Homeland Security Watch

News and analysis of critical issues in homeland security

June 10, 2016

Friday Free Forum

Filed under: General Homeland Security — by Arnold Bogis on June 10, 2016

William R. Cumming Forum

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19 Comments »

Comment by William R. Cumming

June 10, 2016 @ 1:35 pm

CRS on Disaster Unemployment Assistance link:

http://www.fas.org/sgp/crs/misc/RS22022.pdf

Comment by William R. Cumming

June 10, 2016 @ 1:39 pm

Secretary DHS Johnson interviewed on TV this week. He mentioned Department priorities: Cyber security; border controls; natural disaster response; and other items.

IMO despite some transfer of funds to increase TSA’s dealing with increase in summer workload an analysis of the DHS budget since opening its doors indicates Congress has no real concept of setting DHS priorities through budget mechanisms.

Comment by William R. Cumming

June 10, 2016 @ 1:41 pm

DEMS in Senate keeping Zika Virus funding ahead of other budget priorities including O&M categories in DoD much to chagrin of Senate Republicans.

Comment by William R. Cumming

June 11, 2016 @ 1:41 am

SCOTUS about to star in the history of Presidential Politics IMO!

HRC and the Donald should support President Obama’s SCOTUS choice but for very different reasons IMO!

Comment by William R. Cumming

June 11, 2016 @ 2:37 am

DHS and FEMA should be so-called “expert agencies” due deference under U.S. V. Chevron. Thus, republishing an oldie but goodie:

From: VacationLaneGrp@aol.com Sent: Thu 10/14/2010 10:45 AM
To: Comments@acus.gov
Cc: disaster_law@lists.berkeley.edu
Subject: PREEMPTION
Dear Mr Chairman (Paul):
I was in your law class of 1967 and followed your career with great interest even during your law school years. So first thanks so very much for your continuing contributions to the public dialogue and the public interest. Preemption is a wonderful topic to tackle by the ACUS.
I have read with great interest the proposed draft by Ms. Sharkey. I understand your necessary focus on regulatory aspects. On that score the SCOTUS has not been of assistance because of their constant wandering all over the place on preemption. It does appear that a review of SCOTUS decisions could reach the conclusion that implied preemption of any sort in the regulating and rulemaking context is out and preemption even by agencies with great expertise and discretion unless Congress specifically addresses preemption no such implied preemption can occur. I think the paper and ACUS should address this point and can either agree or disagree with my conclusion.
But I am also very interested in the status of federalism generally especially during the current fiscal crisis of the STATE’s and their local governments. So I suggest a disclaimer that your paper and concerns for now include only Commerce Clause regulation and not anything else. But it should also note that much federal preemption including that of the National Security State is eroding the federal system. Adoption for example of federal criminal laws or national security positions that fail to recognize that much activity under especially Article I Section 8 [the so-called Tax and Spend clause] of the Constitution is de facto preemption and in fact often implied preemption. These areas are significant in eroding the underpinnings of the founders judgements in my opinion and perhaps such a disclaimer would be indication that you believe these areas of preemption [all arenas of preemption other than the Commerce Clause] may deserve future study.
I cite as one example the National Flood Insurance Program (42 USC 4001 and following) for which ACUS did a short study on that programs usage of scientific and technical information in the 1970’s. That program’s regulations at 44 CFR Part 59 and following particularly in the land use arena but also the insurance arena impliedly pre-empt state law. I have tried to get the expert committees in Congress to look at that situation without result. Perhaps a topic for ACUS further research.
In addition to non-Commerce clause preemption which I think should be flat out tied into the Supremacy Clause in the final ACUS paper I think a review of how STATE Supreme Courts have handled federalism issues might be quite constructive.
I have high hopes for your time as Chairman and you have always delivered in the past to my expectations. So thanks again for all your hard work.
Request that this e-mail be included in your Preemption Docket and Review Files. I again emphasize that despite this issue largely falling to the realization that the President is Chief Executive, the shadowy preemption of state authority by the role of the President as Commander-In-Chief is a worry issues of comity in the world of preemption are not well explored by legal or other academic scholars. So looking forward to this challenge.
I also am convinced that if the federal scheme adopted by the founders is to thrive preemption is the cutting edge. Whether we have a federal system in name only or more substantively may in fact rest on the outcome of this discussion and analysis.
Thanks again to you and your staff for taking on this important very important issue. SCOTUS and the Congress and the Executive Branch has not been very helpful with consistent positions on even Commerce Clause Preemption.
Regards Bill
“We are members of one great body, planted by nature in a mutual love, and fitted for a social life. We must consider that we were born for the good of the whole”—Seneca

William R. Cumming
President
The Vacation Lane Group
P.O. Box 327
338 Smith Point Road
Reedville, VA 22539

Comment by William R. Cumming

June 11, 2016 @ 3:00 am

Did you know that both FEMA and DHS have almost no legal authority to set federal standards on almost any topic or subject? This stems in part by the almost total absence of STANDARD SETTING LEGAL AUTHORITY in either the Homeland Security Act of 2002, as amended, and/or the Roberrt T. Stafford Disaster Relief and Emergency Assistance Act, as amended.

