Federalism and hurricane katrina worksheet

POSC100 AMERICAN GOVERNMENT HURRICANE KATRINA AND FEDERALISM EXERCISE

These pages present some additional data to help you answer the questions on the Hurricane Katrina worksheet handed out in class on the 19

th of February. Read and reflect on this information. If you’re

interested, the world of the internet has much much more information on the government’s response. Be cautious, however, for many of the opinions expressed on blogs and other commentary is ill-informed to the extreme.

Disaster Planning and Relief

In the area of disaster relief, there are a good many jurisdictional gray areas. The Constitution is silent on the federal government’s role—there are no enumerated powers,; only implied powers:

From Article I, Section 8:

(1) The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States".

… [the remaining 16 provisions enumerating the powers of Congress]

(18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In the early days, it was unclear if these provisions allowed Congress to even appropriate funds to help out a specific geographical affected by a disaster.

1

1 Jack M. Balkin from Yale University explains:

One of the earliest and most contentious debates during the first years of the Constitution's history was whether or not the federal government had the power, under its authority "to pay the debts and provide for the common defence and general welfare of the United States," to spend money for disaster relief for a specific community.

Jeffersonian strict constructionists argued that the words "general welfare" precluded such a power, arguing first, that the general welfare clause only gave Congress the power to spend on behalf of one of its other enumerated powers, and second, that even if the power to spend for the general welfare were an independent power, Congress could not devote money to a specific locality or region, but must spend for the entire country as a whole, i.e., "the general welfare of the United States." Loose constructionists, following Alexander Hamilton, argued that the general welfare clause gave Congress a separate power, and that the clause gave Congress wide latitude to spend money to promote what it viewed as conducive to the general welfare.

These competing ideas took center stage in the aftermath of a devastating fire in Savannah, Georgia in 1796. Hamilton and his federalist friends appealed emotionally to Southern Representatives in Congress to encourage a broad reading of the Art 1, s 8(1). However, Southern Representatives, many of whom were Jeffersonian Republicans, stood firm to their original understanding and refused to provide federal funds to assist a specific area of the country. Over time, Hamilton's view has won out. Nobody in the federal government today has any constitutional qualms about sending federal money and assistance to New Orleans—so long as the states and/or local governments ask. (Jack M. Balkin, Disaster Relief and the Constitution: A History of “Strict Construction”)

http://balkin.blogspot.com/2005/08/disaster-relief-and-constitution.html
http://balkin.blogspot.com/2005/08/disaster-relief-and-constitution.html
Nowadays, the implied powers of the federal government to appropriate for the general welfare are shared (or “concurrent”) with many state and local powers and responsibilities.

Traditionally state and local governments have been the first responders to disasters, with the federal government providing backup, financial and logistical aid, and help with long-term recovery. The federal government will enter the picture earlier if state officials ask. Increasingly, however, the people have looked to the federal government for a quick and decisive response, in conflict with its traditional role and constitutional powers.

In the aftermath of Hurricane Katrina, it didn't take very long for the "blame game" to begin. Even as scenes of utter chaos and destruction in New Orleans were still being broadcast live around the world in late August 2005, federal, state, and local officials started pointing fingers at each other.

Assigning blame is difficult.

It is pretty clear that the “government” responded poorly. Emergency procedures, even though many had been rehearsed,

were not followed; communication between different agencies never began or broke down. Yet, some of the problems surrounding Katrina arose from very real confusion about who was to do what and when. Our task today is to figure out which part of “the government” is responsible for what when disaster hits and to apply that knowledge to the response to the response to Hurricane Katrina.

What role does the federal government have in disaster management and planning?

The federal government had no role in disaster management until—you guessed it—President Roosevelt and the New Deal of the 1930s. Three federal government agencies were given roles in disaster management: the Reconstruction Finance Corporation, which could provide loans to states to help repair damage resulting out of an earthquake; The Bureau of Public Roads, which could provide funds to repair roads and bridges after a hurricane; and the U.S. Army Corps of Engineers, which was allowed to intervene to help out in floods. However, the federal government had only a small. Over time this role in disaster relief gradually increased.

In 1979, President Jimmy Carter created Federal Emergency Management Agency (FEMA). FEMA centralized the federal government’s disaster relief programs into one agency. By 1992, FEMA had roughly 2,500 employees and a budget of $4 billion.

