Monday, April 12, 2010


In a little known Executive Order issued five (5) days before the Robert T. Stafford Disaster Relief and Emergency Assistance Act was signed into law as Public Law 100-707, the Reagan Administration in an attempt to allow the licensing of the Shoreham and Seabrook Nuclear Power stations provided a rationale for those plants to be liscensed even in the event that the STATES did NOT perform as required or even participate in the event of a core-melt accident. Called the "legal realism" theory--specifically that STATES would in the event of a real world event do what they could regardless of their lack of planning and preparation the Executive Order was never discussed in the formal administrative hearings on those licensing applications or in court decisons which followed. Of interest is that the Counsel's Office of CRS in opining to Congressman Edward Markey stated flatly that NO federal entity had command or control authority over STATE employees or assets. That opinion is available upon request.

The reason for this posting now is in the context of the FEMA performance during the 1984 LA Olymbics which almost led to the demise of FEMA. The issue was could FEMA direct STATE and LOCAL law enforcement assets to promote security of those Olympic Games? Surprisingly that issue was lost on the FEMA participants who argued and continue to argue that however directive their tone they were just providing technical assistance to those STATE and Local assets. The DOJ did not however agree that technical assistance was all that was being provided but immediately summoned up draft legislation hurriedly included in the Omnibus Crime Bill of 1984 that created the new category of a "Law Enforcement Emergency." See 28 CFR part 65. The problem is that this was viewed as a grant program but DOJ has consistently failed to ask for emergency funding for such emergencies.

This leads to an interesting conclusion--specifically can a federal grant program enacted pursuant to Article I Section 8 the so-called tax and spend clause ever allow federal command and control over state assets? My conclusion has always been NO WAY. The police power is given Constitutional or at least reserved Constitutionally to the STATES and their minions the locals. There is no federal Constituional police power except as to enforcement civil and criminal of federal statutes. In other words, the federal statutes themselves limit jurisdiction of the feds to their purposes.
Where does this lead? Command and control systems fail Constitutionally in National Response Systems, plans, frameworks and yet are sometimes necessary! How to resolve this conundrum and in particular with a DHS and FEMA that have such poor lawyering that they don't even realize a problem exists as to how to actually generate collaboration and cooperation from the STATE and Locals bu tcontinue to pretend that they can tell STATE and LOCAL officials what needs to be done when they have no authority to do so. The problems of ordering evacuations highlights the conundrum and interesting that clearly members of Congress in trying to impose evacuation blame on FEMA for Katrina mishaps (actually 80% of the population successfully evacuated which is all FEMA preparedness efforts pre-Katrina called for)has tried to leverage FEMA as being the lead for all evacuations just as the Reagan Administration did for STATE and LOCAL failure to prepare or implement propery capabilities for Core-melt accidents. Issued in the context of actual command and control the CRS opinion should be reviewed by DOJ/OLC in light of the need to update EO 12657 issued by the Reagan Administration and upon which all current nuclear power licensing rests. The failure of NRC and its lawyers to under stand the issue, or the Obama Administration in spite of its efforts to promote nuclear power means that new reactors being licensed involve a totally fictional legal theory. Hey is this important, you tell me?
And thanks to the commentator for spelling correction of license.