Simone Lawson
The United States Constitution is the supreme law of the United States. It outlines the rights of citizens and the powers of the government. When a government agency, such as the Department of Homeland Security (DHS), ignores the Constitution, it can have far-reaching consequences. In recent years, the DHS has faced scrutiny and criticism for its use of fearsome tactics, overreach of powers, and failure to act consistently with the Constitution. This has led to calls for reform or even the dismantling of the department. The consequences of the DHS ignoring the Constitution can range from a loss of public trust and civil liberties to a full-blown constitutional crisis.
| Characteristics | Values |
|---|---|
| Unlawful surveillance | Monitoring and gathering information on peaceful demonstrations and journalists |
| Unlawful detention | Detaining people without a legal basis |
| Unlawful enforcement | Using paramilitary forces to abduct people exercising their constitutional rights |
| Lack of oversight | Lack of accountability and transparency in its operations |
| Constitutional crisis | Ignoring or misinterpreting constitutional rights and limits |
| Dysfunction | Inability to act consistently with the Constitution |
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What You'll Learn
Unconstitutional surveillance of journalists, activists, and lawyers
The American Civil Liberties Union (ACLU) has long criticized the Department of Homeland Security (DHS) for its "unlawful and shocking" tactics. In 2002, the ACLU warned that the DHS would use "security" as a veil to target communities of color, immigrants, and Muslim communities. These warnings have since come to fruition, with the DHS deploying agents to American cities, monitoring protests, and even abducting people exercising their constitutional rights.
The ACLU is not alone in its criticism of the DHS. U.S. Senator Kamala Harris of California has also voiced concerns about the unconstitutional surveillance of journalists, activists, and lawyers by the DHS. In a letter to Kevin K. McAleenan of the U.S. Department of Homeland Security, Harris and her colleagues urged the DHS to stop any and all activity that impedes constitutionally-protected speech, including the free press, and access to legal services. They highlighted the targeting of individuals providing legal services to migrants and journalists, as well as those protesting the Trump administration's immigration policies.
The letter also raised concerns about the Social Media Monitoring and Situational Awareness Initiative by Customs and Border Protection (CBP), which may be used to collect sensitive personal information. A local television report revealed that CBP had created a list of 59 individuals, including journalists and attorneys, who were targeted for enhanced inspection at ports of entry due to their perceived association with asylum seekers. This incident is believed to be a consequence of a broader policy aimed at monitoring and collecting information on constitutionally protected speech and activities.
The unconstitutional surveillance and targeting of individuals by the DHS have raised serious concerns about the violation of constitutional rights, including freedom of speech, press, and association. The DHS's actions have also undermined trust in the government's ability to promote justice, equality, and the general welfare. As a result, there have been calls for the dismantling of the DHS, with the belief that it lacks the oversight and management to be effective and that its powers are too great.
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Unlawful detention of US citizens
The unlawful detention of US citizens by the Department of Homeland Security (DHS) has raised concerns about the agency's adherence to the Constitution. In one case, a federal court ruled in favour of a US citizen, Peter Sean Brown, who was illegally detained for deportation due to an incorrect identification as a deportable Jamaican immigrant. The court found that his Fourth Amendment rights had been violated.
In another instance, Mahmoud Khalil, a US citizen, was unlawfully detained for his advocacy in support of Palestinian rights and speech about the genocide in Gaza. The court recognised that his continued detention was rare and solely based on misrepresentations by the government, indicating retaliation for his protected speech.
The American Civil Liberties Union (ACLU) has expressed concerns about DHS tactics, including the deployment of paramilitary forces to abduct people exercising their constitutional rights, targeting communities of colour and immigrants, and infiltrating Muslim communities. ACLU has called for dismantling the DHS, arguing that its powers are too great and lack oversight.
Tensions have also arisen between DHS and lawmakers due to restrictions on visits to detention centres. Lawmakers have faced challenges, including arrests and manhandling by law enforcement, when attempting to access DHS facilities. This has led to public condemnation and concerns about the DHS's transparency and respect for lawful oversight.
The unlawful detention of US citizens by DHS raises serious concerns about civil liberties and constitutional rights. It highlights the need for accountability and oversight to ensure that the agency operates within the boundaries set by the Constitution.
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Infiltration of mosques and community centres to target Muslims
In the aftermath of 9/11, the Department of Homeland Security (DHS) was established in 2002 to work closely with the police and the FBI to create and implement programs that would prevent the information-sharing failures that led to the terrorist attack. However, the DHS has been criticized for its unconstitutional tactics, including infiltrating mosques and community centers to target Muslim communities.
The American Civil Liberties Union (ACLU) has raised concerns about the DHS's actions, stating that they are "unlawful and shocking." According to the ACLU, the DHS has a history of targeting communities of color and immigrants under the veil of "security." In the case of Muslim communities, the DHS has deployed undercover informants or officers to live the life of a fake Muslim inside mosques and community centers, asking probing questions about Al Qaeda or jihad. This invasive surveillance has left a generation of Muslim Americans in a shadow of distrust and fear, with many feeling that their country is never going to accept them.
The NYPD surveillance program in New York City, for example, has been the subject of several lawsuits due to its targeting of Muslims at community centers, mosques, and gathering places. This type of surveillance is not limited to New York, as many law enforcement agencies across the country have launched similar programs. The DHS's broad mandate and lack of oversight have contributed to the perception that it is functioning as the president's personal militia, willing to trample on constitutional limits.
The consequences of this infiltration and surveillance go beyond distrust and fear. There have been reports of vandalism, burglary, and arson targeting mosques and Islamic community centers across the country. Proposals for the expansion or construction of mosques and community centers have also faced opposition and discrimination, with some being denied necessary zoning permits or subjected to oppressive requirements. These incidents further contribute to the sense of distrust and alienation felt by Muslim Americans.
