A Brief Lesson on Constitutional Law and Vertical Separation of Powers

Sep 11, 2005 by

I really hate to be the bearer of bad news, etc, but for once the federal government is pretty much doing what it can. This is a little lesson on separation of powers, and the constitution. I am NOT trying to shift an iota of deserved blame away from Bush. However, it is very frustrating not to see the due scrutiny being paid to who has what powers to act, and who therefore is most culpable.

The president’s power is extremely limited on the domestic front. He has a lot of trouble acting within the confines of what is constitutional unless one state’s action or inaction is hampering another state’s ability to function. He has broad discretion in terms of foreign policy, but not so much on the domestic front. Those powers not granted to the federal government under the constitution are reserved to the states.

First off, the federal government cannot send troops into any state or city during a time of domestic (ie, not foreign) violence because of Posse Comitatus unless the governor of that state requests the federal government do so. Blanco waited 2 days after the situation was obviously out of hand to make that request. The president does not have the power to act until she does.

Those homeland security officers keeping out the red cross? They are not federal officers. That’s the state department of homeland security. The people keeping out aid – they are acting on orders of Governor Blanco and her staff. She is killing our people. She is killing the very people who put her in office!

Another thing is the problem of first responders. There is generally more than a day of delay after a state of emergency has been declared before the federal agencies are prepared to act. This happened today 4 years ago, as well. However, in New York City, the police and firefighters rushed into burning, collapsing buildings. They’re called first responders for a reason. Here in Louisiana, at least 400 NOPD officers abandoned their duty. They did not respond at all, much less respond first. The joke was always “No P.D.” Turns out the jokes were right. Now, that is not to denigrate the efforts put forth by those who did not abandon the city to its fate – each and every one of them is a hero.

Why are conditions in the Astrodome so far superior to conditions in the Superdome? Hell, why are conditions in the Baton Rouge River Center so far superior to conditions in the Superdome? The answer is the LOCAL OFFICIALS made advance preparations. In Baton Rouge, people had arrived within two days of the storm hitting, and were staying in the Centroplex area downtown. The local officials here had just as much time and notice to stock up on supplies as did Ray Nagin and his staff before the storm hit. The people in Houston had more time, but look at how organized it is. Whose job was it to stock the Superdome and the Convention Center? That’s up to the local officials. If they felt they could not handle the job, as it is so painfully obvious they could not, they should have turned to the governor.

Nagin is a good man. He’s a smart man. He’s been very successful in business. He dropped the ball on New Orleans in its greatest time of crisis. He failed to act before the boiling point was reached, and once it was, he was in over his head. It was the governor’s job to bail him (AND THE GREATER NEW ORLEANS AREA) out. And, when she realized she was drowning in confusion, IT WAS HER JOB TO REQUEST HELP OF THE FEDERAL GOVERNMENT SO THEY COULD CONSTITUTIONALLY ACT.

When the most profoundly Bush-hating professor I’ve ever met, who claims to have voted for and supported Kathleen Babineaux Blanco, says that he regrets to say that the president’s hands were cosntitutionally tied by Blanco’s outright refusal to make a simple request, it’s hard not to believe it’s true. When the most conservative human being (a constitutional law professor who is close friends with Justice Scalia, if that gives any clue) I’ve ever met (also not a fan of Bush, who along with congress has proven to be dreadfully fiscally un-conservative) says that Blanco’s inaction caused sufficient harm to other states in terms of the destruction of the oil refineries and the loss of the use of the vital Port of New Orleans that the federal government would be legally justified in wresting control of the Port from city and state, it’s nauseating to hear. This is a guy who wants as SMALL a federal government as is possible. He’d love to see ALL agencies dissolved. He thinks the feds have been given the power to seize New Orleans’ biggest financial asset by Blanco’s ineptitude! What sort of precedent would that set?

I’d love to be able to sit back and comfortably blame the person who theoretically has the most power and control. However, in a situation like this, that person is the state’s governor. Blanco was duly elected. There was no missing votes or butterfly ballots issue. She should be held accountable. If people keep overlooking what she did while seeking an elusive bigger fish, that will never happen.

PS – a reliable source witnessed the barge that went through the 17th St. Canal (you know, the disaster that flooded the rest of the city). Apparently, it belonged to Freeport McMoRan, and was being used for some pipe work. Curious how it was only shown ONCE on the news, and within hours, the barge was mysteriously missing.

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