Under the Constitution, the federal government has the responsibility to provide for the national security of the United States. Congress has the power to raise and fund armies and navies, to declare war, and to make laws regarding such non-state foreign threats as piracy. The president has the responsibility to lead and appoint officers, and to faithfully administer the laws, and when necessary, to command forces in war, or in the suppression of invasion or rebellion.
In the modern world, those powers have expanded to include an increasingly powerful intelligence and law enforcement apparatus dominated by the CIA and FBI but accompanied by a vast mélange of other smaller specialized agencies. In exchange for these powers, the federal government has an obligation to provide for the security of the several states in an effective and timely way. And if they do not, then the states retain a right under Article 1 Section 9 of the Constitution to provide their own security for such imminent threats as invasion or insurrection.
Increasingly however, the confidence of states and their citizens in the federal government’s ability to provide for that common defense is slipping.
Illegal aliens continue to stream across the Southern border, thanks to the Biden Administration’s decision to erase major Trump-era immigration and border policies—whether incompetent or malicious. Eliminating the existing border security policies, they have done nothing to counter the inevitable massive flow of migrants that resulted, with Vice President Kamala Harris as of this writing refusing to even travel to the border and observe the crisis.
The numbers are unprecedented. In just one small segment of the border known as the Del Rio Sector, 119,000 illegal aliens have been apprehended since January, an increase of 393% over last year. Sleepy southern Texas towns are now overrun with police pursuits and jails are overflowing with human smugglers. Ranchers and their families huddle behind locked doors watching on game cameras as groups of unidentified camouflaged men with tactical backpacks move across their land in tight formation at night.
Now Texas Governor Greg Abbott has positioned the state of Texas to step into the void. In an emergency declaration issued May 31, Abbott described the federal government as having “shown unwillingness, ambivalence, or inability” to enforce the law and protect the state. In a recent trip to the border, Abbott declared that Texas would take steps to complete the border wall in the state, and to arrest and detain illegal crossers under all applicable federal and state laws. Abbott will face very real challenges, both legal and practical, in coming up with a Texas-led plan, but the vacuum created by a delinquent national government has left the Lone Star state no other choice.
Other states are likewise showing leadership. Florida Governor Ron DeSantis—the first governor to respond to an emergency request for assistance from the Texas and Arizona governments– took action in a June 16 press conference, promising to send law enforcement resources to the southern border.
“Where the federal government has failed,” DeSantis declared, “the states are stepping up and doing our best to fill the void.”
In the same way that the federal government has been derelict in its duty to defend the southern border from an invasion of illegal border crossings, states have been forced to take action to strengthen their ability to respond to major civil disturbances. Throughout the summer of 2020, the United States saw massive rioting across multiple cities, which left dozens dead and destroyed nearly $2 billion in property, making them the most financially destructive riots in modern American history, and wiping out wealth creation for numerous small business owners.
Under the Trump Administration, the federal government did take action to defend its own federal installations from rioters, most notably battling for months on end with Antifa mobs armed with lasers, shields and clubs, Molotov cocktails and explosives outside Portland’s Mark O. Hatfield Federal Courthouse. DHS deployed Federal Protective Service (FPS) and Border Patrol trained riot teams, to supplement U.S. Marshals ordered to resist besieging anarchists and protect the judicial branch of government.
But a larger federal response across the country was stymied by openly intransigent DOJ and DOD officials, despite calls for action by President Trump. The DOJ filed only 367 federal charges, despite multiple months of organized felony interstate rioting across the country. The Guardian noted that in multiple jurisdictions, close to 90% of all charges resulting from the violent protests have been dropped or dismissed. In Portland alone, the federal government has now dropped at least 50% of the charges against rioters.
The FBI has never publicly identified which groups or networks played a role in orchestrating the nationwide violence that resulted, despite extensive open-source materials available regarding the role of Antifa and other violent anarcho-communist groups.
