Wednesday, January 9, 2019

The Constitutionality of Emergency Management Policy of the US Government

In the Summer of 2013, I took a special seminar provided by a Doctoral Student University of California-Santa Barbra. The seminar was named "Political Science and Literature: Security in SciFi." This class looked at how various forms of media influenced preparedness, emergency management, and national defense policy. For my final assignment, I did a short paper where I took a unique approach and instead of just analyzing a policy, I researched the Constitutional justification behind it. Enjoy.


In his 2006 article, State Executive Lawmaking in Crisis, Jim Rossi states “Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises.” The focus of my paper concerns the constitutional scope and restraint of national preparedness by an analysis on the government report President’s Commission on Critical Infrastructure Protection as well as the scholarly article Preparing for the Next Emergency by Andrew Lakoff. These two documents are surprisingly silent or vague on Constitutional restraint and authority that allow for agencies to perform the operations they do. It is most likely left broad, vague, and ambiguous so it can encapsulate future, unknown advancements that would be made, and later become a new vulnerability as well. Preparedness seems to be advocated as needing vague and broad powers so that leaders and proper agencies can continually evolve to ensure future protection of critical infrastructure and national defense. My research turned up a few modern scholarly articles concerning this topic, but several I found came from the early to the mid-19th century during the times of the world wars, red scares, and threats from the Cold War.

I began my analysis on both documents by first searching what was seen on the surface, the actual written words. In the governmental document, the use of the word “Constitution” appears only 3-times in the entire report, and in those instances, it talks not of restraint, but in this section, it states that Constitution allows for the government intervention as ‘general welfare’ includes the protection of critical infrastructure. I also looked for any talk of “restraint” and this word appears nowhere in the document. In reading through this report, I kept noticing the use of the term “the government”, but never did it truly clarify what branch it was referring to. The term “Legislative” appears frequently throughout the document, normally in the form of agencies proposing or promoting new legislation which assists them in the performance of duties. I ran these same terms in the Lakoff article and “Constitution, restraint, and legislative” turned up zero results while “government” was scattered all over the document in different concepts, none of which discussed restraint on government action. In my analysis, I believe these documents may refer to all branches, but on most occasions, I believe they are referring to the Executive Branch of government under which the federal agencies that would be involved with preparedness fall under.

In the United States of America of all places, the view of government and its scope can be a tricky thing. Modern American political thought is often split between those who hold onto the ideals of the Founders and some who side with the more Progressive view that emerged out of the late 19th and early 20th centuries. Preparedness can be associated with the welfare state championed by the Progressives. We see a common theme between the two and that is “how much is enough?” What is that ethical and moral boundary between oppressive intrusion and, as the report points out, the responsibility of the government in ensuring “domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty?” Is there a line where the People transcend the Constitution to allow the government to have greater reign in securing the nation from that which we may not know and may not see? Do we do nothing in fear of the name tyranny or do in fear of the unknown allow tyranny to spread? The government’s report’s answer to these questions is: "No, the government cannot do enough to secure our future and that the government must be ever vigilant and ever-changing." This report makes the case that the government must be involved as even governmental services can be disrupted by a well-placed attack on our critical infrastructures. To me, this implies the report supports the idea of an ever-expanding government that is involved where it sees a vulnerability which with advancing technology could be anything that we, the citizenry or government, become dependent upon. If preparedness and progressivism is closely aligned the government would find no issue with further government expansion and intrusion into everyday life because, according to Dr. Yenor, progressives believe “necessitous men are not free men” and the more the government can do for them the freer they are. If the people are stuck worrying about preparedness in their environment they would not be free to pursue a better life and self-improvement.

