alone. Absent greater application of common sense in the choice of basic
procedures, no amount of money will secure the airports.
Actually, there is even the possibility that a monomaniacal preoccupation with
airplane safety may distract from other important missions. Few countries, if any,
seem to have fully mastered the art of securing air travel. Airport security in France
has long been tighter than in the United States. But last December, one Richard C.
Reid (a.k.a. the "shoe bomber") boarded his plane in Paris. Israeli security measures
are said to be the world's best. Yet, long before his attempt to blow up an American
Airlines flight bound from Paris to Miami, the same Mr. Reid—who was an al
Qaeda-trained terrorist—somehow had managed to fly in and out of Israel.
The persistent lapses, not only here but
elsewhere, are troublesome—but eliminating them
is probably impossible. And in the meantime,
other work also needs to be done. Something is
out of whack when politicians fixate on failsafe
screening of passengers and suitcases loaded
onto airplanes, but then overlook, say, the
containers on ships, or the persons and freight on
trains and trucks that travel to highly populated areas, over defenseless bridges, and
through long unprotected tunnels.
Hopefully, as the first wave of war-time hysteria recedes, policymakers in
Washington will feel their way toward more discriminating assessments of the
dangers we confront, so that lopsided resources will not be allocated to minimizing
marginal risks, or imaginary ones, or ones that are simply infeasible to reduce at all.
But notice: The science in these determinations will remain inexact, and no federal
homeland-security czar can be omniscient. Like it or not, much will be left to chance
and educated guesswork.
And in any event, much of the toil of attending to the public health and safety has to
transpire outside the Beltway. Although federal planners might be able to anticipate
some of the specific threats that lie ahead, and can help implement suitable
precautions, at the end of the day, a great deal will depend on the agility of local
authorities. For in this vast country—with 3,540,000 square miles of territory, 12,383
miles of coastline, and at least 75 major population centers to protect—the
imaginable targets of opportunity for mass murderers are extensive. To the extent
that government bureaucracies have the ability to prepare communities for the worst
eventualities, and can respond effectively in an emergency, the responsibility will rest
in large part with local agencies that are closest, so to speak, to the facts on the
Giving a Hand
To do their part effectively, state and local governments can certainly use further
cooperation from Washington. Intergovernmental channels of communication are in
need of improvement. Local police could make a larger contribution to
counter-terrorism if federal intelligence and law enforcement agencies enhance,
coordinate and then share their relevant data bases expeditiously. Suppose that
before September 11th a less gullible federal government had fathomed certain
interesting information about the infamous Mohamed Atta. And suppose that back in
April 2001, when Mr. Atta was caught motoring north of Miami without a drivers'
license and then failed to show up for his court date, the Florida police had learned a
bit more about him. A local bench warrant that had been issued for his arrest might
not have collected quite so much dust. Instead, Mr. Atta was free to tool around the
country over the next several months.1
Local governments also need some additional financial support. The budgets of more
than just a couple of front-line cities took a hit in the weeks and months following the
terrorist assaults on New York and Washington. Boston found itself spending
$100,000 a week on police overtime pay alone. Baltimore disbursed an unexpected
$2.6 million for security costs in just over a month, and feared the bill would run to
almost $16 million by the end of the fiscal year. Year-end predictions for Dallas were
$6 million, and for New Orleans $10 million. These and other unplanned expenses
arrived as local economies, and revenues, were already deteriorating.
President Bush's recent budget proposal would significantly increase federal funding
to shore up the capabilities of "first responders"—that is, local law enforcement
officers, firefighters, rescue squads, medical personnel, and systems of public health
delivery (to deal with possible bioterrorism, for instance). The added assistance is
timely. In inflation-adjusted dollars, overall federal aid to major cities had diminished
substantially in the course of the past twenty years. Though recouping moderately in
the second half of the 1990s, the level of support at the end of the decade still had
not returned to that of the mid-1980s. Particularly under the present circumstances,
a judicious increase seems warranted.
Less widely recognized, however, has been a more basic imperative: The need to
relieve burdens imposed by a number of intrusive, and fastidious, national
regulations. Intermittently over the past forty years, federal lawmakers, bureaucrats,
and judges have piled on rules and rulings that can strain the limited resources and
administrative capacities of local governments.
