HSA@20 Episode Companion: Federalism
INSIGHTi
HSA@20 Episode Companion: Federalism
June 16, 2023
This Insight accompanies the “Federalism” episode of The Homeland Security Act at 20 podcast series
and includes background information on the issues discussed during the podcast.
Click this link to ask questions, provide feedback, or offer suggestions for future topics. You can also e-
mail the podcast team at HSA20@loc.gov. Thank you for your engagement.
Definitions
Federalism:
A system of government in which the same territory is controlled by two levels of government.
• Federalism and the Constitution
• Federalist No. 45
• As a protector of liberty: Bond v. United States, 564 U.S. 211 (2011)
• As a policy laboratory: New State Ice Co. v. Liebmann, 285 U.S. 262 (1931)
Homeland Security:
• In the 1990s, equated with national security.
• Initial policies were focused on prevention of chemical, biological, radiological, nuclear,
and explosive (CBRNE) attacks on U.S. population centers by international terrorist
organizations.
The Office of Domestic Preparedness (ODP)
• Established within the Office of Justice Programs in 1998 as the Office of State and Local
Domestic Preparedness Support (OSLDPS)—renamed ODP in late 2001.
• Transferred from the Department of Justice (DOJ) to the Department of Homeland
Security (DHS) under Homeland Security Act Section 238.
• Originally became part of the Directorate of Border and Transportation Security, but
ultimately went into the Federal Emergency Management Agency (FEMA).
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Nunn-Lugar-Domenici Grant Program
• Initiated by the Department of Defense (DOD) under the National Defense Authorization
Act (NDAA) of 1997; Title XIV, “Defense Against Weapons of Mass Destruction Act of
1996,” Section 1412.
• Provided civilian personnel with “training and expert advice regarding emergency
responses to a use or threatened use of a weapon of mass destruction.”
• Established through and in DOD, but specifically authorized to be transferred elsewhere
by the President after the beginning of FY1999.
• Transferred to DOJ (to ODP) effective the beginning of FY2001.
Into 2001, homeland security remained a national defense-oriented concept.
Background: FBI Histories of Key Events
• World Trade Center Bombing (1993)
• Alfred P. Murrah Federal Building Bombing (1995)
• 9/11 attacks (2001)
Balancing Priorities
Federal Agenda Setting
Non-Homeland Security Missions Within DHS
From FY2004-FY2015, the DHS Budget-in-Brief (available here) included a breakdown of funding for
DHS homeland and non-homeland security missions.
Initial National Homeland Security Strategies
• 2002 (Pre-DHS)
• 2007
DHS Federal Engagement Elements
Reorganization History
2004: ODP is consolidated with the Office of State and Local Government Coordination and
Preparedness (OSLGCP), and moved grants there from Emergency Preparedness and Response.
2005: A large reorganization (known as the Second Stage Review, “2SR,” or the Six-Point Agenda)
establishes the Office of Intelligence and Analysis, and the Directorate for Preparedness, splitting up the
OSLGCP.
2007: Post-Katrina Emergency Management Reform Act (PKEMRA; P.L. 109-295, Title VI)
• FEMA is reconstituted, and includes the Office of Grants and Training, and the Office of
State and Local Government Coordination.
• What is left of the Preparedness Directorate becomes the National Protection and
Programs Directorate (NPPD) focusing on infrastructure protection, and including
intergovernmental programs.
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• NPPD is later restructured and is now known as the Cybersecurity and Infrastructure
Security Agency (CISA).
Selected Current DHS Federal Engagement Elements:
Office of Partnership and Engagement (in the Office of the Secretary)
• Office of Intergovernmental Affairs
• Office for State and Local Law Enforcement
• Office of Intelligence and Analysis
FEMA
• Regional Offices
• Office of Resilience (includes Grants Programs and National Preparedness)
• Office of Response and Recovery
CISA
• Infrastructure Security Division
• Emergency Communications Division
• National Risk Management Center
• Stakeholder Engagement Division
• CISA Regions
State Government Agenda-Setting
Governors Homeland Security Advisory Council (2006)
• Organization of principal homeland security advisors from each state, commonwealth,
territory, and DC. (See link for an interactive graphic of homeland security governance
structures.)
Council of Governors (2010)
• Authorized in NDAA 2008, Sec. 1822, it is “a forum for governors and key federal
officials to improve and maximize state-federal partnerships to address matters pertaining
to the National Guard, homeland defense, and civil support activities.”
“Who Decides?” and “Who Pays?” Practical Examples
National Incident Management System (NIMS)
• Homeland Security Presidential Directive 5 (HSPD-5) calls for the development of NIMS
to help separate emergency management entities to work together to resolve incidents.
• NIMS was initially issued in 2004, and revised in 2008 and 2017.
• HSPD-5 requires adoption of NIMS by recipients of federal preparedness assistance.
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REAL ID Act of 2005
P.L. 109-13, Division B—requires states to make improvements in driver’s license and other identity
document security.
Did its regulations violate the Unfunded Mandates Reform Act of 1995 (UMRA)?
• UMRA excludes regulations “necessary for the national security,” and those that
“incorporate requirements specifically set forth in law.”
• DHS indicated in the final rule that it complied with the provisions of UMRA due to the
other required economic analyses (see “B. Economic Impact Analyses”).
Driver’s License Security Grant Program / “REAL ID Grants”
• FY2008: demonstration grant program in FY2008 for multi-state projects.
• FY2009: Became the Driver’s License Security Grant Program.
• FY2012: Rolled into the FY2012 Homeland Security Grant Program.
Homeland Security Preparedness Grants
Some of the initial DHS preparedness grants were established through appropriations in FY2004-FY2006.
The Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53) provided
authorization for a range of these preparedness grants, including the Urban Area Security Initiative and
the State Homeland Security Grant Program.
FEMA National Capability and Risk Assessments
• Threat and Hazard Identification and Risk Assessment (THIRA)—community-level and
national-level assessments of threats and hazards; the potential impacts they pose; and the
capabilities needed to respond.
• Stakeholder Preparedness Review (SPR)—self-assessment against THIRA targets.
• 2022 National Preparedness Report
Federalism and COVID-19
Emergency Management Assistance Compact (EMAC)
• Ratified by Congress in P.L. 104-321, EMAC facilitates mutual aid between all U.S.
states and territories.
• States used it to share resources during COVID-19.
Recoupment
• CRS Report R46990, General State and Local Fiscal Assistance and COVID-19: Eligible
Purposes, Allocations, and Use Data.
• Some reports indicated particular states were slow to spend aid.
• eCFR on recoupment of pandemic relief.
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FOR MORE INFORMATION
• For more information on federalism, see CRS Report R45323, Federalism-Based
Limitations on Congressional Power: An Overview
• For more information on preparedness grants, see CRS Report R44669, Department of
Homeland Security Preparedness Grants: A Summary and Issues
• For more episodes of this podcast series, search “HSA@20” on the CRS website.
NEXT EPISODE
June 22, 2023: TBD
Music: Icas, by Audiorezout, as carried on freemusicarchive.org, under the terms of its Creative
Commons Attribution-NonCommercial 4.0 International license.
Author Information
William L. Painter, Coordinator
Shawn Reese
Specialist in Homeland Security and Appropriations
Analyst in Emergency Management and Homeland
Security Policy
Lauren R. Stienstra
Section Research Manager
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
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