Category Archives: History of Policy

Book Review: Disasters and the American State by Patrick S. Roberts

by • American Political Development, Book Reviews, Disaster Mitigation, Management and Recovery, Emergency Management, FEMA, History of Policy, Policy • Tags: , ,

In Disasters and the American State, Patrick S. Roberts has written a thoroughly persuasive account of the long and uneven development of what he calls the American “disaster state.” Roberts’ fundamental goal is to help us understand contemporary disaster politics, including how past politics and institutions have given rise to these politics. He draws on insights from the literature on American political development to provide us with this account, which emphasizes the role of historical patterns as well as idiosyncrasies in creating these politics, and their roles in shaping the American state. The book is very well written, provocative, and well researched. Anyone interested in American political development should find it compelling, and of course, disaster scholars may be especially interested.

Roberts argues that the federal government has been involved in disaster politics, albeit in rather ad hoc fashion, for most of the nation’s history. In the early republic, Congress was the dominant actor in disaster politics, and relief typically came in the form of tax relief or land grants rather than appropriations. Roberts offers an example in a major fire in Portsmouth, MA in 1806. In response to that fire, Congress suspended the collection of bonds in that town in order to relieve its financial burden. After the Civil War, Congress continued to predominate, but it began to make special appropriations for the relief of populations affected by disasters. Additionally, the pace of Congressional enactment of relief measured doubled compared to the antebellum period, and Reconstruction also saw the first bureaucratization of disaster relief as the Bureau of Refugees, Freedmen, and Abandoned Lands distributed aid in peacetime for disaster relief, among other things.

The Congress-centric story of federal disaster politics begins to weaken as the White House took on a stronger role in the field beginning, Roberts argues, with Calvin Coolidge’s response to the great Mississippi River flood of 1927. By this time, Americans expected more leadership from the White House in domestic affairs generally than they had in earlier periods (e.g. Lowi 1986), and Roberts shows that the realm of disaster response was no exception. Coolidge took unprecedented steps to relieve the Midwest: he established a special cabinet committee to coordinate the national response, and appointed Herbert Hoover (the Commerce Secretary) to direct the massive relief effort of the American Red Cross.

Roberts argues that the ad hoc nature of federal disaster response persisted until the mid-twentieth century. In the post-war period, however, the federal government began work to coordinate and systematize its disaster responses by passing the Disaster Relief Act of 1950. This Act provided that the president had broad, discretionary authority to declare what constituted a disaster eligible for federal aid, defined who in the federal government was to distribute the funds, outlined procedures for how those funds were to be allocated and distributed, and established that relief funds would only be sent to state and local governments, not to individuals. In this way, the Act contributed both to the shift toward presidential power and leadership, and to the layered, federalism-infused nature of disaster politics.

This era also marked another enduring shift in federal disaster politics: existential fear driven by Cold War led to the fusion of “disaster” and “emergency” and thus left disaster response tied up with civil defense, both socially and institutionally. Roberts shows that this amalgamation has largely persisted even as the threat of nuclear war has waned, and that the lingering “Cold War mindset” has been an important reason that disaster relief efforts today are frequently unsatisfactory to the public at large. That is, many agencies – especially FEMA – had dual missions: security and disaster response. Importantly, Roberts argues that the “security missions” of these agencies had major impacts on their ability to respond effectively to disasters. The creation of FEMA epitomized these competing strands: the organization was only loosely connected; a series of stovepipes separating various divisions and processes, and three distinct cultures divided the agency (civil defense, disaster relief, firefighting). The complexities led to the adoption of the “all hazards” approach, wherein “government will use the same plans, procedures, resources, and personnel to address all kinds of hazards and disasters” (p. 80). At different times, one of these missions necessarily took precedence over the other; the chief concern at any given time affected staffing decisions, attention from Congress, and public image. Thus the dual purposes of these organizations necessarily reduced their abilities to address either mission fully.

Roberts shows that the federal role in disaster relief has expanded greatly since the 1960s – but also that public satisfaction with federal responses is consistently quite low during this period. This is partly due to the fact that agencies were pulled in different directions by their dual missions, and did not have sufficient resources to address both missions. Another factor in the low satisfaction with federal disaster response is due to a general awareness that the government has an enlarged capacity to relieve federal disasters – that is, the fact of the growing “disaster state” itself inflates expectations of efficiency and efficacy in society.

