Let's for a minute assume my position that EO 12148 which has been amended many times is no longer of operative legal effect because its underlying legal authority in Reorganization Plan No. 3 of 1978 is no longer in effect. Clearly delegations of the Robert T. Stafford Act by Executive Order are appropriate and should be done in an entirely new Executive order. That stated what could be done to improve E.O. 12148 now?
Let's look at possible language changes to critical section 2 of the order. Executive orders amending other sections of E.O.12148 are E.O.’s 12155,12156,12319,12356,12379,12381, 12673, and 13286.
TEXT OF Proposed Revisions to SECTION 2 OF
EXECUTIVE ORDER 12148
Section 2. Management of Emergency Planning and Assistance
Revison by VLG: Section 2. Establishment and Oversight of Federal Policies Enhancing National Resiliency in Event of Catastrophic Incidents or Events.
2-1. General.
As Revised by VLG:
2-101. Definition: National Resilience shall mean all federal policies, programs, functions and activities that support preparedness, planning, protection, prevention, mitigation, response and recovery in the context of catastrophic events, especially those that destroy governmental capability to accomplish reconsitution and restoration of governmental capabilities.
2-102. The Secretary of Homeland Security shall establish Federal policies for, and coordinate, all civil security and civil resilience policies for catastrophic events including preparedness, planning, protection, prevention, mitigation, response and recovery functions of Executive Branch departments and agencies.
2-103. The Secretary shall periodically review and evaluate the policies, programs, functions, and activities of the Executive Branch departments and agencies to determine their impact on national resilience. In order to improve the efficiency and effectiveness of those programs, functions, and activities the Secretary shall recommend to the President alternative methods of improving national resilience.
2-104. The Secretary shall represent the President in working with State and local governments and the private profit making and non-profit sectors to promote national resilience.
2-105. The Secretary shall provide an annual report to the President for subsequent transmittal to the Congress on issues of national resilience that the Secretary finds appropriate. This may also include the activities of independent federal regulatory entities that impact issues of national resilience. The report shall assess the current overall state of national resilience.
2-2. Implementation.
2-201. In executing the functions under this Order, the Secretary shall develop policies, programs, functions, and activities that to the extent possible provide that all efforts to promote national resilience by Executive Branch departments and agencies are:
(a) founded on the use of existing organizations, resources, and systems, and their programs, functions, and activities to the maximum extent practicable;
(b) integrated to the extent possible with organizations, resources, and programs of State and local governments, the private sector and volunteer organizations; and
2-202. Assignments by the Secretary of national resilience programs, functions, and activities shall, whenever possible, be based on extensions (under emergency conditions) of the missions, programs, functions, and activities of the Executive agencies.
2-203. To the extent authorized by law and within available resources, the Secretary of Defense shall provide the Secretary of Homeland Security with support for national resilience programs in the areas of program development and administration, technical support, research, communications, transportation, intelligence, and emergency operations.
2-206. All Executive agencies shall cooperate with and assist the Secretary in the performance of his/her functions.
---------------------------------------------------------
So perhaps this version will never see the light of day officially but now at least the present and future administrations have a alternative choices. Determine that EO 12148 should be vacated or revised appropriately. One thing for sure its citation of the Federal Civil Defense Act of 1950 [Public Law 920 of the 81st Congress] is defective.
And just for the record I understand that close to 300 Executive Order recommended promulgations and/or revisions now under way in the Executive Branch. Under E.O. 11030, the Executive Order on Executive Orders almost any Executive Branch component can suggest or recommend a new or revised Executive Order. Hopefully at some point NARA will update and provide virtually the REAGAN ADMINISTRATION's 1989 compendium of Extant Executive Orders and their specific language.
Showing posts with label DHS Legal Authorities. Show all posts
Showing posts with label DHS Legal Authorities. Show all posts
Sunday, November 28, 2010
Tuesday, November 16, 2010
Legislative Strategy for DHS
A lexis search of the entirety of the US Code for references to the Secretary Homeland Security and Department of Homeland Security should be conducted and made available publically on a DHS website. I don't have lexis. But my guess is that DHS and its Secretary might be surprised at what turns up or does not turn up.
Then a general technical amendment substituting the Secretary DHS for any subordinate officialof DHS named in Statutes except for the Coast Guard Commandant and the Coast Guard should be drafted and submitted through OMB to Congress.
I also suggest that some statutes identified not be delegated by the Secretary DHS to any component in DHS. But some authorities should be delegated to the heads of other departments and agencies, and this is called cross-delegation.
What most non-lawyers do not realize is that unless there is a restriction in a delegation it may be redelegated. Also no delegation prohibits the person with the authority originally vested with the mandate from exercising authority delegated. Obbviously that fact should not keep that authority from being used sparingly. A good example is that Secretary Chertoff could have been the key player in Katrina but instead he choose to pretend that Michael Brown was in charge.
Also not that delegations are to positions not persons. When a person is specifically named, not a position, then that is called a "designation"!
