In June 2007 I became concerned as to how PKEMA 2006 would be delegated [You can find PKEMA 2006 under the Statutes section of the Home page of this blog]. GAO in a 2008 Report identified 62 specific taskings to FEMA in PKEMA but failed to identify progress or even the status of delegations. Conceptually, unless authority is delegated is stays in suspended animation awaiting such delegation. During my time in FEMA before the retirement of William Harding, a brilliant man who knew delegations importance cold, he made sure appropriate delegations appeared sooner or later. FEMA has published updated delegations in the last 18 months but they contain significant legal errors. Specifically you cannot delegate authority vested by law in higher authority [an organization under which your organization is a subunit] to your own organization and therefore it must be made by the higher authority to confirm such delegation. This was NOT done. Obviously some of the PKEMA 2006 did vest authority directly in the newly created Administrator of FEMA but this is not separately identified. Subordinate units of FEMA have no sub-delegations in place from the Administrator so this also is a problem. Perhaps much that FEMA has accomplished since its incorporation into DHS needs ratification to make legal. To help understand this legal and policy problem I include in this post full text my personal letter to the Attorney General for which no response was recived. Draw your own conclusions.
"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
William R. Cumming
The Vacation Lane Group
P.O. Box 327
338 Smith Point Road
Reedville, VA 22539
Enclosures: TABS A-C
CC: David Trissel
Chief Counsel Federal Emergency Management Agency
TAB C- Attached"