FEMA coordinates the federal government’s response to national disasters. It can provide experts to assist state and local forces, high-tech communications teams, search and rescue team and, recently, the assistance of FEMA Corps (like the Peace Corps but trained in emergency relief). In the longer term, FEMA provides funding for rebuilding and low-interest loans to state and local authorities.

Yet, FEMA cannot (usually) act without a declaration of a “state of emergency” by a state governor and a request to the President from that state governor to issue a national disaster or emergency declaration.

In between disasters, FEMA coordinates performance standards for emergency preparedness. FEMA sets standards (in the National Response Framework), after lengthy consultations with

representatives from other federal agencies, states, territories, cities, counties, townships, tribes, and nongovernmental first responders, and encourages states and localities to adopt common procedures and planning standards on things like transportation and communications. Key in this encouragement is the provision of funding for states to develop their own, high-standard, emergency plans and response capabilities. It also trains state and local officials.

In all of this, the core assumption guiding the response to and planning for disasters is that emergencies are typically managed best at the lowest possible geographic, organizational, and jurisdictional level. These assumptions are adopted by the federal government in its centralized plan for disaster management, the National Response Framework (to which all the states and local governments adhere). The irony notwithstanding, the logic goes that since every community is unique, preparedness planning must account for local conditions of culture, geography, language, infrastructure, politics, and numerous other factors. For example, Washington bureaucrats are unlikely to that the Nutwood Ave Exit of the 57 is closed and the National Guard needs to take the Chapman Ave exits. In any case, the federal government lacks the resources to serve as a first responder during every disaster within the United States—they don’t own the fire engines, buses, police cars etc needed to respond to every disaster.

When the scale of an incident exceeds the capacity of state and local actors to respond, the Federal Emergency Management Agency (FEMA) and other U.S. government agencies mobilize to provide assistance. Such intervention requires the President, following an appeal from a state governor, to issue a disaster or emergency declaration that authorizes supplemental federal assistance to the stricken area. Even in this case, however, state bodies preserve much authority over the response. For instance, the governor can retain control over the state National Guard, and state disaster managers continue to decide what role, if any, they want FEMA to play in distributing emergency supplies.

What role do the states have?

State and local officials do most of the response planning, subject to national guidelines and standards. In Louisiana the planning is coordinated by the Governor’s Office of Homeland Security and Emergency Preparedness. In accordance with the principles of federalism, each state determines for itself the precise delineation of authorities and responsibilities for emergency response between state-wide and local public bodies (e.g., municipalities, counties, etc.).

The state Governor is responsible for declaring a State of Emergency (required before a request for federal assistance can be made to the President). The state Governor is the commander of the state National Guard. The federal government may appropriate funds for the deployment of the National Guard, but the President cannot deploy them unless the Governor asks the President to federalize the forces. The Governor, of course, controls the state police and other state executive forces that can provide assistance and law and order. State (and local) authorities have the initial lead role in managing emergencies within the United States.

What role for local authorities?

Local authorities are the first responders to disasters. The common planning assumption is that communities need to manage a local emergency largely by themselves for up to 72 hours until substantial state and federal assistance can be mobilized and deployed on the scene. Local officials can declare a State of Emergency. Local officials are in charge of local evacuation plans. Local officials deploy firefighters, police and public transportation services to assist in evacuation and law and order maintenance.

Government Agencies Available to Respond to a Natural Disaster (2005) Federal Government

 National Hurricane Center – Tracks, names and predicts the likely behavior of tropical storms and hurricanes and issues appropriate watches and warnings to the public.

 Federal Emergency Management Agency (FEMA) – provides supplies, equipment, financial assistance to victims and Disaster Medical Assistance Teams to areas hit by natural disasters.

 U.S. Coast Guard – provides aircraft, patrol boats and cutters to conduct search, rescue and humanitarian aid operations.

 U.S. Army Corps of Engineers – Plans, designs, builds and operates dams, levees and other civil engineering projects.

 Department of Health and Human Services - deploys U.S. Public Health Service Officers to affected areas on standby for deployment to support medical response.

