Saturday, May 7, 2011

FEMA February 2011 Org chart posted on Baseline Docs

New org charts seem to arrive at least annually from FEMA or at least semi-annually. The FEMA counsel's office has taken the legal position that no necessity exists under any applicable federal law to publish FEMA's official delegations in the Federal Register. It should be of interest that NO other counsel office in the entirety of the federal executive branch takes this legal positon not even other components of DHS. The result is that we have to guess what authority and what programs, functions, and activities are delegated to the various FEMA components. Some basics might be in order.

First, just because legal authority is delegated it does NOT mean that the person vested with legal authority to delegate cannot in fact operate under the delegated authority. Thus, in any specific disaster the President could in fact operate all provisions of the STAFFORD ACT without consultation or even cooperation of FEMA. This actually has been done a number of times by the President sometimes without FEMA knowing about it until the bill showed up in the DRF to be paid.

Second, cross-delegations are always authorized thus the Department of Education, Department of Health and Human Services, and the Department of Labor in my time were delegated certain STAFFORD ACT activities although the delegation to HHS was de facto revoked by Director James Lee Witt when he started building hospitals.

Third, the President's power to delegate, once challenged in various cases, now rests primarily on the provisions of 3 US Code Section 301. Unless his/her delegation prohibits redelegation then any delegee of the President may redelegate to any other appropriate organizational head.

When a specific person by name is given authority that is usually referred to as a "designation" not a delegation.

Finally without published delegations the FEMA is in violation of the provisions of Constitutional law set forth by C.J. Marshall in Little v. Bareme. That case held that anyone who was impacted by FEDERAL actions was entitled to know the authority of the person taking the official action. Of course FEMA has always thrived on lack of accountability in its actions and often acts in an arbitrary and capricious manner with no construction of an administrative record. This is because FEMA is largely insulated from judical review because Sovereign Immunity has not been waived in the STAFFORD ACT. This should be remedied.

Just for fun review the FEMA org chart and try and figure out who exactly is accountable for the statutory function of prevention of terrorism assigned by PKEMA 2006 to the FEMA Administrator. Or ask who in FEMA is responsible for gathering, collection, analysis, and dessemination of domestic INTEL? Does FEMA have any law enforcement authority? Can FEMA personnel carry weapons? Does FEMA have any authority to support STATES and their local governments in controlling riots and civil disorders?

Another interesting question! Do other agencies in conducting mission assignments get held harmless by FEMA?

Is FEMA or other water resource agencies required to comply with the Principles and Standards for Water Resource Projects when funded under the DRF?

Has anything of importance not been given a categorical exclusion from preparation of an EIS when conducting its activities?

Many questions and different answers in many of the FEMA regions.