As the US Senate Judiciary Committee holds hearings on John Roberts' nomination as the next Chief Justice of the United States, JURIST Guest Columnist Bruce Miller, Professor of Law at Western New England College of Law, says the Court's federalism rulings over the last two decades helped to create a legal climate that impaired the ability of the federal government to respond effectively to the recent Hurricane Katrina disaster, and that Senators should seek assurances from Roberts and other Bush high court nominees that they will support a more robust federal power…

In the past fortnight, Americans have witnessed two seemingly unrelated events that may define our common future for years, or even generations, to come. The first is, of course, the overwhelming, shameful catastrophe of our collective failure to anticipate and respond to Hurricane Katrina, resulting in the destruction of the great city of New Orleans and the death and utter ruin of the lives of so many of its mainly African American citizens. The other is the death of the sitting Chief Justice of the United States, William Rehnquist, a rare and significant turning point in our constitutional history, made even more important this time because it offers President Bush an opportunity to appoint two new justices, one of whom (now apparently Judge John Roberts), will probably lead the court for many years. The last President to enjoy a similar chance to influence the court so profoundly was Richard Nixon, who appointed Lewis Powell and Mr. Rehnquist to succeed two of the great voices of the Warren court, Hugo Black and the second John Marshall Harlan.

But if these events seem unrelated, they are not. The devastating impact of the hurricane is widely, and accurately, seen as a political debacle rather than the inevitable result of a natural disaster. Over the past two weeks, the pages of the country’s leading newspapers and the broadcasts of network and cable television news have been filled with accounts of the downgrading, even near dismantling, of the Federal Emergency Management Agency (FEMA) by the Department of Homeland Security since September 11, 2001, the diversion of substantial funding intended for levee maintenance and repair to the war in Iraq and, above all, the abject impoverishment and ghettoization of New Orleans’ (until now) politically invisible African American community. We, the people of the United States, these stories tell us, have made (or tolerated) political choices that allowed a hurricane to lay waste a vital center of American culture and annihilate the lives and prospects of those who lived there.

It is this failure of political will that connects Hurricane Katrina to the appointment of two new justices. For the abandonment of New Orleans happened because our national government allowed it to happen, and our national government, at least in the domestic sphere, has been under siege for a generation, most often at the hands of its own officeholders. Some of these officeholders, it must be said, have been justices of the Supreme Court.

It is well known that the so-called federalism decisions effected by a narrow majority of the Rehnquist court over the past decade have cast serious doubt on Congress’ ability to identify and resolve important national problems by using its power to regulate interstate commerce [see U. S. v. Lopez, 514 U. S. 549 (1995); U. S. v. Morrison, 529 U. S. 598 (2000)]. Perhaps slightly less well known but no less important are a line of decisions by the same narrow majority that appear, at least implicitly, to limit Congress’ power to outlaw ostensibly neutral state and local policies that in practice discriminate against racial minorities and women [City of Boerne v. Flores, 521 U. S. 507 (1997); Board of Trustees of the University of Alabama v. Garrett, 531 U. S. 356 (2001). See also Washington v. Davis, 426 U. S. 229 (1976); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979)]. In the court’s most recent terms, some members of this majority, most notably Chief Justice Rehnquist and Justice O’Connor, clearly pulled back from the most extreme consequences of this doctrine. For example, Rehnquist and O’Connor’s votes in favor of Congress’s ability to rely on the 14th Amendment to pass the Family and Medical Leave Act as a remedy against sex discrimination were essential to the Court’s decision to sustain that Act against a states’ rights challenge [Nevada Department of Human Resources v. Hibbs, 538 U. S. 721 (2003)]. The Senate Judiciary Committee would do well to ask both Judge Roberts and the new potential successor to Justice O’Connor whether they agree with the moderate views expressed by their predecessors in this important case. If they do not, a future pro civil rights Congress may find that it is blocked by the Court from legislating to remedy the sorts of deeply embedded but tacit structures of racial domination that have so obviously plagued New Orleans’ African American citizens.

To be sure, no decision of the Rehnquist Court would have prevented Congress from using its power to spend for the general welfare to appropriate the funds necessary to protect New Orleans and its residents from the consequences of Hurricane Katrina. But under the view of the Spending Power espoused by an informal group of conservative and libertarian lawyers who identify themselves as the “Constitution-in-Exile” movement, such funding might be placed in constitutional doubt. This movement, described in detail by Professor Jeffrey Rosen last April in the N.Y. Times Sunday Magazine, seeks to restore a pre New Deal understanding of Congress’s constitutional powers. Rosen, “The Unregulated Offensive” [New York Times Magazine, April 17, 2005, at 42]. For at least some Constitution-in-Exile thinkers, this means that many spending measures for purposes other than national defense amount to an impermissible forced transfer of wealth from taxpayers to recipients and thus are not for the “general welfare”. Rosen’s article, for example, recounts Professor Richard Epstein’s argument that taxation can be reconciled with personal freedom only when it leaves the taxed individual at least as well off as before the tax was imposed. “The Unregulated Offensive”, at 48. And even when federal spending is permissible, Congress may be seriously limited by considerations of state sovereignty in imposing conditions on the use of federal funds by state and local governments [see, e.g. South Dakota v. Dole, 483 U. S. 203, 212 (1987) (dissenting opinion of Justice O’Connor)]. Professor Rosen’s article reports that at least some of the lawyers and judges under consideration by the President for vacancies on the Supreme Court, including Judge Roberts, are sympathetic to the ideas of the Constitution-in-Exile movement [“The Unregulated Offensive”, at 130]. The consequences of these ideas for specific cases are, of course, difficult to predict. Still, the Senate Judiciary Committee has ample ground to question Mr. Roberts and the President’s choice to succeed Justice O’Connor on their views of Congress’ spending power.

We, the people of the United States, allowed Katrina to destroy New Orleans. By relearning the lesson that our national government can serve our commitment to mutual aid and advance our common destiny as citizens of the United States, we have the constitutional power to protect other regions of our country from the preventable, political consequences of future natural disasters and to help the people of New Orleans and the Southeast to recover and, eventually, prevail over their terrible misfo
rtune.

If we ever choose to exercise this power, we will be sorely disappointed if our efforts are thwarted by the Supreme Court. But if we allow the Senate to confirm the President’s nominees to the Court, without assuring that they have due respect for the domestic powers of the federal government, we will have no right to be surprised by just such an outcome.

Bruce Miller is Professor of Law at Western New England School of Law, where he teaches constitutional law and other public law subjects, and has a continuing interest in legal issues that especially affect the poor.
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