Who Guards the Gates?

| Tue Sep. 6, 2005 5:44 PM EDT

Matthew Kahn of the "Environmental and Urban Economics" blog has an excellent post on figuring out who, exactly, should have responsibility for investing in New Orleans' levees. Should the city do it? The federal government? Says Kahn:

To convince me that federal taxpayer money was needed for such a local project, you'd have to convince me that New Orleans was liquidity constrained (couldn't get a loan) or that there political leaders were over optimistic about the quality of the existing levees and thus were underestimating the benefits of upgrading the levees.

Good point, though don't we also have to factor in the fact that New Orleans' political leaders might be optimistic about the existing levees holding during their time in office? One can easily imagine a mayor thinking that, yes, the levees may be inadequate, but hey, as long as they overflow on someone else's watch, it's not worth the investment. As ever, rational actors in office don't always act in the public's long-term interest. (Plus, local corruption played a significant role in underfunding New Orleans' government.)

On the other hand, the federal government is even more likely to be risk-averse (after all, if Congress—or the president—happens to slash funds for, say, levees in Louisiana and then disaster strikes, they incur the wrath of voters in, on average, one state out of fifty). As we've seen, it's hard for a state to depend on a federal government that sits hundreds of thousands of miles away, especially when its two sitting senators are very low-ranking members, and one (Mary Landrieu) is in the minority party. And so on. As Kahn notes, this debate becomes important as climate change ends up exposing more and more cities to the risk of flooding, and people need to figure out which protection costs should be paid for by cities themselves, and which by the federal government.

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The Joys of Multi-Tasking

| Tue Sep. 6, 2005 5:23 PM EDT

The devastation from Hurricane Katrina is pretty clearly the most important thing affecting the country right now. But it's not the only thing affecting the country right now, and it seems odd that the Bush administration is getting ready to focus solely on the recovery—or rather, getting lots of photo-ops in to make it look like they're doing something about the recovery. Whatever. Neverthless, are they dropping everything else? See this bit of news from Knight-Ridder:

[The hurricane] could crimp Bush and Secretary of State Condoleezza Rice's ability to press on with the president's highly ambitious foreign policy agenda, even as the administration grapples with such complex issues as the war in Iraq and Iran's nuclear program, according to diplomats and analysts....

Bush had planned to host Chinese President Hu Jintao in Washington this week, but the White House asked that the meeting be rescheduled to take place during Bush's trip to the United Nations, so he could concentrate on hurricane relief.

Why are they putting this off? The Secretary of State isn't needed for hurricane relief. Nor, for that matter, is the president's "supervision" required day in and day out. And repairing America's image abroad, along with everyday foreign policy matters—especially since, say, Iraq doesn't look like it's getting any better—seems like a pretty crucial task at this point. But apparently not. Even the Vice-President is flying down to Louisiana. All hands on deck and say 'cheese,' that sort of thing. I'm beginning to think that Sam Rosenfeld might be onto something here when he says that the White House is treating this as an all-important opportunity to boost its image: "That's the Bush approach in a nutshell -- make messes, then take credit for boldly tackling those messes." Perhaps Bush critics will rue the day they started screaming at the president to get down there and "do something" long after the fact. Hopefully not.

Frist to the Rescue!

| Tue Sep. 6, 2005 4:25 PM EDT

My, what a large-hearted fellow he is: The Los Angeles Times finds Bill Frist planning to put off a vote on repealing the estate tax in order to make room on the legislative agenda for the victims of Hurricane Katrina. Good boy. (One might also note that the estate tax tends to increase charitable giving—perhaps a hike would be appropriate at a time like this. Encourage donations and all. Yes? Frist? No? No, I guess not.)

