Podcast with Andrew Hammond: On Fires, Floods, and Federalism

This podcast episode accompanies the article from Professor Andrew Hammond: On Fires, Floods, and Federalism.

Transcript

SPEAKERS

Georgiana Soo, Andrew Hammond

00:00

Americans have long persevered in the face of the national welfare system's inadequacies. But when a new challenge like climate change emerges, how can the United States adapt its welfare programs to assist its people? 

00:18

My name is Georgiana Soo, and you're listening to the California Law Review podcast. Our goal is to provide an accessible and thought-provoking overview of the scholarship we publish. In today's episode, we will be discussing On Fires, Floods and Federalism, an article by Indiana University Maurer School of Law Professor Andrew Hammond. Professor Hammond's article was published in Issue 4, Volume 111 in August of 2023. Professor Hammond, thank you so much for taking the time to talk with me today about your article.

00:57

Happy to speak with you Georgiana.

01:00

Can you summarize your main arguments in this piece?

01:04

Sure thing. So the federal government in the United States relies on states and territories and tribes to administer and sometimes finance basic assistance. What that means is that if you're poor in the US, where you live often determines whether you can access that assistance. And this kind of cooperative and fiscal federalism that's written into our federal law really impairs our government's ability to respond to climate disasters. As I show in the article, assistance is often delayed and it fails to reach the people most in need. And that's a huge problem for social policy in the United States. Because we're going to see more intense and more frequent fires, floods, and hurricanes. Just to like give you a few examples, 13 of the 20 most destructive fires in California, where you live, have occurred in the last five years. And I talked about these three category four hurricanes that made landfall in the US in one month in 2017. Before that, only one category four hurricane hit the continental United States ever. And as you and I just experienced, right, like last month, July 2023, was the hottest month ever recorded.

02:20

I'm curious, what motivated you to write this article?

02:24

Sure, motivation's a funny thing. I think I have like a very long answer to that question. But I'll give you the short version, which is that, for many years, I've really been focuseing my research on how the United States responds to the claims of poor people. And that research includes looking at federal and state agencies, and federal and state courts. But it also means identifying broader trends that are going to shape how our legal institutions respond to poor people's claims. And in my mind, climate change, or what I think is really, at this point, more accurately referred to as the climate crisis, is really going to continue to reshape all aspects of our legal system, including those that people living in poverty are most likely to encounter, like welfare agencies.

03:14

Great. So let's dive into the article. Early on in the article you sort of discussed with the American welfare system is like today, and then you know, some of its key features. Can you outline these features for listeners?

03:28

Yeah, well, I've talked about the federalism point already. But I'm happy to kind of talk about other aspects. And I frankly, think there are a lot of misconceptions on this score. I mean, the United States actually does distribute a lot of its wealth through the tax code and social programs. It's just that we do that through things like the home mortgage interest deduction, and we subsidize health care and retirement through employers. Those policies benefit middle income and wealthy households, not poor people, though. And while the US has made, you know, I think significant progress in reducing poverty, it's chiefly been for senior citizens through Social Security and Medicare. As I talked about, in the paper, like we do have a few programs that serve huge swaths of the US population. The two that I think we should focus on are SNAP and Medicaid. You know, when I teach Poverty Law, some of my students are surprised when they learned that Medicaid pays for half the births in the US, and that one in eight people receive assistance through SNAP, what used to be known as the food stamp program. But frankly, a lot of my students aren't surprised because their families have relied on those programs at some point in their lives. You know, by the time I think Americans reach the age of 35, close to a third of them will have experienced poverty at some point in their lives. And by 55, I think it's closer to half. I'm not saying my students offer like a representative national sample, but I do think that the prevalence of Americans experiencing poverty in their lifetimes, you know, in childhood and adulthood is far more common than than one might think. And economists and sociologists have shown us that SNAP and Medicaid and the earned income tax credit as well have profound anti poverty impacts in the short term, and over the life course. So, you know, the American welfare state exists. It subsidizes middle income and wealthy folks, it does reduce poverty among American citizens, and even some non citizens, but it's targeted and kind of different in different ways.

