Monday, May 24, 2010

The Devil Is In The Details

In August 2009 Martha Derthick of U.VA. and former civil servant published an interesting article in the papers of the Rockerfeller Institute arguing that President Bush's efforts conscious or unconscious to ignore or reform the federal system of the US had failed. The article should be read by all intereted in issues of federalism. I don't agree with all of Ms. Derthick's arguments, facts or conclusions yet I believe the article is a contribution to an important looming Constitutional crisis.
My real vocation and avocation over now almost 45 years of work in EM and what is now called HS has been the relationship of the civil government structure to the military structure in the US and its tensions and compromises and successes and failures. The President is not in a "unified postion" as Professor John Woo would argue. He is Commander-In-Chief of the military. But he is also the chief executive of the Executive Branch and its largely civil agencies (whether DOD is a military or civil agency is moot)!
I have also been interested in the integration of technical information in the decision making process of poltical and chief executive types in government organizations. This means how legal, medical, engineering, scientific and other disciplines expertise becomes part of the decision making process.
Recently however I have begun to realize that federalism and its Constutional origins is much more important in many ways then these other too issues or policy fields. But not unrelated! In fact I believe that federalism is in crisis mode and Ms. Derchick's paper's conclusion that Bush's efforts at "reform" have not "failed" but only reflected deeper problems in the federal system/

For many years, the issue in the federal government in domestic civil crisis management was the "Who is in charge?" question? I firmly believe that to some degree this question is destructive of building Emergency Preparedness, Response, Recovery, and Mitigation (and now PKEMA of 2006 has also added "prevention" to the EM litany). My question would be "who has the capabilty (meaning resources, logistics, personnel, training, experience, and legal authority) to accomplish certain missions? Asking this question is based on my bottom line belief that EM is a building block structure starting from the bottom up. Public Safety (including the fire service, policing, EMT, HAZMATs, EM and public health) is a bottom up governance structure and necessarily so. Perhaps even funding should be looked at more closely since the indirect costs and benefits of federalism are never properly analyzed or studied whether by think tanks or governments or academics. Ms.Derchick's article is a good example of that failure, despite her obvious wisdom on many issues.
Okay so where is this going? I have long advocated that for the top 300-500 metropolitian areas their public saftely system and capability is not a local or state asset alone but in fact a national asset and resource and it must be leveraged by the federal government far better than it is now. This might include developing standards and funding of at least 25% of the annual budgets of this largely local public safety system. This does not necessarily mean any direct controls except in certain situations where EM leadership and civil governance or even military systems interfacing with the civil government structure must mobilize the nation's resources on a national basis.

I was a participant in the drafting of Executive Order 12656 (now amended) that replaced a 1969 Executive Order and others that assigned tasks for preparedness to the various civil agencies but which by its own terms assigned no authority to act. After 9/11 I thought it would updated rapidly but that has not happened. It created a new category of "National Security Emergency" which has never been utilized in the US Code and was designed in part to avoid issues with the National Emergenices Act of 1976, a largely procedural statute neither conveying new authority or restricting Presidential authority. In fact at bottom the 1976 statute is merely a disclosure statute mandating that President's when declaring a so-called "National Emergency" publish an Executive Order identifying what legal authority that is being used and what is being done. CRS has excellent periodic analysis of this statute's implementation.

My point however is probably lost at this point and therefor needs restating. Hard nosed analysis of the role of federalism in the US and its cost/benefits for EM and HS must be accomplished and this should be done ASAP. I will be writing more on this topic. But I do recommend Professor Derchick's article as a starting point and hoping you will draw your own conclusions. If you cannot otherwise find it just e-mail me at