This “dual mission” problem was temporarily abated in FEMA in the 1990s under the tutelage of James Witt, the FEMA chief appointed by Bill Clinton. Witt, Roberts argues, was able to clarify FEMA’s mission, improve customer service, and perhaps most importantly, consciously aligned FEMA’s gals with the reelection goals of Congressmen and the president (see also Roberts 2006). By refining and clarifying FEMA’s mission, and allocating its resources in accordance with that mission, FEMA became remarkably more effective and efficient – indeed, it went from laughing-stock to a genuine model bureaucracy.

Roberts argues that after 9/11, the quick absorption of FEMA into the new Department of Homeland Security, and the concomitant addition of terrorism preparedness to its core mission, is a prime example of how “government’s capability to deal with disaster could not keep up with the public’s rising expectations” (p. 126). Under Witt, FEMA had become a model agency largely because it was successful in narrowly defining its operational mission (that is, doing relatively few things, but doing them well). Public demand for protection from an amorphous terrorist threat, and perceptions of the agency’s power and ability to respond to such threat, outstripped its actual capacity for action.

Roberts argues that a reputation for competence and efficiency can be a source of bureaucratic autonomy and independence (however unstable). That is, FEMA’s reputation as the effective “all hazards” disaster agency allowed it to act independently. This uncertain reputational autonomy also left the agency exposed to destructive forms of politicization when it failed to live up to that reputation, such as after Hurricane Katrina. Here Roberts makes an important contribution to our understanding of bureaucratic autonomy. One of the (theoretical) virtues of administrative governance is political independence, that is, the making and implementation of policy on the bases of sound economic and scientific determinations made by experts, rather than on the bases of partisan or parochial politics.

Roberts closes the books with several important observations about the both the realities and potentialities of disaster mitigation in the U.S. First, that politicians’ claims and the public’s expectations about the government’s ability to prevent or ameliorate disasters greatly outstrip its actual capacity to do so. Second, that the disaster state (like the administrative state more generally) is extremely complex, being shaped by presidents, legislators, bureaucrats, federalism, the emergency management profession, and public expectations, all of which respond to their own separate incentive structures – and all of which change over time. Finally, he argues that the incentives of the chief actors tend to emphasize short time horizons (often no further than the next election), whereas many truly meaningful disaster mitigation strategies, such as building and zoning codes, take decades to implement and do not lend themselves to credit claiming by politicians, and thus are often cast aside in favor of more politically expedient measures. These observations should give pause to scholars, practitioners, and citizens concerned with disaster politics and policy in America’s future.

My main qualm with the book concerns the role of the public in the processes of social construction in Roberts’ narrative.

Roberts states that central puzzle of his book is “what is the role of the federal government in addressing disasters, and how has it changed? The answer is that citizens, members of Congress, disaster managers, presidents, and the media inadvertently shape what counts as a disaster and how much responsibility the federal government has in addressing it. This process of social construction occurs while various actors pursue their own interests, whether winning reelections, making promises to voters, managing organizations, reporting the news, or preparing for disasters.” (p. 176).

To this end, Roberts offers a great deal of evidence of these sorts of construction occurring in Congress (in the 19th century), and in the upper echelons of bureaucracies (in the 20th century). He also makes a strong case that media plays an important role in the construction of “disaster”, especially since the 1920s or so. For most of this developmental story, though, the role of average citizens – of the public at large – is unclear. Roberts acknowledges that most works in APD try to use public opinion polling and elections to measure public influence on development – yet also notes that “Public expectations are filtered through the news media” and that elections in which disasters are a major issue are “rare” (p. 189). These admissions suggest, to me, that this process is almost totally elite-driven. That is, this narrative suggests to me that the primary locus of the social construction of disaster was driven primarily by Congress and local, parochial elites in the 19th century, and in the 20th century, shifted from Congress to the presidency, and from local elites to the emergent national media. Today, even the absurdly high expectations of government’s capacity to respond to and mitigate disasters, held by much of the general public, has likely been driven in large part by media. Roberts’ extended discussion of “elite panic” (elite overreaction to the fear of crisis, social breakdown, and challenges to their authority, such as we saw in the days and weeks following Hurricane Katrina) underscores this interpretation.  None of this is to say that this is not social construction, rather only that even the modest role for the public that Roberts suggests is, I think, overstated.

