Don Davis

Tornado? That's Not in the Constitution

Filed By Don Davis | April 20, 2011 9:00 AM | comments

Filed in: Politics
Tags: 10th Amendment, Article 1 Section 8, Congress, Constitutional Law, Democrats, election 2012, FEMA, Law, Oklahoma, politics, Republicans, Tea Party

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the federal government.

tornado.jpg"If it's not specifically enumerated in the Constitution," they say, "It must be a function of the States. And the 10th Amendment says so!"

None are tougher in their language than those living in the states located below the old Mason-Dixon line. And by an amazing coincidence, just this weekend pretty much all of those states got a bit of a "gut check" in the form of dozens of tornados that slammed into the area.

So we're going to put the Tea Party philosophy to the test today, and see just what exactly the federal government should - and should not - be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

"...For that was not true; his attitude was not to be explained by greed, or at any rate by greed alone, but rather by the touchiness which his great labors and their complete unsuccess had bred in him."

--From the story "The Village School Master [The Giant Mole]", by Franz Kafka

Stories often begin by setting the terms of the discussion; that will be true today, and the framework for where we'll start is Article 1, Section 8 of the US Constitution, which is the "unless it's enumerated..." part of the Tea Party argument:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

OK. So let's talk about "who's who" in this little drama (for the record, this won't be a complete list of events or people; it's just a sample for the purposes of discussion).

Arkansas had tornados Friday night; seven people died (five of those from winds not attributable to a tornado), and according to The Post and Courier of Charleston, SC, there had been three days of warnings from the National Weather Service before this particular weather event.

The paper also reports that Oklahoma, Louisiana, Tennessee, and Mississippi were hit.

North Carolina was hit with as many as 62 tornados over the weekend, with at least 22 dead.

In Virginia, Saturday, a 12-mile swath of Gloucester County was severely damaged, with a total of five dead in the Commonwealth.

North Carolina, Alabama, and Mississippi have declared a state of emergency, so has Virginia. Oklahoma has been under one state of emergency due to wildfires since March, a second emergency was declared over the weekend, and federal assistance was again requested by Governor Mary Fallin to help make things better.

To keep this to a reasonable length, we're going to drill in on three states, and three governors; those states are Virginia, Alabama, and Oklahoma.

Alabama's new governor, Robert Benchley, is one of those "enumerated powers" kind of guys, in fact, he signed the 10th Amendment Pledge; the parts which concern us here read as follows:

The phrase, "General Welfare," in Article I, Section 8 does not authorize Congress to enact any laws it claims are in the "General Welfare" of the United States. The phrase sets forth the requirement that all laws passed by Congress in Pursuance of the enumerated powers of the Constitution shall also be in the General Welfare of the United States...

... I do, and will continue to, oppose any and all efforts by the federal government to act beyond its Constitutional authority.

Let's move on: the Tenth Amendment Center is proud of Oklahoma's Mary Fallin for turning down the federal grant to set up the state's "Obamacare" insurance exchange (officially part of the Patient Protection and Affordable Care Act [PPACA]) on 10th Amendment grounds. And she would also want you to know that:

"...I believe, as I know many of our legislators and the majority of our citizens do, that the PPACA is unconstitutional, fatally flawed and ultimately harmful to our economy and the health of our citizens..."

And then there's Virginia:

Gov. Bob McDonnell on Friday drew cheers from the tea party crowd as he announced support for a "Repeal Amendment" to the Constitution.

"There has been a bi-partisan trampling of that federal compact of the 10th Amendment," said McDonnell as he spoke at the Virginia Tea Party Patriots Convention in Richmond.

A "Repeal Amendment" was proposed last month by House Speaker Del. Bill Howell, R- Fredericksburg. The amendment to the U.S. Constitution would allow a federal act to be over-turned if two-thirds of state legislatures voted against it. Such an act would sway power to state legislatures, and is a popular concept in tea party circles.

When the panel moderator asked McDonnell is he would support such an amendment, he replied "yes."

