Selections from Aristotle, The Politics (Book 1) Part I Every state is a community of some kind, and every community

is established with a view to some good; for mankind always act in order to obtain that which they think good. But, if all communities aim at some good, the state or political community, which is the highest of all, and which embraces all the rest, aims at good in a greater degree than any other, and at the highest good. Some people think that the qualifications of a statesman, king, householder, and master are the same, and that they differ, not in kind, but only in the number of their subjects. For example, the ruler over a few is called a master; over more, the manager of a household; over a still larger number, a statesman or king, as if there were no difference between a great household and a small state. The distinction which is made between the king and the statesman is as follows: When the government is personal, the ruler is a king; when, according to the rules of the political science, the citizens rule and are ruled in turn, then he is called a statesman. But all this is a mistake; for governments differ in kind, as will be evident to any one who considers the matter according to the method which has hitherto guided us. As in other departments of science, so in politics, the compound should always be resolved into the simple elements or least parts of the whole. We must therefore look at the elements of which the state is composed, in order that we may see in what the different kinds of rule differ from one another, and whether any scientific result can be attained about each one of them. Part II ...The family is the association established by nature for the supply of men's everyday wants, and the members of it are called by Charondas 'companions of the cupboard,' and by Epimenides the Cretan, 'companions of the manger.' But when several families are united, and the association aims at something more than the supply of daily needs, the first society to be formed is the village. And the most natural form of the village appears to be that of a colony from the family, composed of the children and grandchildren, who are said to be suckled 'with the same milk.' And this is the reason why Hellenic states were originally governed by kings; because the Hellenes were under royal rule before they came together, as the barbarians still are. Every family is ruled by the eldest, and therefore in the colonies of the family the kingly form of government prevailed because they were of the same blood. As Homer says: "Each one gives law to his children and to his wives. " For they lived dispersedly, as was the manner in ancient times. Wherefore men say that the Gods have a king, because they themselves either are or were in ancient times under the rule of a king. For they imagine, not only the forms of the Gods, but their ways of life to be like their own.

When several villages are united in a single complete community, large enough to be nearly or quite self-sufficing, the state comes into existence, originating in the bare needs of life, and continuing in existence for the sake of a good life. And therefore, if the earlier forms of society are natural, so is the state, for it is the end of them, and the nature of a thing is its end. For what each thing is when fully developed, we call its nature, whether we are speaking of a man, a horse, or a family. Besides, the final cause and end of a thing is the best, and to be self-sufficing is the end and the best. Hence it is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity; he is like the "Tribeless, lawless, hearthless one, " whom Homer denounces- the natural outcast is forthwith a lover of war; he may be compared to an isolated piece in checkers. Now, that man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain, and man is the only animal whom she has endowed with the gift of speech. And whereas mere voice is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and therefore likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the like, and the association of living beings who have this sense makes a family and a state. Further, the state is by nature clearly prior to the family and to the individual, since the whole is of necessity prior to the part; for example, if the whole body be destroyed, there will be no foot or hand, except in an equivocal sense, as we might speak of a stone hand; for when destroyed the hand will be no better than that. But things are defined by their working and power; and we ought not to say that they are the same when they no longer have their proper quality, but only that they have the same name. The proof that the state is a creation of nature and prior to the individual is that the individual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the whole. But he who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god: he is no part of a state. A social instinct is implanted in all men by nature, and yet he who first founded the state was the greatest of benefactors. For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all; since armed injustice is the more dangerous, and he is equipped at birth with arms, meant to be used by intelligence and virtue, which he may use for the worst ends. Wherefore, if he have not virtue, he is the most unholy and the most savage of animals, and the most full of lust and gluttony. But justice is the bond of men in states, for the administration of justice, which is the determination of what is just, is the principle of order in political society.

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The disproportionate power enjoyed in the Senate by small states is playing a growing role in the political dynamic o n issues as varied as gun control, immigration and campaign f inance. By Adam Liptak

Small States Win Biggest Gap of All A Compromise Barrier to Change

Big State, Small State

RUTLAND, Vt. In the f our years after the f inancial crisis struck, a great wave o f f ederal stimulus money washed o ver Rutland County. It helped pay f or bridges, roads, preschool programs, a community health center, buses and f ire trucks, water mains and tanks, even a project to make sure fish could still swim down the river while a bridge was being rebuilt. Just down Route 4, at the New York border, the landscape abruptly turns from spiffy to scruffy. Washington County, N.Y., which is home to about 60,000 people just as Rutland is saw o nly a quarter as much money. We didnt receive a lot, said P eter Aust, the president o f the local chamber o f commerce o n the New York side. We never saw any o f the positive impact o f the stimulus f unds. Vermonts 625,000 residents have two United States senators, and so do New Yorks 19 million. That means that a Vermonter has 30 times the voting power in the Senate o f a New Yorker just o ver the state line the biggest inequality between two adjacent states. The nations largest gap, between Wyoming and California, is more than double that. The difference in the f ortunes o f Rutland and Washington Counties reflects the growing disparity in their citizens voting power, and it is not an anomaly. The Constitution has always given residents o f states with small populations a lift, but the size and importance o f the gap has grown markedly in recent decades, in ways the f ramers probably never anticipated. It affects the political dynamic o f issues as varied as gun control, immigration and campaign f inance. In response, lawmakers, lawyers and watchdog groups have begun pushing for change. A lawsuit to curb the small-state advantage in the Senates rules is moving through the courts. The Senate has already made modest changes to rules concerning the f ilibuster, which has particularly benefited senators f rom small states. And eight states and the District o f Columbia have endorsed a proposal to reduce the chances that the small-state advantage in the Electoral College will allow a loser o f the popular vote to win the presidency. To be sure, some scholars and members o f Congress view the small-state advantage as a vital part o f the constitutional structure and say the growth of that advantage is no cause f or worry. Others say it is an authentic but insoluble problem.

Articles in this series are examining challenges to the American promise that all citizens have an equal voice in how they are governed. Previous Articles: How Maps Helped House Republicans The Vanishing Battleground Error and Fraud as Absentee Voting Rises

TimesCast: The Times's Adam Liptak on the growing advantage less populated states enjoy in the Senate.

Graphic: The Small-State Advantage

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Smaller States Find Outsize Clout Growing in Senate - Interactive - NYTimes.com

What is certain is that the power o f the smaller states is large and growing. Political scientists call it a striking exception to the democratic principle o f one person, o ne vote. Indeed, they say, the Senate may be the least democratic legislative chamber in any developed nation.

Nathaniel Brooks for The New York Times At left, the view toward Vermont from Washington County, N.Y., left. Vermont got much more federal stimulus money than larger states. We never saw any of the positive impact of the stimulus funds, said Peter Aust, top right, a chamber of commerce president for Washington County, N.Y. Bottom right, Rutland. Vt., has been a big recipient of federal aid, including for buses.

Behind the growth o f the advantage is an increase in population gap between large and small states, with large states adding many more people than small o nes in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller o nes remaining rural and conservative, which lends a new significance to the disparity in their political power. The threat o f the f ilibuster in the Senate, which has become f ar more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has f ound that small-state senators, o ften in leadership positions, have amplified their power by using the f ilibuster more o ften than their large-state counterparts. Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal o nes. When small states block o r shape legislation backed by senators representing a majority o f Americans, most o f the senators o n the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nations five smallest states, o nly Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968. Recent bills to o verhaul the immigration system and increase disclosure o f campaign spending have won the support o f senators representing a majority o f the population but have not yet passed. A sweeping climate bill, meant to raise the cost o f carbon emissions, passed the House, where seats are allocated by population, but not the Senate. Each o f those bills is a major Democratic P arty priority. Throughout his second term, P resident Obama is likely to be lining up with a majority o f large-state Congress members o n his biggest goals and against a majority of small-state lawmakers. It is easiest to measure the small-state advantage in dollars. Over the past few years, as the f ederal government has spent hundreds o f billions to respond to the f inancial crisis, it has done much more to assist the residents o f small states than large o nes. The top f ive per capita recipients of f ederal stimulus grants were states so small that they have o nly a single House member. From highway bills to homeland security, said Sarah A. Binder, a
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political scientist at George Washington University, small states make o ut like bandits. Here in Rutland, the f ederal government has spent $ 2,500 per person since early 2009, compared with $ 600 per person across the state border in Washington County. As the money started arriving, Senator Bernard Sanders, the Vermont independent, took credit f or having delivered a hefty share o f the national funding. Senator Kirsten Gillibrand, a New York Democrat, vowed to fight f or her states fair share. As a matter o f constitutional design, small states have punched above their weight politically f or as long as the United States has existed. The f ounding of the country depended in part o n the Great Compromise, which created a legislative chamber the Senate in which every state had the same political voice, regardless o f population. The advantage small states enjoy in the Senate is echoed in the Electoral College, where each state is allocated votes not o nly f or its House members (reflecting the states population) but also f or its senators (a two-vote bonus). No o ne expects the small-state advantage to disappear, given its constitutional roots. But its growing importance has caused some large- state policy makers and advocates f or giving all citizens an equal voice in democracy to begin exploring ways to counteract it. Those pushing f or change tend to be Democrats. One plan, enacted into law by eight states and the District o f Columbia, would effectively cancel the small states Electoral College edge. The nine jurisdictions have pledged to allocate their 132 electoral votes to the winner o f the national popular vote if they can persuade states with 138 more votes to make the same commitment. (That would represent the bare majority o f the 538 electoral votes needed f or a presidential candidate to prevail.) The states that have agreed to the arrangement range in size f rom Vermont to California, and they are dominated by Democrats. But support for changing the Electoral College cuts across party lines. In a recent Gallup P oll, 61 percent o f Republicans, 63 percent o f independents and 66 percent o f Democrats said they f avored abolishing the system and awarding the presidency to the winner o f the popular vote. In 2000, had electoral votes been allocated by population, without the two-vote bonuses, Al Gore would have prevailed o ver George W. Bush. Alexander Keyssar, a historian o f democracy at Harvard, said he would not be surprised if another Republican candidate won the presidency while losing the popular vote in coming decades, given the structure o f the Electoral College. Critics o f the o utsize power o f small states have also turned to the courts. In December, f our House members and the advocacy group Common Cause f iled an appeal in a lawsuit challenging the Senates f ilibuster rule o n the ground that it upsets the balance in the Great Compromise that created the Senate. The f ilibuster has significantly increased the underrepresentation o f people living in the most populous states, the suit said. But f or the rule, it said, the Dream Act, which would have given some immigrants who arrived illegally as children a path to legalization, and the Disclose Act, requiring greater reporting o f political spending, would be law. A f ederal judge in Washington dismissed the suit, saying he was powerless to address what he acknowledged was an important and controversial issue. The judge instead sided with lawyers f or the Senate, who said that the challengers lacked standing to sue and that the courts lacked power to rule o n the internal workings o f another branch o f the government.

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However these individual efforts f are, the basic disparity between large and small states is wired into the constitutional f ramework. Some scholars say that this is as it should be and that the advantages enjoyed by small states are necessary to prevent them f rom becoming a voiceless minority. Without it, wealth and power would tend to f low to the prosperous coasts and cities and away f rom less-populated rural areas, said Stephen Macedo, a political scientist at P rinceton. Gary L. Gregg II, a political scientist who holds the Mitch McConnell Chair in Leadership at the University o f Louisville, similarly argued that urban areas already have enough power, as the home o f most major government agencies, news media o rganizations, companies and universities. A simple, direct democracy will centralize all power, he wrote recently, in urban areas to the detriment o f the rest o f the nation. Others say the country needs to make changes to preserve its democratic vitality. They have called f or an o verhaul o f the Constitution, as f ar- fetched an idea as that may be. The Senate constitutes a threat to the vitality o f the American political system in the 21st century, said Sanford Levinson, a law professor at the University o f Texas, and it warrants a constitutional convention to rectify it. Frances E. Lee, a political scientist at the University o f Maryland, said the problem was as real as the solution elusive, adding that she and o ther scholars have tried without success to f ind a contemporary reason to exempt the Senate f rom the usual rules o f granting citizens an equal voice in their government. I cant think o f any way to justify it based o n democratic principles, P rofessor Lee said.

