This originally appeared in Just Security.
This week, congressional appropriators may attach a homeland security spending bill to a broader funding package. If that goes forward, it could let slip the best opportunity before January 2021 for Congress to exercise oversight authority over a Department of Homeland Security veering out of control.
Even before DHS deployed its military-styled law enforcement personnel into the streets of Portland, Oregon, more robust congressional oversight of the department was long overdue. In the 18 years since its creation, DHS has ballooned: It operates with a $50 billion budget and has a workforce of more than 240,000 employees. It is also the country’s largest law enforcement agency, with over 60,000 law enforcement officers. And its activities have grown in parallel, so that they are now substantially out of sync with its statutory mandate. For instance, Homeland Security Investigations, a component of Immigration and Customs Enforcement (ICE), claims the authority to investigate literally any federal crime.
Oversight and accountability of this massive department have lagged far behind. The agency’s sheer size and its sprawling, diverse missions have hobbled effective internal oversight. The secretary’s office is too small (and, in the current administration, too politically pliable) to conduct adequate supervision. Internal controls, guidelines, and coordinating mechanisms are often lacking or woefully insufficient.
Oversight by congressional committees has also been difficult for two reasons. First, jurisdiction over the department is spread across more than 100 committees and subcommittees, creating competition, confusion, and gaps in coverage. That’s why consolidating congressional oversight of DHS remains the most important recommendation of the 9/11 Commission that has never been implemented. Second, the political dialogue concerning immigration and border security specifically has become so polarized that bipartisan cooperation on DHS oversight has been severely strained.
It is no wonder, under these circumstances, that there have been significant problems with the department’s performance. In 2012, a Senate Homeland Security subcommittee report found that the department’s fusion centers “often produced irrelevant, useless or inappropriate intelligence reporting to DHS, and many produced no intelligence reporting whatsoever.” In 2015, Senator Tom Coburn (R-Okla.) released a report concluding: “Despite spending nearly $61 billion annually and $544 billion since 2003, the Department of Homeland Security is not executing any of its five main missions.”
Equally concerning, the actions of the department – particularly its immigration agencies – have been marked by a growing disregard for the rule of law. Documents show that, after President Donald Trump issued his travel ban for seven majority-Muslim countries in January 2017, Customs and Border Protection (CBP) officials deliberately ignored court orders and refused to allow travelers to speak with lawyers. The agency flouted court deadlines to reunite children separated from their parents at the border. It instructed border agents to turn away asylum seekers in violation of the law.
This trend toward lawlessness is on full display in Portland. Videos captured by bystanders show unidentified federal agents, dressed in camouflage, conducting arrests and detentions that look more like kidnapping than law enforcement. Agents are routinely using tear gas and have fired rubber bullets at members of the press. And they appear to have gone far beyond their remit to protect federal facilities, encroaching on state police powers and the Tenth Amendment to the U.S. Constitution. Even the U.S. Attorney for the District of Oregon, an officer in Trump’s own Department of Justice, referred agents’ conduct for further investigation by the DHS Office of Inspector General.
Given this state of affairs, there is no excuse for Congress to rush through another multi-billion-dollar appropriation for the department. Before any funds are made available, Congress should conduct some of the oversight that’s been missing to date.
Congress should start by holding hearings to demand answers about the conduct of DHS agents in Portland (one such hearing is already scheduled for this Friday, but House leadership is still planning to move forward with DHS appropriations in the interim). But it should not stop there. Congress should insist that the president fulfill his constitutional responsibility to nominate a DHS secretary, a position that has been filled by “acting” secretaries since April 2019. It should require the department to develop, modernize and, to the extent consistent with national security, publish operational guidelines ensuring that the department’s law enforcement activities are conducted with appropriate care for constitutional rights and clear channels of accountability. It should commission a thorough outside review of the legal authorities and activities of Homeland Security Investigations. These actions can then inform, not only any conditions or limitations that Congress might want to place on funding, but additional legislative reforms to tackle the department’s many problems.
The DHS appropriations bill that the House plans to consider does include some significant improvements; for instance, it reduces funding for immigration detention and rescinds funding for construction of the border wall. But as the situation in Portland has reminded us, far more needs to be done. The leverage afforded by the appropriations cycle presents the best and perhaps only opportunity for Congress to confront a department run amok.