I was also surprised to see very little discussion of the Army Corps of Engineers. Roberts’ account of the modern disaster state centers on FEMA, and for good reason. Yet the Army Corps is an important actor in the disaster state (and has been so for quite a long time), playing key roles in both mitigating and responding to disasters. Further, the Corps is, arguably, a very unique bureaucracy – one that may be able to exercise the sort of reputational autonomy Roberts observes in FEMA during the Witt era on a much more regular basis than other agencies (Adler 2012; Shallat 1989; see my previous discussion of this possibility here). Thus, I would like to have seen more thorough treatment of this important disaster agency, including its ability to act autonomously, and its role in constructing the meaning of disaster (and the meaning of “response” and “mitigation”) over time.

Finally, another point about which I’d like to see more work: as a scholar interested in American Constitutional development, I would have like to have seen more about the debates in Congress regarding the constitutionality of proposed relief measures. To be sure, this is largely beyond the scope of Roberts’ study, which focuses on the growth of the “disaster state.” His discussion of the construction of this state, especially before 1927, raises some very interesting questions about constitutional construct in a system of separated powers (or shared powers and separated institutions). For example, Roberts argues that in the first several decades of America’s existence, debates in Congress as to whether or not to provide relief for some particular misfortune (earthquakes, fires, etc.) often centered on questions of constitutional power – specifically, whether the Constitution actually empowered Congress to provide any such relief. Eventually, we see, precedent accumulated and debates over constitutionality presumably fade to the background and then disappear completely by the late 19th century. I would like to see much more about this process – the ins-and-outs of the arguments in Congress, how they changed over time, why they ultimately disappeared, etc. For now I’ll have to hope that some enterprising scholar will pick up this important question that Roberts suggested here.

All in all, Patrick Roberts’ Disaster and the American State is excellent – imminently readable, well sourced, and compelling; it is must-reading for individuals interested in disaster politics and policy, state capacity, or American political development.

 

Full citation to Roberts’ book:

Roberts, Patrick S. 2013. Disasters and the American State: How Politicians, Bureaucrats, and the Public Prepare for the Unexpected. Cambridge University Press.

Other sources cited:

Adler, William D. 2012. “State Capacity and Bureaucratic Autonomy in the Early United States: The Case of the Army Corps of Topographical Engineers.” Studies in American Political Development 26: 107-124.

Lowi, Theodore J. 1986. The Personal President: Power Invested, Promise Unfulfilled. Cornell University Press.

Roberts, Patrick S. 2006. “FEMA and the Prospects for Reputation-Based Autonomy.” Studies in American Political Development 20(Spring): 57-87.

Shallat, Todd. 1989. “Engineering Policy: The U.S. Army Corps of Engineers and the Historical Foundations of Power.” The Public Historian 11(3): 6-27.

Pennsylvania Coal Co. v. Mahon: Brandeis, in dissent

by • American Political Development, Emergency Management, History of Policy, Judicial Politics, Property, Property Cases, Regulatory takings, Supreme Court, Takings

Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be regulated; and second, he was interested in the way the state’s police powers should apply in the case. The two go hand-in-hand in his view.

Use of land, he points out, is something the government (in this case, the Commonwealth of Pennsylvania) has always been able to regulate. Use by an owner is never absolute. That is to say, because you own land does not mean you can use it however you want. For example, an owner may not create a public nuisance with his land. An example of this would be someone placing a ton of scrap metal on their land or dumping chemicals on it so that the water table is poisoned, and all the land adjacent to their tract was devalued or damaged because of their activities. Brandeis also notes that “uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare.” I think contemporary examples of this would include believing that a chemical was harmless and then learning that it is linked to cancer or some other disease. Brandeis argues, in essence, that when new information (including new science) comes to light the government can step in for the good of the public and create regulations addressing the problems.

Now, keep in mind that this is a case about a state level statute, so Justice Brandeis’s remarks are focused on the state police power. His argument is that if the state is legitimately exercising its powers to legislate on behalf of the health, safety and morals of its citizen (which are powers given the states in the federal constitution), then they do so without having to pay compensation. The only time they would be required to compensate is if the state were to exercise their power in such an arbitrary manner as to violate the 14th Amendment’s due process clause and, through it, the Takings Clause of the Fifth Amendment. Brandeis explains that all restrictions on the use of property ultimately deprive an owner of something he or she may have enjoyed before the restriction was written. He writes,

“deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment of the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use…”

Such a restriction must have the purpose of protecting the public for it to be a legitimate exercise of police powers, wrote Justice Brandeis. This point is important because the statute that was in question in Mahon had included provisions that restricted undermining in areas used by the public even though this case involved private owners. Brandeis believed that just became the Mahons were private owners, the statute should apply to their land just as it did to public lands.