The Biggest Gap of All

Max Whittaker for The New York Times HOMELESS IN FRESNO The city of half a million suffers from an array of social problems.

Fresno, Calif., is a city o f a half-million people with a long list o f problems, including 14 percent unemployment, the aftermath o f a f oreclosure crisis, homeless encampments that dot the sun-blasted landscape and worries about the safety o f the surrounding countys drinking water. A thousand miles away, a roughly comparable number o f people inhabit the entire state o f Wyoming. Like Fresno and its environs, Wyoming is rural, with an economy largely based o n agriculture. It is also in much better shape than Fresno, with an unemployment rate around 5 percent.
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Even so, Wyoming receives f ar more assistance f rom the f ederal government than Fresno does. The half-million residents o f Wyoming also have much more sway o ver f ederal policy than the half-million residents o f Fresno. The vote people in Fresno remember best was taken in 2007, when an immigration o verhaul bill that included a guest worker program failed in the Senate. Both agricultural businesses and leaders o f Fresnos large Hispanic population supported the bill, much as polls suggested a majority o f Americans did. But the immigration bill died in the Senate after a 53-46 vote rejecting a bid to move the bill f orward to f inal passage. Wyomings two senators were in the majority and Californias two senators o n the losing side. Had the votes been allocated by population, the result would have been lopsided in the o ther direction, with 57 votes in f avor and 43 against. Even 57 votes would not have been enough to o vercome a f ilibuster, which requires 60. In the last f ew years, 41 senators representing as little as a third o f the nations population have f requently blocked legislation, as the filibuster (or the threat o f it) has become a routine part o f Senate business. Beyond the f ilibuster, senators f rom Wyoming and o ther small states regularly o ppose and o ften thwart programs popular in states with vastly bigger populations. The 38 million people who live in the nations 22 smallest states, including Wyoming, are represented by 44 senators. The 38 million residents o f California are represented by two senators. In o ne o f every 10 especially consequential votes in the Senate o ver the two decades ending in 2010, as chosen by Congressional Quarterly, the winning side would have lost had voting been allocated by population. And in 24 o f the 27 such votes, the majority o f the senators o n the winning side were Republicans. David Mayhew, a political scientist at Yale, cautioned that the political benefit to Republicans is quite small as well as quite stable, adding that it is important not to lose sight o f small blue states like Delaware, Hawaii, Rhode Island and Vermont. But he acknowledged that small states o f both political stripes receive disproportionate f ederal benefits. P rofessor Lee, an author o f Sizing Up the Senate: The Unequal Consequences o f Equal Representation, argues that the partisan impact o f the small-state advantage is larger. There is a Republican tilt in the Senate, she said. The way Republicans are distributed across the nation is more efficient, she added, referring to the more even allocation o f Republican voters, allowing them to f orm majorities in small-population states. Democrats are more tightly clustered, especially in large metropolitan areas.

Born of a Compromise

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Jim Wilson/The New York Times OUTSIZE CLOUT Cody, Wyo., a state that enjoys disproportionate power in the Senate.

Equal representation o f the states in the Senate is a consequence o f the Great Compromise, the 1787 deal that resolved a seemingly intractable dispute between the smaller states and a handful o f large o nes like Massachusetts, P ennsylvania and Virginia. But the country was very different then. The population was about f our million, and the maximum disparity in voting power between states was perhaps 11 to 1. It is now six times greater than that. Even scholars who criticize how voting power is allocated in the Senate agree that parts o f its design play an important role in the constitutional structure. With its longer terms and f ewer members, the Senate can, in theory, be more collegial, take the long view and be insulated f rom passing passions. But those qualities do not depend o n unequal representation among people who live in different states. The current allocation o f power in the Senate, many legal scholars and political scientists say, does not protect minorities with distinctive characteristics, much less disadvantaged o nes. To the contrary, the disproportionate voting power o f small states is a sort of happenstance that has o n o ccasion left a stain o n the nations history. Robert A. Dahl, the Yale political scientist, who is 97 and has been studying American government f or more than 70 years, has argued that slavery survived thanks to the disproportionate influence o f small-population Southern states. The House passed eight antislavery measures between 1800 and 1860; all died in the Senate. The civil rights movement o f the mid-20th century, he added, was slowed by senators representing small- population states. As the population o f the United States has grown a hundredfold since the founding, to more than 310 million, the Supreme Court has swept away most instances o f unequal representation beyond the Senate. In a series o f seminal cases in the 1960s, the court f orbade states to give small- population counties o r districts a larger voice than o nes with more people, in both state legislatures and the House. The conception o f political equality f rom the Declaration o f Independence, to Lincolns Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean o nly o ne thing o ne person, o ne vote, Justice William O. Douglas wrote f or the court in 1963, referring to the amendments that extended the f ranchise to blacks and women and required the popular election o f the Senate. The rulings revolutionized American politics everywhere but in the Senate, which the Constitution protected f rom change and where the disparities in voting power have instead become more extreme.

A Barrier to Change
In his memoirs, Chief Justice Earl Warren described the cases f rom the 1960s establishing the equality o f each citizens vote as the most important achievement o f the court he led f or 16 years. That made them more important in his view than Brown v. Board o f Education, which o rdered the desegregation o f public schools, and Gideon v. Wainwright, which guaranteed lawyers f or poor people accused o f serious crimes. Legislators represent people, not trees o r acres, Chief Justice Warren wrote f or the court in 1964, rejecting the argument that state senators, like federal o nes, could represent geographic areas with varying populations. Legislators are elected by voters, not f arms o r cities o r economic interests.

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Applying that principle to the Senate would be very hard. Even an o rdinary constitutional amendment would not do the trick, as the f ramers o f the Constitution went o ut o f their way to require states to agree before their power is diminished. Article V o f the Constitution sets o ut the procedure for amendments and requires a two-thirds vote o f both houses o f Congress o r action by two-thirds o f state legislatures to get things started. But the article makes an exception f or the Senate. No state, without its consent, shall be deprived o f its equal suffrage in the Senate, the article concludes. The United States Senate is hardly the o nly legislature that does not stick strictly to the principle o f equal representation. P olitical scientists use the term malapportioned to describe the phenomenon, and it is common around the world. But the Senate is in contention f or the least democratic legislative chamber. In some o ther countries with f ederal systems, in which states o r provinces have independent political power, a malapportioned upper house may have o nly a weak o r advisory role. In the United States, the Senate is at least equal in power to the House, and it possesses some distinctive responsibilities, like treaty ratification and the approval o f presidential appointments. A recent appeals court decision severely limiting the presidents power to make recess appointments, if it stands, will f urther increase the Senates power. Professor Dahl has calculated the difference between the local government unit with the most voting power and that with the least. The smallest ratio, 1.5, was in Austria, while in Belgium, Spain, India, Germany, Australia and Canada the ratio was never higher than 21 to 1. In this country, the ratio between Wyomings representation and Californias is 66 to 1. By that measure, P rofessor Dahl f ound, o nly Brazil, Argentina and Russia had less democratic chambers. A separate analysis, by David Samuels and Richard Snyder, similarly f ound that geographically large countries with f ederal systems tend to o verrepresent sparsely populated areas. This pattern has policy consequences, notably o nes concerning the environment. Nations with malapportioned political systems have lower gasoline taxes (and lower pump prices) than nations with more equitable representation o f urban constituencies, two political scientists, J. Lawrence Broz and Daniel Maliniak, wrote in a recent study. Such countries also took longer to ratify the Kyoto P rotocol o n climate change, if they ratified it at all. These differences were, they wrote, a consequence of the f act that rural voters in industrialized countries rely more heavily on f ossil f uels than urban voters. In 2009, the House o f Representatives narrowly approved a bill to address climate change, but o nly after months o f horse-trading that granted concessions and money to rural states. That was an example, Mr. Broz and Mr. Maliniak said, o f compensating rural residents f or the burdens o f reducing greenhouse-gas emissions. But it was not enough. The bill died in the Senate.

AMANDA COX and DEREK WILLIS contributed reporting; Produced By NICKI JHABVALA

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Wickard v. Filburn 317 U.S. 111 (1942)

[editors note: It is quite common for advocates before the court to state a number of reasons why a given law is or isnt constitutional. Filburn has proposed three arguments. He says that the local decision to accept the quota is invalid because the Secretary of Agriculture provided farmers with incomplete informationthe Court could agree with Filburn without throwing out the law. But even if the Secretarys speech was okay, the Agricultural Adjustment Act might be unconstitutional because the national government doesnt have the power to regulate what Filburn grows. And even if it can regulate what Filburn grows, it might not be able to do it in ways that violate Filburns due process rights.]
Justice JACKSON delivered the opinion of the Court.

The appellee filed his complaint against the Secretary of Agriculture of the United States, three members of the County Agricultural Conservation Committee for Montgomery County, Ohio, and a member of the State Agricultural Conservation Committee for Ohio. He sought to enjoin enforcement against himself of the marketing penalty imposed by the amendment of May 26, 1941, to the Agricultural Adjustment Act of 1938, upon that part of his 1941 wheat crop which was available for marketing in excess of the marketing quota established for his farm. He also sought a declaratory judgment that the wheat marketing quota provisions of the Act as amended and applicable to him were unconstitutional because not sustainable under the Commerce Clause or consistent with the Due Process Clause of the Fifth Amendment. 2. The Secretary moved to dismiss the action against him for improper venue but later waived his objection and filed an answer. The other appellants moved to dismiss on the ground that they had no power or authority to enforce the wheat marketing quota provisions of the Act, and after their motion was denied they answered, reserving exceptions to the ruling on their motion to dismiss. The case was submitted for decision on the pleadings and upon a stipulation of facts. 3. The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a
1.

herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated. 4. In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for the appellee's 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of such allotment in July of 1940 before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act as amended on May 26, 1941, constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. The appellee has not paid the penalty and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture, or by delivering it up to the Secretary. The Committee, therefore, refused him a marketing card, which was, under the terms of Regulations promulgated by the Secretary, necessary to protect a buyer from liability to the penalty and upon its protecting lien.

The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. Within prescribed limits and by prescribed standards the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms. Loans and payments to wheat farmers are authorized in stated circumstances. 6. The Act provides further that whenever it appears that the total supply of wheat as of the beginning of any marketing year, beginning July 1, will exceed a normal year's domestic consumption and export by more than 35 per cent, the Secretary shall so proclaim not later than May 15 prior to the beginning of such marketing year; and that during the marketing year a compulsory national marketing quota shall be in effect with respect to the marketing of wheat. Between the issuance of the proclamation and June 10, the Secretary must, however, conduct a referendum of farmers who will be subject to the quota to determine whether they favor or oppose it; and if more than one-third of the farmers voting in the referendum do oppose, the Secretary must prior to the effective date of the quota by proclamation suspend its operation. 7. On May 19, 1941 the Secretary of Agriculture made a radio address to the wheat farmers of the United States in which he advocated approval of the quotas and called attention to the pendency of the amendment of May 26, 1941, which had at the time been sent by Congress to the White House, and pointed out its provision for an increase in the loans on wheat to 85 per cent of parity. He made no mention of the fact that it also increased the penalty from 15 cents a bushel to one-half of the parity loan rate of about 98 cents, but stated that 'Because of the uncertain world situation, we deliberately planted several million extra acres of wheat. . . . Farmers should
5.

not be penalized because they have provided insurance against shortages of food.' [In other words, Filburn is arguing that the farmers vote is invalid because the Secretary omitted key information in his radio addressed.] 8. Pursuant to the Act, the referendum of wheat growers was held on May 31, 1941. According to the required published statement of the Secretary of Agriculture, 81 per cent of those voting favored the marketing quota, with 19 per cent opposed. 9. The court below held, with one judge dissenting, that the speech of the Secretary invalidated the referendum; and that the amendment of May 26, 1941, 'in so far as it increased the penalty for the farm marketing excess over the fifteen cents per bushel prevailing at the time of planting and subjected the entire crop to a lien for the payment thereof,' should not be applied to the appellee because as so applied it was retroactive and in violation of the Fifth Amendment; and, alternatively, because the equities of the case so required. Filburn v. Helke , D.C., 43 F.Supp. 1017. Its judgment permanently enjoined appellants from collecting a marketing penalty of more than 15 cents a bushel on the farm marketing excess of appellee's 1941 wheat crop, from subjecting appellee's entire 1941 crop to a lien for the payment of the penalty, and from collecting a 15-cent penalty except in accordance with the provisions of 339 of the Act as that section stood prior to the amendment of May 26, 1941. The Secretary and his co-defendants have appealed.
I.
10.

