Facts and Rumors: Federal Power in a State of Emergency

From the WashingtonPost:

Fact: Louisiana Governor Kathleen Blanco declared a State of Emergency for her state on Friday, Aug. 26. Full disclosure: The Post reported last week -- erroneously, it turned out -- that Louisiana had not issued such a declaration. A correction was published on Sept. 5.

Fact: President Bush declared a State of Emergency the next day Saturday before Hurricane Katrina hit.

Fact: Presidential declarations of emergency are made after a request from "the governor of the impacted state, based on finding that the disaster is of such severity and magnitude that effective response is beyond the ability of the state and affected local jurisdictions." [Update: The link above doesn't seem to be working anymore, so here's a copy of the page as it appeared on Aug. 14, 2004, courtesy of archive.org's Wayback Machine. The page does not appear to have changed between when it was archived and when I looked at it yesterday.]

Fact: Blanco sent a letter dated Aug. 28 to Bush -- via the FEMA regional director -- requesting that he "declare a major disaster," and Bush responded by wisely declaring an emergency. There is a very slight difference, funding-wise, between declaring a major disaster and declaring an emergency -- the difference is explained here -- but both authorize "emergency protective measures."[Update: Thanks to the astute anonymous reader who provided the link to the letter.]

Fact: A declaration of emergency "unleash[es] the support of any or all of 27 federal agencies. It also authorizes reimbursement of emergency work, such as debris removal and emergency protective measures."

Fact: There is a FEMA program called the National Urban Search and Rescue Response System (US&R) -- now part of the Emergency Preparedness and Response Directorate (EP&R) of the Department of Homeland Security. According to federal legislation, it "provides specialized lifesaving assistance during major disasters or emergencies that the President declares under the Stafford Act. US&R operational activities include locating, extricating and providing on-site medical treatment to victims trapped in collapsed structures, victims of weapons of mass destruction events, and when assigned, performing incident command or other operational activities."
(I think we can all agree that such teams would have been immensely helpful on the two to three days immediately following the hurricane. The Coast Guard did a great job, it would seem, of airlifting people out of drowning homes very soon after the flooding happened, and New Orleans police devoted a great deal of time to performing search and rescue as well. Yes, some deserted, but others stayed and did everything they could to help the city and its residents recover. Perhaps if more search and rescue professionals had been sent in in the immediate aftermath, the police could have spent that time maintaining order in the city.)

Fact: In the Rules and Regulations section of the US&R legislation, "emergency " is defined as "any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States."

Fact: In the supplementary information for the National Urban Search and Rescue Response System legislation, it says (I've taken out some of the extraneous numbers and some unnecessary phrases for ease of reading, but the meaning is unchanged):
Section 303 of the Stafford Act authorizes the President of the United States to form emergency support teams of Federal personnel to be deployed in an area affected by a major disaster or emergency. The President delegated this function to the Director of the FEMA under Executive Order 12148. Under E.O. 13286 of February 28, 2003, the President amended E.O. 12148 to transfer the FEMA Director's delegated authority to the Secretary of Homeland Security, and under Homeland Security Delegation No. 9100, delegated the Secretary's authority under Title V of the Homeland Security Act of 2002, which includes the Stafford Act, to the Under Secretary for Emergency Preparedness and Response (EP&R).

Fact: The Under Secretary for Emergency Preparedness and Response is Michael Brown.
(So, EP&R director -- the head of FEMA, the guy the New Orleans Times Picayune said should "especially" be fired -- had the authority to dispatch specialized rescue squads right away. Where were they? Why didn't the president, under whose direction the Department of Homeland Security ultimately falls, insist on getting those teams on the ground -- or in the air -- as soon as the levees were breached and the flooding began?)
In 1995, the Washington Monthly wrote about FEMA's miraculous turnaround after its abysmal performance dealing with Hurricane Andrew. In that story was this tidbit from Jeffrey Itell, who conducted a massive study of FEMA's operations, which uncovered that FEMA had extensive powers according to the Stafford Act that, to everyone's detriment, it was not exercising:
We found that without state requests, FEMA could assess the catastrophic area, assess what assistance the state needed, start mobilizing that relief, present its recommendations to the governor, and, if necessary … get in the governor's face to force the issue of accepting federal help.
This should all still apply -- unless the Department of Homeland Security nullified these common-sense FEMA powers when it subsumed the agency a couple years ago. (If it did, DHS has a lot of explaining to do.)
Again, that's without state requests. (This is not to say the the local authorities couldn't have done more. For starters, they could have taken into account the substantial number of poor Now Orleans residents who wouldn't have the means to evacuate. But they were right in the middle of it all, their resources overwhelmed, whereas the federal emergency management professionals are likely to have vastly more resources. How many helicopters did the New Orleans Police Department have? I don't know for sure, but I'm guessing not as many as the federal government.)

What's important to remember here is that misinformation is swirling, as is not unusual after unprecedented disasters. (David Brooks of the New York Times recalls the news accounts of [insert then-feared minority group here] cutting off the fingers of the dead in order to steal their wedding rings.)