Research by the Harvard Environmental and Energy Law Program (EELP), a member of the NLIHC-led Disaster Housing Recovery Coalition (DHRC), reveals that much of the current Administration’s plans for FEMA and the disaster recovery system rest, at best, on shaky legal ground. From the summary dismissal of agency staff to calling for the abolition of the agency, this report lays out how each strategy is likely to fare – and what the consequences may be for our disaster response and recovery system.
In 1970, Congress passed the “Disaster Relief Act,” later amended and renamed the “Stafford Act,” to ensure consistency in the distribution of federal disaster assistance regardless of who is in the White House or the politics of the impacted area. Specifically, Congress passed this law to end policymakers “logrolling” individual disaster bills, which allowed representatives to exchange political favors and attach earmarks to disaster-specific funding packages but led to significant delays and variability in the types of assistance survivors received. By nationalizing one federal disaster relief framework, Congress sought to ensure that all disaster survivors have the same access to assistance, and that the assistance is delivered as efficiently and consistently as possible.
Despite this history, calls have come from within the Administration to do away with the federal disaster system. The report by EELP states that the president likely cannot abolish FEMA via executive order as the president lacks authority to undo or amend statutory or regulatory mandates via such a method.
Additionally, the president likely cannot require that specific conditions are attached to distributing disaster assistance. According to the unconstitutional conditions doctrine, the government cannot deny a discretionary benefit to someone “on a basis that infringes his constitutionally protected interests.” As applied to state and tribal governments seeking federal disaster assistance, the doctrine prohibits Congress and the president from conditioning that assistance on the state or tribal government giving up authority it is otherwise empowered to exercise under the Constitution.
Despite these legal arguments, the Administration appears to be set on attempting to eliminate or otherwise subvert the agency’s statutory mandates in favor of a discretionary, grant-based system controlled by the White House, placing the onus of responding to disasters directly on the states. Elected officials from both sides of the aisle came together in 1970 and 1974 to affirm the federal government’s role in creating a streamlined and effective disaster recovery system to assist disaster survivors. As President Richard Nixon proclaimed while signing the “Disaster Relief Act of 1974,” “[t]his bill responds to a vital need of the American people, and it demonstrates that the Federal Government, in cooperation with State and local authorities, is ready and able to provide compassionate assistance to the victims of natural disasters.”
Read EELP’s full analysis here.