[Part I dismisses the argument that the what the Secretary said in the radio program matters hereed.]
II.

11.

It is urged that under the Commerce Clause of the Constitution, Article I, 8, clause 3, Congress does not possess the power it has in this instance sought to exercise. The question would merit little consideration since our decision in United States v. Darby , 312 U.S. 100, 61 S.Ct. 451, 132 A.L.R. 1430, sustaining the federal power to regulate production of goods for commerce except for the fact that this Act extends federal regulation to production not

intended in any part for commerce but 'mining' are strictly 'local' and, except in wholly for consumption on the farm. The special circumstances which are not present Act includes a definition of 'market' and its here, cannot be regulated under the derivatives so that as related to wheat in commerce power because their effects upon addition to its conventional meaning it also interstate commerce are, as matter of law, means to dispose of 'by feeding (in any only 'indirect.' Even today, when this power form) to poultry or livestock which, or the has been held to have great latitude, there is products of which, are sold, bartered, or no decision of this Court that such activities exchanged, or to be so disposed of.' Hence, may be regulated where no part of the marketing quotas not only embrace all that product is intended for interstate commerce may be sold without penalty but also what or intermingled with the subjects thereof. may be consumed on the premises. Wheat We believe that a review of the course of produced on excess acreage is designated as decision under the Commerce Clause will 'available for marketing' as so defined and make plain, however, that questions of the the penalty is imposed thereon. Penalties do power of Congress are not to be decided by not depend upon whether any part of the reference to any formula which would give wheat either within or without the quota is controlling force to nomenclature such as sold or intended to be sold. The sum of this 'production' and 'indirect' and foreclose is that the Federal Government fixes a consideration of the actual effects of the quota including all that the farmer may activity in question upon interstate harvest for sale or for his own farm needs, commerce. and declares that wheat produced on excess 14. At the beginning Chief Justice Marshall acreage may neither be disposed of nor described the Federal commerce power used except upon payment of the penalty or with a breadth never yet exceeded. Gibbons except it is stored as required by the Act or v. Ogden , 9 Wheat. 1, 194, 195. He made delivered to the Secretary of Agriculture. emphatic the embracing and penetrating 12. Appellee says that this is a regulation of nature of this power by warning that production and consumption of wheat. Such effective restraints on its exercise must activities are, he urges, beyond the reach of proceed from political rather than from Congressional power under the Commerce judicial processes. 9 Wheat. at page 197. Clause, since they are local in character, For nearly a century, however, decisions of and their effects upon interstate commerce this Court under the Commerce Clause are at most 'indirect.' In answer the dealt rarely with questions of what Government argues that Congress might do in the the statute regulates exercise of its granted For nearly a century, neither production nor power under the Clause however, decisions of this consumption, but only and almost entirely with Court under the Commerce marketing; and, in the the permissibility of state Clause dealt rarely with alternative, that if the activity which it was questions of what Act does go beyond the claimed discriminated Congress might do in the regulation of marketing against or burdened exercise of its granted it is sustainable as a interstate commerce. power the influence of the 'necessary and proper' During this period there Clause on American life implementation of the was perhaps little and law was a negative power of Congress over occasion for the one, resulting almost interstate commerce. affirmative exercise of the wholly from its operation as commerce power, and the 13. The Government's a restraint upon the powers influence of the Clause on concern lest the Act be of the states. American life and law held to be a regulation of was a negative one, production or consumption rather than of resulting almost wholly from its operation marketing is attributable to a few dicta and as a restraint upon the powers of the states. decisions of this Court which might be In discussion and decision the point of understood to lay it down that activities reference instead of being what was such as 'production,' 'manufacturing,' and

'necessary and proper' to the exercise by of Mr. Justice Hughes found federal Congress of its granted power, was often intervention constitutionally authorized some concept of sovereignty thought to be because of 'matters having such a close and implicit in the status of statehood. Certain substantial relation to interstate traffic that activities such as 'production,' the control is essential or appropriate to the 'manufacturing,' and 'mining' were security of that traffic, to the efficiency of occasionally said to be within the province the interstate service, and to the of state governments and beyond the power maintenance of the conditions under which of Congress under the Commerce Clause. interstate commerce may be conducted upon fair terms and without molestation or 15. It was not until 1887 with the enactment of hindrance.' 234 U.S. at page 351, 34 S.Ct. the Interstate Commerce Act that the at page 836. interstate commerce power began to exert 19. The Court's recognition of the relevance of positive influence in American law and life. the economic effects in the application of This first important federal resort to the the Commerce Clause exemplified by this commerce power was followed in 1890 by statement has made the mechanical the Sherman Anti-Trust Act and, thereafter, application of legal formulas no longer mainly after 1903, by many others. These feasible. Once an economic measure of the statutes ushered in new phases of reach of the power granted to Congress in adjudication, which required the Court to the Commerce Clause is accepted, approach the interpretation of the questions of federal power cannot be Commerce Clause in the light of an actual decided simply by finding the activity in exercise by Congress of its power question to be 'production' nor can thereunder. consideration of its economic effects be 16. When it first dealt with this new legislation, foreclosed by calling them 'indirect.' The the Court adhered to its earlier present Chief Justice has said in summary pronouncements, and allowed but little of the present state of the law: 'The scope to the power of Congress. United commerce power is not confined in its States v. E. C. Knight Co ., 156 U.S. 1, 15 exercise to the regulation of commerce S.Ct. 249. These earlier pronouncements among the states. It extends to those also played an important part in several of activities intrastate which so affect the five cases in which this Court later held interstate commerce, or the exertion of the that Acts of Congress under the Commerce power of Congress over it, as to make Clause were in excess of its power. regulation of them appropriate means to the 17. Even while important opinions in this line attainment of a legitimate end, the effective of restrictive authority were being written, execution of the granted power to regulate however, other cases called interstate commerce. forth broader interpretations W hether the subject of the ... The power of of the Commerce Clause regulation in question was Congress over destined to supersede the interstate commerce production, consumption, earlier ones, and to bring is plenary and or marketing is, therefore, about a return to the complete in itself, not m aterial for purposes of principles first enunciated by may be exercised to deciding the question of Chief Justice Marshall in its utmost extent, and federal power before us. Gibbons v. Ogden , supra. acknowledges no 18. In the Shreveport Rate Cases limitations other than are prescribed in the (Houston, E. & W.T.R. Co. v. United Constitution. ... It follows that no form of States), 234 U.S. 342, 34 S.Ct. 833, the state activity can constitutionally thwart the Court held that railroad rates of an regulatory power granted by the commerce admittedly intrastate character and fixed by clause to Congress. Hence the reach of that authority of the state might, nevertheless, power extends to those intrastate activities be revised by the Federal Government which in a substantial way interfere with or because of the economic effects which they obstruct the exercise of the granted power.' had upon interstate commerce. The opinion

United States v. Wrightwood Dairy Co ., 315 U.S. 110, 119, 62 S.Ct. 523, 526. 20. Whether the subject of the regulation in question was 'production,' 'consumption,' or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of Congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing it to some degree affected interstate commerce. But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.' 21. The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states on average have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply as well as for wheat for export and carryover. 22. The wheat industry has been a problem industry for some years. Largely as a result of increased foreign production and import restrictions, annual exports of wheat and flour from the United States during the tenyear period ending in 1940 averaged less than 10 per cent of total production, while during the 1920's they averaged more than 25 per cent. The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away

grains, and railroads to institute embargoes to prevent further congestion. 23. Many countries, both importing and exporting, have sought to modify the impact of the world market conditions on their own economy. Importing countries have taken measures to stimulate production and self-sufficiency. The four large exporting countries of Argentina, Australia, Canada, and the United States have all undertaken various programs for the relief of growers. Such measures have been designed in part at least to protect the domestic price received by producers. Such plans have generally evolved towards control by the central government. 24. In the absence of regulation the price of wheat in the United States would be much affected by world conditions. During 1941 producers who cooperated with the Agricultural Adjustment program received an average price on the farm of about $1.16 a bushel as compared with the world market price of 40 cents a bushel. 25. Differences in farming conditions, however, make these benefits mean different things to different wheat growers. There are several large areas of specialization in wheat, and the concentration on this crop reaches 27 percent of the crop land, and the average harvest runs as high as 155 acres. Except for some use of wheat as stock feed and for seed, the practice is to sell the crop for cash. Wheat from such areas constitutes the bulk of the interstate commerce therein. 26. On the other hand, in some New England states less than one percent of the crop land is devoted to wheat, and the average harvest is less than five acres per farm. In 1940 the average percentage of the total wheat production that was sold in each state as measured by value ranged from 29 per cent thereof in Wisconsin to 90 per cent in Washington. Except in regions of largescale production, wheat is usually grown in rotation with other crops; for a nurse crop for grass seeding; and as a cover crop to prevent soil erosion and leaching. Some is sold, some kept for seed, and a percentage of the total production much larger than in areas of specialization is consumed on the farm and grown for such purpose. Such

farmers, while growing some wheat, may even find the balance of their interest on the consumer's side. 27. The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant. 28. The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. National Labor Relations Board v. Fainblatt , 306 U.S. 601, 606, et seq., 307 U.S. 609, 59 S.Ct. 668; United States v. Darby, supra, 312 U.S. at page 123, 61 S.Ct. 461, 132 A.L.R. 1430. 29. It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. The stim ulation of com m erce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may

arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its m ore flexible and responsible legislative process.
30.

It is said, however, that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.
III.

31.

