Did Hurricane Sandy Save Obamacare? How Disaster Relief Justifies the Welfare State
Farber, Dan, The Washington Monthly
The Sympathetic State: Disaster Relief and the Origins of the American Welfare State
by Michael Landis Dauber
University of Chicago Press, 378 pp.
Among the notable events of 2012 were Hurricane Sandy and the Supreme Court decision upholding Obamacare. The two did not seem to have much in common. Yet, as it turns out, there is a deep historical linkage between the welfare state (in this case Obamacare), constitutional law (the Supreme Court's decision to uphold that law), and natural disasters (Sandy). In her new book, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State, Michele Landis Dauber, law professor and sociologist at Stanford University, does not discuss these recent events directly, but her research allows us to see some surprising connections.
In upholding the Affordable Health Care Act, Chief Justice John Roberts invoked the clause in the Constitution that empowers Congress to levy taxes and pay debts for the general welfare of the country. The Medicaid provision in the AHCA represents that spending power. Roberts upheld Congress's ability to fund the expansion if states were willing, but said they could not be compelled to participate. The individual mandate, he wrote, was not justified by the commerce clause, but could be considered a valid exercise of the tax power. Thus, federal power to pursue "the general welfare" was the key to upholding the statute.
The AHCA was the most notable expansion of the welfare state in decades. It was no coincidence that it relied on the congressional power to tax and spend for the general welfare. The same powers were used to justify the creation of much of the welfare state during the New Deal, with the general welfare given an equally broad definition. That much is well known. What Dauber adds, however, is evidence that the breadth of these powers was not a New Deal creation. Instead, she argues, the broad conception of the general welfare grew out of the long history of federal disaster relief, which Congress and the public had always viewed as being appropriate for preserving public health and safety. But her evidence sheds new light on how our modern welfare state and our modern views of federalism have evolved in tandem. Indeed, disaster relief provided the first seeds of the welfare state and its constitutional framework.
The Federal Emergency Management Agency (FEMA) is a relatively recent creation, but, as Dauber shows, federal disaster assistance stretches back to the early days of the Republic when Congress began to provide help for the victims of the New Madrid earthquakes of 1811-12 and during the War of 1812. By the Civil War era, Congress had passed fifty relief bills covering everything from Mississippi River floods to the devastation of the Kansas grasshopper plague of 1874. Even fervent believers in states' rights rarely expressed constitutional qualms about federal disaster relief. Between 1860 and 1930, there were more than ninety additional federal relief provisions, in addition to the millions expended in the South after the Civil War. From time to time, a few southerners voiced halfhearted constitutional objections that were uniformly disregarded. There was a nearly complete consensus that disaster relief fell within Congress's power to tax and spend for the general welfare.
By 1890, Congress had compiled a table listing past relief efforts stretching back to earthquake relief in 1812. For decades afterward, the table was periodically updated and republished by congressional committees. After 1890, the long history of disaster relief became an important argument for other forms of federal spending.
This history assumed new significance during the Great Depression. Franklin Delano Roosevelt initially portrayed the Depression as an emergency, but by 1936 he was calling it a "disaster." Just as the "strong arm of the Nation" was needed, he said, for immediate relief and in "taking measures of prevention before natural disasters occur," so too was it "needed equally in taking measures to prevent economic disasters, which are not natural but are made by man. …