Franklin Delano Bush

What is the proper constitutional role for the federal government in the post-Katrina reconstruction of the Gulf Coast? Should not this subject be debated seriously before Congress mortgages generations of Americans yet unborn with the obligation to repay $200 billion in loans? Don’t expect it.

The Republican leadership in the House of Representatives already signaled its intention to stifle such debate when it refused to allow members of the House to consider an amendment to a bill that allocated the initial $62 billion in funds to Katrina victims. The amendment would have directed federal departments and agencies to look for ways to offset waste, so as to recapture at best a portion of the funds. In a now infamous statement, House Majority Leader Tom DeLay, a Republican from Texas, stated that Republican budget surgeons had already cut out all the waste in the federal government, so if nothing else can be cut, why bother with debate?

Such an attitude on the part of leadership, which denies the right of elected representatives to engage in a contested debate and presumes a federal constitutional duty to reconstruct, cheats voters out of meaningful participation in the legislative process and discloses a fundamental misunderstanding of our federal system of government.

It goes without saying that when congressional leadership uses rules to choke debate, as it did in the House over the Patriot Act, all the awful attributes of an oligarchy begin to rear their ugly heads. Want a highway in your district re-paved with federal funds? Want that state judge friend of yours put on the federal bench? Want a committee assignment on a subject that really concerns your constituents? Shut up and vote with the leadership.

We might as well have government by committee. If voting for elected representatives is the linchpin of democracy, a leadership that silences any one of those representatives is the negation of democracy.

Don’t expect to hear this from any but a few freedom-loving members of the House, whose opinions no doubt will be relegated to the written record rather than articulated in real-time floor debate, but: The federal government has no role to play under the Constitution in the reconstruction of the Gulf Coast.

When the Framers wrote into the Constitution the 18 specific, delegated, enumerated powers of Congress, they cautiously and famously left to the states what we call today the police power. In constitutional jargon, the police power is the states’ inherent right and authority to regulate and to spend for the health, safety, welfare, and morality of people in the respective states.

This power has been tempered by the 14th Amendment, which requires that the states exercise it fairly, equally among those they regulate, and free of racial considerations. But the Constitution does not give police power to the federal government. Of course Congress has enacted laws purporting to give itself the power and duty to rebuild after some natural disasters. But as anyone with a basic understanding of constitutional law knows, Congress cannot vote to give itself power; only the states can do so by amending the Constitution.

When a state or local government builds a road or a sewer or a levee with tax dollars it has collected from those subject to it, or with grants from Congress, or with loans from investors, it then owns, and should manage and maintain, what it built. If it is prudent, a state government will engage in preventive maintenance, and purchase insurance or set aside funds in case of a catastrophe. If a state government is not prudent, and a natural disaster strikes, why should American taxpayers bail it out? That would provide no incentive for prudence in the future. Why should American taxpayers cover for the blatant failure of Louisiana politicians to be prudent with tax dollars? The federal government’s debt is exponentially larger than Louisiana’s.

Who in his right mind would build anything below sea level and not maintain it, insure it, secure it, or put aside enough money to rebuild it after a flood? Only the government; the same government that diverted funds from rebuilding levees to financing new casinos.

One could argue that since the New Deal, Congress has been building roads, sewers, and bridges, to deliver pork to state and local governments by building instruments of interstate commerce. Last week, however, when he gave his much-heralded Jackson Square speech, President Bush offered to bail out not only Louisiana politicians too imprudent to maintain levees, but also every single resident person, whether tenant, landlord, homeowner, or businessperson, adversely affected by Katrina. When did the federal government become a guarantor against bad weather and weak levees? There is not even a constitutional argument to be made that the feds can take tax dollars collected or proceeds of bonds sold and give them give to private persons. That is not charity; it is wealth redistribution, pure and simple.

Charity is a gift from one’s own assets; freely given, out of love, compassion, or guilt. It is inconceivable for someone to be charitable with someone else’s money. But that’s how the government will sell this scheme. Charity? Let me get this straight, Mr. President: You want to give $200 billion of our children’s money to the same politicians who couldn’t maintain their own levees or protect their own infrastructure and to the same voters who let them get away with such malfeasance? I can think of five members of the Senate whose collective net worth exceeds $2.5 billion; let them be charitable with their own money. Has not Katrina exposed the folly of too many tax dollars in the hands of politicians?

If Katrina taught us anything it is that the last 40 years of social welfare has failed miserably. It has also taught us that those who suffered the most were those who relied on the government the most. How much suffering must there be until self-reliance, not government dependence, becomes the norm? Will members of Congress and the Gulf Coast political class have the courage to address this without spending taxpayers’ money? Don’t bet on it. Low taxes, local education, market driven inner-city jobs, and the self-reliance that comes slowly with the accumulation of personal resources do not translate into votes as quickly as handouts and dependence do.

When he ran for president in 2000 and again in 2004, George W. Bush told voters hundreds of times, in describing tax dollars, words to the effect that: “It’s your money, not the federal government’s!” As a candidate, he attacked the Nanny State. What happened to him? He has become a president who second-guesses a mayor on the safety of his city’s streets, who presumes the Constitution lets him force taxpayers to re-build uninsured private homes, and who has proposed the biggest federal give-away of cash and land to private persons in history. This isn’t compassionate conservatism. It is unconstitutional big government truly out of control.

Mr. President, what new natural disaster, exacerbated by political incompetence, will the federal government pay for next? The remedy for political incompetence is not more money in the hands of the incompetents, it is to vote the bums out of office. Mr. President, who re-built Galveston after its flood and Chicago after its fire and San Francisco after its earthquake? Free enterprise and low taxes; not the federal government.

President Franklin Roosevelt’s favorite Supreme Court justice, Felix Frankfurter, who spent a lifetime justifying the New Deal under the Constitution, had a change of heart at the end of his career. When he proclaimed that the Constitution was not written to enable the federal government to right every wrong, he was trying to amend his past and send a warning to the future. Was anyone listening?

September 24, 2005

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel, and the author of Constitutional Chaos: What Happens When the Government Breaks Its Own Laws.

Reprinted from the New York Sun with permission of the author.

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