Tuesday, April 13, 2010

Additional Authority Granted by PKEMA to President under Stafford Act

It has been suggested that my conclusion in a recent post that PKEMA granted no new authority to the President or his delegate Secretary DHS or FEMA under the Stafford Act is an incorrect conclusion.

The writer suggests that improved or new authority under Sections 403,408, and 425 and authorization for pilot programs were all significant enhancements of legal authority to the Executive Branch in disasters. Yes, I agree there were to some extent enhancements and yes maybe even expansions on authority but at least I would argue that improved case management did not require legislation. But the subject is important and will closely review PKEMA again. Why? Because every article I have seen concludes that PKEMA for a variety of reasons allowed creation of a "new" FEMA but is that really the case if the actual legal authority defects in the response and recovery have not been dealt with by Congress. I will have to go back to the House, Senate and White House post-Katrina reports and see if they identified legal authority deficiences. One question that needs an answer is the following: If there is no Gubnatorial request for a disaster or emergency declaration what is the President's power to issue such a declaration? The statute does authorize an emergency declaration for events of particular federal significance or concern! The interesting thing is that in the only formal opinion signed by a GC of the formerly independent FEMA, the GC concluded that only the Department of Justice could make such a determination. HMMMM! I wonder if procedures are in place to include DOJ in review of that special kind of emergency declaration?And wonder of course if the GC of DHS agrees with that analysis. The opinion was issued by FEMA/GC about 1995! It elaborated on an earlier opinion issued by an Associate GC in 1991 based on the specific question of the then Director of FEMA, Wallace B. Stickney!