05:34

And further, in the article, you mentioned that it's really important for us to understand the "historical, doctrinal, and demographic backdrop of impoverished Americans." This would better help us analyze the impact of the climate crisis on poor Americans. Can you briefly summarize what this backdrop looks like?

05:54

Okay, that's pretty hard to do. I think that like that could swallow up the podcast, or maybe we could do multiple podcasts. And it might reflect some unartful phrasing on my part in the paper. But let me just highlight some aspects of the kind of context. First, you know, the Supreme Court has interpreted the Constitution as lacking rights to basic assistance to education and to health care. But Congress has tried to create national floors for access to those kinds of public goods. I think the most recent or most prominent example would be the Medicaid expansion through President Obama's signature legislation, the Affordable Care Act. But as you probably know, because you're in law school, in NFIB versus Sebelius, or Sebelius, the Supreme Court struck down that provision as impermissibly coercing states, even though the federal government would effectively pay for the entire Medicaid expansion. And so when I say like the kind of doctrinal backdrop, what I'm trying to get readers to understand is that like, that's why the state we're in is the state where you live when it comes to the American welfare state. So you know, one in 33 people in Massachusetts lack health insurance. Like where you're at in California, Georgiana, it's one in 11. But in Texas, one in five people lack health insurance, and that federalism encodes a kind of gendered and racial hierarchy. So I'm thinking of the work of political scientists, Jamila Michener, that, you know, a lot of the states that have refused to expand Medicaid are in the southeast and kind of have a history of, of racial discrimination and subjugation. I should say, though, that like, you know, you can try and tell us a story of red states and blue states, I think that gets complicated once you start looking at individual programs. But also no state in the country can create a robust safety net for poor people, or like what I would think of as a kind of social democratic safety net, because every state except Vermont has to balance their budgets and counter cyclical programs and balanced budgets don't mix, you know, precisely when government needs to expand access to unemployment insurance, or health insurance or food assistance is precisely when they're, they're experiencing falling revenues, right. So the government's kind of taking in less in, in revenue, and they also have to spend more. And so because states lose revenue in recessions, they're not actually well suited as governmental units, to expand to expand access. So I think at some level, there's a kind of structural ceiling as to what individual states in the United States can do for poor people.

08:47

You've sort of outlined for us now what the welfare state looks like, and given the historical and current state of it, what sort of policies can we expect to come into play as disaster assistance, given the climate crisis? And what sort of impact can we expect climate change to have on poor Americans under this current welfare framework?

09:07

Yeah, so I, I would say this is like a big part of my article, or I think a major contribution of the paper is that in part two, I explained how a lot of the programs we think of as welfare programs or anti poverty programs or safety net programs, whatever you want to call them, including the ones I've already mentioned, have some disaster component or provision. The part part two of the article probably goes into more technical detail than you might want to know. But I think it's important to understand the ins and outs, so the relevant statutes and regs and and they have a real impact. I mentioned that 2017 hurricane season. In the wake of those disasters over 3 million households in Texas, Florida, and the US Virgin Islands received food assistance through what we call D snap or disaster snap or expert I did snap or replacement benefits so that the US Department of Agriculture working with the state government in Texas, the state government in Florida and the territorial government, the US Virgin Islands, delivered a lot of food assistance to a lot of Americans. D SNAP recipients typically received one month of benefits. But the federal government's often approved longer benefit periods, including those 2017 storms I mentioned. So part of what I'm trying to do in this article is to just show the reader and policymakers that the welfare state and welfare programs are already part of our disaster response or disaster relief in this country.

