Friday, July 16, 2010

RE: Legal Authority of the FEMA


On April 9, 2009 FEMA published revised delegations in the Federal Register. Totally defective because all revisions to FEMA delegations must be signed by the Secretary DHS or someone delegated in writing to have all the Secretary's authority to re-delegate to FEMA this highly defective legal work product should be reviewed closely by the Department of Justice. Earlier I had written the letter set forth below to the AG. Clearly FEMA does not know its own legal authority to act nor does anyone above it in the DHS hierarchy. Formal delegations are required to be kept up-to-date and published in the Federal Register by both the Administrative Procedures Act of 1947, as amended, and by the Federal Register Act of 1934, as amended. This requirement goes back to an 1803 SCOTUS (Supreme Court of the US) decision in Little v. Bareme where the court unanimously held that citizens of the US were entitled to know under what legal authority any particular government appointee or official or employee was conducting his actions. Of course broad authority to delegate has been given the President by 3 USC Section 301 to delegate Presidential authority. The legal construct is that one cannot delegate someone else's authority to yourself.
See attached letter to AG set forth below:

June 11, 2007

Honorable Alberto Gonzales
Attorney General of the United States
Washington, D.C. 20530
RE: Legal Authority of the Federal Emergency Management Agency

Dear General Gonzales:

I am writing to you personally over a matter that I believe is of some urgency. Congress enacted and the President signed last fall the Post-Katrina Emergency Management Reform Act, Title VI of the Homeland Security Appropriations Act of 2007 (Public Law 109-295). Effective March 31, 2007, this statute created a semi-independent FEMA in the Department of Homeland Security established by the Homeland Security Act of 2002 (Public Law 107-296). The former statute did NOT address legal authority issues. Nor have formal delegations to the new Administrator of FEMA been issued by the Secretary DHS, nor published in the Federal Register in compliance with the Federal Register Act of 1934 and the Administrative Procedure Act of 1947, both as amended.

My point is this; the Department of Justice needs to review the express and implied legal authority of the new FEMA. In the event of an actual incident or event it is important that not just DHS and FEMA know what FEMA’s legal authority is but all participating federal departments and agencies that are part of the preparedness and response to such an event. My suggestion is that the project be done under the formal supervision of the Office of Legal Counsel, and as was done for the Presidential Emergency Action Documents, DHS and FEMA assessed the costs of the project and participate. This may end up being a multi-year effort but hopefully not.

I am enclosing three documents that I believe highlight and support the need for this project. First, a two page letter from then Attorney General John Ashcroft to then Director of FEMA Joseph Allbaugh in 2001 (marked as TAB A).  Second, a recent 25 page report entitled “The Day After” prepared in 2007 for the Preventative Defense Project of Harvard and Stanford Universities (TAB B). Finally, my annotated version of the unpublished legal appendix to the 1993 National Academy of Public Administration report entitled “Coping with Catastrophe.” This annex has not been previously furnished to you or your Department to my knowledge and the annotations are solely mine. Nonetheless, because FEMA’s Office of Chief Counsel and the former FEMA Office of General Counsel have not issued any comprehensive legal guidance as to legal authority issues it comes as close as is currently available to being that document even though the legal appendix was completed in December 1992. The annotated document is marked as TAB C.

TAB B and C are available virtually once a point of contact is available in DOJ and I may be reached at the address and phone below.

In advance I appreciate your attention to this matter. I have high hopes that this is a project that could influence Homeland Security and Emergency Management policy and operations for years to come and help identify gaps and problems in the President’s legal authority to deal with crisis management and consequences management.
/S/ William R. Cumming

Enclosures: TABS A-C

CC:  David Trissel
         Chief Counsel Federal Emergency Management Agency