ACSBlog: The Blog of the American Constitution Society

Writing in the Harvard Law & Policy Review, Elaine Kamarck argues that America's ability to prevent future debacles like the aftermath of Hurricane Katrina is hurt by a continued reliance on local first responders to manage large-scale disasters.  She proposes a restructuring of the nation's emergency management system to allow the federal government a more substantial role:

First, disaster assessment must become an automatic federal priority. The larger the disaster, the greater the probability that first responders and political leaders will also be victims. Waiting for them to make assessments, fill out paperwork, and navigate bureaucratic process can, as we have seen, cost lives. Requiring the federal government to do an assessment does not mean that the states should not, if able, do their own assessments. However, prudent planning should assume that in the worst disasters the locals will not be able to provide assessments. Maintaining the assumption embedded in the Stafford Act that state and local officials, victims of disaster themselves, will be capable of conducting assessments is unrealistic and dangerous in an era when disasters, for the reasons cited above, are likely to turn into catastrophes.

Second, FEMA should be moved out of DHS and given enhanced authority to create a truly federal response capability. This reorganization of federal emergency response could be modeled on a recent successful transformation of the armed forces. The last major reorganization of the United States military dealt with the traditional divisions—and rivalries— between the services and the need to make these historically separate bureaucracies into a coherent force in battle. One of its most important innovations was creation of the regional Commander-in-Chief (CINC) command structure in the Defense Department. This organization gives one person the power and authority to plan for a conflict and command the assets of the different service branches. Immediately before the September 11 attacks, Lieutenant Colonel Terrence Kelly published an article on homeland defense in which he suggested borrowing the concept of the CINC for a Homeland Defense Agency. The CINC option may have similar utility when applied to the need for coherent emergency response.

FEMA is the logical place from which to control all emergency responses. As such, FEMA should not only be restored to independent status, with its director having Cabinet rank, it should be given more resources and the formal authority to act as CINC in the preparation and coordination of federal, state and local responses to all kinds of disasters. Given the complexity of the task at hand, an independent and reinvigorated FEMA is the most likely candidate to be able to coordinate other federal agencies and state and local governments into an effective response network.

Even before FEMA was melded into the Department of Homeland Security, the Senate was reluctant to demarcate clear lines of authority, insisting that FEMA share first response, grant-making, and training authority with the Department of Justice’s Office of Domestic Preparedness. Once FEMA was subsumed into DHS, it lost its grant-making authority altogether and was, as became evident during Hurricane Katrina, forced to the sidelines.

In 2002, the federal government staged a simulation of an attack on the United States, wherein terrorists released smallpox on an unsuspecting nation. This simulation, known as “Dark Winter,” indicated that such an attack would likely kill huge numbers of Americans while instigating massive confusion. In “Dark Winter,” federalism issues arose that inhibited the overall government response. Former Senator Sam Nunn, who played the President of the United States in the exercise, said, “We’re going to have absolute chaos if we start having war between the federal government and the state government.”

The sooner a “CINC-like” authority is vested in FEMA, the better. An independent and reinvigorated FEMA can solve the leadership problem. Power and direct access to the President can lure first-rate talent to the agency, not just at the director level, but throughout the agency’s ranks. Governmental failure on a scale experienced during Hurricanes Andrew and Katrina does not arise from reasons that are easily dealt with. It generally indicates the need for some radical rethinking about the assumptions upon which legal frameworks and operating procedures rest. We are likely entering an era of more and more severe disasters; disasters in which the first responders are likely to be victims. In such an era, legal regimes that rely so heavily on local and state action are not only obsolete but downright dangerous.