This piece originally appeared in USA Today.

As an organization dedicated to civil liberties, civil rights, and the rule of law, we at the American Civil Liberties Union believe that the government has both the authority and responsibility to enforce its laws — laws that promote justice, equality, and the general welfare. In recent weeks, the actions of federal agents have shown us all that the Department of Homeland Security isn’t capable of acting consistently with the Constitution, and should no longer exist in its current state.

The scenes unfolding in Portland, Oregon, and elsewhere are a reminder of the red flags many have raised about DHS throughout its history: that its powers are too great, and that it lacks the oversight and management to be effective. We can preserve our freedoms and our security better by dismantling DHS and beginning anew.

People across the political spectrum watched in disbelief as federal agents were deployed to American cities — despite objections by mayors and governors — to escalate violence against protesters. Paramilitary forces abducted people exercising their constitutional rights in Portland, placed them in unmarked vehicles, and took them to undisclosed locations.

The tactics deployed by DHS agents are unlawful and shocking, but they are no surprise: Back in 2002, we at the ACLU called the initial blueprints for the behemoth bureaucracy “constitutionally bankrupt.”

Dire warnings become DHS reality

And for nearly 20 years, we have seen many of our warnings about DHS become tragic realities. We objected to a knee-jerk plan that failed to respond to the intelligence law enforcement failures that contributed to the tragedy of 9/11. We believed that DHS would use the veil of “security” to target communities of color and immigrants, and urged greater civil liberties oversight.

Now, of course, we know that DHS has surveilled Black Lives Matter activist circles; descended into mosques and community centers to infiltrate Muslim communities; shot and killed foreign nationals across the border; and monitored protests using fusion center intelligence sharing hubs.

DHS is also responsible for separating children from their parents at our borders — a tragedy we continue to litigate.

The short history of DHS has been filled with violence, the stoking of fear, and a lack of oversight. The department’s horrific tactics are being used in cities across the country.

The fearsome tactics of DHS are well known to the communities against whom they are used. Its dysfunction is one of the Beltway’s worst kept secrets. DHS’s overbroad mandate and unchecked powers have turned it into a tinderbox, now ignited by a president willing to trample on the constitutional limits of presidential powers. While calls for reform have been loud and clear for years, new signals are now coming from the highest levels of the DHS diaspora.

Tom Ridge, the first secretary of Homeland Security, said recently that DHS “wasn’t designed to become the president’s personal militia.”

Former Homeland Security Secretary Michael Chertoff asserted that President Donald Trump’s deployment of agents to U.S. cities is “damaging to the department.”

And Richard Clarke, who served on the National Security Council for Presidents George H.W. Bush, Bill Clinton and George W. Bush, has called for dismantling DHS. 

Nearly 20 years of abuse, waste, and corruption demonstrate the failure of the DHS experiment. Joining 22 agencies with conflicting missions — including border security, disaster relief, and immigration enforcement, among others. Many insiders knew DHS to be an ineffective superagency, but President Trump has converted DHS into our government’s most notable badge of shame.

Break DHS into parts

Dismantling DHS, breaking it apart into various federal agencies, and shrinking its allocation of federal dollars will allow for more effective oversight, accountability, and public transparency. The spun-off agencies will have clearer missions and more limited functions. A behemoth of a federal agency too easily hides its problems and failings. Congressional oversight can be more readily divided among various congressional committees. Smaller agencies with clearer mandates will make Cabinet-level jobs more attractive to top-notch professionals.

There is also the added benefit that breaking up DHS will provide a larger number of Cabinet posts to reflect our country’s diversity. 

Most important, the very premise of a “homeland security” bureaucracy is chilling and ought to be questioned. Defense of the “homeland” became a rallying cry for hawks and some doves in the aftermath of 9/11, but this frame betrays the broader values that ought to infuse our democracy. Why, for example, is an agency responsible for citizenship and immigration under a threat-oriented department? Immigrants are not a threat to the “homeland.” 

Years of chaos and impunity make a clear case for the dismantling of DHS. President Trump’s use of DHS as his personal militia should be enough to start a meaningful bipartisan debate about DHS’ future. If there is one thing we have learned from the authoritarianism on display in Portland, it’s that we have to remove the loaded weapon that sits on the proverbial coffee table in the Oval Office.

Donald Trump should not be allowed to provide a precedent for future presidents with authoritarian tendencies to repeat the injustices we are enduring. Dismantling DHS into its component parts would restore greater balance to our system of checks and balances. And rather than tolerating misinterpretation of “homeland security,” we need our government to advance a “more perfect union.”

Anthony D. Romero, ACLU Executive Director

“If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences,” wrote legendary Supreme Court Justice Oliver Wendell Holmes, “Not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.” 
 
Donald Trump is a Holmesian bad man, and an even worse president, pushing the bounds of corruption and authoritarianism, unbound by norms, the rule of law, a sense of shame, or even care for others. To deal with such a bad man and bad president — one who truckles to adversaries like Russian President Vladimir Putin, flouts Congress, swims in self-enrichment, and fails to take meaningful action as Americans die by the tens of thousands on his watch — will require more than the ordinary processes, checks and balances, and honor that have guided and constrained other presidents.
 
Fortunately, Trump’s most recent egregious trial balloons (or warning shots) about subverting the election drew pushback from even his supporters, such as the co-founder of the Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for … immediate impeachment.” But his regime’s many efforts to repress the vote and discredit and undermine the election continue unchecked, abetted by Senate Majority Leader Mitch McConnell’s refusal to take up election security and funding bills passed by the House, and his Postmaster General’s ongoing sabotage aimed at impeding the mail-in voting that will surge because of the pandemic Trump has exacerbated.
 
