an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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
by Stephen Griffin [link]
Very interesting post. I certainly do believe there are parallels between the present situation and the New Deal era. We have a federalist constitution that is bursting at its seams due to growing needs for federal powers largely unforeseen by the founders. FDR was hostile to the idea of an Article V amendment, even though he could have almost certainly achieved one. The craft of constitutional interpretation has suffered ever since. Liberals have been forced to act as apologists for a too-powerful judiciary, even when the constitutional change imosed by that judiciary is wholly legitimate.
I think now would be a good time for conservatives and liberals to unite and press for an Article V amendment that modernizes the commerce clause and perhaps other clauses to reflect the modern demands placed on our federal government. Surely there is some baseline of popular consensus for a vision of federal power that extends beyond the mere authority to "regulate commerce." This amendment would please liberals by legitimizing aspects of the "New Deal Revolution", but would also please conservatives by reinvigorating an Article V/textualist based vision of constitutional change.
I disagree with the claim that the 1788 Constitution did not provide adequately for federal-state coordination in times of emergency.
In provisions largely forgotten in modern times, the Constitution specifically authorizes the federal government to commandeer state personnel in times of emergency.
In the eighteenth-century, the principal personnel of state government were the state’s militiamen: militia units, operating under the authority of the state, were responsible for maintaining security, keeping order, quelling disturbances, and for enforcing the state’s laws.
By the time of the constitutional convention, it had become clear that in certain emergency situations, the militia would be inadequate to the task of mounting a response: disturbances like Shays’ Rebellion in western Massachusetts in January 1787 had highlighted the need for a federally coordinated response to the most serious emergencies arising within the states.
Yet the revolutionary generation deplored the idea of allowing the federal government to maintain and deploy large numbers of federal troops.
The result of these competing concerns was that the 1788 Constitution permitted the federal government to bring into federal service on a temporary basis state militiamen, in order to deal with three kinds of emergencies: invasions, insurrections, and opposition to federal law.
Article I of the Constitution authorized Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Article II made the President “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States."
So as to ensure those militiamen would be trained and equipped when called into periods of federal service, Article I further gave Congress power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”
Together, these provisions allowed for the federal government to respond to emergencies, without the need to deploy the national military or other federal personnel in large numbers.
In the early Republic, when the national government responded to emergencies, it regularly relied upon state militiamen to carry out the work under federal command
The problem, of course, is that the militia of 1788 no longer exist. One possible conclusion is that the Constitution's provisions for federal-state coordination via the militia no longer have any meaning.
A second possibility, though, is to see how the 1788 provisions can be translated to the modern era and understand them to apply today to law enforcement, emergency personnel, and other state employees who perform the duties once allocated to the militia. (Notably, the Constitution does not define the term “militia,” and, in exercising its powers, Congress itself determined who was part of the militia for constitutional purposes.)
On this reading, in dealing with emergencies, the federal government should be entitled to call these state employees into federal service. Further, just as the federal government once deployed militia units from one state to another, the federal government would be allowed to send state employees into other states where emergencies exist.
Such enlistment of state and local personnel would be limited to invasions, insurrections, and opposition to federal law. Therefore, the federal government would not be able to deploy state personnel unless a natural disaster produced (as it likely will) riots and other forms of lawlessness.
Recognizing these provisions of the 1788 Constitution and translating them to the modern context offers an alternative to reliance upon the national military for relief work.
I explore these themes in my forthcoming article, "The Security Constitution, 53 UCLA L. Rev. 1 (2005).
Jason Mazzone Brooklyn Law School firstname.lastname@example.org
http://www.CrisisSearch.com is a new disaster search engine/portal that takes all the great humanitarian crisis related websites and compiles them into one searchable database accessible anywhere internet is available.
I am unpersuaded that Katrina shows a constitutional or structural problem with disaster relief. I lay that at the feet of incompetent, or deliberately anti-government, current officials, primarily at the federal level. I do wonder whether the inadequacy of New Orleans' levees and floodwalls is at least in part a consequence of city/state/federal fragmentation. That developed over decades, and cannot be attributed to one bad administration. The Netherlands, perhaps the closest parallel, seems to have done much better. Would something closer to a unitary government done better by New Orleans?
Did you see the latest piece by Richard Clarke in The Atlantic Monthly? The former NSC member argues that the failure in NOLA obviously wasn't an unsurmountable coordination problem. After all, the response to Hurricane Frances in 2004 was much better:
"Imagine if, in advance of Hurricane Katrina, thousands of trucks had been waiting with water and ice and medicine and other supplies. Imagine if 4,000 National Guardsmen and an equal number of emergency aid workers from around the country had been moved into place, and five million meals had been ready to serve. Imagine if scores of mobile satellite-communications stations had been prepared to move in instantly, ensuring that rescuers could talk to one another. Imagine if all this had been managed by a federal-and-state task force that not only directed the government response but also helped coordinate the Red Cross, the Salvation Army, and other outside groups.
Actually, this requires no imagination: it is exactly what the Bush administration did a year ago when Florida braced for Hurricane Frances."
Of course, 2004 was an election year...so maybe they botched it because there wasn't a strong personal incentive to act?
I was reading a iraq blog this mroning and couldnt figure out how to post this.
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