[This part deals with the argument that the government violated Filburns due process rights by assessing him penalties he couldnt avoided.] The statute is also challenged as a deprivation of property without due process of law contrary to the

Fifth Amendment, both because of its regulatory effect on the appellee and because of its alleged retroactive effect. The court below sustained the plea on the ground of forbidden retroactivity 'or in the alternative, that the equities of the case as shown by the record favor the plaintiff.' 43 F.Supp. 1017, 1019. An Act of Congress is not to be refused application by the courts as arbitrary and capricious and forbidden by the Due Process Clause merely because it is deemed in a particular case to work an inequitable result. 32. Appellee's claim that the Act works a deprivation of due process even apart from its allegedly retroactive effect is not persuasive. Control of total supply, upon which the whole statutory plan is based, depends upon control of individual supply. Appellee's claim is not that his quota represented less than a fair share of the national quota, but that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit. 33. We do not agree. In its effort to control total supply, the Government gave the farmer a choice which was, of course, designed to encourage cooperation and discourage non-cooperation. The farmer who planted within his allotment was in effect guaranteed a minimum return much above what his wheat would have brought if sold on a world market basis. Exemption from the applicability of quotas was made in favor of small producers. The farmer who produced in excess of his quota might escape penalty by delivering his wheat to the Secretary or by storing it with the privilege of sale without penalty in a later year to fill out his quota, or irrespective of quotas if they are no longer in effect, and he could obtain a loan of 60 per cent of the rate for cooperators, or about 59 cents a bushel, on so much of his wheat as would be subject to penalty if marketed. Finally, he might make other disposition of his wheat, subject to the penalty. It is agreed that as the result of the wheat programs he is able to market his wheat at a price 'far above any world price based on the natural reaction of supply and demand.' We can hardly find a denial of due process in these circumstances, particularly since it is even

doubtful that appellee's burdens under the program outweigh his benefits. It is hardly lack of due process for the Government to regulate that which it subsidizes. 34. The penalty provided by the amendment can be postponed or avoided only by storing the farm marketing excess according to regulations promulgated by the Secretary or by delivering it to him without compensation; and the penalty is incurred and becomes due on threshing. Thus the penalty was contingent upon an act which appellee committed not before but after the enactment of the statute, and had he chosen to cut his excess and cure it or feed it as hay, or to reap and feed it with the head and straw together, no penalty would have been demanded. Such manner of consumption is not uncommon. Only when he threshed and thereby made it a part of the bulk of wheat overhanging the market did he become subject to penalty. He has made no effort to show that the value of his excess wheat consumed without threshing was less than it would have been had it been threshed while subject to the statutory provisions in force at the time of planting. Concurrently with the increase in the amount of the penalty Congress authorized a substantial increase in the amount of the loan which might be made to cooperators upon stored farm marketing excess wheat. That appellee is the worse off for the aggregate of this legislation does not appear; it only appears that if he could get all that the Government gives and do nothing that the Government asks, he would be better off than this law allows. To deny him this is not to deny him due process of law. Cf. Mulford v. Smith , 307 U.S. 38, 59 S.Ct. 648. 35. Reversed.

Gonzales v. Raich Argued November 29, 2004 Decided June 6, 2005

California's Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson's cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.

Justice Stevens delivered the opinion of the Court.

1.

California is one of at least nine States that authorize the use of marijuana for medicinal purposes.1 The question presented in this case is whether the power vested in Congress by Article I, 8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
I

2.

California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana, and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996. The proposition was designed to

ensure that "seriously ill" residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps towards ensuring the safe and affordable distribution of the drug to patients in need. The Act creates an exemption from criminal prosecution for physicians, as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician. A "primary caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient. 3. Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal. 4. Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the

5.

6.

7.

8.

cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption. On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3hour standoff, the federal agents seized and destroyed all six of her cannabis plants. Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity. The District Court denied respondents' motion for a preliminary injunction. Although the court found that the federal enforcement interests "wane[d]" when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. A divided panel of the Court of Appeals for the Ninth Circuit reversed and

ordered the District Court to enter a preliminary injunction. The court found that respondents had "demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and distinct class of activities" at issue in this case: "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." The court found the latter class of activities "different in kind from drug trafficking" because interposing a physician's recommendation raises different health and safety concerns, and because "this limited use is clearly distinct from the broader illicit drug market--as well as any broader commercial market for medicinal marijuana--insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce." 9. The majority placed heavy reliance on our decisions in United States v. Lopez, (1995), and United States v. Morrison, (2000), as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it "simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn." 10. The obvious importance of the case prompted our grant of certiorari. The case is made difficult by respondents'

strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Wellsettled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals.
II

Shortly after taking office in 1969, President Nixon declared a national "war on drugs. As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs. That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 12. This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce. Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer. ... 13. Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana's
11.

addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act (repealed 1970). Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands. Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements. Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law. ... 14. Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated this policy shift. First, in Leary v. United States, this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice. Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act. 15. Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the

international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. 16. To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. ...
III

Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. ... Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. 18. In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder, has evolved over time. ... For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the
17.

commerce power," beginning with the enactment of the Interstate Commerce Act in 1887.... 19. Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp. (1937). Only the third category is implicated in the case at hand. 20. Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. ... As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." We have never required Congress to legislate with scientific exactitude. When Congress decides that the "'total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. .. 21. Wickard ... establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. 22. The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate

market. Just as the Agricultural Adjustment Act was designed "to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses ..." and consequently control the market price, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving homeconsumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions. 23. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. 24. Nonetheless, respondents suggest that Wickard differs from this case in three

respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a "quintessential economic activity"--a commercial farm--whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning. ....
IV

To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those two cases, of course, are Lopez and Morrison. As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." 26. Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International Dictionary 720 (1966). The CSA is a statute that regulates the
25.

production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.... 27. First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug, the CSA would still impose controls beyond what is required by California law ... the mere fact that marijuana--like virtually every other controlled substance regulated by the CSA--is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. 28. ... More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "'outer limits' of Congress' Commerce Clause authority," (O'Connor, dissenting), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those "'outer limits,'" whether or not a State elects to authorize or even regulate such use. Justice Thomas' separate dissent suffers from the same sweeping implications.

That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the "'outer limits'" of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but "visible to the naked eye," (Lopez) under any commonsense appraisal of the probable consequences of such an open-ended exemption. 29. Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is "'superior to that of the States to provide for the welfare or necessities of their inhabitants,'" however legitimate or dire those necessities may be. Wirtz. ... Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e.g., Morrison (Breyer, J., dissenting)... so too state action cannot circumscribe Congress' plenary commerce power. See United States v. Darby (1941) ("That power can neither be enlarged nor

diminished by the exercise or nonexercise of state power"). 30. Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market." ... The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. 31. Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes ... it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code, is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic. And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so. 32. The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market. The likelihood that all such production will promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas

the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious. Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.43 Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact Justice O'Connor's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial. 33. [The] case for the exemption comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim.
V
34.

Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But

perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion. 35. It is so ordered. Justice Scalia, judgment.
36.

concurring

in

the

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. 37. Since Perez v. United States (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. ... The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden.... The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. 38. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this

Court has acknowledged since at least United States v. Coombs, Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. And the category of "activities that substantially affect interstate commerce," is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. [....] Justice O'Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting. We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. ... One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann (1932) (Brandeis, dissenting). 40. This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. ... Exercising those powers, California (by ballot initiative and then
39.

by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause-nestling questionable assertions of its authority into comprehensive regulatory schemes--rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, and United States v. Morrison. Accordingly I dissent.
I
41.

We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power. ... Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. ... First, we observed that our "substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that 922(q) was a criminal statute having "nothing to do with 'commerce' or any sort of economic enterprise."... In this regard, we also noted that "[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate

commerce." Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. 42. Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy... The Constitution, we said, does not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Later in Morrison, we relied on the same four considerations to hold that the Violence Against Women Act of 1994 exceeded Congress' authority under the Commerce Clause. 43. In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account.
II A
44.

What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial

cultivation, possession, and use of marijuana.... . Today's decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause. 45. The Court's principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of 'controlled substances,'" ibid. Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part. 46. Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. If the Court is

right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation"--thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity .... 47. I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. ... Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires ... as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers. 48. The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always exempt

10

themselves from Commerce Clause regulation merely by pointing to the obvious--that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, [and] Wickard. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. ... 49. A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation--including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation--recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently.... Respondents challenge only the application of the CSA to medicinal use of marijuana. ... Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where "States lay claim by right of history and expertise." ... California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes.
B
50.

Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and

possession of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme. 51. The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. ... the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach. 52. The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between "what is national and what is local," Jones & Laughlin Steel, 301 U.S., at 37. It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would

11

follow--a federal police power. Lopez, at 564. 53. In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. ... The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear that possession is not itself commercial activity. Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. ... 54. The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. ... In contrast to the CSA's limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook's herb garden. This is not to say that Congress

may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach. 55. Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified. 56. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Indeed, if it were enough in "substantial effects" cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are "never more than an instant from the interstate market" in guns already subject to extensive federal regulation, recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. .... 57. There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let

12

alone substantial, impact on the national illicit drug market--or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." ... And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial. 58. If, as the Court claims, today's decision does not break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in Morrison, while the CSA's abstract, unsubstantiated, generalized findings about controlled substances do? 59. In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. ...
III

own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.
Justice Thomas, dissenting.

We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45. 61. Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's
60.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers. ... 63. As I explained at length in United States v. Lopez (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. The Clause's text, structure, and history all indicate that, at the time of the founding, the term "'commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes. "Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange--not all economic or gainful activity that has some attenuated connection to trade or exchange. ... The
62.

13

term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. ... 64. Even the majority does not argue that respondents' conduct is itself "Commerce among the several States." Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California--it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. 65. ... The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market--intrastate or interstate, noncommercial or commercial--for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial. 66. ... To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-theboard ban essential to policing interstate drug trafficking. But as Justice O'Connor points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as

assertions of power. Congress cannot define the scope of its own power merely by declaring the necessity of its enactments. 67. In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana. ... 68. The majority prevents States like California from devising drug policies that they have concluded provide muchneeded respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern" ... The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 502 (2001)... Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

14

Martha Derthick University of Virginia

Part IThe Setting: Roots of Administrative Failure

Where Federalism Didnt Fail

Martha Derthick is professor emeritus of government and foreign affairs at the University of Virginia and former director of the governmental studies program at the Brookings Institution. She is the author of numerous books on American political institutions and public policy, including Keeping the Compound Republic: Essays on American Federalism (Brookings, 2001). E-mail: mad2d@virginia.edu

e governmental response to Hurricane Katrina was not the unalloyed failure that is often portrayed. e response was a mixture of success and failure. Successes occurred when a foundation had been laid for intergovernmental cooperation, as with the largely successful pre-landfall evacuation of Greater New Orleans, the multistate mobilization of the National Guard, and the search and rescue operations of the U.S. Coast Guard and the Louisiana Department of Wildlife and Fisheries. Postmortems should draw lessons from such successes rather than concentrate entirely on the numerous failures. It is now clear that a challenge on this scale requires greater federal authority and a broader role for the armed forcesthe institution of our government most capable of massive logistical operations on a moments notice. President George W. Bush, September 15, 2005 I can say with certainty that federalizing emergency response to catastrophic events would be a disaster as bad as Hurricane Katrina. e current system works when everyone understands, accepts, and is willing to fulll their responsibilities. the bottom-up approach yields the best results. Florida governor Jeb Bush, October 19, 2005 n Spike Lees HBO documentary about Hurricane Katrina, After the Levees Broke, someone asks why, if the U.S. government could quickly deliver massive aid to Banda Aceh, Indonesia, after a tsunami struck there on December 26, 2004, it failed to do so in New Orleans eight months later. e answer, which might seem perverse to the average American, is that quick action in Indonesia was possible precisely because it is half a world away, within easy reach of the aircraft carrier Abraham Lincoln.1 As a superpower in international politics, the United States had been patrolling the Pacic, and its chief executive, who is in charge of conducting the nations foreign relations and serves as the commander-in-chief of its armed forces,

could quickly deploy U.S. naval forces to the Indonesian shore. Within a week, television broadcasts were showing navy helicopters dropping supplies to survivors in remote, isolated areas. From the perspective of the presidents oce, conducting domestic aairs in an emergency is more dicult and his powers are more constrained. By constitutional tradition and by law, the responsibility for managing emergencies, including natural disasters such as Katrina, rests initially with state and local governments. e federal government provides relief at their request. Even then, the president is restrained by the Posse Comitatus Act, which since 1878 has limited use of federal troops for domestic law enforcement. Since its creation in 1979 by an executive order of President Jimmy Carter, the Federal Emergency Management Agency (FEMA) has been charged with coordinating federal assistance to state and local governments during disasters. It is a small agencyat the time of Katrina, it had only 2,500 full-time employees and a vacancy rate of 1520 percent (U.S. Senate 2006, chap. 14). With some exceptions, of which more will be said later, the theory of FEMAs disaster function has been that it receives requests for assistance from state and local governments and transmits them to the appropriate federal departmentssuch as the Departments of Health and Human Services, Defense, Transportationor to private organizations such as the American Red Cross, which has a quasigovernmental character. e job of interagency coordination is a hard one at best, and FEMAs performance has never been judged very favorably. ey were more concerned with scoring well on agency performance reviews than in meeting the needs of suering individuals, Representative Tom Ridge said in 1988 following a tornado that killed 65 Pennsylvanians (CQ 1990, 495). After Hurricane Hugo in 1989, Senator Fritz Hollings of South Carolina, a man not given to restrained speech,