Calm may return now to Portland, Oregon, as Trump has begun to withdraw the federal paramilitary storm troopers who just recently were sowing chaos, seizing protesters off the streets, and using force, such as rubber bullets and tear gas, without probable cause or the consent of local authorities. But Trump and his confederates, including Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf, continue to threaten this unconstitutional use of force in even more cities, ginning up images for Trump’s campaign ads and perhaps even road-testing tactics to remain in power in the event Trump loses the presidential election.
 
This is “performative authoritarianism,” according to historian Anne Applebaum. “That these tactics are not ‘totalitarian’ doesn’t make them legal, acceptable, or normal … Citizens’ rights [were] violated in Portland. People have been hauled off the streets into unmarked vehicles.”
 
Trump has shown again and again that, as a Holmesian bad man, he will do whatever he can get away with. It is a lesson Trump learned from his lawyer and mentor, Roy Cohn, as testified to by his lawyer and fixer Michael Cohen (now “Individual-1’s” nemesis). The tactics were honed during Trump’s career as a discriminatory and abusive developer and landlord: When dealing with tenants, contractors, and investors, do not honor your agreements and legal, let alone ethical, obligations. Don’t worry whether you have a legitimate cause of action or defense. Rather, flout norms and fairness, manipulate deadlines, drag out payments and processes, force litigation, make remedies and responses costly and cumbersome, overwhelm with falsehoods and fatigue, grind people and institutions down with the system — in short, break the law as you please, while using the law and legal procedures themselves as tools of abuse and evasion of accountability.
 
Civil society groups like the ACLU and Protect Democracy have been doing what they can through public denunciation and lawsuits that challenge Trump’s abuses in Portland and nationwide, exposing illegal surveillance of Americans and Trump’s use of unaccountable officials such as Wolf. But it is not enough to deplore, to protest, or to litigate. Trump’s tactics, whether in New York or in Washington, will not be defeated solely by appeals to moral or legal obligations. Nor is Trump acting alone. The attorney general, the Senate (in the grip of McConnell and a cowed and complicit Republican majority), and too many “acting” officials, conscienceless collaborators, and pliant enablers have abetted Trump in straining and eroding our democratic system.
 
“Democracy is not a state. It is an act,” our late hero John Lewis exhorted from his deathbed. To confront and defeat authoritarianism, performative democracy requires all patriotic defenders of the Republic to act — and that means act effectively. We should be mindful, as Holmes wrote, that “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.” The power centers at every level in our constitutional system must show they mean business by pushing back and imposing costs using the full measure of their powers under the law.
 
What, then, should those with political authority and power do?
 
In cities like Portland, when federal paramilitaries seize people off the street or use violence against them, they commit crimes. State and local officials should charge them and arrest them, as prosecutors in Baltimore and Philadelphia have said they would do. Would Trump challenge such efforts in court? Probably. Might these efforts lead to standoffs between local police and the paramilitary? Perhaps. But criminal charges would shift the burden on to the forces of authoritarianism and send a message that those who violate the law in Trump’s name are themselves vulnerable to prosecution.
 
In Washington, it’s way past time to meaningfully assert congressional oversight and power. Regrettably, the Republican Senate has stood silent during, and the Democratic House of Representatives has too often allowed, Trump’s disregard of Congress’ spending enactments, the Senate’s role in confirming officials, and even the most basic requests for information necessary to congressional oversight. Even on the rare occasion when the House has defended Congress’ constitutional authority, these exertions have been ineffective and dilatory, leaving it to courts to adjudicate, let alone enforce its halting assertions.
 
Congress should wield its power of the purse to strip funds for illicit operations by corrupted agencies. Going further, why shouldn’t the House hold Trump’s defiant henchmen in contempt, fine them, and have the House’s Sergeant at Arms place them under arrest? Would the power of Congress be challenged in court? Probably. Might there be confrontations between the Sergeant at Arms and Trump’s minions? Perhaps. But full use of Congress’ lawful powers to stand up to a bully and his gang, to push back against a bad man, is the only way for Democratic and even Republican members of Congress to show that they give a damn about liberal democracy, and are not merely sputtering ineffectually at shameless and unconstitutional obstruction.
 
Nor is it only our members of Congress, governors, state attorneys general, mayors, and local prosecutors, who must act. It is we, the people who are the necessary and ultimate defenders of democracy. Like the diverse patriots protesting under the banner of Black Lives Matter, or the “Wall of Moms” in Portland, we must stand up, speak out, demonstrate, and put pressure on decision-makers. And, above all, we must vote.
 
Finally, there must then be a lawful reckoning — a full exposure of the corruption, complicity, and lawbreaking that have marked this regime from day one. It must be made clear to all who enable this bad man and bad president that they will be held accountable; shamed in history, in their social circles, and in the eyes of their fellow citizens; obliged to disgorge tax returns, campaign finance records, emoluments, and ill-gotten profits and prestige; prosecuted and fined or jailed where appropriate; and made to pay the price of betrayal of the American people, our values, and the rule of law that our Republic depends on.
 
Any hope of deterring Trump and his accomplices and enablers now — and even more importantly, building America back better when he is repudiated and gone — requires acting effectively in ways that a bad man can understand, and that the good demands.

Russell Pearce holds the Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion at Fordham University School of Law. His college roommate, Evan Wolfson, teaches law and social change at Georgetown Law and at Yale, and serves on the advisory board of Protect Democracy.

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