FREEDOMPOST, a lawyer's commentary

BUSH STASHES HIS CRONIES IN THE HONEYPOT CALLED FEMA

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Neigh to Cronies

By MAUREEN DOWD

WASHINGTON

I understand that politicians are wont to put cronies and cupcakes on the payroll.

I just wish they'd stop putting them on the Homeland Security payroll.

Can't they stick their pals who failed at business in the Small Business Administration and their tomatoes over at the Oilseeds and Rice Bureau of the Ag Department?

At least Bill Clinton knew not to stash his sweeties in jobs concerned with keeping the nation safe. Gennifer Flowers said that Mr. Clinton got her a $17,500 job in Arkansas in the state unemployment agency, though she was ranked ninth out of 11 applicants tested. And Monica Lewinsky's thong expertise led her to a job as an assistant to the Pentagon press officer.

Gov. James McGreevey of New Jersey had to resign last year after acknowledging that he had elevated his patronage peccadillo, an Israeli poet named Golan Cipel, to be his special assistant on homeland security without even a background check or American citizenship. Mr. Cipel, however, was vastly qualified for his job compared with Michael Brown, who didn't know the difference between a tropical depression and an anxiety attack when President Bush charged him with life-and-death decisions.

W. trusted Brownie simply because he was a friend of a friend. He was a college buddy of Joe Allbaugh, who worked as W.'s chief of staff when he was Texas governor and as his 2000 presidential campaign manager.

It sounds more like a Vince Vaughn-Owen Wilson flick than the story of a man who was to be responsible for the fate of the Republic during the biggest natural disaster in our history. Brownie was a failed former lawyer with a degree from a semiaccredited law school, as The New Republic put it, when he moved to Colorado in 1991 to judge horse judges for the Arabian Horse Association.

He was put out to pasture under pressure in 2001, leaving him free to join his pal Mr. Allbaugh at an eviscerated FEMA. Mr. Allbaugh decided to leave the top job at FEMA and become a lobbyist with clients like Halliburton when the agency was reorganized under Homeland Security, stripping it of authority. Why not, Mr. Allbaugh thought, just pass this obscure sinecure to his homeboy?

Time magazine reported that Brownie's official bio described his only stint in emergency management as "assistant city manager" in Edmond, Okla. But a city official told Time that the FEMA chief had been "an assistant to the city manager," which was "more like an intern."

Ever since W. was his father's loyalty enforcer, his political decisions have been shaped more by loyalty than substance or competence. Mr. Bush never did warm up to his first secretary of state because Colin Powell rebuffed appeals to help out in the Tallahassee recount of 2000.

The breakdown in management and communications was so execrable that the president learned about the 25,000 desperate, trapped people at the New Orleans convention center not from Brownie, who didn't know himself, but from a wire story carried into the Oval Office by an aide on Thursday, 24 hours after the victims had been pleading and crying for help on every channel. (Maybe tomorrow the aide will come in with a wire story, "No W.M.D. in Iraq.")

"Getting truth on the ground in New Orleans was very difficult," a White House aide told The Times's Elisabeth Bumiller. Not if you had a TV.

As Mexican troops arrived in Texas to help with Katrina refugees, Brownie was recalled to Washington, where he said he wanted to get "a good Mexican meal and a stiff margarita." Yeah, it was hard to get any good étouffée in New Orleans given the E. coli. The president should find that little bullhorn from ground zero, put it right on Brownie's ear and yell at him to get the heck out of there.

FEMA was a disaster waiting to happen, the minute a disaster struck. As The Washington Post reported Friday, five of the eight top FEMA officials were simply Bush loyalists and political operatives who "came to their posts with virtually no experience in handling disasters."

While many see the hideous rescue failures as disaster apartheid, Barbara Bush and other Republicans have tried to look on the bright side for the victims. The Wall Street Journal reported that Representative Richard Baker of Baton Rouge was overheard telling lobbyists: "We finally cleaned up public housing in New Orleans. We couldn't do it, but God did."

Even those who believe in intelligent design must surely agree that Brownie and Representative Baker weren't part of it.

