The good news is that, for the first time in a long time, Congress has fulfilled its constitutional duty to pass appropriations bills for nearly all of the federal government (albeit late). The bad news is that DHS funding is currently stalled, and may remain halted for a while, thanks to Democratic complaints about immigration enforcement. Note that even though voters may disapprove of ICE tactics, they still widely approve of deporting those here illegally. More importantly, though, it’s a reckless gamble verging on madness for Congress to assign so many critical duties to one department and then refuse to fund them.
Present at the Beginning
My colleague George Fishman and I were present at the beginning of the Department of Homeland Security, and played some small role in its birth when we served as legislative counsels on the House Judiciary Committee on and in the wake of September 11th.
The terrorist attacks that day were the rationale for creating a single department to oversee “security” in the “homeland” (as opposed to the Department of War, which assumes that responsibility elsewhere), but as I have explained in the past, immigration failures were the catalyst that drove the passage of Pub. L. 107-609, the “Homeland Security Act of 2002” (HSA).
Many members of Congress were ambivalent about the then-George W. Bush administration’s call to create the agency until March 11, 2002 — six months to the day after the September 11th attacks.
That day, the then-Immigration and Naturalization Service (INS) informed Huffman Aviation, a flight school in Venice, Fla., that M-1 student visas had been approved for two of its former pupils, Mohamed Atta and Marwan Al Shehhi — 9/11 terrorists who'd been dead for six months, and the respective pilots of the planes they crashed into the Twin Towers of the World Trade Center that day.
The outrage was palpable, but not unexpected. Not only must INS be abolished, members demanded, but every agency with a “homeland security” duty had to be stripped down to the studs, rebuilt, and moved under the control of a single secretary.
The Terror and the Reaction
My concentration of study in college was revolutions, and when I was studying the post-revolutionary “Reign of Terror” in France, my professor quoted Maximilien Robespierre to underscore the violence of that era: “My most fervent wish is that all of Paris had but one neck.”
That quote is likely apocryphal, but when the Jacobin leader was at the height of his power, he likely would have adopted it: Guillotining “enemies of the state” was his passion, and Robespierre saw potential enemies worthy of decapitation everywhere until his own appointment with “the razor”.
Ironically (in French revolutionary terms), Congress’s reactive creation of DHS established a homeland security structure with two metaphorical “necks”: the secretary who oversees all of the department’s key activities; and 22 formerly disparate departments and agencies that now shared one funding source.
The DHS Secretary’s Overwhelming Portfolio
DHS Secretary Kristi Noem now oversees, and more importantly “leads”, many key security agencies: ICE, CBP, the U.S. Coast Guard (USCG), the Transportation Security Agency (TSA), the Federal Protective Service (FPS), FEMA, and the U.S. Secret Service (USSS).
If that’s not a sufficient burden, the secretary is also responsible for preventing a weapon of mass destruction (WMD) from threatening the United States and for cybersecurity.
Most Americans likely remember the regular congressional grilling Noem’s predecessor, Alejandro Mayorkas, received for the border disaster, but have probably forgotten the times he was forced to answer for the USSS (in Butler, Pa., in particular), the Cybersecurity and Infrastructure Security Agency (CISA), FEMA (notably in the wake of Hurricane Helene), and the USCG.
He likely would have faced worse had Democrats not controlled the House during the first half of the Biden administration, or if he had shown up to more hearings.
As St. Lawrence proclaimed as he was being martyred on a gridiron over a fire, “Turn me over! I am done on this side.”
Part of the visceral response Mayorkas inspired had to do with the man and his policies, but if he’d had a slimmer portfolio, he likely would have had an easier time (and possibly not gotten impeached). Noem might not be sympathetic to Mayorkas’s plight but probably has some empathy now that she’s a year into the job herself.
The Appropriations
Depending on how you count it, DHS funding represents a tiny portion of the federal budget, somewhere between 1.3 percent and 3 percent.
But as the foregoing reveals, that money is crucial to our internal security, thanks to the reactive way Congress passed the HSA and created DHS.
The Coast Guard was originally in the Treasury Department with Secret Service; FPS was part of the General Services Administration; TSA was only created in November 2001, but spent its early months in the Department of Transportation; FEMA had been an independent agency prior to passage of the HSA; and as noted, ICE and CBP came from the INS, itself part of the Department of Justice.
Unless and until Congress sends some or all those agencies back to their original homes, or spins them off elsewhere, it has an obligation to fund them or run the risk that our airlines won’t be safe, our border secure, our disasters addressed, our coasts guarded, or our high-ranking political officials protected.
Many of the president’s opponents likely don’t care if Donald Trump has protection (or assume he could pay for it himself), but Secret Service agents also safeguard figures they care more about, like Barack and Michelle Obama, Bill and Hillary Clinton, and countless foreign leaders who land on our shores.
There are better ways for congressional critics of ICE enforcement to express their pique than by suspending critical DHS funding indefinitely, particularly given the number of Republicans who have expressed their own concerns about the agency.
That said, congressional Democrats know that their Republican colleagues always take the blame for government shutdowns — regardless of whether they hold the majority or the White House — thanks to a largely supportive media.
The Threat of Overreach and the Continued Popularity of Immigration Enforcement
The threat of “overreach” may haunt this shutdown, however.
While many Americans were disturbed by images coming out of Minneapolis, “immigration” and “national security” remain Trump’s most popular issues, and the latest Harvard/Harris poll reveals that nearly three-quarters (73 percent) of voters favor “deporting immigrants who are here illegally and have committed crimes”, and more than half (52 percent) support “deporting all immigrants who are here illegally”.
That said, 55 percent of respondents to that poll “disapprove” of how ICE and CBP “are enforcing immigration laws inside U.S. cities” (including 65 percent of Independents), and 40 percent “strongly” disapprove.
In other words, the goals of Trump’s immigration enforcement scheme remain popular, but the tactics? At this point, not so much.
Often, leaders faced with such a disconnect will change up leadership, but Trump is sticking with Noem (for now). That said, the president’s choice to send “Border Czar” Tom Homan to run ICE operations in Minnesota was greeted with relief, if not widespread support, and eased tensions.
Consequently, if Homan continues his “worst first” strategy but the shutdown drags on and Americans are faced with increasing waits at airports, or delayed disaster payments, or worse, the Democratic obstruction of DHS funding may quickly seem like a bad play.
Ideally, some agreement would be struck under which the majorities of Americans who want enforcement but who seek different tactics for how ICE goes about removing illegal aliens from the streets will receive it.
That, however, would require a nuanced understanding of immigration and of the deleterious impacts of current congressional demands for things like “judicial warrants” and “demasking” of ICE officers on civil enforcement, and at present such qualities appear to be in short supply on Capitol Hill.
Hope springs eternal, but the homeland security clock is ticking — and the 2026 midterms are approaching.
It is notable, however, that a majority — 53 percent — of the voters polled by Harvard/Harris oppose Democrat efforts to shut down DHS “as a way to force reforms on ICE, Border Patrol and Homeland Security” — including 59 percent of critical swing-voting Independents.
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DHS was created in a reactive fervor and assigned divergent duties critical to protecting the American people and their institutions. Having made that choice, it’s incumbent on Congress to fund the department, or disassemble it. Any other option is a reckless gamble with our security verging on madness.