10:42

Now, I want to move on to another part of your article. You talk about the role of Congress, and it's a common observation that Congress has grown increasingly polarized over the past two decades. I wrote my senior thesis on this. And it's just been something that's a, you know, a big conversation point now. And you argue that Congress's inability to compromise impedes present day disaster relief, which obviously has a direct influence on the way we respond to the more dangerous aspects of climate change. So can you describe for us why this trend of congressional deadlock is so dangerous to Americans?

11:20

Yeah, I'm glad you brought up our kind of increasingly polarized politics, both, you know, in states and communities, but also in, in DC itself. I think it's important to remember that, you know, the political science suggests that there is a kind of asymmetric political polarization happening in political elites, and maybe just among voters and quote unquote, ordinary Americans, it is true that Democrats have moved farther to the left, both in Congress and in the country. But that kind of polarization on the left is outstripped by the extreme polarization on the right, right. And also, it's important to keep in mind that how this works in Congress is it doesn't just matter, that there's polarization, it also matters that we have a super majoritarian by camera list. national legislature, right, so like, because of the way the Senate works, and requires super majorities to do the vast majority of its business. That that's what makes political polarization the inability to find common ground, engage in bipartisan lawmaking is so challenging. I will say, though, that I tried to supplement that focus on polarization, which with a political science literature, which I think is less well known, which has to do with like lawmaking capacity. So I point out in the paper, you know, members of Congress spend fewer days in session than they used to when they're on the hill, they actually spend more and more time fundraising. They routinely skip committee committee meetings. And their staffs are smaller than they were 50 years ago, I found a statistic that showed that Congress that sorry, the corporations spend more money lobbying Congress and taxpayers spend to fund Congress and congressional staff and even the staff that are there routinely leave for more lucrative jobs in the lobbying industry, so called K Street, where a lot of the firm's are located in DC, but also like members of Congress leave office to lobby Congress. I think, in the paper, I cite to a source that documents that more than half of the members of Congress who have left office after 2010. Now lobby Congress. And I think that lack of kind of lawmaking capacity and know how has implications for disaster appropriations. Obviously, you can look at budget resolutions from last few years. You can look or the lack thereof, you can look at the government shutdowns. But for the climate in the climate context, you know, following the 2010 midterm elections, congressional Republicans began insisting on budget offsets for any Disaster Relief Appropriations. And I think that explains why like after superstorm Sandy in 2013, Congress took a long time to pass an appropriations bill for New York and New Jersey and Connecticut, even though you know, after 911, it only took them seven days for an emergency appropriation I think for Hurricane Katrina, it lasted 10. It took 10 days for Congress to act for Sandy. It took Congress 91 days. And I also point out like the water crisis in Flint, Michigan, it's that appropriations bill stalled in the house for over 18 months. And I think the Congress's inability to enact disaster relief in 2018 is kind of harbinger of things to come. So let me just walk you through that. Basically, what happens is Congress in the fall of 2017, made initial disaster appropriations for floor or for the US Virgin Islands for Texas for Puerto Rico, following those storms I mentioned, then hurricane Maria strikes Puerto Rico. Later that month in September, Maria, if you recall, it's the strongest storm to ever hit Puerto Rico, it knocked out the entire power grid. Congress makes another appropriation in February of 2018. But it's pretty clear both on Capitol Hill and certainly in Puerto Rico, they're going to need a supplemental appropriation. But the legislation went nowhere for months. But the disasters keep coming. Like there's a the first category five hurricane hits the US hurricane Michael, that really damages the panhandle area in Florida. And then California has the most destructive wildfire season on record, at least. And I'm quoting here from the state's forestry agency, like think of the campfire, which has now been outstripped by the horrible fires in Maui, in Hawaii. But, you know, despite all of these disasters happening, there's a government shutdown last 35 days, it's the longest government shutdown in US history. And then it takes another four months for that, that 2018 disaster appropriations to finally become law. So so that means that Puerto Rico had to wait over a year, California had to wait several months. And I think I quote, Mitch McConnell, in the article, he says something like, I think I'm correct that this is the longest time it's take. Yeah, it's the longest Congress has ever taken to address a disaster. And that's what really kind of keeps me up at night, is whether or not Congress is going to be able to function as we have, you know, these bigger, more frequent fires these bigger and more frequent floods and storms.