And now it's disaster time, and these governors are looking for disaster help... but they have a very particular view of how the federal government and the states ought to relate to each other... so... at this moment of urgency, just what precisely are the specifically enumerated powers that the federal government has at our disposal for disaster relief?

Well, according to my quick re-reading of Article 1, Section 8, that would be exactly no power at all, except to act in case of insurrection, to try any federal criminal offenses that might occur, and to repair any federal docks or other needful buildings.

(You'll note I did not say "try and punish" any federal criminal offenses. That's because there's nothing I can see in Article 1, Section 8 about federal prisons.)

I don't see anything in there about the National Weather Service, either, so from now on, if a state wants to know if a tornado's coming, I guess they better pony up the cash and start themselves a state weather service, or buy the forecasting and warning services from a private contractor.

(This could be good for the economy, by the way: forecasting the weather requires satellites, and if every state that believes in self-reliance each launches their own satellite constellations, that's some jobs, right there.)

FEMA? In the view of those who truly understand, it's unconstitutional on its face, and, therefore, the governors shouldn't be looking to them for help.

The loans that businesses and citizens rely on to get back on their feet? Show me the "enumerated" language that permits those activities, because I can't find it.

Grants to states to cover their extraordinary expenses? I don't see anything authorizing such activities, and with that in mind, I don't think so.

According to the "purist" view, the 10th Amendment requires all of this to be handled by the states, not the federal government; that's why, for the life of me, I can't figure out why these governors weren't thinking about disaster planning from the start of their terms.

Why weren't these supposedly self-reliant states ready when this happened?

I mean, each of these states already has an emergency management department, and I'm sure they can manage much better locally than the feds (or at least they claim they can), so why are they even asking for federal help in the first place?

How is it possible that these governors never considered that protecting the citizens of their states would be "Job 1," to steal a phrase, and, to make a moral point, why should the rest of us be bailing them out now?

I mean, hey: you told us these were state problems, and now you have problems, and you still have states, so you know what?

Live up to your words: get all 10th Amendment-y, suck it up, and deal with it yourselves.

That's what you told us you wanted, when you were Full of Big Campaign Talk, so now do it, governors, and stop all that crying and whimpering to us for outside help, and go make that 10th Amendment work for you.

Show us how much better local control is than when the Giant Hand of the Federal Government Tells You What To Do.

Be the self-reliant Brawny Men that you were in your campaign ads.

And I'd pose the same challenge to anyone who voted for these governors.

Remember how you all cheered when your candidates told you government wasn't the solution; that it was, instead, the problem?

If you really believed that, then what in the world are you doing asking for the federal government's help now?

After all, you said you wanted government "off your back", and "the government that governs best governs least", right, so why would you want government in your faces at a time when you're trying your hardest just to get back on your feet?

Why aren't you (and I'm thinking specifically of you, Tri-Corner Hat Patriot Guys) demanding that the federal government stay out of this and leave the states alone?

And it's only fair: there was no tornado in California this weekend, so why should Californians pay taxes for your disaster?

And remember how adamant you were, just a couple of weeks ago, that the budget cuts associated with those Continuing Budget Resolutions weren't deep enough?

Well, how are we supposed to make the kind of budget cuts y'all wanted on the federal side when you're coming around here demanding more money?

We have a deficit, remember, and we can't be spending money we don't have, and even if we had the money, we couldn't spend it on helping you, because, as you all recall, there's nothing specifically in the Constitution to allow it.

This is your problem, Constitutional purists, and, according to your own logic, it's not ours... so if you want your roads and schools fixed, ask your citizens to volunteer to do the work or something.

Since we can no longer help you, maybe the Red Cross or some other private charity could fund the rebuilding of your communities.

Since so many conservatives believe corporate and religious philanthropy will fill in the gaps in the shrinking "social safety net," you could try asking churches and private industry to do the work for you as a community service; I'm sure they'll jump right in and pick up all the slack.

