[EL] "critical Infrastructure" and national police

Thu Jul 23 15:25:04 PDT 2020

Thanks, Charles, this is helpful.  But the two-pager doesn't give me the reassurance I want.  (Seriously, I want someone to please give me that egg on my face.) 

In a more general way, I’ve been raising questions about the national securitization of election law (in a few conference papers and public talks ~2016-18) based in part on the broad statutory language for “critical infrastructure” and DHS power to remedy an attack on CI and to keep some such matters secret (i.e. the statutory framework that was enacted before the non-statutory CI designation for elections).

I have not checked to see if any of the relevant language has been amended or reassuringly interpreted or if it appears in an entirely different light when interpreted against related statutes. 

 (Yes, my original list-serve post is, in part a Tom Sawyer quest to get someone else to do my homework on what's happened in the relevant legislation, agencies and scholarship.  But, I’m also happy to get others to think they want this to be their homework too.)

I do not see the CRS two-pager as even addressing my questions about the national securitization of election law.  If it refutes my concerns, then I think it does so only by not addressing them.  (Perhaps the silence hints that my questions are outside of the Overton window, but if so, what stays there these days?  And if the CI statutory framework is much broader and open-ended?)

On your point about the worries that were voiced when the CI designation occurred, I do not think the quantity of public and scholarly attention was commensurate to the importance of the issues.  But, yes, arguments from *federalism or states rights* did get some attention (from the power-guarding state officials who objected to NVRA, HAVA, etc. but also from serious election scholars—e.g.. if I remember correctly, from Derek Muller).   

The fact that so many state and local elected officials are comfortable NOW with the DHS role is also, to me, of little relevance by itself.  I imagine they are comfortable and happy with the same kinds of DHS work that make me happy and grateful (hence my mention in the original post about DHS’s vital election-security work).  

However, DHS (like most large organizations) is not just one thing, and even one thing can evolve into some other thing over time.  State and local election administrators are largely encountering DHS and other federal agencies in the election-security roles that are assistive, consultative, non-regulatory, non-coercive, and (at least at most levels) non-partisan.  (Questions of funding levels and prioritization and presidential viewpoint may always have a political aspect.)

What I did not encounter *anywhere* in the original CI debate and not since then (perhaps just my lack of thoroughness or access to the insiders you may know better) is my questions about other (more centralized) kinds of DHS roles that may be very different from what you and the two-page have in mind.

My questions include:  
 the unintended consequences of inserting (some of) election law/administration into the statutory framework of critical infrastructure and perhaps other national-security statutes; the fact that the CI leg/reg can come with some very open-ended language, e.g., acute agency responses to a perceived attack on critical infrastructure (not something within the current ken of state and local elected officials); the long-run risks of increased national securitization of election law in the absence of conscious election-specific design principles  (e.g.. protections against partisanship and in favor of transparency and public ‘ownership’ of elections), [and again, leaving aside my more theoretical/historical (non-federalism) constitutional questions].

Federalism concerns can be an important part of this discussion, but they can also be orthogonal or independent of the kinds of policy concerns I’m raising.  If the effects of dividing power through federalism are being tested right now in the Portland courthouse context (with, e.g., the fact that the OR Atty General has filed suit against DHS), of course the same kind of federal/state contest might happen in the DHS elections context.  

But the questions I ask about encompass much more than federalism (including what properly belongs to legislative authority, what is necessarily public).  If I were having a full constitutional/admin-law discussion, my own lay-of-the-legal-land wouldn’t actually be that much about federalism.

I have never claimed “deep knowledge of the designation of elections as critical infrastructure,” and hope with you that some such person will weigh in.  What I do claim is that (outside of the valuable federalism challenge from Muller, etc.)   I have not come across any sustained analysis (deep or not) of the statutory CI framework as applied to elections and no analysis of the (non-federalism) constitutional-design implications of giving some role (apparently including some coercive power) over election law/administration to secrecy-oriented agencies not constructed with the same kinds of concerns about nonpartisanship and public control that have informed election law.  (Folks out there whose work I’m missing, please feel free to share.)

thanks, and forgive me for writing fast without edits,
Kirsten
—others who are not at work white-washing this fence between election law and nat’l security don’t know what they are missing. Come on over...