Federal law these days reaches into the day-to-day management of virtually every
municipal function—affecting employment protocols, school policies, public works
contracting, water purification, garbage disposal, air-quality controls, sewer lines,
police practices, correctional facilities, even sidewalk renovations, fire prevention
procedures, and the operation of city buses. Some of the strictures serve worthy
national purposes—such as protecting constitutional rights, controlling pollution that
may spill across jurisdictions, or assisting persons with serious physical
disabilities—but others seem hard to justify
Consider the regulation of town drinking water. If toxic agents in the water we drink
were a pervasive problem commonly seeping across jurisdictional lines, a conclusive
case could be made for stringent federal oversight. But the fact is that harmful water
is a relatively rare and largely localized phenomenon. "For all but a few biological
contaminants in drinking water," writes Paul R. Portney of the Resources for the
Future, "the risks linked with higher concentrations of most contaminants would be
borne only by those who consume the affected water for a lifetime. Why, then, not
allow the states, or perhaps even individual communities, to decide how stringently
they wish to regulate their drinking water?"
Similarly, if left to their own devices, how many cities are likely to fight fires so
ineptly that they require a federally approved manual for how to deploy their
personnel? And do federal regulators really have to instruct the operators of local
public transportation authorities in such particulars as where to permit passengers to
stand when riding a bus? Yet, all this minutiae and more is, in one manner or
another, subject to the central government's supervision.
Luxuries of a Bygone Era
The trouble with the accretion of federal instructions is at least twofold. First, when
added up, the compliance costs can amount to an extra tax on localities—an
exaction that is sometimes undeserved and ought to be cut or compensated. To put
matters in perspective, think about the position in which New York City now finds
itself. The destruction of the Twin Towers promptly blew a $4 billion hole in the city's
budget. The damage will add to already mountainous debts. (The Big Apple has more
loans outstanding than the entire public debt of the state of California.) For good
measure, however, New York is still being asked to finance a multitude of federally
mandated projects—including within this decade such items as $8 billion in
water-quality improvements alone.
No doubt, some of these expenditures will be money well spent. The nation has
reason to demand that municipal water systems be secured against grave dangers,
including deadly contamination by terrorists. But less comprehensible, in a world
besieged by real menaces, are stern central directives that also obligate local
taxpayers to execute green mandates so risk-averse, they must all but wipe out even
commonplace impurities that can cause little harm to the immediate community,
much less its neighbors. To add this fiscal baggage to cities that already have their
hands full grappling with post-September 11th exigencies is inopportune, if not
A second, unsettling side of the federal government's tutelage is that some of it has
seemed to debilitate, more than fortify, key local services that would have to do the
heavy lifting (often literally) in the event of terrorists attacks. For years, local fire
departments have been dragged into the federal courts to face lawsuits by plaintiffs
claiming that vigorous strength and endurance tests for recruits are discriminatory.
Walter K. Olson, in a revealing book on U.S. workplace regulation, recounts how the
Los Angeles department agreed to abandon timed physical tests altogether. Many
courts, he notes, struck down tests that involved lifting hoses, or rescue-simulations
using dummies. San Francisco, a city that had gone up in flames at other times in
its history, understandably used to expect prospective firefighters to lift a 150-pound
sack up a flight of stairs. Under pressure, the department later consented to a test
that consisted of pulling a 40-pound weight across a smooth floor.
Local police forces have encountered similar legal challenges under federal anti-bias
statutes. Threatened by litigation a number of years ago, the New York Police
Department suspended for a while its pre-employment physical for new hires. Soon,
according to Olson's account, more than one in five of New York's "finest" was said
to be out of shape. Evidently, by the time Islamic fanatics managed to devastate a
large swath of lower Manhattan, the NYPD had overcome, or figured out how to
compensate for, its constraints. (New York's police and firemen were nothing if not
heroic amid the inferno of September 11th.) Still, the fine-points of fairness in fitness
tests were arguably the last thing that should preoccupy the first responders in any
city as they brace for something less delicate—a war.
This is not to say that policymakers have taken no recent steps to disencumber
state and local governments from some awkward federal laws and lawsuits. Last
year, the Justice Department signaled that its policies were changing: It pulled out of
a suit wherein complainants had accused a local transportation agency in
Pennsylvania of administering an overly strenuous aerobics test for its security-force
applicants. And around the country there have been other notable adjustments.
For example, in September 2000 a federal judge in Philadelphia finally released that
city from an 18-year consent decree governing the local jails. The decree, which had
resulted from a civil rights case filed in the early 1980s, had sought to relieve
overcrowding by narrowing the classes of crimes for which defendants could be jailed
and by ordering the early release of pretrial detainees. Alas, that remedy meant that
hundreds of suspects charged with "non-violent" crimes—which could include
car-jacking, stalking, robbery, drug dealing, manslaughter, or making terrorist
threats—were prematurely ushered back onto the street. Many then failed to show
up for trial, and proceeded to commit new, often more serious crimes.
For the citizens of Philadelphia, the end of this permissive judicial experiment has
been, to put it mildly, an appropriate correction. Philadelphia's crime rate had
remained exceptionally high through the 1990s. To effectively combat it and acts of
terror, too, local officials could not continue to operate under all the court-ordered
restraints that litigants had successfully interposed until very recently.
