Hi Folks, Re the "national purpose" restriction on the Spending power -
Why aren't the aggregate interstate economic effects of uncompensated losses from natural disasters sufficient to bring the case within the Spending power's general welfare clause? Does there have to be a federal governmental (mismanagement) or state incompetency (federal government is a better insurer than states) basis for the exercise of the Spending power - Doesn't the spending clause power extend to areas where there is a national, for lack of a better word, "police power" interest in favoring or disfavoring certain activity. Congress isn't limited to activity within its enumerated powers, and so far, the Court has not extended the Lopez/Morrison "state perogative" analysis to Spending Clause - so why wouldn't a national interest in protecting interstate economy be enough. An example is the recent American Library case where the court upheld the library filtering law under the Spending clause. Although the law regulated internet access - which is an instrumentality of interstate commerce, would the law have been any less within in the spending power if Congress had required states to pass laws prohibiting for example, the simple delivery to children of obsence materials? It may be a bad idea for the federal government to compensate folks for losses that come from voluntarily living in an uninsurable fire or flood zone. But is it unconstitutional for government to decide otherwise? yb ********************************************* Professor Yvette M. Barksdale Associate Professor of Law The John Marshall Law School 315 S. Plymouth Ct. Chicago, IL 60604 (312) 427-2737 (email:) [EMAIL PROTECTED] ***************************************************** > ---------- > From: Frank Cross[SMTP:[EMAIL PROTECTED] > Reply To: Discussion list for con law professors > Sent: Friday, October 31, 2003 12:05 PM > To: [EMAIL PROTECTED] > Subject: Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION > > Anyone else think this mismanagement theory would be limitless? > A lot of spending could be justified with claims of the "mismanagement" of > immigration policy. Or just mismanagement of monetary and fiscal policy. No? > > > At 12:42 PM 10/31/2003 -0500, you wrote: > >The balancing of disaster relief with federal land mismanagement has a > >certain theoretical appeal, but it makes two presumptions that are rather > >heroic. First, it posits that we can identify "mismanagement" which is the > >proximate cause of the costs of the disasters. Mismanagement is > >notoriously difficult to identify, and much of what some describe as > >mismanagement is defended by others as necessary to retain the value of the > >ecosystem services on the affected land. Second, the mismanagement label > >could be affixed to all sorts of government actions for which private > >parties then seek disaster relief, including "the loss of homes in > >floodplains due to foreseeable acts of nature." The extent of federal > >control of river flows by the operations of the Army Corps of Engineers > >could be said to contribute to flooding in the precisely the same way that > >the USFS and BLM land management decisions allegedly contributed to the > >scope of the destructive fires. > > > >At 10:15 AM 10/31/2003 -0500, you wrote: > >>I'm not suggesting a legal remedy that California could pursue in court. I > >>am suggesting is that assuming the provision of national forests, BLM lands, > >>and the like serves the general welfare, then it would seem that > >>compensating local communities for the costs of mismanagement would simply > >>be part of the cost of providing the public goods in question. Thus, > >>disaster relief in this instance could serves the general welfare in a > >>manner that, say, compensating landowners for the loss of homes in> > >>floodplains due to foreseeable acts of nature would not. > >> > >>JHA > >> > >>------- > >>Jonathan H. Adler > >>Assistant Professor of Law > >>Case Western Reserve University School of Law > >>11075 East Boulevard > >>Cleveland, OH 44106 > >>ph) 216-368-2535 > >>[EMAIL PROTECTED] > >> > >> > >> > >>-----Original Message----- > >>From: Discussion list for con law professors > >>[mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson > >>Sent: Thursday, October 30, 2003 5:24 PM > >>To: [EMAIL PROTECTED] > >>Subject: Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION > >> > >> > >>Jonathan Adler writes: > >> > >>At 03:13 PM 10/30/2003, you wrote: > >> >Insofar as a plausible case could be made that federal (mis)management of > >> >federal lands (national forests, BLM forests, etc.) and federal > >>restrictions > >> >on land-use under various environmental statutes (such as the Endangered > >> >Species Act) contributed to the severity of the fires, could not one then > >> >argue that there is a basis for federal assistance? > >> > > >> >I am not saying that such a demonstration could be made in this case. > >>While > >> >there is clear evidence either or both factors played a role with various > >> >fires in prior years, I do not know of any conclusive evidence in this > >>case. > >> >My only suggestion is that insofar as one could demonstrate some level of > >> >federal culpability in the disaster, would not there also be a > >>justification > >> >for federal compensation? > >> > >>What this reminds me of is Brennan's dissent in DeShaney. I.e., he's > >>unwilling to junk the whole "state action" analysis and instead claims that > >>Wisconsin is "really" responsible for "Poor Joshua." Assuming no > >>sovereign immunity, what result if California sues the United States for > >>"mismanaging" the forests and otherwise restricting California in its > >>efforts to fight forest fires? > >> > >>sandy > > > >John Copeland Nagle > >Professor of Law > >Notre Dame Law School > >Notre Dame, IN 46556 > >(574) 631-9407 > >(574) 631-8078 (fax) > > Frank Cross > Herbert D. Kelleher Centennial Professor of Business Law > CBA 5.202 > University of Texas at Austin > Austin, TX 78712 >
