The American Bar Association released a report earlier in the month authored by their Hurricane Katrina Task Force which looked at legal authorities for disaster response. From the report:
The mission of the working group was to look at the over-arching question â€“ were laws and regulations applicable to the response by state and federal officials sufficient to deal with this natural disaster? In assessing this, the working group addressed a number of issues and questions: Were decision makers at various levels of government cognizant of and able to use the authorities they had? If the laws were not adequate, how should gaps be filled and where should changes be made? If the authorities were sufficient, where should the emphasis be in the future to avoid the difficulties which occurred? Emergency authorities at both the federal and state level are often deliberately broad, so as to empower government and its officials to take needed actions. Thus, the fact that authorities lack specificity in some instances does not necessarily indicate an inadequacy of such authority; however, this common characteristic of emergency authorities places a higher burden on officials at all levels of government to ensure that these authorities can be implemented in the most effective way possible. Thus, the question becomes whether authorities were clarified in such a way as to be easily understood and implemented, not whether authority did exist.
And later, the report concludes:
At the federal level, the existing constitutional and statutes provide sufficient response authority. The Stafford Act and the Homeland Security Act of 2002 coupled with the National Incident Management System and the National Response Plan are adequate from an overall perspective. The issue for debate is whether the governmental statutory authorities at every level should be broad, with specificity left for plans, procedures and protocols â€“ or whether the statutes and regulations are sufficiently specific to remove ambiguity and force responsibility and accountability. Not every situation can be anticipated by the enabling statutes, but officials must prepare for, and execute, executive authority and must be accountable for failure to do so.
These are some important issues to think about as Congress considers legislation to change the framework for disaster response this year.