> On Jul 23, 2020, at 5:01 PM, Charles H Stewart <cstewart at mit.edu> wrote:
> 
> I am hoping that someone with deep knowledge of the designation of elections as critical infrastructure weighs in, but until then, a couple of things.
>  
> The Congressional Research Service has a two-pager on this issue: https://fas.org/sgp/crs/misc/IF10677.pdf <https://fas.org/sgp/crs/misc/IF10677.pdf>.
> DHS has regularly noted that the CI designation confers no regulatory or enforcement authority on the federal government.  Worries consistent with those expressed in the e-mail were among those voiced when the CI designation occurred.  My observation as an outsider is that state, who are very jealous of their autonomy from federal regulation in election administration, are comfortable with the federal involvement with elections within the CI designation.
>  
> From my reading of the situation, if one wants to worry about what Portland portends for November, focusing on the CI designation is a diversion.
>  
> -cs
>  
> From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Kirsten Nussbaumer
> Sent: Thursday, July 23, 2020 4:12 PM
> To: law-election at uci.edu; rhasen at law.uci.edu
> Subject: [EL] "critical Infrastructure" and national police
>  
> Dear colleagues:
>  
> Some of the news and commentary on the DHS forces in Portland (Federal Protective Services, CBP, federal marshals, or who knows) has been indirectly linking the action to the November election (e.g.. speculating that this is part of the President's electoral strategy).  But I have not come across anything about whether there might be any prospect of a more direct connection to the election and election administration.  
>  
> Here, I am not immediately fearing the most dystopian scenarios for November.  (Perhaps, the reaction of courts, national security elites or the public to the policing in Portland is going to discourage more innovations in national policing.)  For now, I am more interested in whether the *legal* authority presently claimed by the DHS for Portland might be loose enough to cover direct national policing of elections as easily as it does the current rationale of protection of monuments, federal properties, etc.
>  
> Of course, DHS personnel acting have been taking election protection as a core mission  in good faith since President Obama and DHS Secretary Jeh Johnson designated elections as "critical infrastructure".  (For present purposes, I set aside constitutional and other legal objections to the designation.)  There's no doubt many DHS folks have been doing vital election-security work, and that national elite acceptance of “ elections-as-critical-infrastructure” now straddles two administrations (of different parties).
>  
> However, a DHS-led national police force on an election-protection mission in the election-administration field (e.g., a polling place, vote-counting site, post office) at the discretion of only executive officials (at the present, perhaps ones who are only in "acting capacity", not Senate-confirmed) would surely be a wild escalation of national executive power in elections, no?  I hope someone (on or off list) can tell me what I am missingion to even consider this quest.  I will be happy to have egg on my face with this one!
>  
> If elections as "critical infrastructure" and the current DHS's legal authority claims might be taken as warrant for intervention in elections as easily as what is happening in Portland, then what would be the self-limiting principles?  Could DHS run with the asserted legal authority of its latest memo* and treat any claim of election fraud or a pandemic emergency as a factual predicate for a policing intervention?  Would DHS (as in Portland) feel entitled to act regardless of state or local permissions?  (Or what if a state government official of one party disagreed with the relevant state or local government officials of the other party on whether to grant permission or declare an election attack in need of a DHS remedy?)  If DHS policing of the election were to be premised only on decisions of DHS or the president, what would they consider a valid factual predicate?  Could it be the always ongoing cyberattacks (not easily verified by the public)?  The currently ongoing pandemic?   
>  
> Under the "critical infrastructure” statutory language, would DHS feel entitled to keep its plans and reasoning a secret in advance or even classify it for the long-run?
>  
> Again, I am not in late July willing to imagine that this will be a realistic factual scenario for November.  (I don’t perceive the Portland action as popular or electorally helpful.)  But it seems important to me to understand the legal parameters regardless of the factual odds because legal authorities that are *claimed*  (even if not acted upon) might matter some elections down the road, if not this round.
>  
> If there is a discussion on these things that I have missed, please forgive me (and ideally direct me to them).  It is hard to keep up with the information overload!
>  
> merci,
> Kirsten
>  
> *Speaking of the DHS memo, I am benefiting from and riffing off Steve Vladeck and Benjamin Wittes at Lawfare [writing on non-election matters]:
>  
>   "The new memo, which is undated, is styled as specific implementation guidance with respect to the protests for more general rules <https://www.dhs.gov/sites/default/files/publications/office-of-intelligence-and-analysis-intelligence-oversight-program-and-guidelines.pdf> regarding DHS intelligence activity. These rules authorize I&A intelligence activities on what are termed “departmental missions” where they assist in combatting domestic terrorism threats; threats to critical infrastructure and key resources; significant threats to the economic security, public health or public safety; major disasters and other catastrophic acts; or “any other threat of such severity and magnitude that effective response would be beyond the capabilities of any affected State and local governments, such that Federal assistance would be necessary.”
>  The rules also contain this catch-all sentence: “In addition, the intelligence activities of I&A personnel further a departmental mission where they support the Secretary, the Deputy Secretary, the DHS Chief of Staff, or their respective staff, Component Heads, or any other departmental officials, offices, or elements in the execution of their lawful missions.” In other words, if the president directs DHS and the rest of the government to protect monuments, then intelligence activity in support of monument protection is arguably furthering the departmental mission"
> [emphasis added]

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