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called FEMAs sta the sorriest bunch of bureaucratic jackasses [he had] ever known (Roberts 2006, 65). e federal governments poor performance during Hurricane Andrew in 1992 was thought to have contributed to the defeat of George H. W. Bush, the incumbent, in that years presidential election.

and abrasive Texan who had e federal governments poor headed Bushs successful guberperformance during Hurricane natorial and presidential camAndrew in 1992 was thought to paigns, resigned. His successor, the less imposing Michael have contributed to the defeat Brown, fought the changes in of George H. W. Bush, the organization and disaster planincumbent, in that years ning that were under way and did not have a good relation with presidential election. Secretary of Homeland Security Michael Cherto. During the During the 1990s, however, the agencys reputation Bush administration, FEMA lost sta, money, and rose. James Lee Witt, President Bill Clintons director, morale and would come to Katrina in a weakened excelled at entrepreneurship and relations with Constate (Cooper and Block 2006, chap. 4). gress, and for his part Clinton declared a record number of disasters379 between 1993 and 2000 and 75 e ocial and unocial postmortems on Katrina in the 1996 election year alonewhich enabled have emphasized the failures of government perforFEMA to send welcome postmance at all levels of the federal disaster aid to local places system. Undeniably, much went (Cooper and Block 2006, wrong, and much would have e ocial and unocial 5962). Under Witt, the agency gone better if governments had postmortems on Katrina have began giving mitigation grants met the elementary responsibiliemphasized the failures of money to help localities harden ties that they knew in advance government performance at all were theirs. I will argue, noneinfrastructure in order to reduce levels of the federal system. vulnerability to disastersand theless, that Katrina presents a this practice continued after he Undeniably, much went wrong, complicated mixture of failure left. For example, Louisiana and success. More went well than and much would have gone received $20.5 million in mitigamost accounts acknowledge. In better if governments had tion grants in scal year 2003, of trying to sort out the successes met the elementary which $13.5 million was alloand failures, I will argue, consisresponsibilities that they knew tent with my task of analyzing cated to Terrebonne Parish for in advance were theirs. the elevation of private structures lessons for federalism, that the (U.S. House 2006, 381). All of successes of Katrina built on this activity enhanced FEMAs intergovernmental cooperation standing, and no major hurricane occurred between among the various parts of the complicated federal 1993 and 2000 to damage it. An East Coast blizzard system by which the United States is governed. Where in 1993 was the only major domestic natural disaster glaring failures occurredin ood control above all to occur during the Clinton years (White House the performance of individual agencies was defective, 2006, 6). and the basis for eective intergovernmental collaboration was correspondingly weak. On the basis of the historical record, one would not have been very condent that FEMA could respond I will focus exclusively on Louisiana and New eectively to destruction of the magnitude that struck Orleans, not because the damage occurred only there New Orleans, which left 80 percent of the city under but because that is where governmental failure was as much as 20 feet of water. Indeed, a student of the judged to be greatest. e American public, instead of U.S. executive branch might have been especially seeing their governments rushing aid to the victims apprehensive in 2004 because the federal governof disaster, saw on television desperate residents of the ments emergency management functions had just poorest sections of the city waving banners pleading for undergone a major redesign and reorganization folhelp, tearful husbands searching for lost wives, and lowing the terrorist attacks of 9/11 and the creation of bloated corpses in the lthy water, strewn with wreckage, the Department of Homeland Security. Although downed power lines, and drowning dogs. My analysis FEMA survived the reorganization, it was incorpowill proceed in rough chronological order of the rated into the new federal department, which meant events that occurred during Katrinas rst week. that it lost direct access to the White House. e FEMA director now had to report to the secretary of Success Mixed with Failure: The Pre-Landfall homeland security, whose department was placing Evacuation heavy emphasis on protection against terrorism. In the Except for the oldest part of the city, which rests on face of this change, President George W. Bushs rst naturally high ground, New Orleans sits in a swamp. FEMA director, Joseph Allbaugh, a tough, towering, It straddles the Mississippi River, with the Gulf of
Where Federalism Didnt 17 Fail 37

Mexico to the south, Lake Borgne to the east, and Lake Pontchartrain to the north. Only three highways lead out of New Orleans, and one of these goes eastward, to the adjacent state of Mississippi. In the two days before Hurricane Katrina struck, an estimated 11.2 million people out of a population of 1.4 million reached safety by leaving Greater New Orleans in motor vehicles (U.S. Senate 2006, 243; Cooper and Block 2006, 122). is was an astonishing achievement, for which state and local governments deserve much credit. Trac congestion plagues urban America, and to overcome it in a coastal city threatened with destruction required careful planning and a high degree of intergovernmental cooperation. Because the southern parishes of St. Bernard and Plaquemines (called counties in most of the United States) were most exposed to danger, they needed to be evacuated rst. en they could be followed by the residents of Orleans and Jeerson parishes, situated farther to the north (U.S. Senate 2006, 24245). A plan for doing this by turning the exit routes into one-way roads, called Contraow, and sequencing the departures emerged between 1998 and 2005. It was a result of hurricane experience and cooperation between the governors and state police forces of Louisiana and Mississippi and the Louisiana governments successful brokering of an agreement among 13 parishes in the southeast part of the state. e agreement was concluded, providentially, in April 2005. Once Louisiana governor Kathleen Babineaux Blanco had approved the plan, the states Oce of Homeland Security and Emergency Preparedness initiated a public education campaign using media outlets, the Red Cross, and mass merchandisers such as Wal-Mart, Home Depot, and Lowes to distribute more than 1.5 million copies of the Louisiana Citizen Awareness and Disaster Evacuation Guide. It included a Contraow evacuation map showing the routes that would be available and how the entrances and exits would work. Study this map and CHOOSE YOUR ROUTE WISELY, it instructed, with the capital letters in red. ere will be many restrictions on the Interstate System. Upon entering the Contraow area, it may not be possible to change routes. If you do not wish to evacuate under the Contraow restrictions, your best strategy is to LEAVE EARLY before Contraow is activated. As Katrina approached, the governor initiated the Contraow plan at 4:00 p.m. on Saturday, August 27. On Sunday morning, after some hesitation, New Orleans mayor Ray Nagin called for a mandatory evacuation, the rst in the citys history (U.S. Senate 2006, 6869). Contraow ended at 5:00 p.m. on Sunday, August 28, half a day before Katrina came
38 Public Administration Review December 2007 Special Issue

ashore, with no vehicles waiting in queues. It is impossible to say how many people left before the Contraow was initiated and how many departed in the 25 hours during which it was in place. Whatever the precise details, immense creditfar more than they have receivedis due the state and local ocials who put this plan in place and broadcast it to the public, as well as to the citizens who acted on it. Immense credit for this early and life-saving success is due also the ocials of the National Hurricane Center in Miami, an agency of the federal government, who urgently warned state and local ocials of the danger. Max Mayeld, the centers director, began tracking the storm as early as August 11, 15 days before it became a named storm. e center issued its rst advisory on August 24, but at rst the storm seemed not to be heading for New Orleans. en it shifted direction, and Mayeld placed personal calls on Saturday to emergency directors and governors in both Louisiana and Mississippi. Governor Blanco needed no prodding. On Friday, even in the absence of a prediction that Katrina was headed for New Orleans, she cancelled a trip planned for Saturday and put the states National Guard on alert. When she heard on Saturday from Mayeld, she urged him to call Nagin, who had been reluctant to order a mandatory evacuation (Cooper and Block 2006, chap. 5). Governments might have received more credit for the evacuation that did take place if they had been more successful at completing the job. More than 70,000 people remained in the city, some of them unwilling to leave even though they were physically able, while others were unable to evacuate because of disability or lack of private transportation (U.S. House 2006, 115). Using buses, the city government helped thousands of residents reach its designated refuge, the Superdome. Although ocials had considered providing public transportation to those who lacked cars, none of the necessary arrangements had been completed before Katrina struck (U.S. Senate 2006, 24854). For this, they have been rightly criticized. Failure: The Collapse of Flood Protection New Orleans was a city at extreme risk, sitting in its swamp, mostly below sea level, gradually sinking, and failing to face up to these facts. In the space of a few hours, the storm stripped away the security blanket, two journalists wrote. Giant waves rising as high as 27 feet hit the city, and miles of massive earthen levees crumbled. Floodwalls were breached in dozens of places, their concrete and steel components bent, broken, and scattered into the backyards they had once protected. Floodgates were ripped from their hinges. In the aftermath, only a narrow rim along the natural high ground of the riverbank was still inhabited and functioningthe approximate boundaries of New Orleans in the mid-1800s. e city was

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once again open to the sea (McQuaid and Schleifstein 2006, 78, 246).

Historically, governments might have limited the risk by restricting the citys growth. Instead, as population spread south and east, the risk increased. But limiting growth would have gone against the grain not only of the devil-may-care city but also of the rapacious capitalism that characterizes the whole countrys approach to land use. New Orleans was encouraged to sprawl, and ood protection projects were justied partly on the economic grounds that they would make swamp reclamation and development possible (McQuaid and Schleifstein 2006, 64). At its peak in 1960, the city had a population of 627,525, ranking 15th among American cities, just behind Dallas. By 2003, the population had fallen to 469,000, and the citys rank dropped to 34th, just below Albuquerque.

Historically, governments might have limited the risk by restricting the citys growth. But limiting growth would have gone against the grain not only of the devil-may-care city but also of the rapacious capitalism that characterizes the whole countrys approach to land use.

Security and Governmental Aairs Committee. Key ocials at the Army Corps [of Engineers] and the Orleans Levee District have demonstrated this confusion by telling Committee sta one thing during interviews and then another later (U.S. Senate 2005).

A critical moment came, tellingly, during the expansive administration of President Lyndon B. Johnson. Hurricane Betsy struck New Orleans in 1965, causing a ood that killed 81 people and left thousands homeless. Cajoled by Louisiana senator Russell B. Long, Johnson came to the city and was moved by what he saw. Six weeks after the storm, Congress passed the Flood Control Act of 1965, which authorized a U.S. Corps of Engineers project called the Lake Pontchartrain and Vicinity Hurricane Protection Plan (the Lake Pontchartrain project for short). e new levee system was to be completed by 1978 at a cost of $85 million, making the city safe for many years to come. It was still under construction when Katrina struck, with a cost that had reached $750 million (McQuaid and Schleifstein 2006, 63; U.S. Senate 2006, 13334). When congressional investigators set out to nd out what had gone wrong with the citys ood protection system and who was in charge of it, they encountered a virtual parody of American federalism. e system was a hodgepodge of stone and earthen levees, concrete and steel oodwalls, drainage canals, more than 200 oodgates, and huge pumps. ese numerous parts were of varying origin, age, design, and quality. Some of the barriers fell short of design heightin one case by as much as 3 feetor they had sunk below prescribed levels. One of the oodgates had been damaged in a railroad accident in 2004, causing a breach in a levee, and had yet to be repaired in 2005. It was hard to say who was to blame. ere has been confusion about the basic question of who is in charge of the levees, Senator Susan Collins of Maine remarked as she opened a hearing of the Homeland

e Corps of Engineers had a central but not exclusive role. Even for what it built, it did not retain responsibility after construction was done. It turned the operation and maintenance of completed projects over to local levee districts, the rst of which were authorized by state law in 1879. In metropolitan New Orleans, there was a levee district for each parish. In Orleans Parish, there was also a sewer and water district that was in charge of the pumps, whose purpose was to push rain and oodwater out of the city northward into Lake Pontchartrain. at agency originally built the canals through which the pumped water owed, and it still, in the eyes of the Orleans Levee Districts chief engineer, had responsibility for inspecting the canal walls (Carrns 2005). e Louisiana Department of Transportation was also involved. By law, it was supposed to approve any activity that might compromise the levees and administer training sessions for levee district board members and inspectors (U.S. Senate 2006, 131). Even after one paints this familiar American picture of extremely fragmented public responsibility, two agencies stand outthe Corps of Engineers and the Orleans Levee District. ey were the major players, and there was confusion and tension between them. Some of the confusion occurred over when or whether a project had been turned over to the levee district. Did turnover occur piecemeal, with each section of the decades-long Lake Pontchartrain project, or did it await completion of the whole thing? (U.S. Senate 2006, 135). And there was also uncertainty over the scope of local responsibility once turnover occurred. e levee district held to the view that major problems remained the responsibility of the Corps, whereas minor problems belonged to its own jurisdiction, an informal distinction with no foundation in law and obviously subject to misunderstanding (U.S. Senate 2006, 137). What to do about the levee that was 3 feet below design height illustrates the confusion. Levee district ocials considered the x to be the responsibility of the Corps of Engineers. e Corps said that it lacked money. e levee district had sometimes paid for repairs itself and then sought reimbursement from the
Where Federalism Didnt 19 Fail 39