Speaking of which, it's worth noting that disaster relief is the sort of situation that just screams out for ultraliberal solutions from Congress. Sad but true. Thousands of families down south, for instance, are sitting on the verge of bankruptcy; why not repeal the recently-passed bankruptcy bill that prevents Americans, who have lost everything through no fault of their own, from making a fresh start? Meanwhile, oil and gas prices are skyrocketing; isn't it time for a real energy conservation bill? The wreckage from Katrina also seems to call for the sort of investment in infrastructure and public housing that would have the New Dealers grinning in their graves. (Why, even John Podhoretz seems to be hoping for a Keynesian economic recovery spurred on by large public spending rather than tax cuts. Aren't we all!) One could go on, but at the risk of sounding like a press release, I won't.

Of course, seeing as how Bill Frist and Tom DeLay control the legislature, and not some mythical benevolent actor, odds are we won't see any of this. Instead—and this is, oh, just a wild guess—well-connected construction companies will end up receiving lucrative no-bid contracts to do the sort of awe-inspiring work they've been carrying out in Iraq. As Josh Marshall says, the billions tossed at Louisiana and Mississippi are going to make for "the biggest slush fund of all time." Or maybe that's just overly cynical. Maybe Frist and DeLay really do have the best interests of the public at heart this time. Of course, Congress' response after Hurricane Andrew doesn't inspire much confidence—check out this Reason article from 1993:

By the time [George H.W.] Bush and Congress had worn themselves out from stuffing extra goodies into the hurricane aid package, it was $8 billion for Florida alone. The only part that met any resistance was Bush's proposal to rebuild Homestead Air Force Base, which was nearly closed last year as part of a general military cutback and was expected to be on the next list of bases to shut down. Opposition to the reconstruction of Homestead, however, represented not a heroic burst of political courage but rather an act of shared venality: Several congressmen suddenly sensed the opportunity to save hitherto-doomed bases in their own districts. Closing Homestead meant one less base would have to bite the dust elsewhere.

Virtually every other boondoggle that was suggested was accepted. Special hurricane counseling for the deaf? Sure. Emergency grants to hire performance artists to dress up like Santa Claus? Why not? After all, as one aide to the House Appropriations Committee noted in a widely reprinted quote, "Simply put, our job is to start shoveling bucks south." Some politicians were positively unhinged by an opportunity to spend money for a cause that was utterly beyond criticism. My favorite was Louisiana Sen. Bennett Johnston (D), who breezily dismissed questions about who would pick up the tab. "It will be paid for out of the deficit," Johnston explained. "The deficit is big enough to encompass this too." All I can say to that is that we here in Miami thank God for prescient public servants like Johnston who were prudent enough to squirrel away a nice large deficit for use on a rainy day.

Expect more of the same. Boondoggles and special favors. Not to mention that this reconstruction endeavor will also be paid for with a nice large deficit squirreled away for a rainy day. By the way, there are early signs that the baronial squabbling has already started. Check out this lede from the AP: "A triumvirate of Republican power brokers may give Mississippi first dibs in the post-Hurricane Katrina grab for federal disaster funds even though the federal government focused its initial response to the storm on New Orleans." Ah, Republican power brokers...

Whose Authority Where?

| Tue Sep. 6, 2005 2:45 PM EDT

As far as I can tell, the media is still sorting out who, exactly, is at fault in the botched response to the flooding in New Orleans. At the moment, the scorecard looks something like this: State and local authorities pretty clearly deserve blame for not having a decent evacuation plan ready, apart from preparing DVDs to let all the poor people know that they need to fend for themselves. The Bush administration, meanwhile, deserves blame for stocking FEMA full of cronies, focusing Homeland Security resources too heavily on terrorism, underfunding the construction of levees, and not preparing for the possibility that the local and state authorities might be overwhelmed. Not planning much of anything, in fact. A more complete list of failures can be found here and here. (Meanwhile, Eric Boehlert's asking a prickly question: Why was FEMA's response to the hurricanes in Florida last year so much better than the response in New Orleans? Okay, so it's a rhetorical question. Still.)

