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Court wrongly usurps power to shift flood damage blame

Several interesting ramifications emerge from the decision by U.S. District Court Judge Stanwood Duval to award some plaintiffs damages, against the U.S. Army Corps of Engineers, who argued improper maintenance of the now-closed Mississippi River-Gulf Outlet channel made the government liable for destructions from flooding incident to Hurricane Katrina in 2005.

First, this is an exercise in raw judicial activism. By its nature, judicial activism, which mandates that judges use their own judicial philosophies in saying what the law and Constitution mean rather than confining themselves to the meanings found strictly within the laws or Constitution, places democratically unaccountable and inexpert individuals – judges – in the role of policy-makers. It ignores the possibility that more expertise in policy matters may be found among democratically elected and accountable officials than those who are not.

From this extends three implications. One, this decisions means a policy-maker without expertise is making a policy decision that requires it, making questionable the value of such a decision. So be it, but that also would apply to (most) members of Congress who are democratically accountable because they made the original policy decision to fund projects like MR-GO, so what’s the difference in making their policy-making decisions legitimate? Well, two, precisely because they are held accountable for their decisions through elections and the Constitution explicitly lists policy-making (by giving Congress sole lawmaking power) as a function of this branch of government, which it significantly withholds from the judiciary, So, third, since this really was a matter of policy, unless it can be proven Congress itself deliberately wanted to underfund the Corps in these matters, to design MR-GO intentionally to cause flooding, etc., with the intent of triggering disaster, you cannot argue, as Duval does, that this is more than just an honest policy mistake made by Congress through its implementation by the Corps. Not only that, but the court should not have the power in the first place to render such a judgment.

Second, whether this decision holds up is questionable. Specifically, Duval as a jurist has a history of creativity in his decisions that assigns government all sorts of sinister motives upon which higher courts have frowned. For example, years ago Duval ordered the state to stop its efforts to produce a “Choose Life” vanity license plate because he claimed it promoted private speech. That view eventually was rejected by both the U.S. 5th Circuit Court of Appeals and Supreme Court. In addition, judges are human and being that the case was tried in New Orleans, judges located in different areas that make up the 5th Circuit might have less emotion clouding their decisions, and certainly that would be the case at the Supreme Court level. In other words, higher courts likely are to take a less expansive view of government responsibility and with greater clarity decide the case than did Duval.

Third … that is, if the case is appealed which would pose a political problem for Pres. Barack Obama and his party leadership that controls, for now, the Democrat Congress. Obama and Democrats ran on the unsustainable notion that somehow the city and state were “neglected” by former Pres. George W. Bush and a Congress at the time of the disaster controlled by Republicans, despite the hundreds of billions of dollars that poured into the state which mostly went to the New Orleans area. If the Obama Administration challenges this decision because the federal government could be on the hook for billions of dollars at a time when Obama and Democrats are engaged in deficit spending well beyond levels in any peacetime period in the country’s history and are getting politically pounded for it, this will make him look (on yet another matter) mendacious and no different from the (mistaken) impression of the Bush Administration.

Fourth, the decision also ratifies the abrogation of personal responsibility and the socialization of risk. Chances are, none of these plaintiffs or others lined up to sue the federal government had any flood insurance. While it is unfortunate that so much suffering came as a result of the disasters, a little common sense would have helped out on the back end of it: if you live below sea level, no matter how supposedly invulnerable your levees are, you buy flood insurance (and it’s cheap, too because, guess what, taxpayers from all over the country, few of whom live in flood zones, at present heavily subsidize it). Had many people living in the areas below sea level not bought flood insurance, there would have been no need to go suing the government to collect money to rebuild. The only reason they shouldn’t be held accountable for a bad choice that they expect others to pay for was the federal government was too stupid to use common sense itself in drawing up flood maps that didn’t order most people having mortgaged property to buy it.

Fifth, even if we buy the argument that the federal government is responsible, to foist the entire blame on it ignores the historical record. The state and some local governments have more culpability in creating these conditions, yet none of that appears to be taken into consideration adequately in assigning sole responsibility to the federal government.

Finally, if the decision were to stand, how would this affect the state’s efforts in compensating for losses? Probably most of the people eligible to sue if this decision held took advantage of and got state money to rebuild. Does the award, or at least some portion of it, flow to the state to reimburse it? How much goes additionally to plaintiffs? This would create a bureaucratic and expensive nightmare, to be borne by the state in terms of aggravation and the national taxpayer in terms of administrative costs beyond their money going for compensation.

Hopefully, higher courts will have a better understanding of the issues and the judiciary’s place in our system of government and overturn this ruling. That may inconvenience some, but maintaining the integrity inherent to notions of who is accountable and responsible and which part of government is intellectually able and constitutionally authorized to make such decisions makes that worth it.

1 comment:

Anonymous said...

Read Central Green from 2001. Duval will be overruled. Immunity attaches to the character of the water and the reasons for its release, not to the character of the project. MRGO being being a navigation project instead of a flood project is irrelevant. The levee that failed was a flood control project and it failed from a flood. Game, set, and match.