CONGRESS IS AWARE OF THIS DEFICIENCY AND DOES NOTHING ABOUT IT!

Thus, OMB Circular A-119 may be a crucial mandate for DHS and FEMA with many FTE [full time employees]and much funding devoted to its mandates. Implemntation should be a line item in the budget of all federal departments and agencies IMO.

https://www.federalregister.gov/articles/2016/01/27/2016-01606/revision-of-omb-circular-no-a-119-federal-participation-in-the-development-and-use-of-voluntary

Comment by William R. Cumming

June 12, 2016 @ 2:28 am

It has long been my opinion that the DoJ should be limited to its formal role in controlling the litigation of the federal government, and the litigation positions of the federal government. It loses too many cases it should win.

I have long advocated since the formation of DHS that the FBI should be under a DHS more like an MI-5.

What do you think and read this link:

https://en.wikipedia.org/wiki/James_Comey

Comment by William R. Cumming

June 14, 2016 @ 4:15 am

The Orlando shooting tragedy reminds US all of the fragility of life and the continued existence of random violence in this age. Whatever the place for single shot weapons in the 18th Century and Justice Scalia failing to read the actual words of the 2nd Amendment [making a travesty of his supposed strict contruction/original intent philosophy of judging] there is no doubt in my mind that full cycle autoloading weapons need to be banned.

Comment by William R. Cumming

June 14, 2016 @ 4:24 pm

The status of the NPPD reorg: https://fcw.com/articles/2016/06/13/nppd-expansion-chowdhry.aspx

Comment by William R. Cumming

June 15, 2016 @ 6:11 am

Anew agency within DHS for CIP and Cyber Security?

https://fcw.com/articles/2016/06/13/nppd-expansion-chowdhry.aspx

Probably not IMO!

Comment by William R. Cumming

June 15, 2016 @ 8:30 am

Extract from ftnote 24 of a CRS report on the Cyber Security E.O.:

Cybersecurity is a convenient umbrella term that tends to defy precise consensus definition. Several different terms
are in use that have related meanings. For example, information security is defined in some subsections of federal copyright law to mean “activities carried out in order to identify and address the vulnerabilities of a government computer, computer system, or computer network” (17 U.S.C. 1201(e), 1202(d)), and, in the Federal Information Security Management Act (FISMA, 44 U.S.C. 3542) as “protecting information and information systems from
unauthorized access, use, disclosure, disruption, modification, or destruction” to provide integrity, confidentiality, and availability of the information. Other terms often used include information assurance, computer security, and network security.

Comment by William R. Cumming

June 16, 2016 @ 5:02 am

I may well be off-blog for the 90 day period following July 9th. I will be on travel

Comment by William R. Cumming

June 17, 2016 @ 5:35 am

FEMA and DHS have updated the FRAMEWORKS in a second edition of PROTECTION, PREPAREDNESS, MITIGATION, RESPONSE AND RECOVERY. DISCUSSION THIS COMING FRIDAY?

Given a statutory mandate for not just FRAMEWORKS but operational plans you can decide whether these will impact EM at the federal level under the Administration of President Obama.

http://www.fema.gov/national-planning-frameworks

Comment by William R. Cumming

June 17, 2016 @ 5:38 am

IMO PLANNING part of PREPAREDNESS not the converse! Agree? Disagree?

And overall PREPAREDNESS includes plans, capabilities [including staffing and funding], mobilization, logistics, equipment, and funding availability IMO.

Comment by William R. Cumming

June 17, 2016 @ 5:48 am

Apparently I mistated the EM paradigm which now consists of PROTECTION, PREVENTION, MITIGATION, RESPONSE AND RECOVERY.

Would it surprise you to find some of these defined by law and/or regulation and some not?

Comment by William R. Cumming

June 17, 2016 @ 5:52 am

Extract:

The National Planning Frameworks, one for each preparedness mission area, describe how the whole community works together to achieve the National Preparedness Goal. The Goal is: “A secure and resilient nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk.” The Goal is the cornerstone for the implementation of the National Preparedness System.

The National Planning Frameworks are part of the National Preparedness System. There is one Framework for each of the five preparedness mission areas:

National Prevention Framework (second edition)

National Protection Framework (second edition)

National Mitigation Framework (second edition)

National Response Framework (third edition)

National Disaster Recovery Framework (second edition)

The Frameworks foster a shared understanding of our roles and responsibilities from the fire house to the White House. They help us understand how we, as a nation, coordinate, share information and work together–which ultimately results in a more secure and resilient nation.

Comment by William R. Cumming

June 17, 2016 @ 6:43 am

CRS’s Jared Brown on the National Preparedness System:

http://www.fas.org/sgp/crs/homesec/R42073.pdf

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