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September 06, 2005

School Starts in One Year

I’m not a ConLaw expert, but I hope that someone who is will consider the following hypothetical and answer some questions.

Hypothetical: The President has specific and credible information 72 hours in advance that there a terrorist attack will occur in a major port city. All indications are that the attack will destroy the city and its fallout will affect communities in three states. When confronted with the prospect of catastrophe, the governors and local officials in the affected area do not take the threat as seriously as the President thinks that they should and these local officials fail to protect their constituents.

What does the President have the power to do?

We are a nation of inter-dependent regions. Regions, not cities or states, are the economic muscle of our economy. This event devastated an entire region, which cross-cuts three states and has clear national - even global implications.

If the Constitution does not vest the Executive with the power to overrule decisions of governors or local officials when a major population center and economic hub in our country faces immediate threat, then the Constitution is antiquated.

If you read me regularly, you'll know that I’m not a traditional “state’s rights-limited government” conservative. In fact, I’m fairly “liberal” on many issues, but choose the Republican Party because it most closely aligns with me on issues of life, family, and national security. But the Republican Party must get this one right if it is to keep many well intentioned Christians (not necessarily “Christian Conservatives”) in the Party. I’m willing to bet that the majority of Americans do not care much about the answer to the questions: “What is police power?” and “Where does it reside?”

If there isn’t a federal police power to handle situations of national significance when the local officials are incompetent and perhaps even criminally negligent, then I’m willing to bet that most Americans believe there ought to be.

Republicans will learn this lesson - one way or another. School starts in about a year.

Posted by Rick at September 6, 2005 04:20 PM

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Suggesting that the President of the United States, or the Congress, or whatever federal body you wish, can come in and take over a city, state or region's governmental responsiblities, would be (to me, not anything near a ConLaw amateur let alone expert) an utter failure of (at least) the 10th amendment. Yes, I understand why some would think this a good idea, but the slippery slope that would appear before us is a place we don't want to go.

Consider all the extra-Constitutional spending that goes on in Washington that nobody has the guts to go up against anymore. We lack the political will because it's been going on for generations. Do you really want to give the feds unfettered power to institute martial law whenever and wherever they want? And yes, it would be unfettered, because the Consitution doesn't cover this, and thus there would be no way to judge the government's actions.

The answer is a stronger local government, one that does its job first, going to the feds as a last resort, not the first. The problem is that our generation now expects the feds to bail them out of everything bad, which encourages poor planning because Big Brother will make it all better if we screw up. So in fact we're already heading down that aforementioned slippery slope, and something that would have been unthinkable 100 years ago, now seems to make sense.

Posted by: Doug Payton at September 6, 2005 08:20 PM

Debate about the law that prevents uninvited Federal intervention needs to be on the front burner. While looking at the pitiful people last week, I thought the law had outlived its usefulness. However, after thinking about it some more, I am not so sure.

Posted by: Fran at September 6, 2005 09:27 PM

Doug's comment goes to the propriety of federal intervention; the question asked about federal POWER. There is absolutely no question that in the case of a terror threat the President has the power to intervene not only in the face of state officials' insouciance, but also over state officials' actual objections. Any limits on power in the case would be very tenuous; the president could basically do anything and everything he thought necessary to deal with the threat.

Again we're not talking about right and wrong, we're talking about presidential power under current constituional law.

How much of this power translates over to an impending hurricane, instead of a threatened terror attack? That line is more blurry as it has not been tested, and these details are the sorts of things lawyers argue about. But it would be fair to say that a GREAT deal of that power would carry over to ANY large scale threat to national safety, hurricanes included. Certainly most of that power would translate to this situation; perhaps all of it would. [Can you honestly imagine a court issuing an injunction ordering the president to cease any preparatory disaster mitigation work? Seems very unlikely, as long as the disaster was a legitimate threat, unless the president's actions were objectively grossly disproportionate to the threat posed.]

Posted by: Joe M. at September 6, 2005 11:53 PM

Joe M. NAILED IT! You got the entire point of my post. Thanks for articulating it more clearly.

Posted by: Rick Brady at September 7, 2005 01:53 AM