That appears to be the basic "fair and balanced" storyline. Another question worth asking, though, is why there's even potential for lack of coordination between local, state, and federal governments. FEMA's plan, insofar as it had one, apparently involved hoping that New Orleans had its act together in the first 48 to 72 hours and then step in. What sense does this make? With a competent team running the local and state responses, sure, FEMA's delegation of responsibility to the states and cities would work nicely. If that's not the case, though, it pretty clearly sets the stage for disaster. And there's no way to predict that the municipal and state governments will handle everything smoothly, especially when a large disaster quickly overwhelms local responders.

So why is the chain of command so warped? Over at the Corner, Jim Robbins reads the relevant statutes and points out that the Department of Homeland Security "can't just seize control" of the area after a disaster, it needs to wait for authority. Why? What purpose does all this waiting and authorization serve? According to the Washington Post, Louisiana Governor Kathleen Blanco was grappling with the federal government in the early post-Katrina days over who had authority where. The Bush administration reportedly requested authority to federalize the state National Guard, Blanco reportedly said no, people were struggling over chains of command, and so on. This all seems very inefficient and nonsensical. State sovereignty may have its purposes, but not here, not while people are drowning.

Positive Directions

Tue Sep. 6, 2005 12:09 PM EDT

If there is one and only one positive outcome from Katrina, I hope it is this: Americans wake up to the reality of poverty in this country.

And it may be happening.

In the aftermath of this disaster, everywhere I turn, people are talking about poverty. On the news, in the paper, in the op/ed columns, and of course on the blogs.

As Atrios so rightfully noted this morning, it is no laughing matter if the poor or the retired felt compelled to stay since their welfare and SS checks would not go out until the beginning of the month – that is, even assuming they would have had the means to leave otherwise. People simply don't understand the reality that the poor face everyday.

What we need right now is a national discussion about poverty, about homelessness, and about joblessness (and by that I include those not considered on the job market). And by "national discussion" I don't just mean a discussion about why Katrina disproportionately affected the poor, African-American community, although that should be part of the conversation as well.

Progressives in this country should seize the opportunity to highlight how current economic and social policies adversely affect the poor, how our education system is unequal, and how our healthcare system leaves so many out. Katrina is giving us a chance to put poverty back on the agenda as an issue in the 2006 elections, and to help those our country too often ignores.

Governor Blanco asked for help; no one gave it

| Fri Sep. 2, 2005 11:51 PM EDT

On Sunday, August 28, Louisiana Governor Kathleen Blanco surveyed the lay of the land and shot off a letter to the regional director of FEMA, detailing her assessment of the severity of the upcoming hurricane, and asking for help. Apparently, FEMA's interpretation of the term "major disaster" is somewhat different than the interpretation with which most of us are familiar.

Today, Senators Susan Collins of Maine and Joseph Lieberman of Connecticut announced that they will open a bipartisan investigation of the "immense failure" of the government to respond to the consequences of Hurricane Katrina. Many of us would feel better if someone other than Collins and Lieberman were involved in an enterprise that will undoubtedly call for getting tough, but it seems we are stuck with them.

We have only to look at the report of the September 11 Commission to know what happens when the government "investigates" itself. Who at FEMA failed to do what and why will most likely never be known, though we may see one or two scapegoats trotted out to be shamed, while the perpetrators of incompetence are awarded medals. We have been here before.

Louisiana Senator Mary Landrieu, in a piece of weary understatement, said: "There was a time when FEMA understood that the correct approach to a crisis was to deploy to the affected area as many resources as possible as fast as possible. Unfortunately that no longer seems to be their approach."

