What FEMA Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism
55 Pages Posted: 22 Jan 2019
Date Written: January 18, 2019
The 200th anniversary of the 1819 Supreme Court decision McCulloch v. Maryland offers scholars a special opportunity to study the shortcomings of the federal The Robert T. Stafford Disaster Relief and Emergency Assistance Act, as they were revealed by FEMA’s failures in Puerto Rico during and after Hurricane Maria. Under Article I, Section 8 of the Constitution, as it has been interpreted by McCulloch, a law passed by Congress must be necessary and proper for executing its powers. In light of the expansive capacities allotted for disaster relief under the Stafford Act, and the catastrophic failure of FEMA to provide meaningful aid to vulnerable populations in Puerto Rico in the Fall of 2017, scholars of race and class justice are faced with a melancholy-inducing reminder: Even a well-drafted law passed by Congress for the betterment of the general welfare may be “necessary,” but not rise to the level of “proper.” Meaningfully, the test for propriety here grows out of by McCulloch’s demand that laws cohere to the “letter and spirit” of the Constitution, as well as anti-subordination interpretations of the Fifth and Fourteenth Amendments that require equal protection to be pursued in light of the lived experience of vulnerable and minority populations.
Why is the Stafford Act improper under anti-subordination principles? Though the Stafford Act enables the marshaling of immense federal powers to come to the succor of U.S. disaster victims and forbids discriminatory allotment of aid relief, it was not able to ensure that the territory of Puerto Rico received help that was equal to that experienced by citizens in Houston and Florida during the September 2017 hurricane season. This failure came about because the Stafford Act failed to provide sufficient instruction or direction in how to implement the act in ways conscious of race, class, age, and physical ability difference.
In this paper, I study evidence of the Stafford Act’s raced, disablist, and classed impropriety, but (unsurprisingly) pull away from any suggestion that it should be struck down under Article I or the test created McCulloch v. Maryland. Instead, I argue that the propriety of the law – that is, its future execution in light of the demands of race, disability, and class justice in disaster situations – will require that FEMA embrace its role as an equal distributor of disaster aid under the Stafford Act. In so doing, I maintain that FEMA agents should embrace what scholars such as Gillian Metzger, Sophia Z. Lee, and Karen Tani describe as “administrative constitutionalism,” and “constitutional norm entrepreneurship.” FEMA agents may do so by recognizing that they cannot distribute equal protection of the Stafford Act without recognizing victims’ race, gender, ability, and class differences, otherwise described as “intersectionality” by critical race scholar Kimberlé Crenshaw.
In this paper, I draw upon the work of administrative constitutionalists such as Metzger, Tani, and Lee, as well as that of William Eskridge and John Ferejohn. In my encouragement of joining administrative constitutionalism with anti-subordination critical theories, I use the term “critical administrative constitutionalism” and argue that FEMA’s adoption of this ethic is necessary if future execution of the Stafford Act is ever to be truly proper.
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