Article I, Section 8 of the Constitution says Congress has the power:

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.

Article IV, Section 4 of the Constitution says:

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 Constitution doesn't say the federal government should (or even can) come to the aid of a state during or after a natural disaster. Does it?


Question: What is the legal justification for the federal response to Hurricane Katrina?


Edit note: Topic title changed; Original inflammatory & misleading -Jaime

What you mention above is in fact Clause 18 of Article 1 Section 8 of the Constitution. This is but a secondary mechanism, not the root of the justification.

The catastrophic mistake (many of us believe) of the authors and signatories to the Constitution, is the inclusion and ratification of the undefined vague phrase "general welfare" contained in Clause 1 of Article 1 Section 8:

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.

It is those two words which are used to "justify" (legally if not correctly) not only Federal disaster reponse, but the vast majority of things the Federal government does today.

This part of the Constitution does not say the common defense . . . of the United States from foreign sovereign nations either, so . . .

Does this justify the war on terror and all the other non-declared wars since WW II?

I think so. If you can justify the war on terror with this part, why not defense against natural disaster? The feds are supposed to defend the country from attack, and wasn't Katrina attacking? Maybe a case can be made that Katrina was an act of God, not of man, and so one can't really defend the country against God's will.

Which opens a mighty huge can of philosophical worms.

Question: What is the legal justification for the federal response to Hurricane Katrina?

I do believe the legal part has to do with the creation of FEMA, so what legally justifies FEMA's existence? I don't know of any formal legal challenges to FEMA or of any organization willing to pursue legal challenges. But I'm willing to be educated. Maybe there's an ACLU-type organization that watch-dogs the feds in court? Might the CATO Institute actually do something besides publish opinions?

Lets say no.
So at this point I have no idea what I am paying taxes for since the government can do and has sone nothing for me at any point in time and likely Im paying for Haliburton to ransack Iraq.

Perhaps we should all just stop paying. It would be a truly faith based initiative!

The government is indebted to protect its citizens from all threats, natural disasters surely qualify. The government has a responsibility, and an expectation, to provide aid to a ravaged area if hit by a natural disaster or a storm. All people are looking for the government's response or actions and let us say that they did not respond: they would be condemned and a new government would be called for, then rampant famine and disease would run through the streets. Hmm, kind of a nice transition to anarchy from a simple idea of the government not mucking something up...

I can't find anything along those lines in the Constitution. What I find is a list of powers given to Congress, and none refer to natural disasters. None of the powers given to the president refer to natural disasters.

So . . . I'm at a loss. Where does Bush get off saying the recovery effort is his responsibility? If there's a big warehouse fire somewhere, someday, might the president of the U.S. decide that he doesn't like the way the locals are handling it and then decide to federalize the effort? If a river overflows its banks, and the president doesn't like the way the governor is handling things, might he call in the U.S. Army?

I can't find a justification. But where are the limits? Seems like we're just going on gut.

Question: What is the legal justification for the federal response to Hurricane Katrina?

The more important question would be what PREVENTS the feds from the response? With all goverment isssues- it is not if the action is demanded, but if it is prohibited - the bill of rights is not a document DEMANDING goverment action, but rather, to limit it- there is no constitutional amendment demanding public schools- or a draft, or anti-gay marriage, or nudity in public- but there is no prohibition in the constitution either.

Vey important to recognize this issue under that context.

Are you saying that the national government can do whatever it likes UNLESS the Constitution expressly prohibits it?

The Constitution defines the powers of the national government, right? It says what Congress may do and what the president may do. It gives all other powers to the states and to the people, right?

Remember not long ago, the Supreme Court voided some act prohibiting people from having a gun near a school. Congress said it relied on the commerce clause to justify its power to pass that act. The Supreme Court decided Congress had no such power.

What gives the national government the power to assume responsibility for a natural disaster?

Yes, that is exactly what I am saying- unless the thing is specifically prohibited- it is allowed to do it- exactly. This is both reality and by law. The goverment can REGULATE guns however they wish, they just can't CONFISCATE them completely- that is why gun control has withstood every test that has came before the SCOTUS since the 20s.