Preparedness can be seen as a progressive policy or at least reliant upon progressive policy, particularly with the view of ever-evolving, changing goals and possible solutions to emerging or unknown threats is similar to the progressive’s ideology that government must constantly change and evolve with the times to better serve the people. I say this also because at the end of the Executive Summary it states, “The relationships that have stood us in such good stead through the end of the second millennium must give way to new ones better suited to the third” which Dr. Yenor explains in a mark of progressivism as they historical relativist. They don’t believe the government should be a static mechanism, but a living organism that evolves as humans do, and that we should shed past policies and take on those necessary to prosper in the future. With this report we see that it focuses on that any complacency, any static goals would be a danger to the security of the nation as our threats are continually emerging, particularly with the advancement and dependence on new technologies, when it states:
“More than any other country, we rely on a set of increasingly accessible and technologically reliable infrastructures, which in turn have a growing collective dependence on domestic and global networks. This provides great opportunity, but it also presents new vulnerabilities that can be exploited.” (4-5)
With these new vulnerabilities, we see that the government seeks to work with and intervene with the private sector to ensure some standards are met to mitigate future risks and vulnerabilities.

While the government report focuses less upon Constitutional restraints, the Commission still recognized the political concept of federalism and that preparedness must work across the jurisdictional authorities of federal, state, and local governments, as well as partnering with the private sector. The report implies that since an attack on critical infrastructure preparedness can affect multiple states and that leaving it to the States would make response ineffective that the powers should lie with the federal government who would partner with the proper local and state governments. This issue has existed since the beginning of the US and in 1966 an article by Benet Gellman pointed out the federal government “cannot do the job alone, and that it will need substantial support from the states in such an emergency. The proper relationship to be maintained between the federal government and the states under nuclear attack conditions should be carefully developed before an attack.” (pg. 439) The report states, “Government has an undeniable role in accomplishing the tasks that government alone can undertake--including law enforcement at local, state and federal levels, and national intelligence, defense, and diplomacy.” (p. 35) Even though it must work within a federalist system, the government report details that all preparedness is centered on the federal government, specifically under the direction of the Executive Branch. Lakoff’s article discussing the history of preparedness, but does point out the problems programs have faced with federal-state relations in the past. Summarized, the federal government recognizes the hurdles it must jump ensuring it doesn’t step on State sovereignty, but still doesn’t necessarily see them as viable Constitutional restraints in its preparedness policies since most threats are interstate issues.

In the analysis of the governmental and scholarly report, they speak nothing of Constitutional restraint, but as we know it is the Constitution that empowers the government to have such a wide and broad scope of power in ensuring the protection of critical infrastructures. It’s ironic that in the report it cites nothing from the Articles of the US Constitution, but rather quotes from the Preamble and then infers that general welfare refers to anything necessary to accomplish the protection of the national infrastructure. Reading through the commission’s report we see terms used to infer that legislation needs to be proposed to catch up with needed operations and ensure the best practices, but that since it is too slow to do so on its own that agencies need help drive. Due to this and the lack of definition in the Articles of the Constitution, these agencies of the government must still derive their power from the Constitution to be considered lawful and the Preamble is a part of the Constitution that spells out general powers of the government and gives them reasonable justification for their actions.

The commission’s report it speaks once of judicial review and in my research, I came upon an article that talked about the Supreme Court’s approach to deciding the constitutionality of national security policies and legislation. I couldn’t find anything that analyzed preparedness as a whole, but I still found the article intriguing because in the opening paragraph the author, Geoffrey Stone, stated “As a matter of the first principle, logic suggests that judges addressing such cases should start with a healthy dose of deference to military and executive officials.” Through this article, Mr. Stone states that the Courts in the early to mid-20th century were prone to side with the government as long as they gave sufficient reason for any intrusions on civil liberties and do so by stating case law. The article then comes to modern times where the Courts have challenged the actions of the military and Executive Branch during the War on Terror. This article discussed that early Judges may give way to the Executive as they were seen as experts in this field while another article by Norman Swazo stated the “Supreme Court has never been anxious to act as referee” in regard to Presidential powers. The single mention of this in the report came in a bullet point discussing government interaction with the private sector, but would need judicial review to ensure the public’s confidence in the government’s handling of personal information.