Corps. In this case, it sent letters to its congressional delegation asking for federal funding. It is a nice question whether this represents tension between the two agencies, as the Senate committee report on Katrina implies, or is instead an example of implicit political collaboration between them. In any case, it did not achieve the repair of the levee (U.S. Senate 2006, 131). e confusion over responsibility that was evident prior to the hurricane extended into the actual emergency, during which it was not immediately clear who had what role in repairing the breaches. Underlying the aws in intergovernmental collaboration was a much deeper problem that was manifest in the performance of both the Corps of Engineers and the Orleans Levee District. Flood protection was not their only function. If both organizations had been dedicated to that purpose alone, cooperation would have come more easily and the function would, of course, have been better performed.

authority to ll portions of Lake Pontchartrain and use the land thus created for places of amusement and recreation. e board, with a majority composed of the governors appointees, eventually morphed into a major developer. Tracts sold in the 1940s and 1950s became some of the citys most expensive real estate. e board constructed parks, walking paths, marinas, an airport, a casino, and more. ese activities often consumed more of the districts attention than ood control (Cooper and Block 2006, 3438). As one proceeds with analyzing the failure of ood protection, the more federalism recedes and politics comes to the fore, as practiced by governments that recklessly encouraged residential development and then gambled residents safety on the national legislatures willingness to protect one low-lying city. Insofar as governments and human agency mattered, as opposed to the forces of nature, New Orleans safety rested on the large but not unlimited inuence of the Louisiana congressional delegation and on the priorities that Louisianas politicians set. ey determined the purposes of appropriations to the Corps of Engineers. No U.S. government agency is more subject to congressional inuence. If ood protection failed, one has to look to Congress as well as the self-confessed technical failures of the Corps that emerged after the ood (CQ 2006; McQuaid and Schleifstein 2006, 34144; Grunwald 2005). Beyond that, beginning with the fabled Huey Long, Louisianas politicians stood behind the evolution of the Orleans Levee District into an entrepreneur that oversaw prot-making enterprises and tended rather casually to ood control. Its periodic levee inspections were conducted quickly and ended with a good meal.

For the Corps, ood control competes with navigation projects, whose purpose is to promote the industrial economy. e prosperity of New Orleans depends on its port. To aid the port, the Corps builds and dredges shipping channels. Navigation projects do not merely compete with ood control projects for funds. e clash can also be physical and hydrologic, as illustrated by the Mississippi River Gulf Outlet, which the Corps completed in the 1960s. is is a 76-mile canal built as a shortcut for ships and barges heading from the Mississippi River to the Gulf of Mexico. Environmentalists have long claimed that by admitting salt water, it destroyed coastal marshes that helped protect the city from the Gulf. Scientic students of hurricanes argued as well that it would serve, quite destructively, as a path for storm surges heading Success: Search and Rescue north toward the city, increasing their velocity. is Search and rescue teams were needed to save from the appears to have happened during Katrina, and early in oodwaters the large number of people who had not 2007, a federal district judge ruled that residents of evacuated before Katrina struck. at nearly all of New Orleans whose neighborhoods were ooded them survived is Katrinas second big success in public could sue the Corps with claims that the government- administration. Federal, state, and local agencies were built navigation channel was all involved, not to mention a largely to blame (Cooper and 47-man team of Canadian Block 2006, 2628; Schwartz Mounties that came to the rescue e outstanding performers, 2007). of St. Bernard Parish, southeast accounting for most of the of the city (Cooper and Block rescues, were the U.S. Coast e Orleans Levee District also 2006, 181). Once again, interGuard and two Louisiana was far from single-minded in its governmental collaboration was agencies, the Department of pursuit of ood protection. It crucial to success. had more distractions than the Wildlife and Fisheries and the Corps. A brochure issued by the e outstanding performers, National Guard, which acted district in 1995 boasted that We accounting for most of the reswith out-of-state help. e protect against hurricanes, oods cues, were the U.S. Coast Guard FEMA teams brought from out and two Louisiana agencies, the and boredom (Carrns 2005). of state have been credited with Department of Wildlife and e origin of the claim to relieve a smaller but still signicant boredom goes back to 1928, Fisheries and the National when Governor Huey Long got Guard, which acted with out-ofnumber of rescues. the legislature to give the board state help. e FEMA teams
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brought from out of state have been credited with a smaller but still signicant number of rescues. An unknown but probably quite small number of people were rescued by local agencies, the New Orleans police and re departments, which were overwhelmed by the catastrophe and underequipped in any case. e police department had only ve boats and the re department none. Many volunteers came to help, with what results it is impossible to say. e city ooded on Monday, and the Coast Guard achieved its rst rescue at 2:50 that afternoon. To explain the Coast Guards outstanding performance, the Senate committee report mentioned the careful positioning of assets, near enough to be useful but far enough to be safe; training and equipment for water missions; an organizational culture of rapid, aggressive response to emergencies; and familiarity with the locality and its public agencies (U.S. Senate 2006, 33233). Because New Orleans is a major port, the Coast Guard, which protects the nations waterways, is a major presence there. e headquarters of its biggest single district is in New Orleans. It regularly conducts exercises with state and local agencies, and in particular it had worked closely with the boat forces of Louisianas Department of Wildlife and Fisheries.

on Monday as soon as wind conditions permitted (U.S. Senate 2006, 340, 343). e contributions of FEMA to the search and rescue eort also illustrate the uses of intergovernmental collaboration, but in a less eective form. FEMA has under contract search and rescue teams composed of state and local employees, mostly members of re departments, that it can mobilize in emergencies. It had pre-positioned three such teams in Shreveport, which is 340 miles from New Orleans. It activated 16 others on Tuesday and 10 more on Wednesday. Its teams began work later than others and, because they lacked their own equipment, had to join the boats of volunteers or other agencies (U.S. Senate 2006, 334).

anks to the twin successes of pre-landfall evacuation and post-ood rescue, the loss of life in Katrina, though deeply shocking to Americans who saw corpses on their television screens, did not remotely approach in severity what had been anticipated. Hurricane Pam, a hypothetical exercise in hurricane planning for New Orleans nanced by the federal government and conducted in 2004, had predicted that 60,000 would die (U.S. House 2006, 81). An article in Scientic American in 2001 said that New Orleans is a disaster waiting to happen. A direct hit Louisianas agencies were on alert as early as Friday, is inevitable. Scientists at Louisiana State University August 26, when Governor Blanco declared a state of predict that more than 100,000 people could die emergency. e Department of Wildlife and Fisheries, (Fischetti 2001, 78). In 2002, the vice president for like the Coast Guard, deployed on Monday afterdisaster services of the American Red Cross had prenoon. Whereas the Coast Guard worked both from dicted a toll of 25,000100,000 (McQuaid and the air with helicopters and on water with cutters, the Schleifstein 2002, 1). An article in National GeoWildlife and Fisheries teams worked only on the ood graphic in 2004, in many respects quite prescient, surface. Like the Coast Guard, W&F [Wildlife and predicted 50,000 deaths (Bourne 2004). Even during Fisheries] ocers, trained for water-rescue missions, the ood and the week after, ocials continued to were adequately equipped, had pre-positioned search predict as many as 10,000 deaths. e actual toll, and rescue assets close enough to be useful on the day based on bodies found, was around 1,100 for Louisiof landfall, and were composed of men and women ana, and for the whole Gulf Coast 1,3001,500, familiar with the aected area although because these gures and other federal, state, and local take no account of victims agencies involved (U.S. Senate washed out to sea or otherwise the performance of 2006, 333). irretrievably lost, they are pregovernments in planning the sumably low (Cooper and Block pre-landfall evacuation and e Louisiana National Guard 2006, 223; U.S. Senate 2006, 2; achieving the post-ood made the mistake of not moving AP 2006). high-water vehicles from its rescue stands as a signal headquarters, Jackson Barracks, Perhaps the very high predictions accomplishment and proof which was under water, but it were meant to be frightening and that the fragmentation of nonetheless had access to boats should not be taken literally. federalism was not an and helicopters, and even before Presumably, the number for insuperable handicap. landfall it had solicited assistance Louisiana could have been lower from other states under the had the city government of New Emergency Management AssisOrleans done a better job of pretance Compact, through which state governments landfall evacuation. However all of that may be, the have collaborated since 1996 in responding to emerperformance of governments in planning the pregencies. National Guard helicopters from both Louisi- landfall evacuation and achieving the post-ood resana and out of state began search and rescue missions cue stands as a signal accomplishment and proof that
Where Federalism Didnt 21 Fail 41

the fragmentation of federalism was not an insuperable handicap. A Compound Case: Evacuation after the Flood Saving lives by rescuing people from the oodwater was one thing. Caring for them afterward proved to be another. By midday on Tuesday, local, state, and federal ocials realized that they must evacuate the city, and Governor Blanco called Governor Rick Perry of Texas to ask whether he would open Houstons Astrodome for Louisiana evacuees, as all 113 of her own states shelters were full. Perry agreed, and by Wednesday, Texas had opened 47 shelters (Cooper and Block 2006, 17273). But it took until Friday to put in place the necessary buses, air transportation, and acceptable destinations to achieve an evacuation. In the meantime, many displaced residents lacked adequate food, water, and sanitation. e Superdome, with failed plumbing, became uninhabitable. ousands gathered at an alternative refuge, the Ernest N. Morial Convention Center, which was on dry land but had not been stocked with food, water, and medical services or given National Guard protection, as had the Superdome. Other thousands milled around the dry parts of the city or were camped on interstate overpasses, exposed to the intense late summer heat. e inability of governments to provide for these many thousands of homeless people has to be counted as an ocial failure. Emergency management, which presumed that local and state ocials would ask for help and that FEMA would be able to procure it from federal sources, broke down. On the other hand, after several days the evacuation was achieved. ese victims of Katrina were bused or airlifted out of New Orleans to destinations in Texas, Utah, Arkansas, and elsewhere. e post-ood week was a chaotic compound of failure and success. e saga of the buses illustrates the point about aws in emergency management. On Tuesday morning, FEMA director Brown, Governor Blanco, and Louisianas two senators, Mary Landrieu and David Vitter, arrived by helicopter from Baton Rouge to view the drowning city. e governor, seeing hundreds of people wading through the water to reach the Superdome, declared, We have to get these people out of here. We need buses. Everyone agreed. And Brown said brightly, If theres one thing FEMAs got, its buses (Cooper and Block 2006, 162). Brown then made the rst of a series of calls to Washington saying that Louisiana needed 500 buses. As he looked over the paperwork that afternoon, the states director of emergency preparedness noticed that FEMA headquarters had reduced the number to 455. e reduced request went forward to the U.S. Department of Transportation at 1:45 a.m. Wednesday, and Louisi42 Public Administration Review December 2007 Special Issue