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Poverty Numbers Revisited

| Fri Sep. 2, 2005 9:29 PM EDT

We've discussed national poverty numbers around these parts, and the difficulty of pinning down a decent definition of "poverty" before, but I think the Economic Policy Institute has the right way of measuring this stuff here. They've drawn up a budget for families, figuring out how much it would cost to purchase basic necessities—housing, transportation, food, child care, health care, etc.—in various regions, and then looked to see how many families make enough to meet those basic expenses. Whereas the official poverty rate hovers around 12.7 percent, and continues to rise, EPI found that the percentage of families that couldn't meet the basic budget was 29.7 percent. In other words, nearly a third of all American family don't make enough to buy basic necessities. (One note: EPI doesn't seem to have included non-cash benefits, such as food stamps, in their calculation of income.)

As it turns out, the Midwest had the "smallest" problem in this regard, with a still-shocking-but-relatively-low 23.4 percent of families unable to meet the budget, as compared with over 30 percent in the Northeast, South, and West, which may in part explain some of those "What's the matter with Kansas?" mysteries. (In fact, California and New York, two of the most liberal states nationally, had the biggest problems on this measure.) Meanwhile, 42.5 percent of families who work less than full-time year-round sit below the budget, but lest anyone think that simply getting a job will solve everything (and that assumes that there are jobs to be had), 22.8 percent of those families working full-time, year-round still could not afford basic necessities.

The situation in Louisiana continues to be grim, but with some improvement

| Fri Sep. 2, 2005 5:48 PM EDT

Throughout the day, government officials and the news media have assured us that the scene at the Astrodome--unlike the the horrific one we saw at the Superdome--can provide us with some hope. The refugees in Texas do have food, water, electrical power, and medical supplies, which is a gigantic improvement over what they had in New Orleans. The people of Houston appear to be working non-stop to take care of the needs of the refugees. And the Red Cross is providing everything from food to blankets to the thousands of people who are stranded in Baton Rouge.

Meanwhile, in New Orleans, houses continue to burn down as I write this (even across the lake, in my neighborhood, a house has burned down), and both helicopters and ferries continue to rescue people from their roofs. In St. Bernard Parish, a large number of firefighters and their families are trapped in a building and are being fired on by snipers. The snipers have not been identified, but the intelligent guess is that they are escapees from the nearby St. Bernard Parish Prison.

Outside the Louisiana Superdome, evacuation continues. One evacuation bus has crashed, killing one evacuee and critically injuring several others. So far, 30,000 people have been evacuated.

Today, on a conservative radio talk show, the host made a criticism that seemed valid to me: Why--when everyone knew a Category 5 hurricane was about to hit the city--didn't the mayor of New Orleans and the governor of Louisiana immediately mobilize Orleans Parish and Jefferson Parish school buses in preparation for evacuating people?

One thing Governor Blanco did do early on was to ask cruise ships to please come to New Orleans as soon as they could and take people. To my knowledge, none responded, or perhaps they were unable to.

There have been numerous reports of rapes and beatings around the New Orleans Convention Center, as well as the shootings that are all over the national news, and several NOPD officers have turned in their badges.

Their Own Damn Fault?

| Fri Sep. 2, 2005 4:32 PM EDT

Jim Henley discovers that FEMA "wargamed" a hurricane strike in southern Louisiana this past July. Among the findings was that a hurricane would "leave 300,000 people trapped in New Orleans, many of whom would not have private transportation for evacuation." By now it's been discussed ad nauseum why many people couldn't just up and leave the city when the evacuation order came round: not everyone has private transportation, it was the end of the month and many poor people were out of savings, where would they go in any case, what if the hurricane changed course and they were docked for missing work, etc., etc. Nevertheless, Michael Brown, the head of FEMA, still insists on blaming those who "chose not to evacuate" New Orleans. Despite the fact that his own agency knew full well this would happen. Unbelievable. Meanwhile, former Sen. John Edwards looks at the possible bright side and thinks that, at the very least, the New Orleans disaster may actually get people to notice the reach and effects of poverty in the region.

Mapping legal theory

Fri Sep. 2, 2005 3:52 PM EDT

Via Legal Theory Blog, The Economist surveys two recent studies of legal jurisprudence using network theory.