If congress passes a law, and the supreme court decides the congress has passed something that is prohibited by the constitutional, then that law is thrown out- that is the very nature of our goverment- the constitution DOES enumerate some specific things it can and can't do, for instance, the eminent domain ruling for instance,very controversial, very emotional- but eminent domain is in the constitutions, specifically allowing siezure of property as long as thier is compensation for the land. No one disputes that- the argument comes down to whether how far the interpretation goes- not that it is allowed at all or not.

Same with so many controversial subjects- it is not whether the goverment CAN do something, but how far it can go when it DOES do something.

The constitution in no way prohibits a federal role in natural disasters, so it can do whatever the will of the poeple that elects its representatives decides is the proper role- it is not even a remotely constitutional issue.

What is the legal justification for the federal response to Hurricane Katrina?

I don't know the Constitution well enough to comment beyond "I expect the General Welfare clause covers it" (Hey- I've learned something from my time at !)

But I will say this - for disasters on the scale of the Katrina aftermath, the most pertinent question is not a variant of "does the Constitution permit government intervention?", which is the thrust of what is being asked here.

We shouldn't be trying to prevent the government from intervening in this sort of situation - we should be encouraging them to do so, and removing legal barriers from doing so effectively, if those barriers exist.

So if the Constitution doesn't permit Federal action in these circumstances, the appropriate action is not to punish the Feds for acting this time around and prevent them from ever doing so in future, it is to change the Constitution so that it does permit Federal action (in such circumstances, to keep the States' Rights people less unhappy than they might otherwise be).

If you believe otherwise, what do you think is the point of the Federal government? You might as well not bother with them at all. Become 50 entirely separate states with some interstate treaties to keep commerce running smoothly. Send 50 different ambassadors to friendly countries. Share the nukes and the ships and the planes out between them all, and call the Union a failed experiement.

Actually, the opposite of your statement is true. The federal government is delegated certain powers by the states, and therefore, the people thereof. The 10th Amendment, summarized, says that all powers not delegated to the US Gov't are left to the states. You are correct in your assertion that the Constitution is a document of limitations. However, the context of the document does not provide specific prohibitions (with the exception of Art. 1 secs. 9 and 10) upon governmental operations, but rather provides for what the federal gov't can do. Just as a sidebar, the general welfare clause has come to be the catch all that allows the Congress to pass laws under the guise of "for the good of all people".




Traditionally, gun control measures are argued under the heading of the commerce clause (which the federal gov't can regulate). The principal 2nd amendment case is US v. Miller (1939), and actually ruled in favor of gun control measures, claiming that a firearm not regularly used in the course of militia operations was not protected by the 2nd amendment right to carry.

Regarding the question at hand, the local agencies are the front line defense against any type of disaster, whether it be natural or man-made. Only when the task becomes too much for the locals to handle, does the federal gov't have the right to step in, and that assistance has to be requested by the state governor dealing with the disaster. The only exception to this rule that I am aware of is when the disaster is man-made in nature, and is the fruit of a criminal violation of the USC. If such is the case, as was 9/11, federal agents will be on the ground, along with their resources, at first availability. There are actions currently underway to standardize the emergency response plan nationwide, as prescribed by Presidential Directive #3 of the HSA of 2002. All first response agencies have to be compliant by 10/06, or risk losing federal monies.

The Supreme Court said the government CANNOT regulate guns however it wishes. The government used the commerce clause to justify its act. The Supreme Court said that commerce wasn't involved, and nullified the law (as I recall).

The government is limited in what it can do, right? Isn't that a big part of why we have a Constitution?

What supreme court decisions are you speaking of? please clarify and provide link to decision you are speaking about?

The case was United States v. Lopez. Here's a link to a page that discusses it as well as another case in which the Supreme Court ruled that Congress didn't have the power to pass a law: http://www.aei.org/publications/pubID.11797/pub_detail.asp

Also of note, this from the Stafford Act: (http://www.fema.gov/library/stafact.shtm)


My question is this: what gives the national government the authority to do this? I'm not suggesting that it doesn't or shouldn't have such authority. I'm just asking: what's the basis for it?