The failure of the federal government to assist in the suppression of interstate rioting –bordering on insurrection—means that state governments again must take action. Alabama, Oklahoma, and Texas all passed legislation to toughen its anti-rioting provisions of criminal law. Arkansas’ Act 1014 added serious teeth to anti-rioting laws, including acting to prevent the kind of revolving door process that allowed rioters to be bailed out and almost immediately return to rioting. The Florida legislature passed the most extensive anti-rioting law in the country. Governor DeSantis’ leading legislative priority, H.R. 1, strengthened Florida law in nearly a dozen places related to rioting and unrest.
If the circumstances of last summer become a fixture of American politics in future years, and there is some reason to believe that they may, governors will need to take assertive action to secure their states from unrest. As long as the federal government proves itself incapable of securing peace amid widescale interstate rioting, states will need to deploy their own limited resources with increasing frequency.
As noted, the Constitution guarantees states the right to take action in defense of imminent invasion and insurrection, as well as to enforce their laws against violent criminals. There are yet more areas where states are finding themselves at the forefront of the national security sphere and where governors and state legislatures need to take uncompromising action to secure their citizens in the absence of the federal government.
One area is in counterintelligence and corrupt foreign influence. In April 2020, then-Secretary of State Mike Pompeo spoke to the National Governors Association warning them of a metastasizing and increasingly complex web of influence weaved by the Chinese Communist Party. He warned that agents of the party’s United Front Work Department were targeting state governors, their teams, state legislators, major business leaders, and even the mayors of cities throughout their states.
Here too, Florida and Texas are leading the way. Florida recently passed a bill that “prohibits agreements between public entities and countries of particular concern and requires transparency and disclosure of agreements between public entities and foreign countries and entities.”
Texas passed a law prohibiting agreements between the owners and operators of critical infrastructure in Texas and Chinese, Iranian, North Korean or Russian companies. The issue of foreign infiltration into sectors of critical infrastructure had become a major public fracas in Texas following media reports that a Chinese business leader with ties to the People’s Liberation Army had secured control of a windfarm near a sensitive military facility in the state.
Providing for the security of critical infrastructure is itself an area where intervention by states is increasingly required in absence of the federal government. While it may not be what the founding fathers had in mind when they described the state’s right to defend itself from imminent invasion, citizens are no less harmed if foreign hackers or domestic saboteurs shut off their power, heat, or fresh water.
The Biden Administration’s inept handling of the ransomware hack against Colonial Pipeline forced several states to issue emergency decrees to keep gas flowing. While the TSA is responsible for the security of America’s pipeline infrastructure, the TSA has only 6 agents dedicated to this vital task for the entire country, according to a Government Accountability Office report from two years ago. Without a leading state and local role, there can be no securing American pipeline infrastructure from dangerous foreign and domestic threats.
The recent ransomware attack against international meat processing giant JBS is a similar threat. Americans across the country now see the cost of putting food on the table skyrocketing. Yet the Food and Drug Administration which oversees food safety and production in the United States, provides no standards for cybersecurity.
Counties and cities across the country also provide the majority of water and wastewater treatment systems in the United States. These local governments now find themselves increasingly under siege from malicious hackers with nation-state level capabilities who frequently are equipped to defeat the best cybersecurity the U.S. military and intelligence community has to offer. Malicious tinkering with control systems at water and waste-water treatment facilities can easily have a cost counted not just in dollars but in human lives.
State governments should consider tougher security and resiliency standards for critical infrastructure located in their states. While this may be mandated for publicly owned utilities, a carrot and the stick approach might be best for private utilities. One example might be legislation to protect utilities from lawsuits due to loss of service because of cyber or other attacks on infrastructure, as long as the utility meets stricter state security standards.
It might be reasonable to ask what exactly the federal government is doing, if it is not fulfilling its obligations to provide security for the state governments, and the citizens? Increasingly, under the Biden Administration, the answer is actively seeking to undermine the states and the citizens, to prevent them from securing their own safety.
