BerkeleyLaw Library

Transcript of a Brookings panel discussion of the response to Hurricane Katrina.

"The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.

"How far can the U.S. go in forcing reluctant civilians to perform essential jobs during a national emergency? I explore solutions to this question by hypothesizing a large release of radiation - whether by terror attack, or catastrophic accident, or major earthquake - in a vital Pacific port. These ports have a history of work stoppages that disrupt the nation's economy. I examine federal government responses if dock workers refused assignments until conditions were safe: (1) The President could declare a national emergency labor dispute under the Taft-Hartley Act, and seek an 80-day back-to-work injunction. (2) Congress could re-enact Section 8 of the War Labor Disputes Act, making it unlawful for dock workers to discontinue production for 30 days and subjecting violators to coercive damages. (3) The president could issue strong executive orders, backed by imprisonment, that regulate employment in ports.

"At the heart of my analysis, I ask: Would any of these responses violate the Thirteenth Amendment ban on involuntary servitude? Congress and the judiciary have broadened this law, and its enforcement counterpart in 18 U.S.C. ? 1584, beyond the abolition of African slave-holding. The Supreme Court in Kozminski defined involuntary servitude as forcing a person to work by physical or legal coercion.

"But the Supreme Court created 13th Amendment exceptions for transportation work. Robertson upholds a law that bars merchant seamen from quitting work, and imprisons deserters. Butler permits states to conscript citizens to work on highways, on pain of imprisonment. Dock work is similar because ports integrate ships and trucks in a transportation hub. Courts now apply these precedents to new compulsory activities, such as mandatory public service for graduation. Moreover, Kozminski reaffirmed Robertson and Butler as precedents.

"Thus, the Constitution would be unlikely to shield dock workers from involuntary labor. This has troubling implications for employees who have recently worked in national emergencies, and may do so again. Employees who work to alleviate avian flu or other catastrophic health threats are also at risk for compulsory labor that exposes them to extraordinary hazards.

"I conclude with a legislative proposal to strengthen individual rights. As my research shows, courts that are presented with national emergency disputes rarely side with the individual who stands in the way of the public's welfare. Without a more balanced labor policy to address emerging crises, the nation may realize belatedly that when we allow fundamental freedoms to be sacrificed in the name of real or perceived emergency, we invariably come to regret it." —Abstract.

"The article is a critique of the U.S. government's response to regional recovery following Hurricane Katrina, coupled with an argument that policies based on international standards would better serve the hurricane-stricken area. The author contends that part of the problem is that the legal framework for disaster relief, the federal Stafford Act, is insufficient for shaping recovery for catastrophic humanitarian crises that overwhelm state and local governments. Because the Act calls only for discretionary, intermittent federal efforts, and shields such efforts with broad legal immunity, it is a prescription for the sluggish and ineffective governmental action that has hamstrung the Gulf region's recovery.

"The author maintains that what is needed is a comprehensive recovery program akin to the post World War II Marshall Plan. International standards for humanitarian responses to disaster, specifically the United Nations Guiding Principles on Internal Displacement, serve as a policy framework for such a program. The Principles allow for recognition that a crisis on the scale of Katrina calls for a more robust, centralized, federally-led response that addresses the scope of the problem and the interdependency of its many facets.

"The article has five parts. First is an analysis of the situation in the region, focusing on the New Orleans area. Here the author identifies three categories of problems - the problem of return and rebuilding, focusing on private property and civic infrastructure; the problem of security, focusing on flood protection, levees, and wetlands; and the problem of government, focusing on inefficiency, incompetence and inadequate resource allocation.

"The article's second part analyzes the problem in the law. The Stafford Act is reviewed and judicial criticisms discussed. Part three of the article reviews the specific provisions of the Guiding Principles that apply to the Gulf Coast. The author considers the legal status of the Principles, concluding that while certain of the principles may be evolving into customary international law, they are not legally binding but rather intended as a general policy framework.

"In the fourth part of the article, the author recommends the following sixteen point "Marshall Plan for the Gulf" based on the Principles: 1. The federal government will assume primary responsibility for an integrated recovery effort. 2. All persons displaced or injured by the disaster have recovery rights. 3. Displaced persons willing to return have a right to return and their displacement will end as soon as possible. 4. Living conditions will be established that are materially sufficient to allow persons to return and remain. 5. The government will assist persons whose homes are recoverable to repair and rebuild, and must ensure access to decent and affordable housing. 6. Comprehensive, reliable flood protection measures will be taken, including strengthened levees and coastal wetlands. 7. Ineffective bureaucracies will be replaced by streamlined, efficient, effective and easily understood administrative processes for relief and recovery. 8. The military will be deployed for debris removal and rebuilding. 9. Personal property and possessions will be protected and disaster victims will be reasonably compensated for losses. 10. Gulf Coast residents will have access to health care. 11. The government will reopen schools and take other measures to ensure education for all children in stricken communities. 12. The government will take steps to increase economic opportunities in stricken areas, such as partnerships, incentives and assistance for businesses which reopen or locate in the region. 13. The right of evacuees to participate in politics and civic life must be ensured. 14. Storm victims will be included in recovery planning. 15. Anti-discrimination measures will be enforced to ensure that the disaster and recovery do not have a discriminatory effect. 16. The special needs of at risk groups will be met.

"In the fifth part of the article, the author posits that U.S. adoption of the Principles as the basis for international disaster recovery efforts forms a moral and political basis for their domestic application in the Gulf. This is demonstrated by formal U.S. policy promoting the Principles as well as actual U.S. implementation of the Principles in Iraq and in response to the 2004 tsunamis." —Abstract.

"The Department of Justice is committed to working in partnership with state and local law enforcement and communities to combat violent crime. As part of this effort, the Department has allocated additional resources to New Orleans following Hurricane Katrina."

"Since its inception in 1995, the EMAC network has grown significantly in size, volume, and the type of resources it provides. EMAC's membership has increased from a handful of states in 1995 to 52 states and territories today, and EMAC members have used the compact to obtain support for several types of disasters including hurricanes, floods, and the September 11, 2001 terrorist attacks. The volume and variety of resources states have requested under EMAC have also grown significantly. For example, after the September 11, 2001 terrorist attacks, New York requested 26 support staff under EMAC to assist in emergency management operations; whereas, in response to the 2005 Gulf Coast hurricanes, approximately 66,000 personnel—about 46,500 National Guard and 19,500 civilian responders— were deployed under EMAC from a wide variety of specialties, most of whom went to areas directly impacted by the storms.

"While the EMAC network has developed a basic administrative capacity,opportunities exist for it to further build on and sustain these efforts. The EMAC network has adopted several good management practices, such as using after-action reports to learn from experiences and developing a 5-year strategic plan. However, the EMAC network can enhance its administrative capacity by improving how it plans, measures, and reports on its performance. FEMA provided $2 million to help build this capacity in 2003, but the agreement has recently expired. FEMA and EMAC leadership are in the process of finalizing a new 3-year cooperative agreement. Such an agreement would enhance the EMAC network's ability to support its collaborative efforts." —What the GAO found.