On Political Books

January/ February 2013 Did Hurricane Sandy Save Obamacare?

How disaster relief justifies the welfare state.

By Dan Farber

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

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

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Dan Farber teaches environmental and constitutional law at the University of California, Berkeley.