A key provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act gives the President enormous flexibility in recovery of federal government physical infrastructure and improved real estate should it be heavily damaged or destroyed in an emergency or disaster. Like many provisions of the Stafford Act this provision is not implemented by any kind of interpretive regulation. It should be examined closely and included in the President's own tool kit for his/her use with respect to federal facilities and should not be delegated to an agency or department head. In my opinin (IMO) of course.
The provision follows:
"Sec. 405. Federal Facilities (42 U.S.C. 5171)
(a) Repair, reconstruction, restoration or replacement of United States facilities - The
President may authorize any Federal agency to repair, reconstruct, restore, or
replace any facility owned by the United States and under the jurisdiction of such
agency which is damaged or destroyed by any major disaster if he determines that
such repair, reconstruction, restoration, or replacement is of such importance and
urgency that it cannot reasonably be deferred pending the enactment of specific
authorizing legislation or the making of an appropriation for such purposes, or the
obtaining of congressional committee approval.
(b) Availability of funds appropriated to agency for repair, reconstruction, restoration,
or replacement of agency facilities - In order to carry out the provisions of this
section, such repair, reconstruction, restoration, or replacement may be begun
notwithstanding a lack or an insufficiency of funds appropriated for such purpose,
where such lack or insufficiency can be remedied by the transfer, in accordance
with law, of funds appropriated to that agency for another purpose.
(c) Steps for mitigation of hazards - In implementing this section, Federal agencies
shall evaluate the natural hazards to which these facilities are exposed and shall
take appropriate action to mitigate such hazards, including safe land-use and
construction practices, in accordance with standards prescribed by the President."
Note that this authority allows repair, reconstruction, or replacement even before the existence of an authorization or appropriation to do so. As such it is perhaps the only example I know of when Presidential authority is exempt from the appropriation process. Congress may wish to review this authority and see if they believe the exemption should last only until the action can be brought within the appropriations process cycle. Or perhaps it is appropriate as written. I used to place emphasis on this provision of law when briefing high level DOD and DOJ officials on Presidential authority and many of these had no knowledge of it and had never see such broad authority delegated to the President by the Congress. Well one case where an important arrow has been placed in the quiver of authorities of the US President. I presume it has no restriction on its delegation to agency or department heads under 3 USC Section 301. To my knowledge that has not been done, nor has FEMA in its history recommended its use. Perhaps the Murrah Building qualified. But that history is vague.