You were the ones full of tough talk last November, my Tea Party friends, and now it's 10th Amendment "gut check" time, and I want to see you live up to your own words, if you have the man pants to do it. Or I want you to see you acknowledge that this was all a giant load of hooey.

That maybe there's a place for a United States of America, that maybe there is such a thing as "general Welfare" or maybe even that being a 10th Amendment purist might be great down at the ol' Heritage Foundation when you're hustling for campaign money, but that once the big winds start blowing, ideology ain't worth spit compared to a system of weather radars and satellites and a FEMA that will come and bail your butt out if it all goes wrong.

And if you voted for one of these clowns, either you need to get smart, right now or maybe we need to cut the cord.

Maybe you need to see what your own vision of "10th Amendment reality" is really all about.

Maybe, just as so many of you have demanded, we should mind our own federal business and let local government govern best.

And if it doesn't work out, then, maybe, you'll wake up and realize that Ronald Reagan was wrong: sometimes government is the only game in town, and when it's not around, providing helpful solutions, that's when you got real problems.

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Don't give them ideas, Don - remember FEMA and Katrina? The right's leadership actually doesn't think that the federal government should help with natural disasters, which is why they gutted FEMA and gave the rest of it to cronies and private contractors. They might eventually do the same with the national weather service, contract it out or sell and make it pay the bills by selling ad space.

Let 'em eat their own state-baked cake!

even better...why not just admit the 10th amendment crap is crap, and then let's fix some actual american problems already?

Brad Bailey | April 20, 2011 4:55 PM

The power and responsibility to build and maintain roads is not an enumerated federal power; it is a concurrent power, shared by both the state and federal governments. That's why it is within the purview of the fed to assist in the relief of natural disasters.

it seems to me that it's a bit more complicated than you might suggest:

there is an enumerated mandate "To establish Post Offices and Post Roads", which clearly works to provide authority for restoring the interstate and us highway systems in affected areas...but fema offers assistance to states and local governments to rebuild their own roads and schools and fire stations and city halls, and none of that has an apparent "enumerated power" to support those actions.

So the people who have been paying federal taxes for FEMA for the last 50 years should forgoe the benefit of those taxes on moral grounds, while the money they contributed is spent elsewhere? Minding your own business means more than not providing the services, it also means not collecting the taxes. But you're an idiot, so you think when the government spends your own money on you, it's a handout. Why would little things like "we already paid for it" concern you?

The post was about the National Weather Service, which is part of the NOAA. The NOAA's 2012 requested budget is $5.5B, or $17.74 per person. The NWS would be even less than that but let's juts say that's what it is.

And your argument is that the $17.74 you spent is so much money that it renders the moral stance of not using government services null? Or is it not the service, but the idea that the $17.74 should never have been collected and instead you could have spent it on constructing your own weather service or a private weather service?

Of course, even that's based on a fallacy; the federal government spends money before it collects taxes because it creates money through fiat. So that $17.74 was created out of thin air, not through the government waiting until everyone has paid theirs and then giving the go-ahead to the National Weather Service. So, really, your money wasn't used to fund it, nor FEMA, if you want to think about it that way, and you're free to not use those services if you want to.

i don't know if you're aware of this, but ron paul is promoting the idea that people could "opt out of government" if they were willing to essentially pay a tithe of 10% of their income to government.

he does not explain what would happen if your next door neighbor, who chooses to opt out of local zoning laws, decides to build a nuclear waste dump on their property, and i have a feeling you're not going to hear an answer to that question anytime soon.

actually, john, what i was trying to say was that the governors and elected officials of these states, who ran last year on this whole "states' rights/10th amendment" theory, now either need to put their man pants on and live up their own fine words...which they could do by turning down that evil and corruptive federal money...or we could all get rational and accept that there is a place for a national government, and that we have obligations to each other that do, indeed, cross state lines...and i that io want those same republicans to remember who saved who when it comes time to talk about the 10th amendment and social security and medicare.

Logic is the arch nemesis of the Tea Party

oh, it does not help, when you are trying to create myth, to have to deal with that pesky logic--or worse yet, those evil facts.