POSTED BY:

Martin S. Friedlander, Esq.

www.freedompost.typepad.com

LEGAL AUTHORITY TO ESTABLISH COMPACT FOR THE PORT OF NEW ORLEANS

In HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994)  Justice Ginsburg delivered this analysis of the creation of the "Port Authority of New York and New Jersey" Louisiana and Mississippi, working with Congress, should consider adopting a bi-lateral compact similar to the Port Authority of NY and NJ. It might solve some of the "financing" problems arising out rebuilding New Orleans, with protection from future calamities of nature an "inaction" by government"

The relevant portion of Justice Ginsburg's decision is reprinted here.

The Port Authority, whose Eleventh Amendment immunity is at issue in these cases, was created in 1921, when Congress, pursuant to the Constitution's Interstate Compact Clause, 4 consented to a compact between the Authority's parent States. 42 Stat. 174. Through the bi-state compact, New York and New Jersey sought to achieve "a better co-ordination of the terminal, transportation and other facilities of commerce in, about and through the port of New York." N. J. Stat. Ann. 32:1-1 (West 1990); N. Y. Unconsol. Laws 6401 (McKinney 1979). The compact grants the Port Authority power to

"purchase, construct, lease and/or operate any terminal or transportation facility within [the Port of New York D]istrict; and to make charges for the use thereof; and for any of such purposes to own, hold, lease and/or operate real or personal property, to borrow money and secure the same by bonds or by mortgages upon any property held or to be held by it." N. J. Stat. Ann. 32:1-7 (West 1990); accord, N. Y. Unconsol. Laws 6407 (McKinney 1979). [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 5]  

The Port Authority's domain, the Port of New York District, is a defined geographic area that embraces New York Harbor, including parts of New York and New Jersey. See N. J. Stat. Ann. 32:1-3 (West 1990); N. Y. Unconsol. Laws 6403 (McKinney 1979). 5  

"The Port Authority was conceived as a financially independent entity, with funds primarily derived from private investors." United States Trust Co. of N. Y. v. New Jersey, 431 U.S. 1, 4 (1977). Tolls, fees, and investment income account for the Authority's secure financial position. See App. to Pet. for Cert. 60a-61a. 6  

Twelve commissioners, six selected by each State, govern the Port Authority. See N. J. Stat. Ann. 32:1-5, 32:12-3 (West 1990); N. Y. Unconsol. Laws 6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, 6. Each State may remove, for cause, the commissioners it appoints. See N. J. Stat. Ann. 32:1-5, 32:12-5 (West 1990); N. Y. Unconsol. Laws 6405 (McKinney 1979); 1930 N. Y. Laws, ch. 422, 4. Consonant with the Authority's geographic domain, four of New York's six commissioners must be resident voters of New York City, and four of New Jersey's must be resident voters of the New Jersey portion of the Port of New York District. See N. J. Stat. Ann. 32:1-5 (West 1990); N. Y. Unconsol. Laws 6405 (McKinney 1979). The Port Authority's commissioners also serve as PATH's directors. See N. J. Stat. Ann. 32:1-35.61 (West 1990); N. Y. Unconsol. Laws 6612 (McKinney 1979). [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 6]  

The governor of each State may veto actions of the Port Authority commissioners from that State, including actions taken as PATH directors. See N. J. Stat. Ann. 32:1-17, 32:1-35.61, 32:2-6 to 32:2-9 (West 1990); N. Y. Unconsol. Laws 6417, 6612, 7151-7154 (McKinney 1979). Acting jointly, the state legislatures may augment the powers and responsibilities of the Port Authority, see N. J. Stat. Ann. 32:1-8 (West 1990); N. Y. Unconsol. Laws 6408 (McKinney 1979), and specify the purposes for which the Port Authority's surplus revenues are used. See N. J. Stat. Ann. 32:1-35.142 (West 1990); N. Y. Unconsol. Laws 7002 (McKinney 1979).

Debts and other obligations of the Port Authority are not liabilities of the two founding States, and the States do not appropriate funds to the Authority. The compact and its implementing legislation bar the Port Authority from drawing on state tax revenue, pledging the credit of either State, or otherwise imposing any charge on either State. See N. J. Stat. Ann. 32:1-8, 32:1-33 (West 1990); N. Y. Unconsol. Laws 6408, 6459 (McKinney 1979).

