DHS Needs To Go

The Problem of Institutions without Institutional Norms

Brad Lander Being Arrested, Olga Fedorova, AP

I’ll be upfront here and say I’ve never particularly seen the necessity for the Department of Homeland Security.¹ In my view, DHS has always been a duplicative institution without a clear purpose, formed out of a sense of national urgency to fix a problem that had nothing to do with internal security.

DHS was envisioned as a coordinating body similar to the role that the ODNI or post-Goldwater–Nichols JCS plays. The idea was to centralize various security-related functions of various agencies under one roof to better synergize their efforts and ensure that information and operations were no longer stovepiped.

Many of the constituent parts of DHS do play critical national security roles—FEMA, CISA, the Coast Guard, and Customs, for instance—all have important roles to play in terms of a functioning State.

One of the problems DHS has always suffered as a result of this is that by throwing all of these various bodies together, DHS has never had a well-defined identity. It has always been a relatively unfocused mixture of quasi-military, law enforcement, intelligence, and administrative functions that amounts to a Department that kinda does security things.

These constituent parts, however, have fallen to the wayside as DHS has developed far beyond its initial conception as a coordination mechanism into a largely arbitrary tool of the Presidency. The problem now is that DHS has found a purpose—the execution of unilateral executive power.

Rather than these various security functions being coordinated through this body, the Trump Presidency has seen DHS evolve into something like a militarized quasi-Department of Justice. With the exception that DHS does not have oversight through traditional judicial processes.

In what is a deeply clever understanding of Executive prerogatives, DHS has been able to exercise vast internal security functions that other, more exclusively law enforcement-focused bodies could only dream of achieving.

Through the use of administrative warrants issued through its own internal mechanisms,² DHS has managed to claim excessive scope for its actions. Masked officers (or overly militarized officers) now routinely dominate the news cycle for their arrest of both illegal immigrants, legal immigrants, and U.S. citizens.

The power to grant yourself expansive enforcement powers without oversight is the sort of Schmittian tool that people like Stephen Miller had spent the last four years searching for. It is the only body in the United States that is able to truly exercise arbitrary power—administrative warrants—allowing effectively unrestrained raids across the country with no recourse.

It just took until 2025 for an American President to figure out they could exercise security functions that would have once been exclusively reserved for judicial approval—raiding workplaces, grabbing college students off the side of the street, or general detention of persons without otherwise recognized exceptions to the 4th Amendment—through the unique structure of DHS.

Unlike a more established organization like the FBI—with a century of norms and procedures that have bound their bureaucracy within limits of behavior—DHS has no similar institutional memory.

DHS is, after all, an organization that is only slightly more than 20 years old. It would have only recently been able to legally drink at a bar. There is no strong culture within DHS that would see these actions as unacceptable use of DHS’s powers.

Even if things are technically legal to do doesn’t mean those things are advisable to do, and without an institutional memory to build those guardrails, you start to see masked, anonymous officers on the streets of Los Angeles.

When you don’t have a set of established norms for conducting activities, nobody there will raise the idea that even if you could detain a college student on the sidewalk under the Secretary of State’s statutory authorities, it doesn’t mean you should go and do that.

Institutions function not just because they have laws that bind them (in this case, DHS doesn’t) it’s because they have a culture that creates outcomes that are in line with the public interest.

You could argue that other agencies like the FBI under J. Edgar Hoover or the CIA in the mid-20th century similarly vastly expanded their remit outside of what they were envisioned as within the laws that established them—the legal reforms to those institutions did not fundamentally change the nature of what those institutions did.

They managed to create institutional cultures along relatively consistent lines, with the legal changes only making more clear what the boundaries of their activities could be. It is also, of course, worth asking what the FBI or CIA would have been like in those periods if they had no sense of institutional identity that bounded their activities around certain bureaucratic interests.

If you applied the same level of rigorous reform to DHS that would prevent a repeat of this episode, you would either create a relatively listless coordination body (in which case what’s the point of it existing) or you would create a duplication of the DoJ (in which case, again, what is the point of it existing).

You also still run into the problem of what exactly you would be building an institutional culture around. DHS would still, at the end of the day, be an unfocused body that does various unrelated security things. How can you ever really have a coherent culture if you weren’t created with a coherent mission?

While many of those constituent parts should certainly be retained—those parts should be returned to their original homes. They did just fine there before 2002. The organization itself? I think we’ve seen well enough at this point that it needs to go.

1. On the other hand, I am a massive Institutions Guy™ and my general tendency is to exhaust every other available possibility before ever advocating for reducing state capacity.

2. While the use of administrative warrants is hardly limited to DHS, their use as an expansive basis for security functions is a relatively novel application of the concept.