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Katrina Relief and the Constitution-in-Exile:
I had thought that the nomination of John Roberts had finally put to rest fears of the mythical Constitution-in-Exile movement. Over at Slate, however, UVa lawprofs Risa Goluboff and Richard Schragger argue that the possible ascendance of the Constitution-in-Exile might lead the Supreme Court to strike down FEMA and the Department of Homeland Security, hobbling future hurricane relief efforts:
  The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—rights that, if taken to the lengths the conservative jurists propose, would hobble government power as we now know it.
  . . .
  Were the Constitution in Exile to return to its allegedly rightful home in the Supreme Court, the national government would likely be prevented from taking on responsibility for any future Katrinas. After such a horrific display of what happens when the nation faces a disaster of national proportions and the national government falls short, it is clear that Judge Roberts, and Sandra Day O'Connor's replacement, should be asked if they endorse such a vision.
  Given that the Constitution-in-Exile movement doesn't exist, I think it's fine if Senators ask this question. Roberts and whoever is nominated to replace O'Connor will just say "no," and then the Senators can move on to the next question.
FXKLM:
The really strange part about the Slate article is that it advocates, without the slightest attempt at legal support, a constitutional requirement of an expansive federal disaster response system. The suggestion that FEMA is constitutionally required is far more extreme and less justifiable than the suggestion that it is constitutionally impermissible.

"Judge Roberts should be asked whether he believes in a Constitution that permits and even demands that national resources be brought to bear to protect the safety and security of the person."

"He should be asked whether the notion of civil rights includes the right to a minimally competent federal presence in the lives of the people, and an affirmative duty on the part of government to ensure basic necessities."
9.8.2005 6:55pm
Shelby (mail):
FXKLM:

Truly bizarre. Well, if any nominee were asked those questions, I certainly hope she (or he) would say no. "an affirmative duty on the part of government to ensure basic necessities"?
9.8.2005 6:59pm
John Jenkins (mail):
Are they *serious* in suggesting that concentrating power further with the federal government would have done more to prevent the aftermath of Katrina? Didn't the feds, through the Corps of Engineers, already have responsibility for the levees for the last 60+ years? How can anyone take this seriously?
9.8.2005 7:06pm
David M. Nieporent (www):
What's bizarre is how the complete failure of big centralized government planning is somehow seen as an argument for... big centralized government planning.
9.8.2005 7:10pm
Gabe (www):
All due respect to Professor Goluboff, but having taken her class on Civil Rights Litigation, I feel comfortable saying that her views on this stuff are well beneath her intellect.
9.8.2005 7:22pm
Thorley Winston (mail) (www):
With all due respect to Gabe, if Professor Goluboff actually does know better but she still writes this garbage where it will be read by non-legal laypeople, it says quite a bit about her ethics.

If I took class from her, I would start to question the veracity of what she taught me.
9.8.2005 8:01pm
Steve:
The obligation of the federal government to respond to disasters arises not from the Constitution, but from the nature of government itself.
9.8.2005 8:16pm
Brett Bellmore (mail):
Constitutions are created out of the belief that the nature of government is to be so dangerous, that it must be shackled by chains forged of law, and compelled to behave unnnaturally.
9.8.2005 8:33pm
DavidBernstein (mail):
I doubt FEMA would have been unconstitutional before the New Deal. The Great Mississippi Flood of 1927 received a vigorous federal response, led by Herbert Hoover, who was whisked into the presidency on the basis of his perceived performance in that role.
9.8.2005 8:56pm
Wince and Nod (mail) (www):
Well, reading the Constitution does not naturally lead me to believe FEMA is constitutional. Maybe I lack imagination, but I can't connect it to the Congressional powers at all.

Can someone explain why FEMA is Constitutional?

Yours,
Wince
9.8.2005 9:44pm
Adam:
...might lead the Supreme Court to strike down FEMA and the Department of Homeland Security, hobbling future hurricane relief efforts.
That's an odd sentiment: I can think of few things more likely to improve future hurricane relief efforts.
9.8.2005 9:48pm
John Jenkins (mail):
I can see how FEMA is constitutional without much effort, actually. If a disaster crosses state lines, then it affects interstate commerce and therefore Congress (and the federal government) can act.

More than that, I'm willing to concede that disaster preparation and relief is an organic function of government; one of the reasons we organize into government units. Now, the question isn't whether the Constitution authorizes it, but rather whether it is better handled at the local level in any event.