More generally, of late Congress has legislated fewer burdensome requirements. In
1995, it enacted a measure intended to kick the congressional habit of heaping
expensive obligations on states and localities but not appropriating the money to help
them comply. This so-called Unfunded Mandates Reform Act hardly halted the
production of legislative prescriptions and prohibitions that have greatly complicated
local public administration, but the statute has subjected them to closer inspection.
The procedural checks have not been inconsequential. The Congressional Budget
Office reported that the number of bills containing intergovernmental mandates (that
entailed substantial costs for local governments) declined by about two-thirds
between 1996 and 2000.
But these welcome developments notwithstanding, the residue of incongruous federal
infringements remains considerable, and the local public sector still labors
strenuously to cope with many of them. For a striking illustration, ponder the current
tribulations of the Los Angeles Police Department. Since November 2000, Los
Angeles has been struggling with an elaborate consent decree that not only prohibits
police officers from "relying" on race, ethnicity, or national origin when making traffic
and pedestrian stops, but also requires the department to compile data on the race,
ethnicity, or national origin of persons who were subject to such stops, and to
scrutinize this information for signs of bias or other improper police conduct.
Whatever the merits of the federal intervention (purging racial profiling, correcting
"discriminatory policing," and so on), realistically, how does it help the undermanned
LAPD meet the onslaught of terrorist threats, not to mention a new wave of violent
street crime, in the City of Angels? (With its morale frayed and its resources sorely
stretched, the LAPD responded to no fewer than 375 credible bomb scares in a
single month following September 11th.)
Sorting Out the Roles
Washington could do more to desist from dabbling counterproductively in the details
of municipal staffing decisions, safety standards, routine criminal justice, and many
other mundane tasks of homeland guardianship. Figuring out a sensible
disengagement, however, implies reopening a big and unsettled debate: What are the
proper spheres of national and local jurisdiction?
Jurists and theorists of federalism have wrestled with that dilemma for ages. At the
height of the Cold War, when American cities were thought to be in imminent danger
of nuclear attack, the Eisenhower administration commissioned scholarly studies,
not only to prepare for the worst, but also to delineate a sound division of labor
among levels of government. The results tended to be faintly prosaic. A 1955 report,
titled Civil Defense and Urban Vulnerability, concluded that "intergovernmental
responsibilities" were "inappropriately defined and assigned," and then wound up
recommending solutions such as more "national financial assistance to states and
During an earlier era, the latter third of the nineteenth century and the first third of the
twentieth, the Supreme Court strove repeatedly to parse activities that Congress
could constitutionally regulate and activities that would remain under the aegis of the
states and local communities. The upshot was a welter of seemingly arbitrary
distinctions: Federal laws governing the movement of lottery tickets, liquor,
prostitutes, and harmful foods and drugs were upheld, while other basic
functions—including manufacturing, insurance, and farming—were classified as
intrastate commerce, hence left to state regulators. By the 1940s, the court had all
but given up trying to sustain such differentiations.
Some would persist, however. For example, according to the court, the Commerce
Clause duly empowered Congress to tell the city of San Antonio how to pay its
transit system operators, but somehow the same clause did not give Congress the
power to direct local police to perform background checks on prospective gun
purchasers. Arguably, in the age of terrorism, these sorts of juxtapositions may
seem especially odd.
A clean and stable demarcation between federal and local roles has proven
impossible to draw over time—and of course I do not pretend to offer one here.
Nonetheless, there ought to be some middle ground between either persevering
stubbornly with futile theories of duel sovereignty or throwing up one's hands and
accepting the proposition that the concerns of national and local authorities can only
be randomly distributed. A modicum of clarification is in order.
During the last eight years, for instance, so many offenses were swept into the grip
of the federal penal code that judges and even a number of lawmakers began
expressing bewilderment. "We federalize everything that walks, talks, and moves,"
complained Senator Joseph Biden of Delaware. "The pressure in Congress to appear
responsive to every highly publicized societal ill or sensational crime" also gave
pause to Chief Justice William H. Rehnquist. Writing in 1998, he urged Congress to
ask itself "whether we want most of our legal relationships decided at the national
rather than local level." The skeptics had a point. Particularly today, chasing car
thieves, medicinal marijuana users, unwitting wetlands trespassers, and deadbeat
dads does not seem like the best way for federal law enforcement to spend its time.
The federal government would do better to concentrate on its distinct and larger
competences. In the war on terrorism these include, first and foremost, gathering
solid intelligence, patrolling borders, destroying terrorist organizations, confronting
any foreign power that aids and abets them, and defending the United States of
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