On October 14th I posted on this blog on top ten legal issues facing HS/EM and also on ACUS study of preemption. After thinking about the topic more I have concluded that certainly pre-emption whether implied or court ordered or mandated by Congress is an issue that plagues both National Security and Homeland Security although never written about in academic circles. Now two items need to be stated as supposed black letter law! First, the so-called "Police Power" is reserved to the STATES and their local governments. Second, that land use and mitigation is derivative from the STATES police power.
After much thought and study I have concluded that these propositions are highly doubtful. I am hoping to find others with more brains and skill than mine who have addressed the underpinnings of these propositions. Ernie Abbott former GC of the independent FEMA has written about these issues although somewhat obliquely. Perhaps there are others.
I also see related doctrinal problems in the federal and state court systems with their rulings on appendant party jurisdicition and appurtenant jurisdiction. This gets into classic conflict of laws discussion and when I address it in the future will be required by my own limitations to be somewhat simplistic.
My bottom line [hate that phrase] is that the entirety of federalism and preemption and supremacy and police power authority have significant implications for HS/EM. Hoping to study and reach more definite conclusions.
