There is an interesting post on the blog Legal Fiction asking if FEMA is constitutional from an “originalist” perspective. I’m not sure whether I am an “originalist” or not, but I certainly believe that a fair reading of the constitution would be much more restrictive of the federal government, so I’ll take a swing at the question.
To answer the question is FEMA constitutional one must answer three questions, A) what is FEMA, what functions does it carry out; B) does the function violate the bill or rights; and C) are these functions among the enumerated powers of congress, the president, or the judiciary.
What is the function of FEMA?
According to a FEMA document, “Since its founding in 1979, the mission of the Federal Emergency Management Agency (FEMA) has been clear: to prepare for, mitigate against, respond to, and help individuals and communities recover from natural and man-made disasters.” Thus the function of FEMA is to provide disaster relief.
Does providing disaster relief INHEREENTLY violate a provision of the bill of rights?
Providing disaster relief does not seem to inherently establish or prohibit the free exercise of religion or abridge freedom of speech or press or of the right of the people to peaceably assemble to petition the government.
This function does not seem to inherently interfere with the individual right to own arms or the right of the states to organize a militia.
It does not seem to inherently require the quartering of soldiers in homes in time of peace.
This function does not seem to inherently involve unreasonable searches and seizures, unless rescue searches are used to find evidence for criminal prosecution, but that is not inherent. FEMA does not issue warrants so that does not seem to apply.
Disaster relief does not seem to inherently require trial without indictment, double jeopardy, forced self incrimination, a lack of due process, or the seizure of property without compensation.
It does not seem to inherently require: slow or closed trial, the suspension of trial by jury, the suspension of informing the accused of the charges against him and allowing him to confront the witnesses against him, the suspension of compulsory process for obtaining of witnesses in his favor, or the suspension of the provision of council.
This function does not seem to inherently involve suspending trial by jury in civil cases or require courts to overturn jury verdicts.
It does not seem to inherently require excessive bail, excessive fines, or cruel and unusual punishment.
Government disaster relief, being a species of forced charity, may violate the right to property which was an accepted right under the natural law framework and thus may violate the ninth amendment. However I admit that this is a quasi political judgment based, on exactly how you understand the right to property, that should to the largest possible extent, be worked out through the legislative process.
This function does not violate the 10th Amendment unless it exceeds the enumerated powers of congress, the president, or the judiciary, which brings us to the third question.
Is disaster relief an enumerated power of congress, the president, or the judiciary?
The first of the powers (Art. I, Sec. 1) is the legislative power of congress, but since it is limited to “powers herein granted” it is not a general grant of authority, but a restriction on the authority of the executive and judicial branches.
The first enumerated power of Congress (Art. I, Sec. 2) is the power (the exercise of which is required) to conduct a census. Disaster relief does not seem to be authorized by this provision. Nor does the election of a Speaker of the house or the other officers thereof seem to authorize disaster relief.
The Senate’s power to elect its officers and a President Pro Tempore (Art. I, Sec. 3) does not seem to grant power to provide federal disaster relief. The power to try impeachments seems far removed from a power to provide disaster relief.
Congress’s power to regulate elections and set the day for there first session of the year (Art. I, Sec. 4) does not seem to give authority to provide disaster relief.
The power of each house to judge the election of its members, compel attendance, make its own rules, punish its members, keep a journal of its proceedings and publish it, and to require the other house to hold near simultaneous meetings at a place agreed upon by both houses (Art. I, Sec. 5) does not seem to authorize disaster relief.
The power of Congress to set its own salary (Art. I, Sec. 6) does not seem to authorize disaster relief.
The House’s power to originate revenue bills, the president’s power of veto, and the power of congress to override such veto by a 2/3rds majority (Art. I, Sec. 7)does not seem to grant any legislative power over and beyond the other “powers herein granted.”
Article I, Section 8, lists most of the powers of Congress.
Congress’s power to lay and collect taxes for “to pay the debts and provide for the common defense and general welfare of the United States.” is the one most often cited by those who want to expand the powers of the federal government to reach such objects as disaster relief. However this interpretation is almost certainly mistaken because, A) such interpretation is specifically disavowed by James Madison the father of the constitution, B) it is contrary to the doctrine of enumerated powers which has been held since the earliest days of the republic, C) if taken seriously, it along with the necessary and proper clause would make the rest of article 8 meaningless, and most importantly D) because it is contrary to the grant of general legislative authority over federal enclaves. However I think there it a proper interpretation that may allow some federal disaster relief which I will explain at the end of this essay.
The powers to borrow money, regulate commerce, establish uniform rules of naturalization, establish uniform rules for bankruptcy, coin money, regulate the value of foreign coin, fix standards of weights and measures, punish counterfeiting, establish post offices and post roads, grant patents and copyrights, establish courts inferior to the supreme court, to codify international law as it applies to the United States, to declare war, commission privateers, raise armies, provide a navy, set standards for the militia, and to exercise general legislative authority over federal enclaves does not seem to include a power to provide federal disaster relief outside of federal enclaves.
Article I, Sec. 9 and 10
Section nine mostly limits the power of Congress to take certain actions. The only grants of power are to end the importation of slaves after the year 1808 (though that may have been granted in the commerce clause) and to suspend the writ of habeas corpus in time of invasion or insurrection, neither of which would seem to grant a disaster relief power.
