One of the broadest grants of discretion from Congress to the President is contained in the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707!
I used this section to highlight the broad Presidential authority and immediate access to funding the authority gave to the President in many briefings in DOD and DOJ and to other agency Emergency Management appointees and employees.
The provision is set forth here:
UNITED STATES CODE ANNOTATED
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 68--DISASTER RELIEF
SUBCHAPTER IV-A--EMERGENCY ASSISTANCE PROGRAMS
§ 5191. Procedure for declaration
(a) Request and declaration
All requests for a declaration by the President that an emergency exists shall be made by the Governor of the affected State. Such a request shall be based on a finding that the situation is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary. As a part of such request, and as a prerequisite to emergency assistance under this chapter, the Governor shall take appropriate action under State law and direct execution of the State's emergency plan. The Governor shall furnish information describing the State and local efforts and resources which have been or will be used to alleviate the emergency, and will define the type and extent of Federal aid required. Based upon such Governor's request, the President may declare that an emergency exists.
(b) Certain emergencies involving Federal primary responsibility
The President may exercise any authority vested in him by section 5192 of this title or section 5193 of this title with respect to an emergency when he determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. In determining whether or not such an emergency exists, the President shall consult the Governor of any affected State, if practicable. The President's determination may be made without regard to subsection (a) of this section.
(Pub.L. 93-288, Title V, § 501, as added Pub.L. 100-707, Title I, § 107(a), Nov. 23, 1988, 102 Stat. 4706.)
Current through P.L. 109-367 (excluding P.L. 109-304, P.L. 109-351,
P.L. 109-364) approved 10-26-06
Of course the words I am focusing on are repeated here:
". . .when he [the President] determines that an emergency exists for which the primary responsibility for response rests with the United States because the emergency involves a subject area for which, under the Constitution or laws of the United States, the United States exercises exclusive or preeminent responsibility and authority. . ."
A single FEMA OGC opinion was written during my time in FEMA discussing this discretionary authority. Note that very few subject matter areas are truly exclusive to the federal government and even criminal law enforcement has many duplications and overlaps and works largely due to principles of "comity" meaning for this purpose recognition of principles of federalism. Unfortunately, "terrorism" has been de facto hijacked by the federal government in various amendments to the US Code, and not just Title 18 of the US Code, the so-called Criminal Code of the US, that directly or indirectly address terrorism. In fact almost 100 various terms involving "terrorism" with differing definitions now exist in the US Code. Exactly who is a statutorily defined "terrorist" is always a good question?
Recently the Administrative Conference of the US has discussed issues of "Preemption" largely in the regulatory context of the Commerce Clause of the Constitution but in fact that principle is also grounded in the Supremacy Clause of the Constitution and de facto in the arena of National Security.
Over the years, several efforts have been made to identify broad Presidential authorities useful in various situations. This clearly is one of the most useful since the terms are largely undefined and can be defined only by implication when a President uses the authority. Again it is interesting that none of the oversight committees have taken any interest in the language above or its utilization or parameters.
I think a specific example or examples might be of interest to readers of this blog. The first one I would identify is Haiti and disaster operations in Mexico for example. One of the interesting things to me about the current Arizona immigration litigation [and jurisdictional issues have now been discussed in the literature overlooked by the federal district court in its decision now on appeal to the Ninth Circuit by the US and the State] is that it might end up with a decision as to the exclusivity of the authority of the US in immigrartion policy and enforcement. Note that current law on immigration has both civil and criminal components. Should such a result occur than perhaps we shall see some future President use this authority in the STAFFORD ACT to deal with an Immigration Emergency. Note that there is some history of this when President Carter used the provisions of the Disaster Relief Act of 1974 (Public Law 93-288) to deal with the Mariel Boatlife [which included both Cubans and Haitians] in 1980. And the Office of Legal Counsel opined that the Disaster Relief Act of 1974 granted the President that authority.
As we see an unskilled and injudicious DHS accelerate the breakdown between foreign and domestic threats, and foreign and domestic intelligence it might be a useful subject for Congressional review as to what each administration would laundry list as falling within the statutory authority discussed above. And of course remember despite any delegation, we are talking of Presidential authority not Secretary DHS or Administrator FEMA authority.