I also suggest that the General Counsel of DHS establish a system of legal opinions, which may or may not be made public in their entirety, that lists all sections of the US Code for which the opinion or interpretation or whatever is issued. This would also identify which legal opinions went through entire GC review and were actually signed by the GC not some subordinate official. The same system would be developed by each subordinate unit or component of DHS. This systematic recordation of opinions could be vital in COOP or COG operations. Well I do stand for "transparency" just as President Obama says he does.
It is important to reflect on the fact that I know of no single cross-delegation anywhere in DHS or its components and that indicates basic legal work has not been accomplished. My guess is that some MOUs or MOA's or Economy Act efforts are de facto and maybe even de jure cross-delegations.
Another legislative recommendation that would also involve OPM but I think would save money in the short and long run for DHS and its minions is to standardized its retirement with a 25 year and out retirement given stresses and strains from the Homeland Security and EM effort. This would even apply to the badge carrying guntoters and the US Coast Guard. This single retirement system would do the most to foster a culture in DHS that was not divisive or a deterrant to cross-deploments to other components and a single career culture might be the goal.
Also the path to develop new SES capability should ensure that assignments of at least 90 days in a field unit of DHS are included.
I am beginning to wonder why so many second career types are finding DHS hospitable? Is it personal finances or lack of financial planning? Is it ambition? Whatever studies in the past have shown that second career agencies often are less creative and energetic than organizations that raise their own leadership. Frank Carlucci--then an OMB Director or Associate Director when designing Reorganization No. 1 of 1973 which broke up the OEP (Office of Emergency Preparedness) described in writing that organization as the "Old Soldiers Home" and whatever his intention that disparagement did not have some basis in fact. Battlefield
comradary often turns to career friendships and perhaps conflicts of interest.
It would be interesting to know if the components of DHS have any outreach program or effort to other DHS components? Even a PPT Briefing offered during lunchtime on each component might draw a crowd if skilled briefers utilized.
I do continue to worry that DHS is not a very agile organization. Why is that and am I wrong to think DHS should be such an agile organization? Also a learning organization?
Then a general technical amendment substituting the Secretary DHS for any subordinate officialof DHS named in Statutes except for the Coast Guard Commandant and the Coast Guard should be drafted and submitted through OMB to Congress.
I also suggest that some statutes identified not be delegated by the Secretary DHS to any component in DHS. But some authorities should be delegated to the heads of other departments and agencies, and this is called cross-delegation.
What most non-lawyers do not realize is that unless there is a restriction in a delegation it may be redelegated. Also no delegation prohibits the person with the authority originally vested with the mandate from exercising authority delegated. Obbviously that fact should not keep that authority from being used sparingly. A good example is that Secretary Chertoff could have been the key player in Katrina but instead he choose to pretend that Michael Brown was in charge.
Also not that delegations are to positions not persons. When a person is specifically named, not a position, then that is called a "designation"!
I also suggest that the General Counsel of DHS establish a system of legal opinions, which may or may not be made public in their entirety, that lists all sections of the US Code for which the opinion or interpretation or whatever is issued. This would also identify which legal opinions went through entire GC review and were actually signed by the GC not some subordinate official. The same system would be developed by each subordinate unit or component of DHS. This systematic recordation of opinions could be vital in COOP or COG operations. Well I do stand for "transparency" just as President Obama says he does.
It is important to reflect on the fact that I know of no single cross-delegation anywhere in DHS or its components and that indicates basic legal work has not been accomplished. My guess is that some MOUs or MOA's or Economy Act efforts are de facto and maybe even de jure cross-delegations.
Another legislative recommendation that would also involve OPM but I think would save money in the short and long run for DHS and its minions is to standardized its retirement with a 25 year and out retirement given stresses and strains from the Homeland Security and EM effort. This would even apply to the badge carrying guntoters and the US Coast Guard. This single retirement system would do the most to foster a culture in DHS that was not divisive or a deterrant to cross-deploments to other components and a single career culture might be the goal.
Also the path to develop new SES capability should ensure that assignments of at least 90 days in a field unit of DHS are included.
I am beginning to wonder why so many second career types are finding DHS hospitable? Is it personal finances or lack of financial planning? Is it ambition? Whatever studies in the past have shown that second career agencies often are less creative and energetic than organizations that raise their own leadership. Frank Carlucci--then an OMB Director or Associate Director when designing Reorganization No. 1 of 1973 which broke up the OEP (Office of Emergency Preparedness) described in writing that organization as the "Old Soldiers Home" and whatever his intention that disparagement did not have some basis in fact. Battlefield
comradary often turns to career friendships and perhaps conflicts of interest.
It would be interesting to know if the components of DHS have any outreach program or effort to other DHS components? Even a PPT Briefing offered during lunchtime on each component might draw a crowd if skilled briefers utilized.
I do continue to worry that DHS is not a very agile organization. Why is that and am I wrong to think DHS should be such an agile organization? Also a learning organization?
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