16:50

Right. I mean, we've spent a lot of time talking about Congress, and rightfully so. But you've alluded also to the fact that this is also a state issue and a local government issue. And so I'm curious what kind of problems arise in state agencies and local governments responses to disasters?

17:08

Sure, yeah. So the in the article, I document a bunch of examples, I think it is important to keep in mind that like, even if Congress kind of got its act together, and disaster approved appropriations, it looks like they're still delays that occur at the state level. So like, following the the campfire in the other fires in California, California had a tough time getting D snap assistance available. You know, quickly, and in fact, like a lot of the D snap assistance started getting to Californians after many of the state's disaster centers, were beginning to close. The way disaster relief works in the United States is that dates have to states and localities have to basically create an infrastructure to distribute basic assistance after the disaster. But of course, like it's hard to find physical infrastructure, and like government, workers, in the wake of those fires and floods. So like I mentioned the hurricanes in 2017. Both Florida and Texas had a really tough time. Delivering D snap in person, the federal regs require that people plot apply in person for disaster food assistance. And so what happened is that like in Texas, people reportedly waited in line for seven or eight hours to apply for benefits. In Miami, 50,000, people lined up at a park on a single day. And at another D snap site in Florida. So many people in line collapsed from heat exhaustion, that police had to shut down the site. And if you've lived through a hurricane, you know that it can often get very warm once the once the storms move through. And I think these failures are emblematic, both of like a federal regulatory regime that insists on state and local institutions like constructing a benefit access system, essentially overnight. And also kind of emblematic of like, how challenging it is for institutions that have themselves experienced destruction to then kind of turn around and distribute aid. The other thing I want to just center foreground here is that if you're going to insist that people show up in person and stand in line to receive benefits, you got to think about who cannot stand in line. Right. So New Yorkers with disabilities, after Sandy sued the New York State Government in New York City, but alleging that they had violated federal and state disability law because they basically made it impossible for people with disabilities to file to file you In person applications, New York, basically only created one full time site, it was in Brooklyn, and they had a satellite site on Staten Island. And if you have friends or family, or people you know, who have mobility issues, it's not actually that easy to get around New York. And so that's why we see this litigation popping up.

20:28

Right. And so then your article goes on to address some solutions, and you offer a couple. But before you reference that, you also talk about a so-called inside-outside fallacy argument that critiques the various solutions you offer. And in essence, as far as I understand this critique, it sort of claims that arguments like yours offer deeply pessimistic accounts of the "ambitious, partisan, or self-interested motives of relevant actors and the legal system, only to then turn around and issue an optimistic proposal for a public spirited solution." So that's a mouthful, but can you explain why your article isn't as this sort of critique describes?

