from Renewing America

What Would Happen if DHS Really Shuts Down?

border agents vehicle crossing Sweetgrass Montana

February 26, 2015

border agents vehicle crossing Sweetgrass Montana
Blog Post
Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

Among the long list of reasons that the U.S. Congress has become a dysfunctional body, the biggest one may be this: its members are never truly held responsible for the consequences of their actions. They can gin up one “fiscal showdown” after another because they know that, even if all or parts of the government shut down temporarily, the real world costs are fairly minor. The only genuine victims in the short run are the government employees themselves--who are either furloughed without paychecks or, if deemed “essential,” forced to work for nothing but an IOU. For some, that could mean genuine hardship; for all, it is another slap in the face that further saps the morale of our civil service and drives good people away from government.

For anyone who has been a parent, we know that as long as children can misbehave without paying any price, they will usually continue to do so. So with a shutdown of the Department of Homeland Security now looming in the fight over President Obama’s immigration executive actions, I have a modest proposal: let’s make the consequences real, immediate and obvious. If Congress fails to fund it, the Obama administration should really shut down DHS.

Here’s what I mean. Since the early 1980s, under an interpretation of the century-old “Antideficiency Act,” the executive branch has been barred from operating in the absence of congressional appropriations. For those government employees who are furloughed during a shutdown, the prohibitions are severe; they are threatened with fines or even prison not just for showing up in the office, but even for checking email. An exception is made only for federal workers in “emergencies involving the safety of human life or the protection of property.” But under the statute, this should not be read to include “ongoing, regular functions of government.”

There is no clear definition of exactly what constitutes such an emergency, but in the 2013 shutdown – the first since the creation of DHS in 2003 – the department interpreted that exception very broadly. In fact, the current estimate is that 87 percent (!) of the 230,000 DHS employees would continue to work in a shutdown. No wonder the Congress feels no particular urgency to ensure the department is funded in a timely fashion.

I recognize that the work done by some DHS employees is truly critical to the nation’s safety. I would not want our 21,000 Border Patrol agents standing down. The Coast Guard needs to continue performing maritime rescues. The Secret Service needs to continue protecting the president. FEMA needs to be able to respond to natural disasters. The department’s role in counter-terrorism needs to be maintained without interruption.

But beyond that, a proper reading of the law suggests that most of what DHS does is actually  “ongoing, regular functions of government.” Let’s take the ports of entry at the borders with Canada and Mexico, for example. Every day nearly a million individuals enter the United States across the land borders and are inspected by Customs and Border Protection (CBP) officials, but almost all of that is routine traffic of one sort or another--goods being imported, people coming to work and shop. Most of what our CBP agents do is vitally important to our economy, but not obviously urgent. So in the event of a shutdown, I propose furloughing most CBP officers at the land borders, and leaving only concrete barriers and a token staff to handle cross-border traffic in the event of genuine emergencies. Everyone else who wants to come from Mexico or Canada will just need to stay at home until the department re-opens.

The same holds for airports. Again, with very few exceptions, air travel is not an urgent necessity, either for people traveling domestically or for those flying from overseas. Planes are frequently grounded by the weather, for example, and passengers just have to make other plans. DHS could therefore reasonably furlough most of the CBP staff that handles routine customs and immigration processing for overseas travelers at airports, and the Transportation Security Administration (TSA) could shut down most passenger screening, permitting only those with a genuinely urgent need to fly to pass through. Everyone else would just need to stay at home.

The consequences of this would, of course, be extraordinary. Airlines would be forced to cancel most or all of their flights, with ripple effects on hotels, restaurants, cab drivers, rental car agencies and countless others. The automotive industry, which relies on “just-in-time” movement of parts back and forth across the borders, would quickly stop delivering new cars. Border communities would see a sharp downturn in business. In my history of the early years of DHS, The Closing of the American Border, I told how the simple tightening of inspections following the 9/11 terrorist attacks quickly produced massive border line-ups. The diplomatic fallout would be immediate; the economic costs would be enormous.

And how long, then, would a DHS shutdown last? My guess, after the phones start ringing to members of Congress, would be about five hours. Better still, DHS Secretary Jeh Johnson could tell the Congress clearly that he is standing behind his workforce, and will not require them to do their jobs without pay. The mere threat might finally concentrate a few minds on Capitol Hill. And perhaps it will put an end to such irresponsibility once and for all.