Did Hurricane Sandy Save Obamacare?

How disaster relief justifies the welfare state.

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.

The Sympathetic State:
Disaster Relief and the
Origins of the American
Welfare State

by Michele Landis Dauber
University of Chicago Press, 378 pp.

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.” The president quickly understood that likening the devastation of the Depression to that of the Dust Bowl could help him make a strong case for the need to create a social safety net when man-made disaster struck. Roosevelt used the devastating Mississippi River flood of 1937, which left nearly 100,000 people homeless, to castigate conservatives on the Supreme Court for tying the government’s hands when it tried to help.

Even the art of the time was roped into the service of this agenda: photos by Dorothea Lange of impoverished migrant farmworkers and other rural victims of the Depression were selected to reinforce the innocence of the victims and their lack of responsibility for their own plight. Books like John Steinbeck’s Grapes of Wrath highlighted the extent to which the Depression’s sufferers were subject to forces beyond their control. As Dauber painstakingly demonstrates, the thousands of people who wrote Eleanor Roosevelt for financial help also carefully designed their pleas to emphasis their powerlessness in the face of economic forces, sometimes stretching the truth in their efforts.

The scope of federal spending power was front and center in debates within the Roosevelt administration over how to design unemployment compensation and Social Security. On the advice of Harvard professor T. R. Powell and with quiet encouragement from Chief Justice Harlan Stone, administration lawyers decided to use the spending power as the constitutional basis for the new legislation. These attorneys were nervous about the federal-state partnership included in the final version of unemployment compensation, believing that a direct federal program would face fewer constitutional challenges over time. Ironically, some seventy-five years later it turned out that the joint federal-state role in implementing the Medicaid portion of the AHCA nearly torpedoed the entire statute in the Supreme Court.

Powell had pointed out the irony of this situation in words that are just as relevant decades later to Obamacare. It would be “a strange paradox,” he said, if giving incentives to the states to participate in a federal program was considered “unconstitutional coercion,” since that would encourage the federal government to bypass the states entirely and increase its own role instead. Unfortunately, a majority of the Supreme Court had forgotten this lesson by 2012. The only thing that saved the rest of the AHCA was Roberts’s willingness to sever the supposedly “coercive” funding condition from the rest of the law.

The lawyers defending the New Deal emphasized the historical breadth of federal spending—with careful attention to disaster relief. The old congressional table of disaster efforts was dusted off and brought up to date. In defending the constitutionality of the Tennessee Valley Authority (which was set up to build dams to produce electricity and guard against floods in southern states particularly hard hit by the Depression), the solicitor general included the table and a lengthy appendix on spending efforts that included the San Francisco earthquake and dozens of other catastrophes. As Dauber says, virtually all the government briefs “contained some sort of reference to the disaster relief precedent, and usually claimed that these programs were drawn from that tradition.”

These arguments found a receptive judicial audience. In upholding unemployment compensation, the Fifth Circuit emphasized that “for many years and in numerous instances Congress has recognized [that] calamities such as floods, droughts, earthquakes and pestilences … are matters affecting the general welfare of the United States.” The Supreme Court duly upheld the old-age program as a remedy for the “purge of national calamity.” The unemployment program was also upheld as an exercise of Congress’s tax and spending powers. As Dauber persuasively shows, the precedent of disaster aid played an important role in this constitutional evolution—though she fails to demonstrate that it was the only significant influence, as she sometimes seems to suggest.

It is no coincidence that the conservative Republicans who loathed the AHCA as unconstitutional also called for the abolition of FEMA. Mitt Romney parroted these positions in his presidential campaign. That might not have been a problem if Hurricane Sandy had not intervened in the last days before the election, reminding Americans of how much they have always expected the federal government to come to the rescue after disasters. But few of us—and surely few of the more fervent believers in the jurisprudence of original intent—are aware of how far back this attitude stretches in American history.

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Dan Farber

Dan Farber is a law professor at the University of California, Berkeley. He has written extensively about constitutional and environmental law.