21:09

Yeah, I just want to kind of make sure we identify who came up with this kind of argument. So this is from Eric and Eric Posner, and Adrian for meals article. And they're really kind of leveling this criticism at a lot of public law scholarship that kind of critiques the status quo and critiques like Congress's ability to act. And then later in the paper, they say Congress needs to act. And so you kind of feels like the arguments don't hang together. I don't think that that critique is particularly persuasive of my article, because I think what I'm trying to show is that I think policymaking on climate adaptation is actually going to align, you're starting to align with how Congress operates. So David Mayhew, famously wrote about how Congress in his book Congress and electoral connection, I think that's what it's called, says that members of Congress are single minded reelection seekers, they just want to get reelected, even if they have kind of policy agendas, or other interests, it all runs through their ability to get elected again. And again, I think the increasing prevalence of these climate fueled disasters are going to create pretty consistent constituent and electoral pressure, the representatives will, will need to respond. I mean, you're kind of seeing this already with members of Congress when they balk at disaster appropriations for a particular state or region at one point in the year, and then sure enough, you know, instead of there being a hurricane in the southeast, or fires in the West, or their floods in the Midwest, they're then going hand in hand to their fellow senators or representatives asking for a disaster appropriation for their constituents. The other reason why I don't think the inside outside critique is as persuasive for my article is that a lot of the things I'm proposing are fairly cheap to implement, from the perspective of members of Congress, I'm talking about flexibility for applications for the elderly, for people with disabilities, longer eligibility windows for counties where that infrastructure has yet to get back online. And so I actually like I'm trying to think of a lot of things that Congress could fix fairly quickly, some of which would not lead to a huge increase in costs. And then for the more costly proposals, I think I have to lean on the fact that there's a lot of social science research to suggest that the expansion of welfare programs, which has particularized benefits and diffuse costs, right, like people, some people are getting something and then other people, they're kind of diffused costs and increased taxes, or the like, are actually more politically feasible than subsequent retrenchment. I don't know if Pope I don't think Pope Pearson teaches at Berkeley anymore, but he's kind of stands in for one of the prominent political scientists that have shown how this has worked in the past. So I guess what I'm trying to say here is that the breadth of the climate crisis has begun to create new realities or exigencies that demand national action. And I think there's a lot of research to suggest that crises help induce legislative and regulatory change. I mean, we're living through the COVID 19 pandemic. I think that response for us from a social policy perspective suggests that Congress can act. And, you know, I take a lot of hope and heart from the inflation Reduction Act, and as a kind of blueprint for how Congress might get serious about significant climate legislation.

24:56

And so moving on, you now break down in your article proposed solutions to welfare programs and you split this up into three sections. So I want to discuss each section. First you propose retrofitting existing federal programs to better respond to climate fuel disasters. So I'm curious what this solution entails.

25:18

Yeah, so, um, retrofitting existing federal programs, I think I actually have a kind of soundbite for this, I really want to make assistance, disaster assistance more reliable, more accessible and more portable in the United States unreliability that goes to appropriations from Congress. And trying to combat these delays, I will say, Ariel DRO climbin at Loyola, Los Angeles and Gabriel Schaeffler, who teaches at Miami law school. And I, the three of us have this, have another paper forthcoming in the Georgetown Law Journal that's trying to think more about this kind of reliability and appropriations and, and kind of automatic legislation. In terms of accessibility, I think this isn't a surprise, given what we've talked about, I think that Congress should make it easier for the elderly, and for people with disabilities to access assistance. And that could be through pre registration. You know, before these disasters strike, it could be through online or telephonic applications. And in terms of portability, I don't think federal relief should stop or stumble at state borders. Because no storm respects state borders. So we should have a federal federal law that requires or at least permits state agencies to accept and honor applications and existing benefits from people who previously lived in another state, right, or displaced or something like that. So thinking about like, given the fact that the state of Texas administers the food stamp program, the SNAP program, and then might be slightly different from the state of Louisiana, how can we make sure that someone who's fleeing a storm in Louisiana can still get the critical assistance they need if they are temporarily in Texas?

27:17

And so part and parcel with any discussion about how federal government can be improved is also how the state and local government can react as well. And your second proposal has to do with how state and local governments should respond in the instance that the federal government fails to react effectively to the climate crisis. And so can you explain this second proposed plan of attack on the state and local level?

27:40

Yeah, so I think it's worth it's always worth considering what states should do. In the absence of meaningful national action, or while they're waiting for Congress to get its act together. States could develop pre registration systems. So you know, people with limited mobility, wouldn't need to apply in person for services. I think Louisiana, the state of Louisiana has been an innovator in this regard. For pre registration, you could also imagine states and territories and tribes engaging in interstate or inter government, I should say, compacts that would allow them to send caseworkers or other social services personnel to help other states in need. These ad hoc arrangements happened after Hurricane Katrina and after Hurricane Rita. Obviously, you know, as the climate crisis intensifies, which it seems like given the science behind it, that's basically guaranteed, at least for the short and medium term, it's going to be come a lot harder for a state to volunteer its own personnel to another state, because they might be worried about depriving their own agencies of the resources they need to respond to a disaster that occurs in their borders. Like is Louise is, is Indiana going to want to send caseworkers to Kentucky, if both states are dealing with floods, for instance. But I do think that interested comm compacts are inter government compacts among states really across regions that might tend to experience extreme weather events at different points in the year could continue well into into the next decade.

