Did the Constitution Fail New Orleans? (Part 1)

Stephen Griffin

In the immediate aftermath of Hurricane Katrina, journalists and the public began asking why the effort to aid the citizens of New Orleans floundered so badly. A number of news stories, notably by the New York Times and Newhouse News Service, laid part of the blame on a defective system of governance.

The Newhouse story stated that the muddled response to Hurricane Katrina exposes something known by Washington insiders: “For reasons that run deep and probably can’t be fixed, Washington has difficulty making long-range plans, coordinating its actions and tackling the tough political decisions required for swift disaster response and other critical responsibilities.” Washington veterans cited these factors: (1) power and authority are fragmented as the framers intended; (2) election cycles mean attention spans are short; (3) bureaucracy stifles initiative; and (4) intense partisan conflict. The story quoted Paul Light, professor of public service at New York University: “’Chief among the federal government’s structure problems is its division of responsibility.’
‘It’s built into the Constitution that we have a federal system where states and localities have a lot of responsibility.’ ‘Part of this is embedded in the system that we don’t want a strong federal presence….The founders were clear in wanting to protect citizens from the national government.’”

Could the Constitution have something to do with Katrina? The important theme in the Newhouse story is the persistence of the eighteenth-century federal order. In this system, there are separate governments that do not share power. If coordinated action is required, everyone has a veto before the bargaining starts. Washington Post columnist David Broder recently wrote of Hurricane Katrina that “The failure to respond to that disaster exposed one of the few real structural weaknesses in our Constitution: a mechanism to coordinate the work of local, state and national governments.” News reports show that a week after Katrina made landfall, local, state and federal officials were still arguing over who was in charge.

A long article in the NYT on September 11 analyzed the breakdown in the government’s response. It stated: “As the city bec[ame] paralyzed both by water and by lawlessness, so did the response by government. The fractured division of responsibility – Gov. Blanco controlled state agencies and the National Guard, Mayor Nagin directed city workers and Mr. Brown, the head of FEMA, served as the point man for the federal government – meant no one person was in charge. Americans watching on television saw the often-haggard governor, the voluble mayor and the usually upbeat FEMA chief appear at competing daily press briefings and interviews.” And: “The power-sharing arrangement was by design, and as the days wore on, it would prove disastrous. Under the Bush administration, FEMA redefined its role, offering assistance but remaining subordinate to state and local governments. ‘Our typical role is to work with the state in support of local and state agencies,’ said David Passey, a FEMA spokesman.'”

As I write this post, the arguments continue, now over who will lead the effort to reconstruct the city and southern Louisiana, still suffering from the massive destruction wreaked by two monster storms. But if more intergovernmental coordination is required as Broder and others suggest, the framers of the Constitution and constitutional scholars might well reply that coordination of government was not the point of the original constitutional plan. In eighteenth-century terms, a “coordinated” response by all levels of government to a policy problem poses a great risk of tyranny.

What of natural disasters, events that are nearly by definition beyond the capability of local and state governments? Here we encounter a reality that has been made more familiar by works such as John Barry’s Rising Tide (referred to in a previous post). That is, it took many decades and repeated disasters to convince national officials, including the President, that the federal government had a role to play in alleviating the effects of natural disasters. For much of American history, victims of natural disasters were pretty much on their own. As a matter of policy at least, the federal government was not concerned with whether U.S. citizens starved or died from lack of medical care after a natural disaster. It was certainly not concerned with providing financial assistance to ensure that they had food and shelter. That was a matter for private relief efforts and whatever local officials were on hand.

Part of the point of Barry’s book is that the provision of federal assistance after the 1927 flood and the assumption of federal responsibility for flood control along the Mississippi river represented a great change in the American system of governance. Barry might be exaggerating somewhat, but his book does provide evidence for something historians and legal scholars have long emphasized – that the twentieth century saw a major change in the constitutional order, one involving greater federal involvement in matters previously jealously guarded by state governments. The change is usually attributed to the Great Depression, although works such as Barry’s show that change was in the air even in the 1920s.

Most of us have grown up in a world in which federal assistance in time of disaster is taken for granted. So why did the government stumble so badly after Hurricane Katrina? The answer provides an instructive lesson in how constitutional change occurs and, in many respects, the continued role of the eighteenth-century federal structure. After the Great Depression, the constitutional order changed in a somewhat helter-skelter unplanned fashion. Certainly no constitutional amendment was approved that might have provided firm legitimacy and guidance to the federal government’s new power. The formal structure of American federalism remained intact. And so it is still the case that when natural disasters strike, the divided power of the federal structure presents a coordination problem. The kind of coordination that had to occur to avoid the Katrina disaster requires long-term planning before the event. The American constitutional system makes taking intergovernmental action difficult and complex. The process of coordinating governments can thus take years. In many ways, the government was just at the beginning of that process at the time of Katrina, although we are now four years distant from the terrorist attacks of September 11 that set the latest round of disaster coordination in motion.

Suppose, however, that we don’t have the luxury of taking the time to satisfy every official with a veto. This is the key point of tension between what contemporary governance demands and what the Constitution permits. Informal constitutional change such as the kind that occurred in 1927 can take us only so far. What Hurricane Katrina shows is that even after decades of experience with natural disasters, federal and state governments are still uncoordinated and unprepared. The reasons they are unprepared go to the heart of the constitutional order. We can do better in the future only by directly confronting the difficult task of adapting an eighteenth-century constitutional order to contemporary circumstances.

The federal structure is not the only causal link between the Constitution and the government’s inadequate response to Hurricane Katrina. A separate problem lies in our system of representation, which I will discuss in a later post.
Posted 10:31 PM by Stephen Griffin [link]