After the federal government failed to crack down on anarchist rioters demanding the abolition of police, the Biden Administration supported Democrat counterterrorism legislation that deliberately accuses local and state law enforcement officers of being dangerous extremists.
They have reversed a Trump administration executive order banning Critical Race Theory training in federal departments, and aggressively pushed to indoctrinate military, law enforcement, and intelligence officers across the government with the same radical ideologies of grievance and racism that motivated the summer 2020 riots.
Having called out state National Guards to defend the Capitol Building, guardsmen were promptly insulted as potential extremists and “Trump voters”, and forced to sleep on marble and concrete. The treatment of guardsmen was so bad that governors from Texas, New Hampshire, Montana and Texas threatened to withdrawal their cooperation with the mission.
As previously mentioned, the DOJ dropped charges on multiple Antifa and BLM riot suspects. Yet the federal government’s leniency for troublemakers is not applied equally. While dropping charges against summer rioters, the FBI expended incredible federal resources to charge over 500 participants of the January 6th protest, largely for non-violent offenses, and holds them without bail in a D.C. area prison designated just for these offenders.
Although FBI Director Christopher Wray told House Republicans in a hearing about the January 6 investigation that the FBI had “one standard of justice,” the disparate treatment has left many Americans questioning the truth of that claim.
The Biden Administration has sought to gut the Immigration and Customs Enforcement agency responsible for the arrest and deportation of criminal aliens while openly threatening to use taxpayer dollars to sue the State of Texas over its border security initiative.
For these reasons, among others, the confidence of Americans in their appointed federal guardians is cratering, and increasingly suffers from a growing partisan divide.
A 2018 poll showed that while 77% of Democrats hold the FBI, the nation’s primary federal law enforcement agency, in a positive light, only 49% of Republicans feel the same. This is unsurprising given what was perceived as the politicization of the agency during the Trump Administration, including then-FBI’s director James Comey’s exoneration of Hillary Clinton, and the agency’s extensive abuse of the foreign intelligence surveillance act to spy on the Trump campaign.
Given the FBI’s full court press in response to the January 6th incident on Capitol Hill (74% of Republicans say the incident has been blown out of proportion) and its refusal to take action to investigate allegations of foreign corruption with President Biden’s son Hunter, it seems reasonable to suspect that that the favorability rating for the organization founded by J. Edgar Hoover is probably now even lower.
Some conservatives have even called for the FBI to abolished because of its politicized behavior targeting the Trump Administration. Yet local police -targeted by the Biden Administration’s counterterrorism policies as alleged extremists – are broadly supported across political and racial lines.
An April 2021 poll found that 79% of Americans thought police do a “very good” or “somewhat good” job. That number remains high among Whites (82%), Latinos (77%) and Blacks (70%). Other polls likewise made clear that Americans do not want police to be defunded, do not want a reduced police presence in their neighborhoods, and worry that anti-police attitudes make them less safe.
In other words, local and state police are largely trusted and supported, whereas the FBI is viewed as heavily politicized. Americans, especially among red states (Republicans control of all branches of state government in 23 out of 50 states) increasingly trust their local and state governments to see to their safety better than the federal government. The federal government has earned much of that distrust. If the Biden Administration continues on its present trajectory, we can expect these trends to continue.
State governments should not be afraid to address the national security issues that put their constituents at imminent risk. This includes threats from terrorism and rioting, hacking and sabotage of critical infrastructure, and espionage and influence peddling by foreign actors.
This may require new legislation or authorizing the creation of new state institutions. It may require establishing mutual aid agreements with neighboring states to address shared challenges. But in many cases, it simply will require taking up powers and utilizing legislation already authorized by the states, that have for too long lay dormant. The once capable federal national security now has demonstrated itself to be increasingly sclerotic.
This is not to say that we should abandon attempts to hold federal agencies accountable to perform their jobs skillfully and in a non-politicized way. The genius of America’s founding documents and system of federalism is that they prepared us for just such a time.
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