29:27

And last but not least, your article suggest a third point, which is a new safety net for the climate crisis. Can you describe for listeners what the safety net looks like?

29:36

Yeah, so in the paper, I don't, I don't kind of fully explore this, maybe as much as I should, although I was kind of planning to do that in a subsequent paper or even Brook project. But let me give you like a few ideas. I think Congress could head off some of the more punitive state practices by equalizing benefit law Most across states, Congress could also shoulder more of the costs to kind of counteract those structural budgetary issues at the state level I mentioned earlier. There's also was a lot of talk a few years ago about UBI, and universal basic income. When you actually get down to the proposals, I'm often skeptical of those proposals, because I think the proposals are often for UBI are often paid for by dismantling other welfare programs, including like Disability Assistance, which I think are really crucial. So I'm not necessarily a proponent of UBI, in the abstract, or in kind of in some instantiations, in policy debates, among walks or politicians, but you could think about UBI as kind of anticipatory cash relief, this is something other countries are experiencing, or experimenting with, excuse me, you know, we kind of know which parts of the country might experience or have to recover from a hurricane or wildfires. And so you could imagine trying to infuse some resources for people who don't have a lot of resources, so that they can better weather, these climate disasters, which will continue to come and continue to intensify. Um, but I'm also, I want to just kind of keep in mind that if we do create a new safety net, for the climate crisis, we're still going to require some in kind assistance, meaning we can't just do this through cash or quasi cash benefits like snap. Because, you know, after some of these disasters, like retail, food stores, and groceries, or grocery stores are just going to be unavailable, people's homes are going to be destroyed. Government is going to need, you know, all of us as a society, we're gonna have to find ways to feed and house people who've survived these disasters. And so it's unlikely that even if we had a new safety net, that it would kind of negate the need for in kind assistance in the coming year. So I don't think we should lose sight of that.

32:10

And finally, what do you hope a listener or reader takes away from this episode?

32:17

Um, well, I guess, as a parent, and as a citizen, I just want people to be more aware of the climate crisis generally, and how it impacts people living in poverty. Specifically, I think we can all do a lot more to mitigate and adapt to this new normal, the climate crisis, but as a professor, I'm really trying to use my expertise about the love welfare programs, to think through climate adaptation challenges. You know, obviously, other people have other talents. And if we're going to get through the next several decades, we need a lot more ingenuity, ingenuity, and an engineering and tenacity and in public pressure to address the climate crisis. But I don't really want to end on a on a down note, because one of the things about working on this article is submitting it to law journals, edited by law students and working with the California law review and law students like you Georgiana is that when I talked to or email with or correspond with law students, you seem to be like so far ahead of, of me and my faculty colleagues on this set of issues and that gives me a lot of hope that that we're starting to get more serious about the legal response to the climate crisis.

33:55

That's very gratifying to hear Professor Hammond and I want to thank you so much for joining us today.

34:01

Well, thank you for the opportunity. Georgiana, I really do appreciate it.

34:07

We hope you've enjoyed this episode of The California Law Review podcast. If you would like to read Professor Hammond's article, you can find it in Volume 111 Issue Four of the California Law Review at californialawreview.org. For updates on new episodes and articles, please follow us on Instagram @californialawreview. A complete list of our socials is available on our website. Lastly, you can find a list of the editors who worked on this volume of the podcast in the show notes. See you in the next episode.