The infiltration of mosques and community centers by the DHS and law enforcement agencies has had a profound impact on Muslim communities in the United States. It has created an environment of suspicion and mistrust, deterring individuals from engaging in political or religious activities out of fear of becoming targets of law enforcement. While the goal of preventing future terrorist attacks is crucial, it must be pursued within the bounds of the Constitution and with respect for the civil liberties and religious freedom of all Americans.
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Unconstitutional monitoring of constitutionally protected speech and activities
The American Civil Liberties Union (ACLU) has long warned of the Department of Homeland Security's (DHS) "unlawful and shocking" tactics, which include the unconstitutional monitoring of constitutionally protected speech and activities. In Portland, Oregon, paramilitary forces abducted people exercising their constitutional rights, placed them in unmarked vehicles, and transported them to undisclosed locations. DHS has also surveilled Black Lives Matter activist circles, entered mosques and community centers to target Muslim communities, and monitored protests.
These actions by DHS agents violate the First Amendment rights of citizens to freedom of speech and assembly. The Supreme Court has interpreted "speech" and "press" broadly, covering not only talking, writing, and printing but also broadcasting, using the internet, and other forms of expression. This includes symbolic expression such as displaying flags, wearing armbands, or burning crosses. The First Amendment restrains the government from restricting speech because of its content or targeting the speaker's message, which generally violates the First Amendment.
While there are limitations to freedom of speech, the Supreme Court has been reluctant to expand the list of "low-value" categories of speech that are not protected. These include obscenity, fraud, child pornography, speech integral to illegal conduct, incitement to imminent lawless action, speech that violates intellectual property law, true threats, commercial speech, and defamation. However, even within these categories, the Court has made nuanced distinctions. For example, in Ashcroft v. Free Speech Coalition, the Court held that while child pornography using real children is unconstitutional, prohibiting pictures that do not involve actual minors is a violation of the First Amendment.
The unconstitutional actions of DHS agents have serious consequences for the rule of law and civil liberties. As the ACLU states, "the government has both the authority and responsibility to enforce its laws—laws that promote justice, equality, and the general welfare." When DHS acts outside the bounds of the Constitution, it undermines public trust and erodes the very fabric of democratic society. It is crucial that DHS is held accountable for its actions and that reforms are implemented to prevent further abuses of power.
The consequences of ignoring the Constitution can be far-reaching and detrimental. As seen in the example of the Executive Branch defying the Supreme Court, the law becomes just "words on paper," and the gears of government start slipping. This can lead to uncertainty in voting processes, with states challenging the legitimacy of federal elections. It creates a crisis where different interpretations of the law fracture the country's security apparatus, including the FBI, DHS, ICE, and even the military.
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Refusal to enforce rulings on birthright citizenship
The Constitution is clear that those born on American soil, even to undocumented parents, are citizens of the United States. This is supported by the Fourteenth Amendment, which grants automatic citizenship to those born within US boundaries. However, Donald Trump's administration issued an executive order that aimed to deny birthright citizenship to US-born children of parents in the country illegally. This order challenged the long-standing understanding of birthright citizenship and the authority of the president to change citizenship rules.
The Supreme Court has dealt with the issue of birthright citizenship, with justices hearing arguments over whether a single district court can freeze a federal policy. The Justice Department argued that court rulings should only apply to the parties involved, while others questioned the potential consequences of allowing the administration to deny citizenship, even temporarily. The Supreme Court's conservative majority seemed inclined to support the administration's agenda, but it was unclear how they would rule.
If the DHS, along with other agencies, refuses to enforce rulings on birthright citizenship, it could lead to a constitutional crisis. While the Supreme Court has no means to enforce its rulings, the inaction of these agencies could result in a breakdown of government functions. Blue states may refuse to recognize new federal policies, and there could be internal fracturing within security apparatuses like the FBI, ICE, and even the military due to conflicting interpretations of the law. This could lead to uncertainty in voting processes and electoral legitimacy.
Harvard Law School Professor Gerald Neuman, an expert in immigration and nationality law, asserts that the president has no authority to change citizenship rules. He explains that birthright citizenship prevents the creation of a "hereditary caste" of non-citizens, promoting social cohesion and making it easier for citizens to prove their citizenship. While there are concerns about "birth tourism," where individuals come to the US solely to give birth, Neuman emphasizes that it is unlawful to punish the children through executive orders.
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Frequently asked questions
If the DHS ignores the Constitution, it could lead to a Constitutional crisis and have corrosive effects on everyday life. There may be uncertainty in voting and federal elections, with states challenging electoral legitimacy. It could also result in the erosion of civil liberties and rights, such as the right to privacy and freedom of speech.
There have been several incidents where the DHS has been accused of ignoring or misinterpreting the Constitution. For instance, the DHS has been criticised for its unconstitutional surveillance of journalists, activists, and lawyers, as well as its use of paramilitary forces to abduct protesters in Portland.
To address the DHS's disregard for the Constitution, there have been calls for reform, increased oversight, and even the dismantling of the department. Some experts and politicians, like Senator Kamala Harris, have demanded that the DHS disclose its investigative guidelines and criteria for conducting surveillance and creating records of US citizens' activities. Others have suggested filing lawsuits to compel access and enforce constitutional rights.
The DHS's actions can lead to a breakdown of trust and cooperation between different government agencies and branches. For example, by denying access to members of Congress attempting oversight, the DHS is operating outside the bounds of the law and creating a power struggle between the executive and legislative branches. This could result in paralysis within government agencies and a loss of faith in the government's ability to uphold the rule of law.