Seth Chandler plotted opinions on a network that showed the interconnectedness of 26,000 Supreme Court opinions over the last 200 years by linking opinions that that cite to one another. His findings provide interesting context for some of the recent and upcoming high profile First Amendment cases before the Court.

He found the most important opinions, at least judged by how many times they were cited, by working out which nodes were likeliest to fall on the shortest paths between two other nodes. Intriguingly, the cases mostly come from an advanced and esoteric subject—the law of federal jurisdiction—that addresses structural features of American government, such as the relationship between the states and the federal government and the relationship between the courts and Congress.

Although important, these cases are not, however, the cases that are most tightly bound into the network. To find the network's so-called main core, Mr Chandler repeatedly filtered out less-connected cases. He found that most of the cases in the main core interpret the American constitution's First Amendment, which protects freedom of speech and free exercise of religion. This, he suggests, means that deciding a free-speech case requires understanding a more complex body of precedents than deciding any other kind of case. By the same token, any First Amendment decision, right or wrong, will reverberate more readily through the law than a decision made in any other area.

Maybe the ten commandments cases will have broader implications that I originally thought?

The second study, by James Fowler and Sangick Jeon, also creates a network of Supreme Court cases by citation. Unlike those in the study above, the links in the Folwer and Jeon study are directional--they show the citer and the citee--which creates a map that reveals how citation patterns have changed over the last 200 years. The whole article is fascinating, but I'll excertp below the part that relates to recent discussion about reliance on precedent and so-called judicial activism.

Dr Fowler's model shows that, until the end of the 18th century, the Supreme Court's opinions rarely cited previous Supreme Court opinions. This is not all that surprising since there were so few. In the 19th century, however, the average number of citations to previous cases started climbing sharply and so did the average number of citations to those cases by later Supreme Courts. For a while, Supreme Court justices liked to cite opinions with many citations in them. By 1950, an average opinion cited about 15 other opinions, and each opinion was itself cited by roughly the same number.

The trend reversed, however, between 1953 and 1969, when the controversial Earl Warren served as Chief Justice of the United States. As that Court embarked on its activist, and mostly liberal, course, there was a precipitous drop in the number of citations it made, which implies that the Warren Court was less respectful, or perhaps just less interested, in precedent.

When subsequent Supreme Courts turned to the right, the number of citations continued to fall, implying they were ignoring the Warren Court precedents. Under William Rehnquist, the current chief justice, this trend has continued apace, reaching an average of a mere five citations by 2002. Will the Rehnquist Court's own opinions suffer the same fate?

Ah yes the "activist" course of the "mostly liberal" Warren Court that began with Brown v. Board of Education. Apparently, at least according to The Economist, when so-called conservative courts rely on even less precedent than their liberal counterparts, that's not activist, it's sensible.

I've written about this before, and many more talented people than I have done so as well, but Brown really can't be satisfactorily justified on originalist grounds. Brown is hard to justify on any grounds--it was a short opinion that did radically break, in fact overturn, established precedent (bad precedent, of course, since it overturned Plessy v. Ferguson, but still). It raises so many interesting questions. The court's legitimacy in the eyes of the public runs up against the civic duty of its members in the face of an objectively unjust law. And what would have been better for the Court's legitimacy anyway? It could have issued a more restrained opinion upholding the law, but how much legitimacy does a Court that continually upholds racial segregation have as an arbiter of justice? If the Court had ruled for the Topeka Board of Education, and let the legislative process end segregation, perhaps the Civil Rights Movement would have been less violent, but would the net violence, the net harm done to innocent people, have been less if racial segregation had lasted for another 20 years or even 50?

Obviously, no one knows the answers to these questions and the many others that come up, but I often wonder about them when people start throwing around the term "activist judges." It's an empty frame, it's mainly just pejorative, but it bothers me that it obviates all of the interesting questions about jurisprudence and the balance of power between courts and legislatures, the federal government and the states.