From 1969 until 1988 and 1994 is a substantial time span in the Executive Branch of the US. 20 and 25 years respectively to revise EXECUTIVE ORDERS 10480 and 11490 both issued in 1969. The first delegated authority by the President for mobilization and the Defense Production Act of 1950. The second gave emergency preparedness assignments for the Executive Branch. Both impacted FEMA when independent agency and FEMA devoted substantial resources and efforts to the revision process of the older Executive Orders. The end result is that FEMA lost clout in relationship to its predecessor Executive Branch entities under both orders. Yet I would argue it stayed in the game as a least a second tier player in the Executive Branch policy and issue development, analysis, and implementation in the Executive Branch. Thus until the decimation [literally and figuratively] when combined with DHS it did have a role perhaps appropriate to its skills and competencies.
The question now open however is will it retain any role in the revised product. This will be an interesting litmus test of its real clout as the "new" FEMA and will also be fascinating as a lab test of bureacratic skills and infighting and regard for real authority. The President can pretty much delegate any authority he/she wants under Title 3 of the US Code, Section 301. Thus the only real delegation of authority issues, assuming delegation, is whether the SCOTUS is going to re-erect the paradigms it used to kill off new deal legislation, that is unlawful delegation by Congress to the President of its powers and therefore UNCONSTITUTIONAL. The Arizona immigration litigation and the Health Care Reform statute may give us interesting perspectives on that issue as well as federalism. I have often argued with NO success that federal agencies may delegate authority to the governors and that delegation should be properly labeled delegation. For example, even the Defense Production Act might be usefully delegated to governors in some catastrophic situations. Another example where the legal profession has provided NO analysis of this issue or the policy implications. By the way the origins of the Defense Production Act Constitutionally lay in the so-called Commerce Clause. The origins of the EP assignments lay in the National Security Act as amended, and the Article I section 8 providing for the common defense.
Should the orders be retained in some fashion I would include the following language:
"Pursuant to my authority granted by Section 301 of Title 3 and other statutes vesting direct authority in me, I authorize agencies delegated authority under this Executive Order to redelegate all or portions of their authority to the respective Governors of these United States to facilitiate implementation and integration of the assets and capabilities of the STATES into the National Security and Homeland Security of the United States. There shall be no redelegation of authority below the Governors to units of local government but the Governors may redelegate adminstrative authority to facilitate their specific authority in implentation as long as decision making is retained at the level of each individual Governor."
This new redelegation authority might well allow reinvigoration of the federal system without relying on great additional financial resources. That federal system certainly needs all the help it can obtain from a federal level largely insensitive to its needs but willing to exploit its weakness, financial and administrative.