The States did agree to appropriate sums to cover the Authority's "salaries, office and other administrative expenses," N. J. Stat. Ann. 32:1-16 (West 1990); N. Y. Unconsol. Laws 6416 (McKinney 1979), but this undertaking is notably modest. 7 By its terms, it applies [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 7]   only "until the revenues from operations conducted by the [P]ort [A]uthority are adequate to meet all expenditures." The promise of support has a low ceiling: $100,000 annually from each State. Thus, the States in no way undertake to cover the bulk of the Authority's operating and capital expenses. Further, even the limited administrative expense payments for which the States provided are contingent on the advance approval of both governors, see ibid., and the States' treasuries may not be tapped until both legislatures have appropriated the necessary funds. See N. J. Stat. Ann. 32:1-18 (West 1990); N. Y. Unconsol. Laws 6418 (McKinney 1979). A judgment against PATH, it is thus apparent, would not be enforceable against either New York or New Jersey.

C

The Third Circuit's assessment of PATH's qualification for Eleventh Amendment immunity conflicts with the judgment of the Court of Appeals for the Second Circuit on the same matter. See Feeney v. Port Authority Trans-Hudson Corporation, 873 F.2d 628, 631 (1989), aff'd on other grounds, 495 U.S. 299 (1990). The Second Circuit concluded:

"No provision [of the compact or of state legislation pursuant to the compact] commits the treasuries of the two states to satisfy judgments against the Port Authority . . . . We believe that this insulation of state treasuries from the liabilities of the Port Authority outweighs both the methods of appointment and gubernatorial veto so far as the Eleventh Amendment immunity is concerned." 873 F.2d, at 631. [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 8]  

We affirmed the Second Circuit's judgment in Feeney, but we bypassed the question whether PATH enjoyed the States' Eleventh Amendment immunity. See Port Authority Trans-Hudson Corporation v. Feeney, 495 U.S. 299 (1990). Assuming, arguendo, that the suit in Feeney was tantamount to a claim against the States, 8 we ruled that New York and New Jersey had effectively consented to the litigation. See id., at 306-309 (relying on N. J. Stat. Ann. 32:1-157, 32:1-162 (West 1963); N. Y. Unconsol. Laws 7101, 7106 (McKinney 1979)). Consent is not arguable here, because Hess and Walsh commenced suit too late to meet the 1-year prescription specified by the States. See supra, at 2. Accordingly, we confront directly the sole question petitioners Hess and Walsh present, and we hold that PATH is not entitled to Eleventh Amendment immunity from suit in federal court.

II

The Eleventh Amendment largely shields States from suit in federal court without their consent, leaving parties with claims against a State to present them, if the State permits, in the State's own tribunals. Adoption of the Amendment responded most immediately to the States' fears that "federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin." Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 151 (1984) (STEVENS, J., dissenting); see also Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 276 , n. 1 (1959); Missouri v. [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 9]   Fiske, 290 U.S. 18, 27 (1933). 9 More pervasively, current Eleventh Amendment jurisprudence emphasizes the integrity retained by each State in our federal system:

"The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity. See Hans v. Louisiana, 134 U.S. 1, 13 (1890). It thus accords the States the respect owed them as members of the federation." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. ___ (1993) (slip op., at 7).

Bistate entities occupy a significantly different position in our federal system than do the States themselves. The States, as separate sovereigns, are the constituent elements of the Union. Bistate entities, in contrast, typically are creations of three discrete sovereigns: two States and the federal government. 10 Their mission is to address "`interests and problems that do not coincide nicely either with the national boundaries or with State lines'" - interests that "`may be badly served or not served at all by the ordinary channels of National or State political action.'" V. Thursby, Interstate Cooperation: A Study of the Interstate Compact 5 (1953) (quoting National Resources Committee, Regional Factors in National Planning and Development 34 (1935)); see Grad, Federal-State Compact: A New Experiment in Cooperative [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 10]   Federalism, 63 Colum. L. Rev. 825, 854-855 (1963) (Compact Clause entities formed to deal with "broad, region-wide problems" should not be regarded as "an affirmation of a narrow concept of state sovereignty," but as "independently functioning parts of a regional polity and of a national union.").

