How Did This Scrappy Post-9/11 Agency Get So Powerful?

Department of Homeland Security Secretary Kristi Noem and other law enforcement officials in Los Angeles on June 12. Patrick T. Fallon/AFP via Getty Images

Since Kristi Noem became the secretary of homeland security, the Trump administration has been trying to expand the Department of Homeland Security and its powers. It’s something people like Ahilan Arulanantham are trying to fight. A law professor at the University of California, Los Angeles, he’s currently suing the Trump administration, fighting its efforts to remove temporary protected status from a bunch of Venezuelan and Haitian migrants.

As he explains, there has always been a kind of gap between what the department was created to do, back in 2002, and what it actually does. Post–9/11, DHS was formed, ostensibly, to bring different governmental agencies under one umbrella and make counterterrorism coordination easier. But it’s not doing that now.

“DHS’s actual resource usage has been overwhelmingly about just targeting undocumented people and also people convicted of ordinary crimes who happen to be noncitizens,” Arulanantham said.

On a recent episode of What Next, host Mary Harris spoke to Arulanantham about how DHS became one of the most powerful agencies at Trump’s disposal. This transcript has been edited and condensed for clarity.

Mary Harris: What falls under the jurisdiction of the DHS? 

Ahilan Arulanantham: There’s the Federal Emergency Management Agency, cybersecurity-related activity, and then the big immigration ones. DHS includes both Customs and Border Protection and Immigration and Customs Enforcement. There’s the Coast Guard as well. But by far the vast majority of the budget is in two agencies: CBP and ICE. And that’s even before all this talk of massive increases in spending now.

I think it might make sense to compare and contrast the Department of Homeland Security and the Department of Defense a bit. The secretary of defense, Pete Hegseth, is performing in the same way that Kristi Noem is. He’s going out with the troops and doing pushups and releasing videos. He is an influencer–Cabinet member. But Noem is in charge of ICE agents, and they just seem to do what she says in a way that seems like there’s more of a buffer between maybe what Hegseth wants and what the soldiers do. Am I perceiving that right, and why might that be? 

Well, ICE and CBP both are agencies with enormous law enforcement authority and huge budgets and resources at their disposal. But the direction of that kind of enforcement resourcing is overwhelmingly a product of discretion. And this is a huge difference between how ICE and CBP operate and how the military operates at the most basic level.

There are more rules in the military?

The defense secretary can’t, by himself, say “Hey, let’s go start bombing Somalia tomorrow” without any conversation with other people within the administration. Even leaving aside the legal constraints, which are often breached in that context, nobody thinks that the secretary of defense on their own can authorize that kind of use of the military.

In contrast, the DHS secretary can routinely decide what to focus on, whether it’s worksite enforcement or jail—just targeting people after they have served a sentence and screening them to determine that they’re not citizens who might be deportable. Or you could target poultry plants in the Midwest and the South. Those have massive impacts on the many people directly affected, as well as those communities and the economic situation of the surrounding populations. And yet that is all largely a matter of enforcement discretion. And that’s a product of the way the immigration enforcement system runs.

I’m curious what you, as an attorney, made of that moment a few weeks back when Noem was in front of Congress, giving some testimony, and she was asked to define habeas corpus, which is the right for a detained person to challenge their detention. She did not answer this question correctly, but she answered it incredibly strongly, like she was very clear about what she thought. How did you see that? 

I study habeas corpus and have spent 20 years litigating habeas corpus cases mostly for immigrants and detained noncitizens. In my view, habeas corpus is probably the most important human right in the Constitution. It’s in the Constitution itself. It’s not just in the amendments. It’s actually there in the structure from the beginning, even before the first 10 amendments were enacted.

And the fact that the secretary of homeland security doesn’t know what it is was just a sign of how far our governance in this country has fallen. It was really sad for me, because this person who obviously doesn’t know any law, on this subject anyway, is completely uneducated on this particular, very important question. But it also felt to me like a sign of some greater erosion that has happened where our country has given real power to people who have no knowledge or respect for the constraints on that power. And I felt like that whole phenomenon was encapsulated in this one moment with this just appalling, appalling answer. And the fact that she gave it with great confidence, also, just made the whole thing worse.

Part of what I’m taking from our conversation, given something you said earlier, is that a lot of the Department of Homeland Security’s power comes from its funding, the fact that it has this sort of spigot of cash. It’s $60 billion that can be used on anything? 

Yeah. There’s different ways that you can decide what counts as discretionary and what doesn’t. But, for example, $22.7 billion is designated for disaster relief. So it’s going to be hard to take that and use that for, you know, raids in Los Angeles. So two-thirds or more is essentially discretionary.

I’ve noticed that people like Sen. Chris Murphy, from Connecticut, have accused Noem of spending a lot of her money really fast. He’s saying that the department is at risk of running out of funding before the end of the fiscal year, which is Sept. 30. Is that something that might mitigate some of what the secretary is doing at this point? 

My intuition is no. I would guess that the fact that they may be overspending—if that’s true—probably will not constrain them. Congress will probably approve more money for them. ICE has a history of overspending and then going to Congress and asking for more money.

Well, part of the One Big Beautiful Bill Act is a provision for $75 billion in additional funds for ICE over the next five years. What could that money do? 

My understanding is that most of that money, or at least lots and lots of it, is for detention capacity expansion. They want to build vast prisons throughout the country to jail noncitizens. These are people who don’t have to be locked up. If you just give people legal representation, if you just get people phone reminders, it’s those kinds of mild supervision and check-ins, which are these ICE check-ins that you hear people getting arrested at now, because this administration doesn’t like those systems. They prove that you actually don’t need to run this militarized police state with a vast jail system costing billions of dollars in order to run a fair immigration system that provides due process to people.