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Reflections on Homeland Security and American Federalism

Pietro S. Nivola

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 Trade Center.)

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 ground.

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.

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.

Regulatory Reform

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?”

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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 unsustainable.

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.

Making Progress

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 cities.”

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 America from all enemies wielding weapons of mass destruction. Digressing much beyond that sufficiently ambitious agenda risks dissipating the government’s energies in domains that are ancillary and, anyway, already reasonably well served by state and local entities.

In organizing most aspects of homeland security, as in many other realms of domestic policy, there is little reason to be certain that bureaucrats directed from Washington will invariably perform more proficiently than those emanating from state capitals or city halls. This conclusion may not be entirely reassuring, but the national political process nevertheless should face up to it squarely. When Congress took up the question of airport screening, it weighed only two options: Federalizing this activity or leaving it in private hands. No one, on either side of the aisle, contemplated a third possibility: Entrusting the assignment to local public authorities (bolstered, if need be, by stiff national standards and steady federal aid). Maybe the decision to federalize will prove wise and efficient. Or then, again, maybe it will turn out to be one more disappointing example of the Beltway-knows-best mindset.

Pietro S. Nivola is a senior fellow in the Governmental Studies Program of the Brookings Institution. He is the author of Tense Commandments: Federal Prescriptions and City Problems, a forthcoming Brookings book on which some of this article is based.