NOt to bad a link- basically, what you are saying, and the editorial of this anti-federalist site, is that the court did in fact cut back some provisions of unlimited power that congress appears to wield via commerce clause- it was not a actual challenge to the 2nd amendment - but the commerce clause.

Anyhow- it was good link- a quote- from an anti-federalist site at that:

"The constitutional baseline was something like the following: Congress is and forever shall be omnipotent, provided only that state (and to some extent local) governments remain exempt from federal impositions in a few select areas. Even Lopez, the Court’s most aggressive federalism stance until Morrison, suggested that the Court would defer to Congress in assessing the constitutionality of questionable federal statutes, so long as Congress provides legislative findings that link the regulated conduct to interstate commerce. A concurring opinion by Justices Kennedy and O’Connor, moreover, suggested that congressional power was effectively unlimited unless Congress intruded into the remaining state enclaves."

So the basis is "because they can, because they want to, and it is the will of the people" and there is no overt prohibition from this behavior. The narrow states rights interpretations we see everyonce in a while on this site, mostly among libertarians such as myself, for all practicality, and in reality, was settled with the civil war- we are a federalist state with unlimited power to congress, unless it intrudes into the remaining state enclaves.

Stafford Act

The above link will take you to the congressional findings regarding the Stafford Act. It's my interpretation that the federal gov't is able to act based upon the general welfare clause, as well as the commerce clause. The intent, from what I see, is to help communities who have been dealt such a blow that they are no longer self-sufficient and need help running their daily affairs, which would definitely be the case in present-day New Orleans. I think that the federal gov't definitely has an interest (an odd statement for me, as I am traditionally an advocate of states' powers) in aiding with Katrina cleanup due to the massive quantities of tonnage, and corresponding duties that are collected, that pass through New Orleans on a daily basis. Every day that passes that the Port of New Orleans can't take freight, the more money the gov't loses. It's my understanding, however, that the port has reopened to a small amount of traffic.

I don't see it. If Congress has unlimited power, then how in the world can the Supreme Court ever rule (as it so often does) that Congress exceeded the powers given to it via the Constitution?

Here it is:


Now, here's what I wonder: could someone make the claim that acts that promote only the welfare of a particular group of people are not allowed? I just ask it for the sake of argument.

Could somone in California make the case: "I don't want my taxes going to help someone in New Orleans. I certainly don't want my taxes going to rebuild the place. This isn't promoting the general welfare of the United States. It's promoting -- very specifically -- only those effected by Katrina."

The power to advance the general welfare of the United States is one thing, but the power to advance the welfare of folks in New Orleans is another, right?

That's where the commerce clause could be invoked. It could be said that the people of California benefit from the duties imposed upon port traffic from New Orleans, as well partake in consumption of goods received in the port. Given that, it would behoove the people of California to accept the use of tax dollars for the rebuilding/recovery effort. After all, the well-being of the port (including all infrastructure, workers, etc.) has an effect on them. Is it a far-fetched argument? Of course, but it's an argument none-the-less.

The article presses on to say that those views you quoted from the article were dispelled by the Morrison findings. The Morrison case used the Civil Rights Remedy of VAWA as it's basis (a law that was founded upon the Commerce Clause), and the USSC ruled the VAWA unconstitutional, as it was non-economic in nature. By its very wording, issues using the Commerce Clause as a basis must have economic factors. The Court found that the Congress was beyond the scope of its jurisdiction when it enacted VAWA, and rightly ruled it unconstitutional. Given those facts, I fail to see how the Congress is omnipotent, possessing the ability to legislate how they wish, regardless of jurisdictional issues, as your ideology states. We are, in fact, a federalist state. But there is that whole idea of checks and balances that prevent any one of the three branches from having too much power. A failure to do so would, undoubtedly, lead to unchecked tyranny.