Justice Holmes, in his majority opinion, seems to have mostly ignored the portions of the statutes that dealt with public areas, paying more attention to the fact that in this specific case the land was privately held and not used by the public. Moreover, the Mahons had been given notice by Pennsylvania Coal to expect their land to be undermined. Holmes believed that, because of the terms of the deed, notice was all that was necessary for the company to do if it wanted to mine the coal. If more needed to occur, in Holmes’s view the state should have exercise eminent domain and acquired the land rather than regulating it in such a way that caused the diminution of its value.

Brandeis, however, argued that “…a restriction imposed through exercise of the police power [is not] inappropriate as a means, merely because the same end might be affected through exercise of the power of eminent domain, or otherwise at public expense.” In his view, if this were the case, every restriction placed on property would be unconstitutional. Later in the opinion, he points out that Holmes’s theory that notice by the coal company was all that was required to ensure the safety of the Mahons (or anyone else living or working not the surface of land being undermined) was problematic. Brandeis believed that the state legislature, which possessed local knowledge concerning local conditions, had determined that such notice was not adequate to the protect the public safety. It was because local decision makers and tribunals would possess local knowledge that the police powers reside in the states, he said. Had they believed that notice by the coal company was enough, there would have been no need for the statute at all and the state supreme court would not have decided in favor of the Mahons.

On the issue of diminution of value, Justice Brandeis also disagreed with Justice Holmes. He explained that “values are relative”.  Relative to what? To whatever you’re comparing it to, he said. Brandeis argued that Justice Holmes had compared the value of what was lost (i.e., enough coal left in place to keep the surface from collapsing) by the Company against the wrong thing: “If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all the parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts cannot be greater than the rights in the whole.” Here he points out that state governments were already regulating what occurred above ground to protect adjacent property owners. For example, buildings could not be higher than a certain number of stories in some cities so that those in lower buildings still had access to sunlight and fresh air. Brandeis, rather pointedly inquires why, given the constitutionality of such restrictions, should rights underground bar the State’s power to set regulations for public safety purposes?

In many ways, the disagreement between these two justices had to do with whether they trusted states to exercise their police power. For Brandeis, regulations for the health, safety and morality of the citizens were not only acceptable, but required in order for a society to evolve and function well. In 1922, Holmes’s skepticism of state regulation predominated his thinking. His view that eminent domain was the appropriate vehicle for accomplishing the goals of the state meant that Pennsylvania would have to condemn all the land that the mining companies wanted to undermine in order to accomplish the protection of individuals living on the surface. Even if the state could afford to do so, Holmes’s intention was to make the decision to end land subsidence a purely economic calculation rather than an issue of morality and safety.

Despite this disagreement, these two justices would, eventually, be united in many of their views, joining one another in dissent after dissent when their colleagues struck down federal level regulations in the 1930s. That said, in 1922, their arguments in Mahon — and the confusing tension in Holmes’s majority opinion — was indicative of the changing perspectives during the early part of the the century concerning police powers and regulation that would eventually lead to the 1930s battles between the US Supreme Court and President Roosevelt concerning New Deal legislation.

Today, this case may well be at the heart of the tension in regulatory takings cases, or at least its indicative of how that tension developed. The questions regulatory cases pose again and again include what land use regulations can government create without compensation, when must they compensate, and when should they use eminent domain to accomplish their goals? The answers the Court gives have never been fully satisfactory to anyone, but that may partly be due to the very different regulatory situations in which takings cases occur and the way a case-by-case analysis can make consistency in the law (and we like law to be consistent internally) all but impossible. In that regard, the most important insight in this case may well have been Justice Brandeis’s observation that regulation depends upon context and what was once viewed as a safe use may become unsafe (and therefore open to regulation), depending upon changing conditions. The value of the land, in other words, may not be the only thing that is relative.

Reading Pennsylvania Coal Company v. Mahon reminded me that building skyscrapers was not only a technologically awe-inspiring when they were first constructed, but also one that had ramifications for owners of property adjacent to the skyscrapers. One of these days, I will write a post about those cases and the connection between regulatory takings and public nuisance law.