 Department of Transportation - dispatches trucks deliver millions of meals ready to eat, water and supplies, mobile homes, generators, etc. to affected areas

 Department of Agriculture - coordinates damage assessments to area crops and livestock

 Department of Defense - Assists FEMA and National Guard after disaster declarations are issued for assistance in security, clean-up, search and rescue.

 Department of Labor – provides disaster unemployment assistance and National Emergency Grants and assists in job recovery programs.

Louisiana State Government (includes the Governor, State Legislatures and Agencies)

 National Guard – though a federal entity, may be called by governors to provide search and rescue, assisting local law enforcement, and supplies to victims.

 State Department of Health – assists in disease control, and management of public health crisis in affected areas.

 State Emergency Management Agencies – helps to coordinate shelters, supplies, health care and transportation for recovery efforts.

 State Department of Education – help displaced school children and teachers integrate back into other schools.

 State Police – state law enforcement. Local Government (includes Mayors, Municipal or County Boards or Councils, Agencies)

 Local Law Enforcement – police, sheriff departments with primary law enforcement responsibility.

 Local Fire Departments– first responders to carry out search and rescue operations.

 Local Emergency Services – first responders to medical emergencies.

 Local Public Transportation services (buses, trains, subways) – evacuation transportation.

 Local Social Services – provides assistance to families, individuals in need.

Mistakes made before and after Hurricane Katrina

The Federal Government gets a harsh grilling over for its behavior: Democratic Louisiana Governor Kathleen Blanco asked why the FEMA was so slow to respond to the disaster and why active-duty military forces were not sent to help provide shelter, food and water, and order. Democratic Mayor Ray Nagin complained about the slow federal response in radio and television interviews, and estimated that at least 10,000 people died from the flooding, violence, loss of power, and toxic wastes. FEMA director Michael Brown defended FEMA, claiming the formal request for federal assistance had not been made for Orleans County. Yet, it is true that FEMA failed to requisition sufficient rescue teams and supplies and responded slowly when the levees broke. It also took the president and his team a few days to realize that state and local officials were absolutely overwhelmed.

Brown and some White House officials (though not President Bush) laid the blame squarely on state and local officials for failing to plan properly for the emergency, botching the evacuation, and failing to enforce law and order. For its part, the Louisiana state government failed to meet its core responsibilities. It did not come close to implementing its own disaster mitigation and relief plan. Furthermore, over the years it had adopted a series of tax, subsidy, and regulatory policies that encouraged construction along low-lying coastal areas, putting people at risk and help destroying wetlands that once protected populated areas from hurricane storm surges.

And the local New Orleans officials also failed to meet their core responsibilities. The mayor delayed in ordering a mandatory evacuation, failed to provide transportation for people without cars once the order was given, and failed to provide adequate policing during and after the emergency. In addition, city officials had for years avoided upgrading and protecting vital infrastructure (pumps, sewage treatment facilities, emergency medical services, and more) or improving building codes for residential and commercial structures.

A key issue in the analysis of the governmental response is communication. It is unclear how the various governments communicated. White House officials claim, for example, that Governor Blanco refused to ask the federal government to take control of the Louisiana National Guard and New Orleans police. They also say they wanted to send the 82nd Airborne to restore order and coordinate logistics, but hesitated because the governor had not made a specific request. The governor said she told President Bush, "I need everything you have got." She never specified what kinds of troops she needed because "nobody told me that I had to request that. I thought that I requested everything they had...We were in a war zone by then."

The Changes made after Hurricane Katrina

After Hurricane Katrina, Congress has strengthened the role of FEMA in disaster management and centralized planning and administration of disaster relief. Planning is more “Washington-centric” and lower thresholds for what may trigger a federal emergency declaration (e.g., a major disaster, emergency, or fire) without a state governor requesting assistance have been adopted. The federal government has gotten more powerful.

Adapted from Robin Malloy & John Lovett, Law and Recovery from Disaster: Hurricane Katrina (2009); Erin Ryan, How the New Federalism Failed Katrina Victims (2008); Ryan, Federalism and the Tug of War Within (2007); Greenbeg and Page, Struggle for Democracy (2005)

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1636788
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1086&context=facpubs
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1086&context=facpubs
http://wps.ablongman.com/long_greenberg_sd_7/28/7256/1857732.cw/-/2837428/index.html