Monday, August 16, 2010

Erosion of FEMA's Legal Authority

Now as everyone knows who works with FEMA, that Executive Branch organization is essentially a bureau within the Department of Homeland Security. Several past Secretaries of DHS have stated that they spent more time on FEMA issues than any other component within DHS that they managed and administered. Some organizations within DHS of course are largely independent such as the US Coast Guard and almost no DHS management oversight exists for that entity.

So let's first take a look back at February 28th,2003 the last day of FEMA's status as an independent Executive Branch agency. Ignoring for the purposes of this blog statutory assignments directly to the Director FEMA on that date, and noting that they were few and far between, I think it is useful to review the principal Executive Orders delegating authority to FEMA on that date. Here is the list:

Presidential Executive Orders Delegating Authority to FEMA

Executive Order 11988 of May 24, 1977, as amended, Floodplain Management, 3 CFR, 1977 Comp., p. 117, 42 U.S.C. §4321 note p.191. (See 44 CFR Part 9)

Executive Order 12127 of March 31, 1979, Federal Emergency Management Agency, 3 CFR, 1979 Comp., p. 376. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12148 of July 20, 1979, as amended, Federal emergency management, 3 CFR, 1979 Comp., p. 412. (Implements Reorg. Plan No. 3 of 1978)

Executive Order 12241 of September 29, 1980, National Contingency Plan [Radiological Emergencies], 3 CFR, 1980 Comp., p. 282. (Note-Source of FRERP).

Executive Order 12472 of April 3, 1984, Assignment of national security and emergency preparedness telecommunications functions, 3 CFR, 1984 Comp., p.193. (See 47 CFR Part 201)

Executive Order 12580 of January 23, 1987, as amended, Superfund Implementation, 3 CFR, 1987 Comp., p. 193 (Note: Amended by E.O. 12777 of October 18, 1991, and further amended by E.O. 13016 of August 28, 1996). (See 40 CFR Part 300).

Executive Order 12656 of November 18, 1988, Assignment of Emergency Preparedness Responsibilities, 3 CFR, 1988 Comp., p. 585. (See 47 CFR Part 201)

Executive Order 12657 of November 18, 1988, Federal Emergency Management Agency Assistance in Emergency Preparedness Planning at Commercial Nuclear Power Plants, 3 CFR, 1988 Comp., p. 611. (See 44 CFR Part 352)

Executive Order 12673 of March 23, 1989, Delegation of Disaster Relief and Emergency Assistance Functions, 3 CFR, 1989 Comp., p. 309. (See 44 CFR Part 206)

Executive Order 12699 of January 5, 1990, Seismic Safety of Federal and Federally Assisted or Regulated New Building Construction, 3 CFR, 1990 Comp., p. 269.

Executive Order 12742 of January 8, 1991, National Security Industrial Responsiveness, 3 CFR, 1991 Comp., p. 309.

Executive Order 12919 of June 3, 1994, National Defense Industrial Resources Preparedness, 3 CFR, 1994 Comp., p. 901. (See 15 CFR Part 700, 44 CFR Parts 321- 336)

Executive Order 12941 of December 1, 1994, Seismic Safety of Existing Federally Owned or Leased Building, 3 CFR, 1994 Comp. , p. 955.

[Executive Orders serve to delegate legal authority, provide legal interpretation, and provide policy guidance. When issued pursuant to law they have the force and effect of federal law.]

Several newly minted political General Counsels of FEMA admitted to me that they were not familiar with authority delegated to an agency through Executive Orders. And the erosion of the importance has occurred pretty general in last several decades. Why is that? First they always avoid being tied to any funding stream. That is left to later in time budget submissions by the department or agency impacted. And yes some really really important stuff gets put in Executive Orders. The second reason is that except where the order clearly is one of internal management of the subject within the Executive Branch and they are not based on a specific statute their authority is quite limited. This is in fact one area where the Imperial Presidency has eroded. Oddly it is difficult without good research skills to understand exactly what Executive Orders are still in effect or how they have been amended. Over 20 years ago, the National Archive and Records Administration produced a book of Executive Orders still in effect as of the date of publication in 1989 and as currently amended. That document should be updated and made virtual. It also attempted to index to some degree extant Executive Orders.
That stated where does FEMA stand today in delegated authority it previously held?
Well first of all several of the orders listed above have been formally amended to interpose the Secretary DHS between the President and FEMA which is as it should be. But some of those assignments have drifted off elsewhere in DHS and no longer are housed in FEMA. Since no really accessible and accurate public document exists indicating delegations to subordinates of the Secretary DHS exists this is left to be figured out by interested persons. I still have not been able to do so.
But it now appears that Executive Order 12656 will be repealed shortly by the Obama Administration and no replacement will be made. This Executive Order was never self-implementing but it did provide a useful quick listing of lead and support roles that were the assignment of key Executive Branch entities although seemingly limited to National Security Emergencies. A term that does appear elsewhere but was of extreme importance in this order. What we have learned since the Jackson Hearing on Presidential autority in the mid-70's is that President's no longer want to have their hands tied by declarations of various kinds of emergencies because it limits their flexibility. It also keeps interested citizens from finding out what its government is up to at any given moment.

Anyhow expecting repeal of at least one Executive Order that assigned some responsibity to FEMA under President Ronald Reagan. Perhaps another chip in the facade of FEMA, or perhaps even an erosion of its underpinnings.
As we approach the end of the first decade of DHS a report card on each of its components that joined on March 1, 2003 would be interesting to me. Oddly I would argue that both TSA and the Coast Guard and all the border security agencies have been badly compromised capability wise by DHS and probably FEMA is the biggest loser in being rolled into DHS. Perhaps this evolution and diminished capabilty is a valid management choice, but given lack of meanngful oversight of DHS by Congress [despite DHS complaints] no more could have been expected. Time will tell whether DHS management choices were correct ones.