Section 10 mostly limits the power of the states. However four powers are granted to Congress, the power to regulate state tariffs, the power to regulate and abolish the active duty armed forces of the states, the power to control the foreign policy of the states, and the power to allow or forbid agreements among the states. The first three clearly do not grant the federal government the power to provide disaster relief. The fourth power may have an interpretation that could allow some federal disaster relief which I will explain at the end of this essay.
The executive power granted to the President (Art. II, Sec.1) is to execute the laws made by congress, this is no increase in federal authority. Congress’s power to regulate the election of electors and to break a tie does not seem to authorize a federal disaster relief power.
As commander in chief, (Art. II, Sec.2) the president can order the military around. This would seem to allow the president to use the armed forces for disaster relief when needed, but it is questionable if this allows the establishment of a disaster relief organization separate from the armed forces in general. The Presidents powers to make treaties, appoint ambassadors and other public officials with the consent of the senate does not seem to grant additional federal authority for disaster relief.
The president’s power to prorogue, convene, and adjourn congress, settle disputes between the houses, receive ambassadors, and commission officers (Art. II, Sec.3) would not seem to include a federal disaster relief power.
Section 4 relates to the removal of officers of the government by impeachment and hardly seems relevant to this discussion.
Section 1 grants no powers.
The power to try all cases arising in law and equity under the constitution (Art. III, Sec.2) does not seem relevant. The power to try ambassadors would not seem relevant. The power to hear cases of admiralty and maritime jurisdiction could only be relevant by way of a sick joke. The power to hear controversies between the states and between the states and the federal government could be relevant, but I will return to this point at the end of my essay.
Section 3 simply defines treason and is in general a limitation on federal power.
The powers granted by this article are to harmonize state law (Art. IV, Sec.1), make states grant extradition to other states (Art. IV, Sec.2), admit new states to the union and govern the territories (Art. IV, Sec.3), and the power to make every state be a republic (Art. IV, Sec.4). None of this seems relevant to disaster relief.
The congress has the power to propose amendments to the constitution by a vote of 2/3rds of its members. This would be relevant if those who want federal disaster relief would chose it
This article grants federal supremacy in areas of concurrent legislative authority.
The article grants no powers, but sets the conditions of ratification.
Amendment XI reduces federal authority. Amendment XII relates to choosing the president and grants no new authority. Amendment XII grants congress the power to enforce the abolition of slavery, but this hardly seems relevant.
This amendment gives congress broad authority to protect individual rights against state action. It disallows the holding of state or federal office of those involved in past insurrection against the federal government. It hardly seems relevant to disaster relief.
Amendments XV – XXVII
Amendment XV grants the federal government the right to enforce equal voting rights between the members of all races. Amendment XVI allows the federal government to levy an income tax. Amendment XVII establishes the direct election of senators. Amendment XVIII has been repealed. Amendment XIX grants congress power to enforce equal voting rights between men and women. Amendment XX regards the election of the president and the presidential succession . Amendment XXI grants the states limited powers to interfere in the interstate commerce in alcohol. Amendment XXII limits the president to two terms of office. Amendment XXIII allows the Dirstrict of Columbia to chose presidential electors. Article XXVI forbids pole taxes. Amendment XXV relates to the presidential succession and the issue of presidential incapacity. Article XXVI reduces the voting age to 18. Article XXVII restricts congress’s power to increase its own salary. None of this is a grant of disaster relief authority.
My Conclusion as to Question C
The federal government has no specific grant of disaster relief authority.
FEMA as currently organized is beyond the enumerated powers of the federal government and thus violates the 10th Amendment and is unconstitutional. It may also be a violation of the ninth amendment but that is less certain.
However, if congress wanted to authorize a logistics corps far in excess of the needs of the armed forces of the republic so that it would be there for the president to use for disaster relief, this would be marginally constitutional.
Further there is another option for a nation wide government disaster relief organization. As I mentioned earlier, Article I, Section 10, allows the states to make compacts or agreement with one another. It seems to me that if the states got together and made an agreement to create an agency to provide disaster relief, congress could ok this. Such an agency could stockpile emergency equipment, allocate financial aid and organize the deployment of national guardsmen to effected states in the event of a natural disaster. This would have to be paid for by the states, but it is certainly possible. If all of the states joined the compact, then I think one might agree that it was ok for congress to help fund the agency under its Article 8 powers. This would be so because an agency created by the unanimous 50 states would be an agency of the United States (i.e. of the union) and it would not expand federal power without limit. In the event of a disaster, the president could coordinate his use of the armed forces for relief with such an agency. The federal courts counld enforce the agreement under their power hear cases between the states.
Lastly, congress could propose an amendment with the following words, “Congress shall have the power to create an emergency relief organization to provide disaster relief.” I have a feeling that this would probably get the consent of ¾ of the state legislatures fairly easily.
The government can address disaster relief, but not though the current FEMA framework, at least not if we are going to take the constitution seriously.
What I severely object to is the belief that the constitution doesn’t matter. It does, it is the law of the land. If we don’t like it, we can change it, but why even bother having a written constitution if we aren’t going to follow it. A written constitution was the great innovation of the American Revolution, but a lot of people on both the left and the right and for that matter in the center don’t seem to value the constitution. That thought frankly saddens me. Did the founders live in vain?