Robert T. Stafford Act

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.

Presidential Powers During National Emergencies

In January 1962 at the height of the Cold War the Committee on the Judiciary in the House of Representatives released what I view as an important baseline study of laws in effect during a national emergency. A URL has been created by Steve Aftergood of FAS for me for this document which has been previously unavailable in virtual form. Go to the following:
http://www.fas.org/sgp/library/fedlaw.pdf
Congress in my experience, only 45 years and going on, rarely challenges, studies, documents, or even tries to prevent President's from taking emergency actions when necessary for a variety of reasons. This history is long and complex and has not been studies adequately IMO by either academics or the legal profession in particular. One useful effort was the creation of a National Security law course with appropriate materials beginning in the late 80's and now in a 6th edition with appropriate teaching materials. I understand it is the most popular elective course in American law schools. Professors Stephen Dycus and Peter Raven-Hansen are to be congratulated for their efforts in focusing on the use of National Security authorities domestically. Prior to their efforts National Security law was viewed largely as International Relations and Treaty Law and did have some skillful analysis as for example by law professor John Norton Moore who developed several treatises on this approach.
The problem of course is just as Homeland Security has started evolving towards domestic issues of not just security but domestic INTEL, privacy, and civil liberties, and documentation of citizens and noncitizens, the superficial efforts to reconcile US history and the Constitution with these efforts will dominate Homeland Security for the rest of time. Why? Because in a way while the US may not be the "gold" standard anymore in economics or even good governance, as the oldest and richest democracy (republic in reality)the US is closely watched for how it handles these concerns that attempt to reconcile the rights of the individual against the state, and the majority or other significant groups.
I look forwards to posting more on this area of concern.

National Emergencies Act [1976]

AS part of the Senator Frank Church reforms after the Nixon Constitutional violations, the Congress passed and President Gerald Ford signed into law a statute known as the National Emergencies Act (50 U.S.C. 1601 and following). The Special Committee under Frank Church's leadership had discovered that over 400 statutes in the US Code rested on the declaration of a National Emergency. What was not clear at all is whether the Declaration of National Emergency at the inception of the Korean War by President Truman meant all those statutes had full force and effect. Thus the statute was drafted in part to curtail the sloppiness if not the direct assertion of power in National Emergencies by the President. Today fewer than 150 statutes even contain the term "National Emergency" and I would argue most don't convey much in the way of new authority when there standby status is ended. Still over 25 declarations of National Emergency are outstanding and almost all are renewals.

What the National Emergencies Act did provide was a procedural restriction on the use of National Emergency although the statute did not in anyway restrict otherwise in a substantive fashion Presidential authority. The President is to publish any declaration in the Federal Register under the statutory scheme and indicate what specific statutory authority he/she is triggering and what use he/she intends to make of it. And of course a copy of that declaration and Executive Order must be transmitted to the Congress.

Perhaps of some significance is that the Executive Branch no longer sends proposed legislation to Congress that incorporates a "national emergency" trigger thus rendering it standby authority. The result is that gradually the term is disappearing from use by both Congressional members and the Executive Branch. Still the statutory procedure does at least allow the interested public to be notified of Presidential action.

In the drafting of Executive Order 12656 which was issued on November 18, 1988 by President Ronald Reagan and superseded among other Executive Orders a 1969 Executive Order 11490, the drafting team deliberatly utilized the term "National Security Emergency" which appears nowhere in the US Code and was first utilized in E.O. 12472.

In general limitations from the era of FRANK CHURCH have NOT withstood the test of time, including the so called WAR POWERS ACT. But at least at that point in time Congress was at least trying to preserve the Constitutional separation of powers by its actions. Were that today's effort by Congress.

Warning, Notification, and Alerting

Long long ago I was treated to watching expert witnesses on direct and cross-examination explain the technical differences between warning, notification and alerting. Each has its own research findings and milieu. Much to my surprise shortly after 9/11/01 an elaborate public-private partnership was created, substantially federally funded to develop a National Warning Strategy which is in fact available and was issued in 2004. That document is available several places including me.
When I found out about the PPWC (Partnership for Public Warning Commission) I wrote a long letter to the head of that organization whose name at the moment is forgotten telling him of the various research materials available. He called to thank me and I ended up forwarding several boxes of materials on the concept of warning. Apparently some of my ideas appeared without attribution in the final National Strategy document. AOK with me.

One of the documents that I forwarded I still have and now provide for the blog readers. I think most will find it interesting and comparing with the National Strategy arguably documents that we (the US) does not really have a warning strategy. Perhaps it is the eye of the beholder.

Here is the document furnished the Partnerhip:

LEGAL REFERENCES TO WARNING, THREATS, AND PUBLIC INFORMATION
IN THE ROBERT T. STAFFORD ACT (CODIFIED AS CHAPTER 68 OF TITLE 42 OF THE U.S. CODE)

SUBCHAPTER II -- DISASTER PREPAREDNESS ASSISTANCE

DISASTER WARNINGS
(42 U.S.C.§5132)

§202.

(a) The President shall insure that all appropriate Federal agencies are prepared to issue warnings of disasters to State and local officials.

(b) The President shall direct appropriate Federal agencies to provide technical assistance to State and local governments to insure that timely and effective disaster warning is provided.

(c) The President is authorized to utilize or to make available to Federal, State, and local agencies the facilities of the civil defense communications system established and maintained pursuant to §611(d) of the Act [42 U.S.C. §5196(d)], or any other Federal communication system for the purpose of providing warning to governmental authorities and the civilian population in areas endangered by disasters.

(d) The President is authorized to enter into agreements with the officers or agents of any private or commercial communications systems who volunteer the use of their systems on a reimbursable or nonreimbursable basis for the purpose of providing warning to governmental authorities and the civilian population endangered by disasters.

SUBCHAPTER IV -- MAJOR DISASTER ASSISTANCE PROGRAMS

GENERAL FEDERAL ASSISTANCE
(42 U.S.C. §5170a)

§402. In any major disaster, the President may ---
. . . . . .

(3) provide technical and advisory assistance to affected State and local government for -
. . . . . .

(B) issuance of warnings of risks of hazards; . . .

ESSENTIAL ASSISTANCE
(42 U.S.C. §5170b)

§403 (a) In General. Federal agencies may on the direction of the President, provide assistance to meeting immediate threats to life and property resulting from a major disaster, as follows:
. . . . . .
(3) Work and Services to Save Lives and Protect property. Performing on public or private lands or waters any work or services essential to saving lives and protecting and preserving property or public health and safety, including ---
. . . . . .
(F) warning of further risks and hazards;

(G) dissemination of public information and assistance regarding health and safety measures;

(H) provision of technical advice to State and local governments on disaster management and control; and
(I) reduction of immediate threats to life, property, and public health and safety.


EMERGENCY COMMUNICATIONS
(42 U.S.C. §5185)

§418. The President is authorized during, or in anticipation of, an emergency or major disaster to establish temporary communications systems and to make such communications available to State and local government officials and other persons as he deems appropriate.

TITLE VI -- EMERGENCY PREPAREDNESS
SUBTITLE A -- POWERS AND DUTIES
§611(d) Communications and Warnings.
The Director may make appropriate provision for necessary emergency preparedness communications and for dissemination of warnings to the civilian population of a hazard.
. . . . . . .
§611(g) Public Dissemination of Emergency Preparedness Information.
The Director may publicly disseminate appropriate emergency preparedness information by all appropriate means.