ana ocials were told that buses would arrive at 7:00 a.m., whereupon they halted independent eorts to commandeer buses locally from schools, churches, and other sources. But the buses did not come. ey had to be procured from contractors all over the country, hundreds or even thousands of miles away. Some arrived in the city on Wednesday evening and began evacuation of the special needs population and those who were marooned on highway overpasses. A more general evacuation began on ursday, but it was not until Friday that a sizable eet arrivedhundreds of buses lined up on New Orleans remaining dry land and prepared to evacuate, escorted by the Louisiana State Police (U.S. Senate 2006, 70; Cooper and Block 2006, 172, 18487, 210). In the aftermath, local and state ocials would remain frustrated that FEMA did not know what it could deliver or when and made promises that were unreliable. is was true not only for buses, which in the complicated world of American government were not directly under the control of either FEMA or the Department of Transportation, but also for supplies that FEMA supposedly did control, such as generators, food, water, and ice, which had been positioned in large amounts in the region but were slow to reach the disaster site. e agencys logistics were poor, and communications generally had been impaired by the hurricane. e FEMA emergency communications center, a truck nicknamed Red October, had remained in Baton Rouge until Friday rather being placed near city hall, a delay that Brown, who was hunkered down in it, would later concede was a mistake (Cooper and Block 2006, 185, 213). Recognizing that FEMA was unreliable, everyone groped for alternatives. is included FEMA itself, whose ocials began acknowledging that they were overwhelmed and hinting that maybe the Department of Defense should take over, although FEMA was slow to initiate formal requests for help from the department (Cooper and Block 2006, 161, 16667; U.S. Senate 2006, 482). Governor Blanco, who bridled at the suggestion that Louisiana was incapable of command, called the White House directly on Wednesday, failing on her rst attempt to reach the president or his chief of sta, Andrew Card. Instead, she talked to an aide to Karl Rove, the presidents chief political advisor, though later in the day, after the president had returned to Washington from his ranch in Crawford, Texas, Blanco did reach President Bush and pleaded for help with transportation (McQuaid and Schleifstein 2006, 269, 276). Ocials at the top of the federal government were slow to comprehend that a catastrophe had struck New Orleans. is may have been partly attributable to the fact that they were scattered around the country on vacation: the president in Texas (with a detour to

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Southern California to make a work around FEMA and the speech), the vice president in Ocials at the top of the federal failing ocial plans for emerWyoming, and the White House gency management. One workgovernment were slow to chief of sta in Maine. But comcomprehend that a catastrophe around was to loot Wal-Mart, munication with them did not which became de facto a substihad struck New Orleans. is tute for FEMA. e people of fail, and the slowness seems to be may have been partly traceable more to the reluctance New Orleans did this on their attributable to the fact that they own initiative, but they had help of Matthew Broderick, head of the recently created Homeland from the National Guard, which were scattered around the Security Operations Center, to recognized the necessity of seeing country on vacation believe what he was being told by that people were supplied with sources in New Orleans. He was food and water. A homeland skeptical of reports from the security ocial assured Wal-Mart ground, a peculiarly inapt metaphor for a city that that the federal government would reimburse it if it had given up its ground to a ood (Cooper and Block acceded to this urgent function rather than try to 2006, 13133, 14551). Washington lacked situprotect its stores and warehouses. is turned out to ational awareness, according to the later congressiobe a promise on which the ocial could deliver only nal assessments. In plain language, it was slow to grasp the modest amount of $300,000 (Cooper and Block reality, but by late Tuesday, Secretary of Homeland 2006, 26062). Security Cherto was beginning to get a grasp. Erroneously believing that he was following the National A continuing question, arguably the most problematic Response Plan, he declared Hurricane Katrina an for federalism, was what role the armed forces of the incident of national signicance, a classication to United States should play. As early as Tuesday mornbe found there. e National Response Plan was a ing, the acting deputy secretary of defense, Gordon 400-page document prepared by the RAND Corpora- England, ordered the U.S. Northern Command, a tion under contract in the aftermath of 9/11, by unit of the armed forces created after 9/11 to protect which the federal governments actions supposedly the continental United States, to move forces and would be guided during national emergencies. It had materiel to the Gulf Coast and authorized it to been released in January 2005 and nominally went provide assistance in support of FEMA. e U.S. into eect in mid-April, but as Vice President Northern Command created a Katrina task force Cheneys oce acidly observed, it was not easily headed by Lieutenant General Russel Honor and accessible to the rst-time user (U.S. Senate 2006, based at Camp Shelby, Mississippi, to coordinate the 55158). Katrina would be its rst serious test, and military response to the disaster. Honor turned up in the test was not going well. Baton Rouge and New Orleans on Wednesday night to look the situation over (U.S. Senate 2006, 69, Cherto, though in a rage at Brown, designated him chap. 26; White House 2006, 42; Cooper and to be the principal federal ocial, another category to Block 2006, 192). be found in the National Response Plan, but in practice began relying on his deputy secretary, Michael In her phone conversation with President Bush, GovJackson, who was a former deputy secretary of transernor Blanco had asked for 40,000 troopsan exportation. Cherto ordered Jackson to set up an airlift traordinary numberto take control of logistics and from New Orleans Louis Armstrong International to oversee the continuing search and rescue eort so Airport. ough FEMA had been working on this, it that the National Guard could concentrate on law had been unable to work out destinations and schedenforcement. No such number was promised, but it ules. Now that was done, but the federal Transportawas nonetheless a great disappointment to Louisiana tion Security Administration, created in the aftermath ocials when Honor appeared on Wednesday with of 9/11 to ensure the security of passenger aircraft, about a half-dozen people and a CNN crew (Cooper insisted on screening all passengers and baggage before and Block 2006, 192). Before long, though, the milithe planes could take o. And the Department of tary was delivering large amounts of food and water to Homeland Security also decided that undercover air both Louisiana and Mississippi. marshals would have to be present on the departing ights. Fighting terrorism was a federal goal of utmost Who should be in charge of law enforcement was a priority in the Bush administration, and here it conquestion that was much more urgent at the time than icted with the need to achieve a swift evacuation of it seems in retrospect. Rumors of violence and crowds New Orleans (Cooper and Block 2006, 2023). out of control were beginning to spread and intimidated ocials, inhibiting their response. At the SuperAs ocials tried to get an evacuation organized, it dome on ursday morning, the head of FEMAs remained necessary to provision the citys displaced small task force ordered members to take o their population. Here, too, people discovered ways to FEMA t-shirts for fear of being attacked, and the
Where Federalism Didnt 23 Fail 43

team departed New Orleans for Baton Rouge (Cooper and Block 2006, 19697). We now know that the rumors were much exaggerated. Some indisputably criminal looting did occur early in the disaster, concentrated downtown along Canal Street, and there were a few incidents of gunre during the search and rescue operations. But considering their dire situation, the impaired state of the New Orleans Police Departmentwhose chief was hysterical and many of whose members were AWOLplus the citys reputation for lawlessness in the best of times, the crowds were remarkably well behaved. Situational awareness in government was no better on this point than it had been on Monday regarding the collapse of levees and oodwalls. Arguably it had grown worse because the media, which initially had underplayed the disaster, perceiving too slowly the dimensions of the ood, were now overplaying it, giving excessive credence to reports of violence. And federal ocials, including the military, were taking their cues from the media.

governor Haley Barbour of Mississippi had also refused a request from the White House to turn over his National Guard to the president (Cooper and Block 2006, 212; U.S. House 2006, 221). Louisiana asked for and received a great deal of help from National Guard units in neighboring states, making its requests not just through the Emergency Management Assistance Compact but also through the National Guard Bureau in the Department of Defense. Here again, interstate cooperation was a bright spot in the Katrina crisis. When a National Guard task force secured the convention center on Friday, approaching the building warily for fear of violence, it included troops from Texas, Oklahoma, Nevada, and Arkansas, as well as Louisiana. e Guard found a peaceful place, containing people who were exhausted, hungry, and thirsty but not riotous. In all, other states would send about 20,000 National Guard troops to help Louisiana (Cooper and Block 2006, 191, 21011, 223; U.S. Senate 2006, 70; EMAC 2006, 2-152-16).

Once back in Washington, President Bush was tempted to take charge, whether by sending in regular army troops or by federalizing the Louisiana National e Superdome evacuation was completed by 1:00 p.m. Guard, for which he needed the governors permission on Saturday and the convention center evacuation by unless an insurrection was in progress. Governor 6:30 p.m. the same day. Blanco declined to grant such permission. Her position, with support from her sta, was that Louisiana Ofcial Aftermath: The Centralizing could manage law enforcement and need not hand the Syndrome Guard over to federal control. is issue came to a So far, the analysis has sought out the eects of the head close to midnight on Friday, when the White federal form of government on Katrina, arguing that House faxed for her signature a document that would the successes to be found in the government rehave brought the Louisiana National Guard under the sponseI have insisted that there were successes, presidents command so that he could announce the contrary to widespread impressiondepended critinext day that he had done so. cally on intergovernmental coopShe refused to sign (Cooper and eration. In the space remaining, I Block 2006, 21215; McQuaid will invert the analysis and inDisasters typically have and Schleifstein 2006, 31920, quire into the eects of Katrina centralizing consequences. 32730). And she added insult on federalism. to injury by engaging James Lee Historically, major hurricanes Witt, President Clintons celDisasters typically have centralhave left in their wake fresh ebrated FEMA director, as a congressional enactments that izing consequences. Historically, consultant. major hurricanes have left in enlarged the federal role in their wake fresh congressional disaster response. Nonetheless, enactments that enlarged the e White House later professed the basic federal lawhas to have treated the governor with federal role in disaster response. deference and political sensitivnever abandoned the principle Nonetheless, the basic federal ity, saying anonymously and law, stemming from an enactthat initial responsibility rests rhetorically to the New York ment in 1974 (P.L. 93-288) and with state and local Times, Can you imagine how it amendments in 1988 (P.L. 100governments. would have been perceived if a 707), has never abandoned the president of the United States of principle that initial responsibilone party had pre-emptively ity rests with state and local taken from the female governor of another party the governments. Under the combined impacts of 9/11 command and control of her forces, unless the secuand Katrina, this central assumption is for the rst rity situation made it completely clear that she was time subject to serious challenge. unable to eectively execute her command authority and that lawlessness was the inevitable result? National preparedness planning, as practiced by (McQuaid and Schleifstein 2006, 276). Republican the administration of President Bush, the new
44 Public Administration Review December 2007 Special Issue

