Political MoJo

Whose Authority Where?

| Tue Sep. 6, 2005 11:45 AM PDT

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.

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Positive Directions

Tue Sep. 6, 2005 9:09 AM PDT

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 8:51 PM PDT

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."

Poverty Numbers Revisited

| Fri Sep. 2, 2005 6:29 PM PDT

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 2:48 PM PDT

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 1:32 PM PDT

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.

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Mapping legal theory

Fri Sep. 2, 2005 12:52 PM PDT

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.

Congress Swings Into "Action"

| Fri Sep. 2, 2005 12:39 PM PDT

The Los Angeles Times looks at what Congress plans to do once it gets back in session. Disaster relief will play a pivotal role, for sure, but many Republicans are hoping that it doesn't cost so much that they can't put Social Security privatization and cuts to the estate tax on the table. Right, that would be the real tragedy here. Meanwhile, Dennis Hastert wonders whether the federal government should even be in the business of rebuilding New Orleans. Whatever the merits of that thought, I'd like to hear the Speaker explain why federal dollars are appropriate for rebuilding Fallujah but not the most important port in the Western Hemisphere.

Forseeable for sure

Fri Sep. 2, 2005 11:08 AM PDT

George W. Bush yesterday morning on Good Morning America:

"I don't think anyone anticipated the breach of the levees."

As Echidne, Kevin Drum, and Matthew Yglesias point out, a lot of people were anticipating the breach of the levees. That's not all. The National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce released a study earlier this month predicting a 95-100% rise in the number of tropical storms this season.

In total, this season is likely to yield 18 to 21 tropical storms, with nine to 11 becoming hurricanes, including five to seven major hurricanes.

..."The tropics are only going to get busier as we enter the peak of the season," said Brig. Gen. David L. Johnson, USAF (Ret.), director of the NOAA National Weather Service. "This may well be one of the most active Atlantic hurricane seasons on record, and will be the ninth above-normal Atlantic hurricane season in the last eleven years."

It's not quite an August 6th memo, but Bush certainly should have known about the likelihood that intense hurricanes could hit New Orleans.

Of course, that information might not have made it through the Condi filter, since the unprecedented rise in high intensity tropical storms seems to be partially related to the rising water temperatures caused by global warming.

NOAA downplays this,

This confluence of optimal ocean and atmosphere conditions has been known to produce increased tropical storm activity in multi-decadal (approximately 20-30 year) cycles. Because of this, NOAA expects a continuation of above-normal seasons for another decade or perhaps longer. NOAA's research shows that this reoccurring cycle is the dominant climate factor that controls Atlantic hurricane activity. Any potentially weak signal associated with longer-term climate change appears to be a minor factor.

They don't cite to any study, though, and somehow I have a feeling that political considerations motivated that statement. A recent study published in Nature by Kerry Emmanuel, a climatologist at MIT, suggests that while there are natural reasons for the rise in frequency and intensity of hurricanes, global warming has compounded their effects. The Washington Post has more details on the scientific debate here.

If this is going to a problem for decades to come, I certainly hope the administration stops privatizing and undermining FEMA and cutting funding to levee building repair in the cities that need it.

Homeland Security Flunks

| Fri Sep. 2, 2005 10:58 AM PDT

In Slate today, Tim Naftali recalls a few 40-year-old lessons that the Bush administration might have done well to take to heart:

The response to Katrina thus far indicates two flaws in the Bush administration's thinking about homeland security. The federal government hasn't learned how to plan for a tragedy that demands putting a city on sustained life-support, as opposed to a one-moment-in-time attack that requires recovering the dead and injured from debris and then quickly rebuilding. And DHS appears unwilling to plan for the early use of the U.S. military to cope with a civilian tragedy. Presidential administrations have perennially underestimated the difficulty of the latter task. In 1962, President John F. Kennedy's top aide, Kenneth O'Donnell, thought it would be easy to deploy troops rapidly to defend James Meredith when he was attacked by segregationists while trying to enroll as the University of Mississippi's first black student. "If the President of the United States calls up and says, 'Get your ass down there,' " O'Donnell said, "I would think they'd be on a fucking plane in about five minutes." Kennedy made that call. But then, in spite of O'Donnell's prediction, he watched in frustration as the army dithered for hours before deploying to Oxford, Miss.

The Kennedy administration thus learned that the army must be told in advance what to do. As a matter of law and preference, the military does little training for domestic missions. It balks and mutters about posse comitatus, the legal principle that prohibits the use of the army for law enforcement, and leaves the hard work for the National Guard and state and local authorities. This has made sense most of the time. But in an era when we are supposed to be better prepared for an urban disaster, the tradition of allowing local and state authorities to be overwhelmed before the federal government and military step in should have been rethought.

In the abstract, of course, there are hard questions to ask about the scope and limit of deploying federal troops on domestic soil. Obviously the time for those questions isn't right this instant, but it's appalling that no one's spent time figuring any of this out before now—especially when it was known for 40 years that the military takes a long time to deploy for civilian tragedies. And yes, as I said yesterday, now is the time for finger-pointing. Matthew Yglesias makes a similar argument today at Tapped, noting that the only thing that motivates politicians to put down the pork barrel and start looking at practical solutions to actual problems is fear. Now is certainly the time to make our elected officials fear for their political lives unless they do something.

On the other hand, a politician frantically trying to appear like he or she is "doing something" always overdoes it, and as with Hurricane Andrew in 1992, the multi-billion dollar relief efforts Congress has just authorizing will probably end up stuffed with corporate handouts and political favors. It won't be pretty. The same thing happened after 9/11, when Congress reacted to the bloodiest day in American history by setting up a Department of Homeland Security that was a boon for contractors, but mostly useless (as we're now seeing) and presented the Republican Party an opportunity to do a little union-busting. Nevertheless, an imperfect process is better than no process at all, and hopefully all the current outrage at the federal government—and especially at a White House that has gutted FEMA—will spur people to take disasters a little more seriously.