What I pulled from this report is that the federal government is to be considered the expert of preparedness while partnering with other entities like state governments or the private sector (i.e. infrastructure owners) that are less capable to protect, mitigate, respond, and recover from an attack than the federal government is. In following the suggestions of the commission’s report, it would be the government who came up with the standard by which critical infrastructure would be identified and proper preparedness policies were put in place. This broad power would leave the government with the authority of intervening in the private sector. In looking at this report the Commission deems that it is following the Constitution as the common defense would require the securing and protection of critical infrastructures. It also is not worried about the legality of it all as it infers that the experts and necessary agencies should drive legislation that would be needed. Again, this is most likely due to the fact that the government relies upon vague and general language so that the government may evolve as needed to mitigate the threat, protect vulnerabilities, and prepare for the future and unknown.

Rather than talking about the Constitutionality of preparedness, this report talks about legal hurdles it faces particularly outdated or poorly written laws that will hinder federal agencies in their operations. This report argues that agencies should help drive legislation to further assist them in their own operations. From the language used in the government document, it appears this commission infers that the Legislature is incapable of keeping up with the proper laws so federal agencies need to help drive the creation of necessary laws. According to Woodrow Wilson, the President needs assistance in the execution of laws, but as the President has evolved so should the cabinet and departments that assist him. Wilson is considered the father of public administration, sometimes referred to today as the bureaucracy that he saw as the government inaction, specifically the federal agencies under the Executive Branch. Wilson made the following quote in regard to politics versus the administration, “Politics is thus the special province of the statesman, administration of the technical official.” “Policy does nothing without the aid of administration”; but the administration is not therefore politics.” (pg. 7) Wilson led the way by advancing the need for a body within the government that would rule by wisdom, science, and expertise rather than possible misguided political ideologies.

The report recognizes the sovereignty of the private sector, but states they have a responsibility to partner and share with the government what is needed to secure our nation. The report recognizes the legitimate concerns over the issue of confidentiality, protecting private information, and other concerns, but states that “security considerations justify limited exemptions from these restrictions.” (pg. 87) In reading this report it continually states that private information should be protected, but from non-government outsiders. Obviously, it never makes the case that information may be abused by the government itself. Nothing from the government document alludes to the possibility of government abuse of private information and, in keeping with the previous discussion of progressive ideology and its ties to preparedness, progressives believe that a man is capable of moving past tyrannical government. As FDR stated in his 1932 Commonwealth Club Address, “The day of enlightened administration has come.” (pg. 8)

The government report also seems intentionally broad on discussing critical infrastructures and new vulnerabilities as well as shared threats. During class, we were asked what was left out, but we could infer most services, technologies, and capabilities could be categorized under those named in the report, so nothing was truly left out of the commission’s report. It is most likely left broad, vague, and ambiguous so it can encapsulate future, unknown advancements that would be made, and later become a new vulnerability as well. Preparedness seems to be advocated as needing vague and broad powers so that leaders and proper agencies can continually evolve to ensure future protection of critical infrastructure and national defense. It seems to be a slippery slope they walk upon using such vague language and the report speaking of just the Preamble of the US Constitution, but it seems to be the best-case scenario as they point out laws are inadequate, and the Constitution does not define their specific powers, nor does it forbid it.


1. Gellman, Benet D. "Planning for a National Nuclear Emergency: The Organization of Government and Federal-State Relations." Virginia Law Review (Virginia Law Review,) 52, no. 3 (April 1966): 435-462. 

2. Lakoff, Andrew. "Preparing for the Next Emergency." Public Culture 19, no. 2 (Spring 2007): 247-271. 

3. Marsh, Robert T. "Critical Foundations: Protecting America’s Infrastructures." President’s Commission on Critical Infrastructure Protection, Washington DC, 1997. 

4. Stone, Geoffrey R. "National Security v. Civil Liberties." California Law Review (California Law Review, Inc.) 95, no. 6 (December 2007): 2203-2212. 

5. Roosevelt, Franklin D. “Commonwealth Club Address.” 1932. 

6. "The Duty of Congress to Check the President's Prerogative in National Security Policy." International Journal on World Peace (Professors World Peace Academy) 21, no. 4 (December 2004): 21-62. 

7. Wilson, Woodrow. The Study of Administration. Princeton, 1886.

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