September 21, 2012
Department of Homeland Security Secretary Janet Napolitano revealed September 19 that the an executive order granting the president sweeping power over the Internet is “close to completion.”
Testifying before the Senate Committee on Homeland Security and Governmental Affairs, Napolitano said that the order is still “being drafted” and vetted by various high-level bureaucrats. But she also indicated that it would be issued as soon as a “few issues” were resolved. Assuming control of the nation’s Internet infrastructure is a DHS responsibility, Napolitano added.
“DHS is the Federal government’s lead agency for securing civilian government computer systems and works with our industry and Federal, state, local, tribal, and territorial government partners to secure critical infrastructure and information systems,” she informed senators.
Precisely which clause in the Constitution grants to the president specifically or the executive branch (of which DHS is a part) generally authority to exercise any sort of oversight of such matters was not cited by Secretary Napolitano.
Naturally, a document written 225 years ago would not include a reference to cybersecurity, but the principles of enumerated powers and limited government apply to any program or project of the federal government. According to the contract that created the three branches of the federal government, none of the those departments may do anything unless specifically granted that authority in the Constitution.
This is a principle of constitutional interpretation often overlooked. Those promoting a larger government with increasing influence on the lives of private citizens commonly defend government growth by insisting that “nothing in the Constitution forbids us from doing” whatever federal program they are advocating.
Such a theory is contrary to that held by the Founders. As James Madison explained in The Federalist, No. 45:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
As with so many of her ilk, Napolitano will not allow something as “irrelevant” as the Constitution to stand in the way of our Republic’s slouch into autocracy.
In that vein, the Obama Administration will not stop at seizing control of the Internet. Napolitano declared the president’s intent to enclose an immense territory within the fences of the federal fiefdom. With respect to critical infrastructure, DHS and the sector specific agencies work together with the private sector to help secure the key systems upon which Americans rely, such as the financial sector, the power grid, water systems, and transportation networks.
The president began mulling a cybersecurity executive order after repeated congressional failure to pass a law accomplishing the same end.
“In the wake of Congressional inaction and Republican stall tactics, unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed. Moving forward, the President is determined to do absolutely everything we can to better protect our nation against today’s cyber threats and we will do that," White House Press Secretary Jay Carney said in an email reported by The Hill.
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