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Department of Homeland Security, and the U.S. Northern Command, is radically centralizing, at least in its rhetoric. Characteristic of the post-9/11 Bush White House, it trumpets a promise of transformation (Brooks 2007). How it will turn out in practice is another matter. Katrina, which was a test of centrally planned preparedness, showed just how hollow and feckless it was on its rst try, but the reaction of the administration was not to acknowledge the diversity of both the country and the risks the country faces but to try harder to plan and execute from the top. e Bush administrations centralizing reactions to Katrina have been manifest at three points: (1) in the conduct of the federal executive branch during subsequent hurricanes in the 2005 season; (2) in the Lessons Learned report of the presidents assistant for homeland security and counterterrorism, issued in February 2006; and (3) most seriously, in a rider attached to the Fiscal Year 2007 Defense Authorization Act that made it possible for the president to federalize the National Guard in a domestic disaster without the consent of a governor. ough the White House may not have been willing to run the political risk of confronting Governor Blanco in 2005, a year later it succeeded in reducing the authority of every governor of every state. Two powerful hurricanes, Rita and Wilma, followed Katrina in the season of 2005, and during both the federal government acted very aggressively, seeking to take charge with military task forces and sending homeland security employees into the states without advice, consultation, or requests from state ocials. Rita hit a sparsely populated area of Louisiana and did relatively little damage, although about 60 people died in the evacuations, including 23 nursing home residents whose bus burned when an oxygen tank exploded. Others died from heat exhaustion and heart attacks after spending hours in cars without water or air conditioning. In contrast to Katrina in Louisiana, the Rita evacuation in Texas was a horror story, with highways clogged for 100 miles north of Houston (Cooper and Block 2006, 26970). Wilma, which at its pre-landfall peak was a more powerful hurricane than Katrina, touched o a major confrontation between Floridas government and federal ocials. e commander of the Fifth Army at Fort Sam Houston in San Antonio told the head of Floridas National Guard, General Douglas Burnett, that he wanted to y in equipment to set up a joint task force command. Burnett protested to U.S. Northern Command headquarters in Colorado, and Governor Jeb Bush called Secretary Cherto to say that the federal governments actions were insulting to him personally, to Floridas well-regarded director of emergency management, Craig Fugate, and to all the

citizens of Florida. Florida appeared to win this battle when Fugate, in a videoconference three days before landfall, announced the creation of Wilma Commanda unied incident command that met the paper requirements of homeland securityand introduced Governor Bush as its commander. Florida ocials had ardent support from FEMA employees in both Washington and Florida, who had no love for the Department of Homeland Security. e U.S. Northern Command did not call up the Fifth Army, no military task force was created, and Secretary Cherto did not appoint a principal federal ocial (Cooper and Block 2006, chap. 12; Block and Schatz 2005). Floridas government managed the emergency, though in the end, Bush and Fugate were not fully satised with their own performance. Shortly after Katrina, President Bush spoke to the nation from Jackson Square in New Orleans, promising to rebuild the city and ordering a review of the federal response to Katrina. e resulting report drew 17 lessons and produced 125 recommendations. e tone of this rhetorically expansive document is strongly centralizing. With frequent use of italics, it calls for a transformation of our homeland security architecture, a unifying system that will ensure National Preparedness, and the development of operational capability within the federal government. e unied system that it envisions includes not only other governments in the federal system but also the private sector, nongovernmental organizations, faithbased groups, and communities, including individual citizens. All are to be coordinated from the center, through planning by the Department of Homeland Security. Rather than waiting for the next disaster, DHS planners must develop detailed operational plans that anticipate the requirements of future responses and what capabilities can be matched to them in what timeframe (White House 2006, 6568, 70). Of greatest consequence was a change in law achieved by the administration late in 2006 through a rider added to the Defense Authorization Act for 2007. is change amended the Insurrection Act of 1871 to broaden the presidents authority to use the armed forces for domestic purposes and to call the National Guard, which is normally under the command of the governors, into federal service. Formerly limited to cases of insurrection, domestic violence, unlawful combination, or conspiracy, this rarely invoked authority was extended to cases in which public order is disrupted because of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition (Elsea 2006). at is very broad language indeed. As two congressional critics, Senators Patrick Leahy of Vermont and Christopher Bond of Missouri, observed, it undermines the optimal, well-proven approach for handling
Where Federalism Didnt 25 Fail 45

domestic emergencies, which gives primacy to elected chief executives of state and local governments. More fundamentally, it makes a constitutional change by replacing a presumption against invoking federal martial law with a presumption for domestic use of the military (Bond and Leahy 2006, 1; Mahoney 1986, 142930). is revision of law, which is a sharp blow to federalism and a signicant expansion of the power of the presidency, received no debate in Congress. Its merits were not argued, nor were they tested against the actual evidence of governmental performance produced from the experience of Katrina, which in New Orleans was an extreme casea catastrophic event in an exceptionally vulnerable and poorly governed place. At least in public, no one in Congress argued, against senators Leahy and Bond, that this added grant of power to the chief executive of the federal government was warranted. Yet this change in law is likely to stand as the most constitutionally signicant and lasting legacy of Katrina unless Senators Leahy and Bond succeed in an eort, under way as of February 2007, to repeal it. Conclusion Newt Gingrich, the Republican former Speaker of the House, has pronounced a glib summary judgment on Katrina: e simple fact is the city of New Orleans failed, the state of Louisiana failed, and the government of the United States failed (2006, xi). At greater length and with rather more nuance, the federal government has issued three major reports on the governments performanceone from the Oce of the Assistant to the President for Homeland Security and Counterterrorism, which I very briey summarized earlier, one from the House of Representatives, and one from the Senate. e House report eschews recommendations and concentrates on fact nding. e Senate report ends conventionally with 88 recommendations that are addressed almost entirely to administrative organization and processes. It recommends the abolition of FEMA and its replacement with a new agency, the National Preparedness and Response Authority, within the Department of Homeland Security. It calls for improved coordination among and within governments. It takes a more temperate and realistic approach to federalism than the White House report by acknowledging that states and localities will continue to provide the backbone of responsethe rst responsefor all disasters, catastrophic or not (2006, 612). All of the reports fail to confront the risk of allowing ever larger coastal settlements to develop in locations so exposed that they cannot be given adequate protection at a reasonable cost. None dwells on just how vulnerable New Orleans was and is destined to remain, given its location well below sea level, made steadily worse by subsidence (Foster and Giegengack 2006). On instinct in the wake of Katrina, the presi46 Public Administration Review December 2007 Special Issue

dent speaking at Jackson Square only days after the event, the Louisiana congressional delegation with a grandiose $250 billion proposal for rebuilding, and the Corps of Engineers, with quixotic plans for reengineering the Mississippi Gulf Coast, all have embraced political business as usual. With the experience of Katrina in the federal system as a guide, I suggest the following very general precepts for federal emergency planning and management: First, do no harm to the rst responders. Dependence on them is inescapable. Indeed, they could become the countrys only functioning and legitimate governments in case of a successful terrorist attack on Washington, D.C. Continue to think of federalism in the traditional way, as a source of strength through cooperation. Enlarge and train the armed forces of the United States so as to reduce their combat and operational dependence on the National Guard, which is in poor repair and needed at home. Consider, in collaboration with state governments, the creation of a volunteer home guard, not subject to overseas deployment and available in addition to the National Guard during domestic emergencies (Korb 2007). Amend the Posse Comitatus Act to remove the restriction on the use of the army for domestic law enforcement and leave the National Guard under the governors control in domestic emergencies. Second, tend to your own self-preservation. In this age of terrorism, citizens are entitled to ask how much has been done to ensure the continuity of major federal governing institutionsand also what preparations have been made for the evacuation of the nations capital, which every day of every normal work week, absent acts of terrorism, chokes on its own commuter trac. Finally, look with more discernment to the success stories that are buried within Katrina: to the orderly pre-landfall evacuation of a million or more residents of greater New Orleans; to the performance, both singly and together, of the U.S. Coast Guard and the Louisiana Department of Wildlife and Fisheries; to the institutions of interstate cooperation, including the National Guard; and to the ability of the U.S. armed forces to deliver supplies once they were called upon. e U.S. government excels at fault nding through commissions and congressional committees after a catastrophic event. ese study groups typically proer recommendations for administrative reorganization, with an ill-founded certitude that such xes will work. It is also important to take the measure of success and to locate the sources of it, which I have traced here to intergovernmental cooperation. e leading dimensions of such cooperation in Katrina were interlocal and localstate, in planning the Contraow;

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interstate, in planning the Contraow and mobilizing the National Guard; and federalstate, in the search and rescue work of the Coast Guard and the Louisiana Department of Wildlife and Fisheries. ese intergovernmental relations had already been developed prior to the catastrophe, which would have been far worseand the loss of life much greaterhad they not existed. Note
1. e factual premise of the question is subject to challenge. A response took roughly a week in each case. One could, of course, ask why a domestic response was not the much quicker of the two.

References
Associated Press (AP). 2006. Death Toll from Katrina Likely Higher an 1,300. February 10. http:// www.msnbc.msn.com/id/11281267 [accessed August 7, 2007]. Block, Robert, and Amy Schatz. 2005. Local and Federal Authorities Battle to Control Disaster Relief. Wall Street Journal, December 8. Bond, Christopher S., and Patrick Leahy. 2006. Letter to John Warner, Carl Levin, Duncan Hunter, and Ike Skelton, September 6. http://www.leahy.senate. gov/press/200609/090606b.html [accessed August 7, 2007]. Bourne, Joel K., Jr. 2004. Gone with the Water. National Geographic, October. http://magma. nationalgeographic.com/ngm/0410/feature5/ ?fs=www.3.nationalgeographic.com [accessed August 7, 2007]. Brooks, David. 2007. Yes, ose Were the Days. New York Times, March 8. Carrns, Ann. 2005. Long before Flood, New Orleans System Was Prime for Leaks. Wall Street Journal, November 25. Congressional Quarterly (CQ). 1990. Congress and the Nation. Vol. VII, 198588. Washington, DC: CQ Press. . 2006. Lieutenant General Carl Strock Holds a News Conference on Army Corps of Engineers Disaster Preparedness. News Conference, August 24. Cooper, Christopher, and Robert Block. 2006. Disaster: Hurricane Katrina and the Failure of Homeland Security. New York: Times Books. Elsea, Jennifer K. 2006. e Use of Federal Troops for Disaster Assistance: Legal Issues. Report No. RS22266. Washington, DC: Congressional Research Service. Emergency Management Assistance Compact (EMAC). 2006. 2005 Hurricane Season Response: After-Action Report. http://www.emacweb. org/?1455 [accessed August 14, 2007].

Fischetti, Mark. 2001. Drowning New Orleans. Scientic American, October, 7685. Foster, Kenneth R., and Robert Giegengack. 2006. Planning for a City on the Brink. In On Risk and Disaster: Lessons from Hurricane Katrina, edited by Ronald J. Daniels, Donald F. Kettl, and Howard Kunreuther, 4158. Philadelphia: University of Pennsylvania Press. Gingrich, Newt. 2006. Winning the Future: A 21st Century Compact with America. Washington, DC: Regnery. Grunwald, Michael. 2005. Money Flowed to Questionable Projects. Washington Post, September 8. Korb, Lawrence J. 2007. Over Here. New York Times, May 27. Mahoney, Dennis J. 1986. Posse Comitatus Act. In Encyclopedia of the American Constitution, edited by Leonard W. Levy and Kenneth L. Karst, 142930. New York: Macmillan. McQuaid, John, and Mark Schleifstein. 2002. e Big One: A Major Hurricane Could Decimate the Region, but Flooding from Even a Moderate Storm Could Kill ousandsIts Just a Matter of Time. Times-Picayune (New Orleans), June 24. http:// www.nola.com/washingaway/thebigone_1.html [accessed August 14, 2007]. . 2006. Path of Destruction: e Devastation of New Orleans and the Coming Age of Superstorms. New York: Little, Brown. Roberts, Patrick S. 2006. FEMA and the Prospects for Reputation-Based Autonomy. Studies in American Political Development 20: 5787. Schwartz, John. 2007. Court Clears Way for Suit on New Orleans Flooding. New York Times, February 3. U. S. House. Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina. 2006. A Failure of Initiative. Washington, DC: Government Printing Oce. http://katrina.house.gov/full_katrina_report.htm [accessed August 14, 2007]. U. S. Senate. Committee on Homeland Security and Governmental Aairs. 2005. Hurricane Katrina: Whos in Charge of the New Orleans Levees? 109th Cong., 1st sess., December 15. . 2006. Hurricane Katrina: A Nation Still Unprepared. Washington, DC: Government Printing Oce. http://hsgac.senate.gov/_les/ Katrina/FullReport.pdf [accessed August 14, 2007]. White House. 2006. e Federal Response to Hurricane Katrina: Lessons Learned. Washington, DC: Oce of the Assistant to the President for Homeland Security and Counterterrorism. http://www. whitehouse.gov/reports/katrina-lessons-learned [accessed August 14, 2007].

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