I think that this would also fall under providing for the "common Defence and general Welfare of the United States." U.S. Const. art. 1 § 8. There is no question that a disaster meaningfully affects the general welfare of the country, so finding authority here is not very difficult, I think
9.8.2005 10:33pm
ReaderY:
Article IV, Section 4:

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

The protection against "domestic Violence" provision is what expressly authorizes federal troops to move in to restore order after a natural disaster, with the sole (and very important) proviso that state government officials must request help first — help not only cannot be imposed on a state against its will, it cannot be imposed without its express request.

Providing help when disaster overwhelms regular authorities is authorized under the Necessary and Proper clause. It is clearly more "necessary and proper" to protecting against domestic violence than a great deal of the stuff the Supreme Court has upheld as necessary and proper to the Commerce Clause.
9.9.2005 12:35am
ReaderY:
Article IV, Section 4:

"The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

The protection against "domestic Violence" provision is what expressly authorizes federal troops to move in to restore order after a natural disaster, with the sole (and very important) proviso that state government officials must request help first -- help not only cannot be imposed on a state against its will, it cannot be imposed without its express request.

Providing help when disaster overwhelms regular authorities is authorized under the Necessary and Proper clause. It is clearly more "necessary and proper" to protecting against domestic violence than a great deal of the stuff the Supreme Court has upheld as necessary and proper to the Commerce Clause.
9.9.2005 12:36am
Lors Suck (www):
The really strange part What's strange? There's nothing strange about socialists advocating socialism.

Truly bizarre. What's bizarre? It's their usual tack.

Are they *serious* They're deadly serious.

What's bizarre is how the complete failure of big centralized government planning is somehow seen as an argument for... big centralized government planning. Once again I say it's not at all bizarre. The authors are socialists. The history of the socialist movement is to advocate for socialism no matter the efficacy of any actual government programs. Effective programs is not the goal, never was the goal, never will be the goal.
9.9.2005 4:46am
Lors Suck (www):
The really strange part What's strange? There's nothing strange about socialists advocating socialism.

Truly bizarre. What's bizarre? It's their usual tack.

Are they *serious* They're deadly serious.

What's bizarre is how the complete failure of big centralized government planning is somehow seen as an argument for... big centralized government planning. Once again I say it's not at all bizarre. The authors are socialists. The history of the socialist movement is to advocate for socialism no matter the efficacy of any actual government programs. Effective programs is not the goal, never was the goal, never will be the goal.
9.9.2005 4:46am
Robert Schwartz (mail):
If the Federal Goverment were not imagined as everybody's mommy, then disaster relief would be a state, local, and private responsibility. Which is what it should be.

Commenters above have rightfully point to Art IV, Sec 4. Apparently Gov. "My Mind Is A Complete" Blanco, dithered and stalled on asking for Federal assistance to keep order. Of course if the NOPD had not crumbled in the face of the storm (due to poor morale, poorly planned facilities and bad planning), it wouldn't have been an issue.

Congressional authority over navigable waters is long established:

Gilman v. Philadelphia (70 U.S. 713, 1866) "Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England."
9.9.2005 1:45pm
Scipio (mail) (www):
My con law professor (a living Constitution guy of some note; Grisham blew him up in the Pelican Brief) recounted a story that appalled even him about a summer class he taught at Fordham, where one particular student was advancing a truly Quixotic theory of constitutionalism where only current standards guided the interpretation of the constitution. He asked the student if there was any part of the Constitution that he believed retained its original meaning.

The student's reply: "The necessary and proper clause."
9.9.2005 2:23pm
John the Lawyer (mail):
What are professors at Top 10 law students doing writing obviously-wrong stuff like this?
9.9.2005 4:17pm
Wince and Nod (mail) (www):
Domestic violence does not mean natural disaster. And emergency relief is not regulation of interstate commerce. The Anti-Federalists called the necessary and proper clause the sweeping clause. They were right about that. But who then predicted that the Commerce Clause would be the broom chosen?

FEMA may indeed be embraced by the letter of the Constitution, although a letter stretched so far beyond it's normal being as to become a portrait, a landscape or a still-life. But there is no way that FEMA can be read as being in the spirit of the COnstitution as written.

Yours,
Wince
9.10.2005 2:42am