A compact accorded congressional consent "is more than a supple device for dealing with interests confined within a region. . . . [I]t is also a means of safeguarding the national interest . . . ." West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 27 (1951). The Port Authority of New York and New Jersey exemplifies both the need for, and the utility of, Compact Clause entities:

"From the point of view of geography, commerce, and engineering, the Port of New York is an organic whole. Politically, the port is split between the law-making of two States, independent but futile in their respective spheres. The scarcity of land and mounting commerce have concentrated on the New York side of the Hudson River the bulk of the terminal facilities for foreign commerce, while it has made the Jersey side, to a substantial extent, the terminal and breaking-up yards for the east- and west-bound traffic. In addition, both sides of the Hudson are dotted with municipalities, who have sought to satisfy their interest in the general problem through a confusion of local regulations. In addition, the United States has been asserting its guardianship over interstate and foreign commerce. What in fact was one, in law was many. Plainly the situation could not be adequately dealt with except through the coordinated efforts of New York, New Jersey, and the United States. The facts presented a problem for the unified action of the law-making of these three governments, and law heeded facts." Frankfurter & Landis, The Compact Clause of the Constitution - A Study in Interstate Adjustments, 34 [ HESS v. PORT AUTHORITY TRANS-HUDSON CORP., ___ U.S. ___ (1994) , 11]   Yale L. J. 685, 697 (1925) (footnote omitted). "

This lawyer has been intimately involved with the "sovereign immunity" issues set forth in Hess, having sucessfully sued the Port Authority for violation of the "civil rights" of my client. This lawsuit was filed in the United States District Court for the Southern District of New York. I even spent 5 days in the offices of the Port Authority in the now destroyed World Trade Center taking depositions of the heads of the Port Authority. It brings back memories and a solution to the New Orleans problem.

I would appreciate my readers contacting legislative leaders in Louisiana, Mississippi, and Congress so that they may consider my idea for "salvation".

Editorial comments by:

Martin S. Friedlander, Esq.

www.freedompost.typepad.com

CONSTITUTIONAL COMPACT AMONG LOUISIANA. AND MISSISSIPPI

The United States Constitution provides for a Compact between Two or More States. An example of such a Compact is "The Port of New York and New Jersey Authority". New York and New Jersey formed the "Port Authority" by a "compact" (contract) between the two states. They then submitted that contract to the United States Congress for approval. It was approved. It has the legal force of a "Treaty". It is in force, and it has worked extremely well. See some of the US Supreme Court cases dealing in the "Port Authority". One of these cases held that since the "Port Authority" is "self sustaining" it is not subject to the doctrine of sovereign immunity. These legal authorities will be submitted on request.

The "Port Authority" using that "Constitutional" mandate, built the bridges, tunnels, airports, and railroads service the bi-state area. They are "self-supporting" through the imposition of "tolls" or "fees" to use these services. These fees are essentially a "consumption tax". That should get the attention of Forbes Magazine.

Now that we have committed ourselves to rebuild New Orleans, we have an opportunity to establish a "similar" "compact" to govern the Port of New Orleans.

The Mississippi River drains 1/3 of the United States. It is the most important route of commercial commerce in America. New Orleans gives its' right of "passage" away for nothing. Everyone benefits, while New Orleans and its people "starve."

The new Port of New Orleans Authority would have the right to collect "tolls" from all "shipping" going up and down the Mississippi, passing through New Orleans. The tolls, would be in essence a "consumption or use tax" imposed on those who use the facilities. Why should New Orleans, or for that matter the United States, build and maintain the "levees", "canals", "bridges", "railroad hubs" and "airport terminals" for nothing. Those who use should pay. The Port Authority of New York collects a toll from every user of its bridges, railroads, ports, tunnels, and airports. These tolls and fees gave New York the financial base to build the World Trade Center. We can call this facility the New Orleans World Trade Center. It works and it is self-supporting.

Let me have your comments and discussion on this absolutely "new" proposal.

Martin S. Friedlander, Esq.

www.freedompost.typepad.com